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.

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.

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?

Is the Just Person Always Happy?

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

Really?

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.

Somewhere on an Emotional Desert Highway

Kym was frequently high on Percocet at age 16. Her mother knew this, but still left Kym in charge of her four year-old brother Ethan.

Driving home from a park, Kym lost control of the car and it plunged off a bridge and into a lake. She was not able to get Ethan out of his car seat in time, and he drowned.

Years later, Kym is still struggling with addiction. And with God too, like Job before her.

And then there is the utterly broken relationship with her mother. On the eve of her sister’s wedding, Kym finally confronts her with the loaded questions: “Why did you leave me in charge of him? What were you thinking?”

Rachel Getting Married raises many deep issues. To his credit, director Jonathan Demme has the good sense to leave many of them unresolved. The film is fiction, not a documentary. But it points to the raw emotion involved in human conflict, regardless of whether that conflict is addressed by the criminal law.

The fragmented family Demme depicts could have used a restorative healing circle. That was not to be, though the groom's touching rendition of a Neil Young song at Kym's sister's wedding provides a measure of musical therapy.

Sensitive About Sentencing Reform

“Maybe I’m too sensitive or else I’m getting soft,” Bob Dylan worried in a 1970s song lyric.

Tonight, I turned this line on myself when I reread an essay that seemed to imply that to call for radical reductions in America’s bloated prison system is to engage in naïve, short-sighted thinking.

In their essay in a special issue of Daedalus on mass incarceration, Robert Weisberg and Joan Petersilia warn of the “dangers of Pyrrhic victories” against it. They acknowledge that America’s incarceration levels make today’s prison system an outrageous outlier both historically and internationally. But they caution that trying to bring down the preposterously high number too fast too soon might be counterproductive.

Weisberg and Petersilia are concerned that reductions in the prison population must be accompanied by a sustained commitment to addressing the causes of recidivism. In practical terms, that means more probation officers, more drug treatment counselors, and so on.

Without these resources, Weisberg and Petersilia fear, a boomlet in new crime by released inmates could occur. And that, in turn, could prompt a visceral policy backlash. Lock ‘em up and throw away the key revividus.

I’m sensitive about this because I interpreted Weisberg and Petersilia to be saying that idealistic citizen-bloggers like me tend to be too naïve. We can let our passion blur our vision and fail to see the full strategic picture involved in systematic sentencing reform.

Am I being too sensitive in suspecting that the two veteran corrections scholars would dismiss this blog as superficial and sentimental? Maybe.

I take heart, however, from the point Glenn Loury makes in his concluding essay in the Daedalus special issue. Loury points out that leaving the decisions about corrections policy to self-appointed experts has had devastating effects on local communities and civic engagement.

To be sure, experts have important roles to play in reshaping sentencing and corrections policy. But if this country is a democracy, so do citizens.

Madness and Civilization II

In One Flew Over the Cuckoo’s Nest, inmates of a mental institution struggle for their dignity against controlling Authority. It was an iconic film of the 70s, with Jack Nicholson in one of his indelible roles.

A generation later, “cuckoo’s nests” are harder and harder to find. Wave of wave of closings of state mental hospitals have left more and more mentally ill people on the streets. Not surprisingly, many of them end up in prison — upwards of 350,000, NPR recently reported.

This is a calamity for all concerned: the mentally themselves, other inmates who encounter them, the staff who try to work with them, and on and on.

If Michel Foucault were still with us, he might be writing Madness and Civilization II.