Sunday, October 30, 2011

Tocqueville's "Pretext" and the Spectre of Warehousing

Alexis de Tocqueville’s Democracy in America is a highly celebrated book in certain academic circles. Introducing a handsome hardcover edition for the University of Chicago Press in 2000, Harvey C. Mansfield and Delba Winthrop went so far as to assert that it is “the best book ever written on democracy and the best book ever written on America.”

This post is not the right forum to assess that remarkable double claim. For now, I seek only to note the book’s historical connection to Tocqueville’s interest in prison reform.

In 1831, Alexis de Tocqueville and another young Frenchman, Gustave de Beaumont, traveled though America for about nine months. The two friends had procured an assignment from the French government to report on prison reform.

Tocqueville’s larger interest was a grand project to understand and interpret the dynamics of democracy and social equality in the United States. The applicability of this study to hierarchical European societies was of urgent concern in the wake of the French Revolution.

In a letter written in 1835, Tocqueville referred to the study of American penal reform as a “pretext” for the trip. But in January 1831, he and Beaumont did publish the study they promised. The English title is On the Penitentiary System in the United States and Its Application to France.

What was the nature of the reform that Tocqueville and his friend sought to study? It involved the goal of reforming people in penitentiaries, rather than merely punishing them in prisons.

Today, the prospect of penance in prison is a private matter. But to the reform movement Tocqueville and Beaumont came to study, penance was seen as central to the very purpose of prison. There are still vestiges of this in our retention of the word “correctional” in the phrase “correctional facility.”

After all, “correction” is a secular echo of the religious penance that reformers once promoted. Spiritual transformation is still possible in prison in 2011. But it is not the state’s concern. Indeed, even the notion of rehabilitation is not much favored anymore.

And that raises a spectre that haunts our entire correctional system. The spectre of warehousing.

Friday, October 28, 2011

U.S. Supreme Court Clarifies the Purpose of Prison

A federal judge gives a man a 51-month sentence for smuggling illegal aliens into the United States. The judge makes the sentence that long so that the man will qualify for a residential drug treatment program.

This is not permissible, the U.S. Supreme Court decided last June in Tapia v. United States. Writing for the Court, Justice Elena Kagan pointed to the text of the sentencing guidelines legislation passed by Congress in 1984.

The legislation specifically directs courts to “recognize[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” (18 U.S.C. 3582(a))

I have not really digested this opinion yet. But I will ask one question. Is it any wonder, with this view of imprisonment, that the recidivism rate for released inmates is so high?

To be sure, the large majority of prisoners are in state systems, not the federal system. Less than fifteen percent of prisoners are in the federal system. Indeed, two state systems - Texas and California - each rival the entire federal system in size.

In addition, in the state systems themselves, many states have rejected the structured sentencing guidelines system that prevails in the federal system. This was due, in part, precisely because of the perceived rigidity of the federal guidelines.

Nonetheless, U.S. Supreme Court decisions are always important, not only for the law they establish but for the tone they set. In Tapia, the Court's decision speaks volumes about America's preference for punishment over rehabilitation in establishing sentencing goals.

Tuesday, October 25, 2011

Mass Incarceration as a Contagious Disease

Apocalyptic imagery, to my mind, is entirely appropriate as a way to describe the state of our criminal justice system. I’ve use my share of it, over the years, in this blog.

A bloated Leviathan.

A colossal uncharted labyrinth.

Pick an over-the-top image, and it can be made to apply to a system in which seven million citizens sit in jail or prison — a number vastly disproportionate to anywhere else in the developed world.

So I was scarcely surprised by the titles of the two books recently reviewed by Michelle Alexander in the Washington Post. A plague of prisons arguably does point to some sort of collapse of the American criminal justice system. In pulblic health terms, mass incarceratoin is indeed like a contagious disease.

As a character in Camus' The Plague observes, "We've all got the plague." We all have it because we all live in this society that created it and continues to perpetuate it.

Budget constraints, and perhaps sheer exhaustion, are finally starting to partially contain the contagion. What will take its place, when the paradigm shifts?

Saturday, October 15, 2011

Is the Just Person Always Happy?

“The just man is always happy,” Plato asserts in The Republic.


It depends, I suppose, on what is meant by “happy.”

What if the just man were wrongfully convicted?

Today, in America, stoic acceptance isn’t the only possible response. The Innocence Project works zealously to marshal definitive DNA evidence to clarify problematic convictions — which sometimes leads to exoneration.