Fallacies, by E.C. Theus-Roberts
I suppose the first most important thing to understand is prison is different. To comprehend just how it differs it's necessary to explore some of its long, convoluted history because, here in the United States, the Penal Institution and criminal justice are two peas in a very singular pod. The U.S. Penal Institution is unique in that its present main characteristic is mass incarceration. With the largest incarcerated population of any country in the world—not counting those under the yoke of state authority and supervision—, the Penal Institution is a considerable spot in the U.S. economy. Likewise, economics plays a role, though this is often glossed over, in mass incarceration. The U.S. can be described as an anomic society, meaning the attainment of what is socially deemed necessary can supersede conformity to or employment of, strictly, legitimate means. To quote the great Vince Lombardi: "winning isn't everything; it's the only thing." In a capitalist society the pursuit of happiness is inextricably interwoven with the economic. Higher up the economic ladder we find ourselves the more secure and safer we are in our person, property and such. Nothing is so uncertain as the abyss of poverty. But, the social structure is also one of drastic polarity. An overwhelming majority are found in the "Have Not's" category with increasingly less and less in prospects, protections, and power over their lives. While the "Have's" wield an authority disproportionate to their numbers. The economic focus and class disparity in the U.S. is conducive to criminality which in turn gives place to the need for mass incarceration.
Being commodity-centric and inegalitarian isn't the whole of it.
A little over 150 years ago, the U.S. had this "peculiar institution" called slavery. Not indentured slavery but rather African slavery—what was referred to as three-fifths a person; more animate property than human beings. In Antebellum Southern United States, an African slave had all the rights their owner decided to bestow upon them (often times this meant little more than the privilege of living and sustenance). Thousands of books and studies have been done on Antebellum South, its origins, reality, consequences, and legacy. As it relates to criminal justice and Penal Institution (its descendant), it's important to recall the cavelier consideration, attitude and treatment of the African slave. Despite having a benevolent or despotic master, whichever way Fortune favored. The slave had no rights, not even the right to die. Antebellum South saw the slave as an inferior, sub-humanoid race wholly incapable of higher reasoning, self-governance, culture, and all the things that make people human. Criminals are viewed with the same obtuse perspectives, if not more so.
As was the case with slavery, entire scientific branches were developed, phrenology and criminology among others, to explain the aberration that is the criminal and validate some of the most depraved and counterintuitive measures and responses to criminality. Turning to the 13th Amendment of the U.S. Constitution, we get a peek into the origins, the why behind the United States' peculiar global position regarding criminal justice and penological interests. In the U.S., the criminal, the "convicted" criminal that is, is considered in the same light as an African slave in addition to the universal malice levelled the world over towards criminals. Here, the criminal gets a double whammy:
Antebellum South: slaves are property.
U.S. Constitution: "[N]either slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted,...."
U.S. Courts: "[H]e [convict] is civiliter mortuus...."
These anecdotes translate into several important realities all spelled out succinctly in Ruffin v. Commonwealth, 62 Va. 790, decided 1871. First among them, "[T]he Bill of Rights.... And the principles which it declares have reference to freeman, and not to convicted felons." Secondly, "[A] convicted felon has only such rights as the statutes may give him."
Combine these and the foregoing and you find out why and from where we learned to view a criminal in hostility. Criminals are likened to a social cancer and treated in similar fashion. In a way, incarceration is a societal surgery. Through imprisonment we can excise the malignancy, but unlike actual surgery, we never can fully dispose of those once incarcerated. Herein lies the paradox of the U.S. Penal Institution; a duality, contradiction, a severe dissonance in both perspective and reality. On the one hand, you have historical precedents giving almost carte blanche as it relates criminals. In this day and age, a very many wrongs against our fellow man can be absolved if the wronged party can be proven a criminal. On the other, regarding penitentiaries proper, authorities tasked with protecting civil rights and upholding the law seem to bethink themselves the three monkeys in that fable: see no evil, hear no evil, speak no evil. When it comes to prisons and the people caged in them "[T]raditionally, federal courts did not intervene in the internal affairs of prisons and instead adopted a broad hands off attitude.... [author's emphasis]" And what's good for the goose is great for the gander. State courts have, with extremely few exceptions, followed suit. Today, the Penal Institution, or various departments of corrections, as they are ironically called, is a semi-autonomous feifdom with the closest thing approaching absolute power in modern terms. When you are dealing with civiliter mortuus, whether citizen or noncitizen, the dead have no rights.
For the moment, let those facts set the tone for the historics and inform our understanding of the prisoner's unique social status and the singularity of the U.S. approach to criminogenic questions. Veering over into penological methodology, there are several approaches that seem to vye for predominance. Most of these mirror the different schools of criminologic thought, with a good dose of psychology and sociology thrown into the mix. Social structure, strain, social ecology, positivistic, sub-culturist, social process theoretic and the like. All of them boil down to different preconceived notions on the best way to address our social cancer—the criminal—and cure it, if at all possible. In recent years the Norwegian and Germanic criminogenic methodologies have gained in appeal and many in corrections are seemingly receptive to these being considerations for the future. Among many approaches there is one, historically and presently, the U.S. has had habitual recourse to: deterrence.
Deterrence, in and of itself, seems pretty straightforward. Deterrence Theory (and its myriad applications) are all centered on punishment. Deterrence says that the more severe and certain a crime's or wrong's punishment is the more probable and effective it is to "deter" an individual's actions. A sophisticated version of "cause and effect," wherein, the effect (imprisonment) deters the cause (crime). Although, over the past couple of decades the theory's been debunked it remains. "Tough on crime," "total incapacitation," "sentence-enhancers," and other severities consequence of Deterrence Theory have done little to nothing to stop or even slow criminality. Realistically, were deterrence effective, the U.S. would not have its current mass incarceration problem. Regardless of this social reality, the deterrence mentality—a punish first and severely mindset—is alive, well, and frighteningly persistent in the Penal Institution. This is important, as we will soon see, because it functions as a species of violence, a psychological coercive, which impacts penal environments on a physical, as well as mental, plane, influencing, as of yet, undeveloped penal methodologies.
It was necessary to discuss all this to provide a proper context and background for examining the Penal Institution as it operates today. Stepping into a penitentiary there are only two categories of people we can encounter. Those there voluntarily (i.e., correctional officers, mental health workers, medical and educational personnel, management and administrative staff, etc.) and those not (i.e., convicts). Both groups, similarly situated location-wise, experience the same psychological pressures and processes but manifest drastically different effects. Penal institutions are what we know as environments conducive to "total situations." A total situation means all actor roles, conduct restrictions, expectations, and the like are clearly delineated and the only action(s) needed by the actors in the play is to behave as specified. Although far from total in their effects, total situations do ameliorate the personal (i.e., individual conscience, personality, sense of right and wrong, etc.) in the vast majority of circunstancias. What's more, since total situations are "beyond the individual's control," their consequences turn the actors into guiltless parties. This applies predominantly to the first category. In total situations, conformism is the role not the exception. Two psychologists, Stanley Milgram in the 1960s and Philip G. Zimbardo in the 1970s, demonstrated just how far average people could be coerced beyond the personal when presented with a total situation. Though both experiments were and continue to be provocative, offensive and controversial. At base, their validity is what's most shocking.
Leaving aside morality questions about human experiments in the furtherance of scientific knowledge in the U.S., situational ethics plays a big role in penal operations and management of criminogenic needs. Take myself for example. Besides being a dead citizen and all the negative bias inherent in the label 'convicted felon.' Over the course of my early incarceration, I'd earned another, more consequential label: management problem. In penology, as in criminal justice, all efforts and attentions turn on the effect not the cause. Therefore, if and when a prisoner attacks a penal official, guard, other employees, or another prisoner all focus is directed toward punishing the act and mitigating or obviating its potential future repetition. This mirrors law enforcement and criminal justice in their pursuit of the Deterrence Fallacy. By following deterrence methodologies, corrections zeros in on punishment to the almost complete exclusion of all else. While 'corrections,' at least in theory, encompasses proportional punishment for wrongs/offenses and instruction in correcting behavior patterns, to include thought processes. Under deterrent influences, punishment is not a means to an end, but rather the end itself. This is where the mentality of "with enough punishment they'll learn" comes from. The 'they' being malefactors in society and prison. Only peripheral attentions, if any at all, are paid to direct and indirect causes. An inmate who has recourse to violence is treated as if they had refused or disregarded all other "peaceable alternatives." Same holds true in our criminal courts. Criminals, whether duly convicted or presumably innocent, are punished as if this were fact.
Returning to my mention of an anomic society, the social forces which contribute to crime are not considered determining factors in an individual's 'choice' to commit crime(s). Take for instance the following:
A poor, single mother of two, receiving state assistance and housing who is selling narcotics out of said housing. Is she a criminal for breaking the law? Definitely. Is she contributing to the general moral decay of society? What's more, potentially providing her impressionable children with an example in antisociality? Without any doubts. These constitute the effects, but what of the causes that produced them? Can we punish her or attach the criminal label with a clear conscience once we factor in her situation? For instance, in today's economy many of the open labor positions are so low paying or labor intensive and hazardous a person would have to work multiple full- or part-time jobs in order to maintain themselves above the poverty line. For a single person this is no issue, but for a poor, single mother of two it's impossible. How is she supposed to work two or more jobs and raise her children? There aren't enough hours in the day. Besides lack of any meaningful employment options, add in substandard education habitual in poor neighborhoods which are also areas of high incidence of violence, drug and alcohol abuse, teenage pregnancy, crime, destitution, and early death. Considering all this, the mother in our example can be said to have chosen the lesser evil. Society does not see it in this light. Because we are concentrating on the effects it is a simple matter to punish and claim it is merited due to the criminal's 'choice.' The causes are part and parcel our social structure, meaning that if we validate the causes we are admitting our social structure is malformed which, consequentially, throws every aspect of it into question; in particular, law enforcement, criminal justice, and the Penal Institution. Society takes the easy way out and under the umbrella of deterrence we find justification and absolution for any unintended harms consequence our fallacious approach.
This occurs daily in penitentiaries across the nation. Convicted felons are already dehumanized with the brand of criminal. Criminal, as I pointed out above, is despised and regarded in the same light as slaves and the dead. So, returning to our physically violent prisoner, his actions are seen as a free choice and punished in proportion to the disregard that choice evinces. My wording is intentional. Punishment in the Penal Institution is neither dependent on nor in strict relation to any physical harm done. As a result of one contumacious convict's action—say, assaulting a guard in a Colorado penitentiary—several effects, punitive effects, are occasioned by this cause. One immediate response is physical retaliation visited upon the perpetrator. At this stage you are bound to hear "stop resisting!" boomed numerous times while fists, elbows, knees, feet, pepper spray, and tasers are being launched against said criminal. In Colorado, following this 'roughing up' are the formal mechanisms. Being placed in punitive segregation, if not an emergency transfer. Penal code infraction charges. Reclassification and placement in Management Control Comprehensive (MCC; a 20 and 4 hour program which replaced the former 23 and 1 Administrative Segregation). As a result of penal code violations there will be monetary restitution, loss of privileges (LOP; i.e., no telephone, television, canteen, visitation, etc.), loss of good time and earned time (which affects a prisoner's release date), other punishments such as VRP (violence reduction program), which is the equivalent of a year's worth of LOP. Then, there are the heightened security protocols (e.g., a 3-4 man, hands-on escort, a can of pepper spray and taser, with probes, at the ready, a tether, even a transport hood might be added to the mix.) This will all be done long before the prisoner faces felony charges in our courts. Once in our courts of law, this same criminal is subject to more and harsher sentences to further incarceration; try, at minimum, eight years to be served after the sentence already being served. That eight years is normally if there was no weapon involved and only minor injuries (i.e., a fat lip, black eye, other scratches and bruises). More often than not the sought after punishment is a double digit figure.
In the Colorado penal system, an inmate may plead: 1) guilty; 2) not guilty; or 3) guilty with an explanation. The latter, in theory, would allow us to consider the cause (provocation) which led to the effect (assaulting a guard). In practice, the cause, whatever it may have been, is given very little import. Unless an officer acted well and inexcusably beyond the established boundaries of discretional latitude attendant their position, no explanation is good enough. Despite any causation and irregardless any level of harm done, punishment must follow and it must be severe in order to dissuade future rule-breakers even from entertaining the thought. Beyond simple deterrence and prevention or correction through sufficient punishment, the roots of such severity measures and disproportionality go deeper.
U.S. prisons tend to be hyper-masculine (i.e., aggressive and violence prone) environments where a multi-faceted subculture of violence is the norm. In general, we see values as being the determinant of interpersonal violence. In a total situation like the penitentiary, the unique social structure overrides personal value systems. We tend to think of violence as physical (e.g., a fist fight), but there are a very many other forms and expressions of violence. The best way to explain violence is the imposition of one will on another; force. Though we rarely consider it a "violence" when two schools of thought clash, it is exactly that. One attempts to gain dominance, the other resists, and there is the basis of violent conflict. Penal subcultures of violence often express themselves in many less than spectacular forms. A guard may conduct a cell search and leave the prisoner's meager belongings in haphazard disarray, damaging pictures, books; tearing letters, documents, etcétera, etcétera. It might be the withholding of mail. Perhaps, confiscation of clothing under some facile pretense. It could very well be nothing more than dictating when an offender may or may not do this or that or the other; what time they will be allowed to shower; when they may use the telephone; or, that they must do or comply with x and/or y before they can have access to a shower or even food.
Trivial as this all may sound, it is calculated to inculcate in the convict a sense of his position in the Penal Institution. Trivial or not, these expressions of domineering authority happen daily, as too does objectification, impersonalization, and dehumanization. In the total situation found in penitentiaries, those managing, administrating, and operating the prison are enjoined to sublimate their personal for situational ethics. They are the quasi-absolute authority and quod principi placuit vigorem legis habet, which in latin means: whatever pleases the ruler has the force of law. To qoute Ruffin v. Commonwealth again, "[a] convicted felon, ...., is subject while undergoing that punishment [incarceration] to all the laws...." We may believe it reasonable, criminals did 'chose' crime. So when penal administrators punish every offender in a prison (e.g., a lockdown for a gang-related fight or confiscate all electronic devices because some prisoner fabricated weapons out of them), they and the guards actually implementing their orders are just doing their jobs. Situational ethics absolve individual actors of any responsibility because, it is part of their job therefore, they must comply or they are in the wrong. This is why the legitimacy of total situations is so important. They compel us to act in ways we may deem personally distasteful but acceptable due to our roles in the situation.
This is why there is a paradox in penology. Guards can, and often do, feel certain treatments of offenders are "messed up." Yet, they will rare times do anything to alleviate or rectify it because, "there's nothing I can do." Look at the penal philosophy of "treat every offender like they're human." If it weren't for the circunstancias, people would question this illogical statement. This is the paradox in penology. Through decades upon decades into centuries we have ingrained into our collective unconscious the statements detailed in earlier passages (i.e., 2nd, 3rd, and 4th paragraphs). A convicted felon is not a citizen and has no right whatsoever but to await the state's fancy. As a criminal, neither are you a person. Being neither a person nor a citizen you have not a single right to considerate treatment, let alone equal treatment. No individuality, no humanity, no dignity. More than this, criminals are denied expression of such; guards are also discouraged from acknowledging these in prisoners. If these human characteristics are attributed to an offender then, they to be "offender so-and-so" and become a real person; and, people have inviolable rights. Such is the underlying principle in the aforementioned penal philosophy.
Contradiction of our real Penal Institution versus its existence in theory is frightening and socially detrimental. To think we can dehumanize, objectify, punish people for years, decades, only to one day release them and expect no ill effects is beyond ridiculous; it's lamentable for all involved. As we can see, to discuss the penitentiary is to explore other, outside aspects in society because, though we would like to believe the events of penitentiaries happen in a vacuum, that is a fantasy. With each person, whether employee or internee, who returns to society at large from this alter-reality, they bring with them all the psychological processes and traumas imprinted on them during and because of their involvement with the Penal Institution. Efforts at reforming today's peculiar institution are disappointing and have been because, almost without exception, they fail to factor in the interrelation between law enforcement, criminal justice, and corrections. Failure here leaves veiled the unbroken chain of prejudice, bias, negative attitudes leading to a criminality continuum which is self-perpetuating due to treatment received, perspectives and preconceptions imposed, and approaches towards crime prevention and criminal punishment or correction.
With Deterrence Theory forming the cement flooring of mass incarceration penal methodology there are innumerable instances in which guards and administrators—treating prisoners or just doing their jobs—contribute to a deepening of the root causes of mass incarceration and create a strong detestation for authority. While we can treat prisoners and convicted felons as we did slaves, turning a blind eye and a deaf ear to their pleas and inhumane treatment. For most of U.S. history "[p]revailing view [has been] prisoner was a mere 'slave of the state.' (quoted in Jones v. North Carolina Prisoner's Labor Union, Inc., 433 U.S. 119.)" So there is plenty of precedent. But we must also realize the things we do to other people in the voids of our jails, courthouses, detention facilities, and departments of corrections are actions which will and are directing present and future societal development. Whether we persist in our current deterrence fallacy, building more upon decades of socially degenerating misconceptions dating farther back than slavery and this nation's birth. Or, actually acknowledge and address the cause behind society's drug-selling mother of two and the penitentiary's management problems. One thing is certain, the things we do to others, regardless of how we label it and them, are like bats—they always come home to roost.