Reviewed by Michael Cholbi, Department of Philosophy, California State Polytechnic University, Pomona. Email: mjcholbi [at] csupomona.edu
In the United States, conservatives increasingly insist that American policy (foreign and domestic) should reflect “American exceptionalism”: the belief that the U.S. possesses a heritage and set of virtues that distinguishes it from all other nations, and gives it a special world mission. Skepticism about this political project can take two forms: Either the U.S. is simply not exceptional; or the U.S is exceptional, but viciously so.
Sadly, the American regime of punishment provides potent evidence for the latter. As has been well documented, the U.S. is unsurpassed both in the scope of who it punishes and the severity with which it punishes. Nearly 2.5 million Americans are imprisoned, about 1% of the adult population. A growing percentage of these are non-violent drug offenders. The U.S. stands alone within its Western cohort in retaining the death penalty, and thanks to mandatory minimums and other mechanisms that limit discretion in sentencing, incarcerates individuals for longer periods of time than does its peer nations. Vocational training and other programs to reintegrate offenders back into society are poorly funded, and offenders are politically disenfranchised, reflecting an apparent acceptance that the pains and deprivations of punishment should extend well beyond one’s official sentence. Prison conditions in the U.S. are often deplorable, unhygienic and ridden with gang-driven violence and rape. American courts, meanwhile, have adopted standards for responding to prisoner grievances that effectively make it impossible to curtail penal abuse, while giving prison officials nearly unfettered discretion to discipline prisoners. American penal practices seem dominated by a “let them rot” mentality utterly indifferent to the fate of prisoners. It is safe to say that American punishment is exceptional, but not thanks to its effectiveness or decency. Rather, supermax, solitary, and ‘three strikes’ are its gruesome trademarks. And all of this is astonishingly expensive — on the order of $80-100 billion yearly.
Robert A. Ferguson’s INFERNO: AN ANATOMY OF AMERICAN PUNISHMENT is hardly the first to document and denounce this severity. The same horrors have been amply catalogued by Michael Tonry, Todd Clear, William Stuntz, James Q. Wilson, and Michelle Alexander. But Ferguson aims to identify the factors that explain this severity. How, he wonders, did America come to embrace this penal inferno? Only by stitching together the disparate elements that account for the current American penal regime, he proposes, can we begin to see how that regime might be undone. [*170]
I will turn to Ferguson’s answers to these questions momentarily. INFERNO is addressed to a lay audience, but I note two areas where scholars are likely to find this work frustrating. First, Ferguson’s scholarship is too often careless. He claims that Rawls made no contribution to philosophical theorizing about punishment, apparently unaware of “Two concepts of rules” (pp.58-59). Additionally, Ferguson rightly recognizes Kant as an important source of retributivist thinking (pp.37-38), but does not credit Kant as one of the theorists of dignity, a notion often invoked to constrain retributive impulses. Ferguson often treats positivism as if it precluded moral criticism of law and legal institutions, rather than simply denying that law must adhere to some standard of morality in order to be law in the first place (pp.51-53). Such statements mar a work with such high scholarly aspirations.
Second, Ferguson is a prominent figure in the ‘law in literature’ movement (I am not confident Ferguson would describe his work in this way, but the categorization seems warranted nonetheless). This movement turns to literary depictions of law and legal institutions to illuminate the workings of actual legal systems. INFERNO offers subtle discussions of depictions of punishment and incarceration, many from sources widely discussed among legal scholars (CRIME AND PUNISHMENT, THE DIVINE COMEDY, “Billy Budd,” etc.). Though this may be a matter of taste, I did not find these discussions especially helpful in advancing Ferguson’s claims about the origins or nature of American penal practices. For one, few of these are actually about recent American penal practices. Furthermore, these works have many rhetorical purposes. Veridicality about legal or penal phenomena may or may not be among these purposes. On the whole then, Ferguson gives these literary depictions of punishment, and of the institutions and attitudes that surround it, more probative weight than I find warranted.
Why have penal practices in the U.S. become harsh, even barbaric, according to Ferguson? Here Ferguson faces what I will call a granularity demand. An explanans can appeal to facts that are not specific to an explanandum, but a proper explanation of a quite specific explanandum must appeal to facts distinctive to it. In this case, the granularity demand requires that the explanation of American penal harshness appeal in part to facts that distinguish the U.S. from other, similar societies. And there is a serious social scientific puzzle here: America’s harsh penal practices seem to have more in common with those in China or Russia than with those prevalent in the European nations with which it has the most in common.
Ferguson is aware of the granularity demand (p.182). Still, I have my doubts that Ferguson has provided an explanation of America’s penal harshness that is sufficiently granular. Far and away the most valuable parts of INFERNO are Ferguson’s investigations of how model penal systems are intrinsically prone to increasing harshness over time, the phenomenon he dubs the “ratchet effect.” This effect is partially explained by how punishment is conceptualized. Ferguson characterizes punishment in terms of seven features, most of which adopt the perspective of the punisher. Only two of [*171] these — that punishment is unwelcome to the recipient and targets voluntary breaches of the law — refer to the point of view of the offender. The result, Ferguson proposes, is that “the person who suffers and the amount of suffering to be inflicted” take a backseat to the other elements of punishment, all of which orient around the state’s prerogatives in punishing (pp.220-21). The subjectivity of the offender is thereby effaced, helping to liberate the cruel impulses punishment is supposed to regulate or constrain. This is congruent with a general gap Ferguson diagnoses between penal theory and penal practice, where the former is dominated by the perspective of the punisher and his will, the later by a set of highly specific practices. There is, Ferguson posits, a psychological slippery slope (p.29) from the high-minded ideals that animate philosophical and legal theorizing about punishment to the grubby, often brutal particularities of actual penal acts and choices.
But here the granularity demand rears its head: If this ratchet effect is built into the nature and psychology of punishment, why has the ratchet effect been so much more in evidence in the U.S. than in, say, Sweden? The U.S. shares with its European counterparts a cultural heritage, including a shared history of penal theorizing, which Ferguson carefully documents in chapter two. Yet if the logic of penal ratcheting is “inexorable,” as Ferguson contends, why is punishment seemingly more “out of control” in the U.S.?
The most promising and original component of Ferguson’s answer comes in Chapter 4, where he brilliantly illustrates how the distribution of responsibilities within the U.S. criminal justice system facilitate “the privilege of unknowing,” i.e., enable all parties in this system to avoid ethical responsibility for, or even a direct confrontation with, the brutalities of that system. Distributing power among legislatures, prosecutors, law enforcement, juries, judges, and prison officials serves to limit their respective influences over the system. Yet Ferguson notes that this same distribution of power enables each segment of this system to shift responsibility for prisoner welfare and abuse prevention onto other parties:
In an overworked and rushed criminal justice system, passive acceptance easily replaces meaningful coordination. The checks on performance vanish in the shuffle of decisions that have to be made to keep things moving. Habit and the need to clear cases can replace serious deliberation. Without carefully acknowledged and maintained restraints across the system, a punishment regime moves toward severity in the exercise of its prerogatives (p.99).
This momentum toward severity is maintained in the U.S. through its patchwork legal bureaucracy that, in Ferguson’s estimation, allocates discretion in order to facilitate severity. The parties that enjoy the greatest discretion (legislators, prosecutors, police officers, correctional guards, juries) have few incentives to be merciful and are often the least educated, both in general and about the realities of prison life. Meanwhile, the sentencing discretion of judges has been greatly diminished. There is no one, Ferguson [*172] observes, situated to serve as the prisoners’ advocate.
The solutions Ferguson proposes to the American inferno are reasonable. Our thinking about punishment must be constrained by the conviction that “the life of the recipient of punishment must continue to be worth living” (p.222). We must mentally separate failed efforts at “rehabilitation” from the goal of offender “restoration” (pp.224-25), revive meaningful prison work programs, and provide better training for prison officials. Still, one wonders if more workable solutions might be found if we return to the granularity demand and ask what specific features of American culture or practice are responsibility for the inferno. Ferguson asks whether American penal harshness represents “a permanent element in American ideological thought, or is it more of a historical contingency subject to the possibility of change?” (p.172). No doubt, some longstanding and essential features of America, past and present, play a role in explaining its penal severity. These include its support for the ‘American dream,’ a myth in which private home ownership is central; its frontier culture, suffused with images of firearms as peacemakers rather than instruments of indiscriminate violence; and its federal system, which gives states a prominent role in penal policy and practice.
Yet a good deal of the harshness Ferguson denounces is of relatively recent vintage. Prison overcrowding contributes to abuses. But American prison populations were relatively stable until around forty years ago, and have since quadrupled in size. Explanations for penal harshness might therefore focus on related concurrent phenomena: the War on Drugs, suburbanization, the devolution of federal government power, declining employment prospects for those lacking college educations, racial resentments unleashed in the aftermath of the Civil Rights Era. And Ferguson gives little attention to an obvious confounding factor: Even setting aside drug-related crimes, the U.S. has far higher crime rates than its industrialized peers. What is cause and what is effect here — is the harsh American penal regime the effect of high crime rates, or are high crime rates the effects of American penal harshness (or both)? Ferguson adduces some evidence in favor of the claim that such penal practices exacerbate, rather than ameliorate, crime. But again, methodological worries can be raised about Ferguson’s approach to the phenomenon of American penal harshness.
Thankfully, the inferno seems to be unraveling a bit, if for no other reason that the American political class, including conservatives, is now waking up to the economic costs of mass incarceration. Meanwhile, voter referenda approving drug decriminalization in U.S. states suggest that the American public is beginning to wise up to the excesses of American penal practices. No, there is not yet a large scale prisoners’ rights movement in the U.S. While INFERNO does not provide the definitive diagnosis of American penal excess, it provides plenty of ammunition to motivate such a movement.
Copyright 2014 by the Author, Michael Cholbi.