The Caging of America
Why
do we lock up so many people?
Six
million people are under correctional supervision in the U.S.—more than were in
Stalin’s gulags.
A
prison is a trap for catching time. Good reporting appears often about the
inner life of the American prison, but the catch is that American prison life
is mostly undramatic—the reported stories fail to grab us, because, for the
most part, nothing happens. One day in the life of Ivan Denisovich is
all you need to know about Ivan Denisovich, because the idea that anyone could
live for a minute in such circumstances seems impossible; one day in the life
of an American prison means much less, because the force of it is that one day
typically stretches out for decades. It isn’t the horror of the time at hand
but the unimaginable sameness of the time ahead that makes prisons unendurable
for their inmates. The inmates on death row in Texas are called men in “timeless
time,” because they alone aren’t serving time: they aren’t waiting out five
years or a decade or a lifetime. The basic reality of American prisons is not
that of the lock and key but that of the lock and clock.
That’s why no one who has been inside a prison, if only
for a day, can ever forget the feeling. Time stops. A note of attenuated panic,
of watchful paranoia—anxiety and boredom and fear mixed into a kind of
enveloping fog, covering the guards as much as the guarded. “Sometimes I think
this whole world is one big prison yard, / Some of us are prisoners, some of us
are guards,” Dylan sings, and while it isn’t strictly true—just ask the
prisoners—it contains a truth: the guards are doing time, too. As a smart man
once wrote after being locked up, the thing about jail is that there are bars
on the windows and they won’t let you out. This simple truth governs all the
others. What prisoners try to convey to the free is how the presence of time as
something being done to you, instead of something you do things with, alters
the mind at every moment. For American prisoners, huge numbers of whom are
serving sentences much longer than those given for similar crimes anywhere else
in the civilized world—Texas alone has sentenced more than four hundred teen-agers
to life imprisonment—time becomes in every sense this thing you serve.
For most privileged, professional people, the experience
of confinement is a mere brush, encountered after a kid’s arrest, say. For a
great many poor people in America, particularly poor black men, prison is a
destination that braids through an ordinary life, much as high school and
college do for rich white ones. More than half of all black men without a
high-school diploma go to prison at some time in their lives. Mass incarceration
on a scale almost unexampled in human history is a fundamental fact of our
country today—perhaps the fundamental fact, as slavery was the
fundamental fact of 1850.
In truth, there
are more black men in the grip of the criminal-justice system—in prison, on
probation, or on parole—than were in slavery then. Over all, there are now more
people under “correctional supervision” in America—more than six million—than
were in the Gulag Archipelago under Stalin at its height. That city of the
confined and the controlled, Lockuptown, is now the second largest in the
United States.
The accelerating rate of incarceration over the past few
decades is just as startling as the number of people jailed: in 1980, there
were about two hundred and twenty people incarcerated for every hundred
thousand Americans; by 2010, the number had more than tripled, to seven hundred
and thirty-one. No other country even approaches that. In the past two decades,
the money that states spend on prisons has risen at six times the rate of spending
on higher education. Ours is, bottom to top, a “carceral state,” in the flat
verdict of Conrad Black, the former conservative press lord and newly minted
reformer, who right now finds himself imprisoned in Florida, thereby adding a
new twist to an old joke: A conservative is a liberal who’s been mugged; a
liberal is a conservative who’s been indicted; and a passionate prison reformer
is a conservative who’s in one.
The scale and the brutality of our prisons are the moral
scandal of American life. Every day, at least fifty thousand men—a full house
at Yankee Stadium—wake in solitary confinement, often in “supermax” prisons or
prison wings, in which men are locked in small cells, where they see no one,
cannot freely read and write, and are allowed out just once a day for an hour’s
solo “exercise.” (Lock yourself in your bathroom and then imagine you have to
stay there for the next ten years, and you will have some sense of the
experience.) Prison rape is so endemic—more than seventy thousand prisoners are
raped each year—that it is routinely held out as a threat, part of the
punishment to be expected. The subject is standard fodder for comedy, and an
uncoöperative suspect being threatened with rape in prison is now represented,
every night on television, as an ordinary and rather lovable bit of policing.
The normalization of prison rape—like eighteenth-century japery about watching
men struggle as they die on the gallows—will surely strike our descendants as
chillingly sadistic, incomprehensible on the part of people who thought
themselves civilized. Though we avoid looking directly at prisons, they seep
obliquely into our fashions and manners. Wealthy white teen-agers in baggy
jeans and laceless shoes and multiple tattoos show, unconsciously, the reality
of incarceration that acts as a hidden foundation for the country.
How
did we get here? How is it that our civilization, which rejects hanging and
flogging and disembowelling, came to believe that caging vast numbers of people
for decades is an acceptably humane sanction?
There’s
a fairly large recent scholarly literature on the history and sociology of
crime and punishment, and it tends to trace the American zeal for punishment
back to the nineteenth century, apportioning blame in two directions. There’s an
essentially Northern explanation, focussing on the inheritance of the notorious
Eastern State Penitentiary, in Philadelphia, and its “reformist” tradition; and
a Southern explanation, which sees the prison system as essentially a slave
plantation continued by other means. Robert Perkinson, the author of the
Southern revisionist tract “Texas Tough: The Rise of America’s Prison Empire,”
traces two ancestral lines, “from the North, the birthplace of rehabilitative
penology, to the South, the fountainhead of subjugationist discipline.” In
other words, there’s the scientific taste for reducing men to numbers and the
slave owners’ urge to reduce blacks to brutes.
William J. Stuntz, a professor at Harvard Law School who
died shortly before his masterwork, “The Collapse of American Criminal
Justice,” was published, last fall, is the most forceful advocate for the view
that the scandal of our prisons derives from the Enlightenment-era,
“procedural” nature of American justice. He runs through the immediate causes of
the incarceration epidemic: the growth of post-Rockefeller drug laws, which
punished minor drug offenses with major prison time; “zero tolerance” policing,
which added to the group; mandatory-sentencing laws, which prevented judges
from exercising judgment. But his search for the ultimate cause leads deeper,
all the way to the Bill of Rights. In a society where Constitution worship is
still a requisite on right and left alike, Stuntz startlingly suggests that the
Bill of Rights is a terrible document with which to start a justice system—much
inferior to the exactly contemporary French Declaration of the Rights of Man,
which Jefferson, he points out, may have helped shape while his protégé Madison
was writing ours.
The trouble with the Bill of Rights, he argues, is that
it emphasizes process and procedure rather than principles. The Declaration of
the Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead of
announcing general principles—no one should be accused of something that wasn’t
a crime when he did it; cruel punishments are always wrong; the goal of justice
is, above all, that justice be done—it talks procedurally. You can’t search
someone without a reason; you can’t accuse him without allowing him to see the
evidence; and so on. This emphasis, Stuntz thinks, has led to the current mess,
where accused criminals get laboriously articulated protection against
procedural errors and no protection at all against outrageous and obvious
violations of simple justice. You can get off if the cops looked in the wrong
car with the wrong warrant when they found your joint, but you have no recourse
if owning the joint gets you locked up for life. You may be spared the death
penalty if you can show a problem with your appointed defender, but it is much
harder if there is merely enormous accumulated evidence that you weren’t guilty
in the first place and the jury got it wrong. Even clauses that Americans are
taught to revere are, Stuntz maintains, unworthy of reverence: the ban on
“cruel and unusual punishment” was designed to protect cruel
punishments—flogging and branding—that were not at that time unusual.
The obsession with due process and the cult of brutal
prisons, the argument goes, share an essential impersonality. The more
professionalized and procedural a system is, the more insulated we become from
its real effects on real people. That’s why America is famous both for its
process-driven judicial system (“The bastard got off on a technicality,” the
cop-show detective fumes) and for the harshness and inhumanity of its prisons.
Though all industrialized societies started sending more people to prison and
fewer to the gallows in the eighteenth century, it was in
Enlightenment-inspired America that the taste for long-term, profoundly
depersonalized punishment became most aggravated. The inhumanity of American
prisons was as much a theme for Dickens, visiting America in 1842, as the
cynicism of American lawyers. His shock when he saw the Eastern State Penitentiary,
in Philadelphia—a “model” prison, at the time the most expensive public
building ever constructed in the country, where every prisoner was kept in
silent, separate confinement—still resonates:
I believe that very few men are capable of estimating the immense amount of
torture and agony which this dreadful punishment, prolonged for years, inflicts
upon the sufferers. . . . I hold this slow and daily tampering with the
mysteries of the brain, to be immeasurably worse than any torture of the body:
and because its ghastly signs and tokens are not so palpable to the eye and
sense of touch as scars upon the flesh; because its wounds are not upon the
surface, and it extorts few cries that human ears can hear; therefore I the
more denounce it, as a secret punishment which slumbering humanity is not
roused up to stay.
Not roused up to stay—that was the point. Once the procedure ends,
the penalty begins, and, as long as the cruelty is routine, our civil
responsibility toward the punished is over. We lock men up and forget about
their existence. For Dickens, even the corrupt but communal debtors’ prisons of
old London were better than this. “Don’t take it personally!”—that
remains the slogan above the gate to the American prison Inferno. Nor is this
merely a historian’s vision. Conrad Black, at the high end, has a scary and
persuasive picture of how his counsel, the judge, and the prosecutors all
merrily congratulated each other on their combined professional excellence just
before sending him off to the hoosegow for several years. If a millionaire
feels that way, imagine how the ordinary culprit must feel.
In place of abstraction, Stuntz argues for the saving
grace of humane discretion. Basically, he thinks, we should go into court with
an understanding of what a crime is and what justice is like, and then let
common sense and compassion and specific circumstance take over. There’s a
lovely scene in “The Castle,” the Australian movie about a family fighting
eminent-domain eviction, where its hapless lawyer, asked in court to point to
the specific part of the Australian constitution that the eviction violates,
says desperately, “It’s . . . just the vibe of the thing.” For Stuntz,
justice ought to be just the vibe of the thing—not one procedural error caught
or one fact worked around.
The criminal law should once again be more like the
common law, with judges and juries not merely finding fact but making law on
the basis of universal principles of fairness, circumstance, and seriousness,
and crafting penalties to the exigencies of the crime.
The other argument—the Southern argument—is that this
story puts too bright a face on the truth. The reality of American prisons,
this argument runs, has nothing to do with the knots of procedural justice or
the perversions of Enlightenment-era ideals. Prisons today operate less in the
rehabilitative mode of the Northern reformers “than in a retributive mode that
has long been practiced and promoted in the South,” Perkinson, an
American-studies professor, writes. “American prisons trace their lineage not
only back to Pennsylvania penitentiaries but to Texas slave plantations.” White
supremacy is the real principle, this thesis holds, and racial domination the
real end. In response to the apparent triumphs of the sixties, mass imprisonment
became a way of reimposing Jim Crow. Blacks are now incarcerated seven times as
often as whites. “The system of mass incarceration works to trap African
Americans in a virtual (and literal) cage,” the legal scholar Michelle
Alexander writes. Young black men pass quickly from a period of police
harassment into a period of “formal control” (i.e., actual imprisonment) and
then are doomed for life to a system of “invisible control.” Prevented from
voting, legally discriminated against for the rest of their lives, most will
cycle back through the prison system. The system, in this view, is not really
broken; it is doing what it was designed to do. Alexander’s grim conclusion:
“If mass incarceration is considered as a system of social control—specifically,
racial control—then the system is a fantastic success.”
Northern impersonality and Southern revenge converge on a
common American theme: a growing number of American prisons are now contracted
out as for-profit businesses to for-profit companies. The companies are paid by
the state, and their profit depends on spending as little as possible on the
prisoners and the prisons. It’s hard to imagine any greater disconnect between
public good and private profit: the interest of private prisons lies not in the
obvious social good of having the minimum necessary number of inmates but in
having as many as possible, housed as cheaply as possible. No more chilling
document exists in recent American life than the 2005 annual report of the
biggest of these firms, the Corrections Corporation of America. Here the
company (which spends millions lobbying legislators) is obliged to caution its
investors about the risk that somehow, somewhere, someone might turn off the
spigot of convicted men:
Our growth is generally dependent upon our ability to obtain new contracts to
develop and manage new correctional and detention facilities. . . . The demand
for our facilities and services could be adversely affected by the relaxation
of enforcement efforts, leniency in conviction and sentencing practices or
through the decriminalization of certain activities that are currently
proscribed by our criminal laws. For instance, any changes with respect to
drugs and controlled substances or illegal immigration could affect the number
of persons arrested, convicted, and sentenced, thereby potentially reducing
demand for correctional facilities to house them.
Brecht could hardly have imagined such a document: a
capitalist enterprise that feeds on the misery of man trying as hard as it can
to be sure that nothing is done to decrease that misery.
Yet
a spectre haunts all these accounts, North and South, whether process gone mad
or penal colony writ large. It is that the epidemic of imprisonment seems to
track the dramatic decline in crime over the same period. The more bad guys
there are in prison, it appears, the less crime there has been in the streets.
The real background to the prison boom, which shows up only sporadically in the
prison literature, is the crime wave that preceded and overlapped it.
For those too young to recall the big-city crime wave of
the sixties and seventies, it may seem like mere bogeyman history. For those
whose entire childhood and adolescence were set against it, it is the crucial
trauma in recent American life and explains much else that happened in the same
period. It was the condition of the Upper West Side of Manhattan under liberal
rule, far more than what had happened to Eastern Europe under socialism, that
made neo-con polemics look persuasive. There really was, as Stuntz himself
says, a liberal consensus on crime (“Wherever the line is between a merciful
justice system and one that abandons all serious effort at crime control, the
nation had crossed it”), and it really did have bad effects.
Yet if, in 1980, someone had predicted that by 2012 New
York City would have a crime rate so low that violent crime would have largely
disappeared as a subject of conversation, he would have seemed not so much
hopeful as crazy. Thirty years ago, crime was supposed to be a permanent
feature of the city, produced by an alienated underclass of super-predators;
now it isn’t. Something good happened to change it, and you might have supposed
that the change would be an opportunity for celebration and optimism. Instead,
we mostly content ourselves with grudging and sardonic references to the silly
side of gentrification, along with a few all-purpose explanations, like
broken-window policing. This is a general human truth: things that work
interest us less than things that don’t.
So what is the relation between mass incarceration
and the decrease in crime? Certainly, in the nineteen-seventies and eighties,
many experts became persuaded that there was no way to make bad people better;
all you could do was warehouse them, for longer or shorter periods. The best
research seemed to show, depressingly, that nothing works—that rehabilitation
was a ruse. Then, in 1983, inmates at the maximum-security federal prison in
Marion, Illinois, murdered two guards. Inmates had been (very occasionally)
killing guards for a long time, but the timing of the murders, and the fact
that they took place in a climate already prepared to believe that even
ordinary humanity was wasted on the criminal classes, meant that the entire
prison was put on permanent lockdown. A century and a half after absolute
solitary first appeared in American prisons, it was reintroduced. Those terrible
numbers began to grow.
And then, a decade later, crime started falling: across
the country by a standard measure of about forty per cent; in New York City by
as much as eighty per cent. By 2010, the crime rate in New York had seen its
greatest decline since the Second World War; in 2002, there were fewer murders
in Manhattan than there had been in any year since 1900. In social science, a
cause sought is usually a muddle found; in life as we experience it, a crisis
resolved is causality established. If a pill cures a headache, we do not ask
too often if the headache might have gone away by itself.
All this ought to make the publication of Franklin E.
Zimring’s new book, “The City That Became Safe,” a very big event. Zimring, a
criminologist at Berkeley Law, has spent years crunching the numbers of what
happened in New York in the context of what happened in the rest of America.
One thing he teaches us is how little we know. The forty per cent drop across
the continent—indeed, there was a decline throughout the Western world— took
place for reasons that are as mysterious in suburban Ottawa as they are in the
South Bronx. Zimring shows that the usual explanations—including demographic
shifts—simply can’t account for what must be accounted for. This makes the international
decline look slightly eerie: blackbirds drop from the sky, plagues slacken and
end, and there seems no absolute reason that societies leap from one state to
another over time. Trends and fashions and fads and pure contingencies happen
in other parts of our social existence; it may be that there are fashions and
cycles in criminal behavior, too, for reasons that are just as arbitrary.
But the additional forty per cent drop in crime that
seems peculiar to New York finally succumbs to Zimring’s analysis. The change
didn’t come from resolving the deep pathologies that the right fixated on—from
jailing super predators, driving down the number of unwed mothers, altering
welfare culture. Nor were there cures for the underlying causes pointed to by the
left: injustice, discrimination, poverty. Nor were there any “Presto!” effects
arising from secret patterns of increased abortions or the like. The city
didn’t get much richer; it didn’t get much poorer. There was no significant
change in the ethnic makeup or the average wealth or educational levels of New
Yorkers as violent crime more or less vanished. “Broken windows” or “turnstile
jumping” policing, that is, cracking down on small visible offenses in order to
create an atmosphere that refused to license crime, seems to have had a
negligible effect; there was, Zimring writes, a great difference between the
slogans and the substance of the time. (Arrests for “visible” nonviolent
crime—e.g., street prostitution and public gambling—mostly went down
through the period.)
Instead, small acts of social engineering, designed
simply to stop crimes from happening, helped stop crime. In the nineties, the
N.Y.P.D. began to control crime not by fighting minor crimes in safe places but
by putting lots of cops in places where lots of crimes happened—“hot-spot
policing.”
The cops also began an aggressive, controversial program
of “stop and frisk”—“designed to catch the sharks, not the dolphins,” as Jack
Maple, one of its originators, described it—that involved what’s called
pejoratively “profiling.” This was not so much racial, since in any given
neighborhood all the suspects were likely to be of the same race or color, as
social, involving the thousand small clues that policemen recognized already.
Minority communities, Zimring emphasizes, paid a disproportionate price in kids
stopped and frisked, and detained, but they also earned a disproportionate gain
in crime reduced. “The poor pay more and get more” is Zimring’s way of putting
it. He believes that a “light” program of stop-and-frisk could be less
alienating and just as effective, and that by bringing down urban crime
stop-and-frisk had the net effect of greatly reducing the number of poor
minority kids in prison for long stretches.
Zimring insists, plausibly, that he is offering a radical
and optimistic rewriting of theories of what crime is and where criminals are,
not least because it disconnects crime and minorities. “In 1961, twenty six
percent of New York City’s population was minority African American or Hispanic.
Now, half of New York’s population is—and what that does in an enormously
hopeful way is to destroy the rude assumptions of supply side criminology,” he
says. By “supply side criminology,” he means the conservative theory of crime
that claimed that social circumstances produced a certain net amount of crime
waiting to be expressed; if you stopped it here, it broke out there. The only
way to stop crime was to lock up all the potential criminals. In truth,
criminal activity seems like most other human choices—a question of contingent
occasions and opportunity. Crime is not the consequence of a set number of
criminals; criminals are the consequence of a set number of opportunities to
commit crimes. Close down the open drug market in Washington Square, and it
does not automatically migrate to Tompkins Square Park. It just stops, or the
dealers go indoors, where dealing goes on but violent crime does not.
And, in a virtuous cycle, the decreased prevalence of
crime fuels a decrease in the prevalence of crime. When your friends are no
longer doing street robberies, you’re less likely to do them. Zimring said, in
a recent interview, “Remember, nobody ever made a living mugging. There’s no
minimum wage in violent crime.” In a sense, he argues, it’s recreational, part
of a life style: “Crime is a routine behavior; it’s a thing people do when they
get used to doing it.” And therein lies its essential fragility. Crime ends as
a result of “cyclical forces operating on situational and contingent things
rather than from finding deeply motivated essential linkages.” Conservatives
don’t like this view because it shows that being tough doesn’t help; liberals
don’t like it because apparently being nice doesn’t help, either. Curbing crime
does not depend on reversing social pathologies or alleviating social
grievances; it depends on erecting small, annoying barriers to entry.
One fact stands out. While the rest of the country, over
the same twenty-year period, saw the growth in incarceration that led to our
current astonishing numbers, New York, despite the Rockefeller drug laws, saw a
marked decrease in its number of inmates. “New York City, in the midst of a
dramatic reduction in crime, is locking up a much smaller number of people, and
particularly of young people, than it was at the height of the crime wave,”
Zimring observes. Whatever happened to make street crime fall, it had nothing
to do with putting more men in prison. The logic is self-evident if we just
transfer it to the realm of white-collar crime: we easily accept that there is
no net sum of white-collar crime waiting to happen, no inscrutable generation
of super-predators produced by Dewar’s-guzzling dads and scaly M.B.A. profs; if
you stop an embezzlement scheme here on Third Avenue, another doesn’t naturally
start in the next office building. White-collar crime happens through an
intersection of pathology and opportunity; getting the S.E.C. busy ending the opportunity
is a good way to limit the range of the pathology.
Social trends deeper and less visible to us may appear as
future historians analyze what went on. Something other than policing may
explain things—just as the coming of cheap credit cards and state lotteries
probably did as much to weaken the Mafia’s Five Families in New York, who had
depended on loan sharking and numbers running, as the F.B.I. could. It is at
least possible, for instance, that the coming of the mobile phone helped drive
drug dealing indoors, in ways that helped drive down crime. It may be that the
real value of hot spot and stop-and-frisk was that it provided a single game
plan that the police believed in; as military history reveals, a bad plan is
often better than no plan, especially if the people on the other side think
it’s a good plan. But one thing is sure: social epidemics, of crime or of
punishment, can be cured more quickly than we might hope with simpler and more
superficial mechanisms than we imagine. Throwing a Band-Aid over a bad wound is
actually a decent strategy, if the Band-Aid helps the wound to heal itself.
Which leads, further, to one piece of radical common
sense: since prison plays at best a small role in stopping even violent crime,
very few people, rich or poor, should be in prison for a nonviolent crime.
Neither the streets nor the society is made safer by having marijuana users or
peddlers locked up, let alone with the horrific sentences now dispensed so
easily. For that matter, no social good is served by having the embezzler or
the Ponzi schemer locked in a cage for the rest of his life, rather than having
him bankrupt and doing community service in the South Bronx for the next decade
or two. Would we actually have more fraud and looting of shareholder value if
the perpetrators knew that they would lose their bank accounts and their
reputation, and have to do community service seven days a week for five years?
It seems likely that anyone for whom those sanctions aren’t sufficient is
someone for whom no sanctions are ever going to be sufficient. Zimring’s
research shows clearly that, if crime drops on the street, criminals coming out
of prison stop committing crimes. What matters is the incidence of crime in the
world, and the continuity of a culture of crime, not some “lesson learned” in
prison.
At the same time, the ugly side of stop-and-frisk can be
alleviated. To catch sharks and not dolphins, Zimring’s work suggests, we need
to adjust the size of the holes in the nets—to make crimes that are the
occasion for stop-and-frisks real crimes, not crimes like marijuana
possession. When the New York City police stopped and frisked kids, the main
goal was not to jail them for having pot but to get their fingerprints, so that
they could be identified if they committed a more serious crime. But all over
America the opposite happens: marijuana possession becomes the serious crime.
The cost is so enormous, though, in lives ruined and money spent, that the
obvious thing to do is not to enforce the law less but to change it now. Dr.
Johnson said once that manners make law, and that when manners alter, the law
must, too. It’s obvious that marijuana is now an almost universally accepted
drug in America: it is not only used casually (which has been true for decades)
but also talked about casually on television and in the movies (which has not).
One need only watch any stoner movie to see that the perceived risks of smoking
dope are not that you’ll get arrested but that you’ll get in trouble with a
rival frat or look like an idiot to women. The decriminalization of marijuana
would help end the epidemic of imprisonment.
The rate of incarceration in most other rich, free
countries, whatever the differences in their histories, is remarkably steady.
In countries with Napoleonic justice or common law or some mixture of the two,
in countries with adversarial systems and in those with magisterial ones,
whether the country once had brutal plantation-style penal colonies, as France
did, or was once itself a brutal plantation-style penal colony, like Australia,
the natural rate of incarceration seems to hover right around a hundred men per
hundred thousand people. (That doesn’t mean it doesn’t get lower in rich,
homogeneous countries—just that it never gets much higher in countries otherwise
like our own.) It seems that one man in every thousand once in a while does a
truly bad thing. All other things being equal, the point of a justice system
should be to identify that thousandth guy, find a way to keep him from harming
other people, and give everyone else a break.
Epidemics
seldom end with miracle cures. Most of the time in the history of medicine, the
best way to end disease was to build a better sewer and get people to wash
their hands. “Merely chipping away at the problem around the edges” is usually
the very best thing to do with a problem; keep chipping away patiently and,
eventually, you get to its heart. To read the literature on crime before it
dropped is to see the same kind of dystopian despair we find in the new
literature of punishment: we’d have to end poverty, or eradicate the ghettos,
or declare war on the broken family, or the like, in order to end the crime
wave. The truth is, a series of small actions and events ended up eliminating a
problem that seemed to hang over everything. There was no miracle cure, just
the intercession of a thousand smaller sanities. Ending sentencing for drug
misdemeanors, decriminalizing marijuana, leaving judges free to use common
sense (and, where possible, getting judges who are judges rather than politicians)—many
small acts are possible that will help end the epidemic of imprisonment as they
helped end the plague of crime.
“Oh, I have taken too little care of this!” King Lear
cries out on the heath in his moment of vision. “Take physic, pomp; expose
thyself to feel what wretches feel.” “This” changes; in Shakespeare’s time, it
was flat-out peasant poverty that starved some and drove others as mad as poor
Tom. In Dickens’s and Hugo’s time, it was the industrial revolution that drove
kids to mines. But every society has a poor storm that wretches suffer in, and
the attitude is always the same: either that the wretches, already dehumanized
by their suffering, deserve no pity or that the oppressed, overwhelmed by
injustice, will have to wait for a better world. At every moment, the injustice
seems inseparable from the community’s life, and in every case the arguments
for keeping the system in place were that you would have to revolutionize the
entire social order to change it—which then became the argument for
revolutionizing the entire social order. In every case, humanity and common
sense made the insoluble problem just get up and go away. Prisons are our this.
We need take more care.
