Thursday, October 06, 2022

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I. Make Mass Incarceration a Human Rights Issue

Mass incarceration predictably and reliably creates conditions of overcrowding that, combined with grossly inadequate medical and mental health care provision and an incarcerated population with a very heavy chronic disease burden, result in degrading conditions and the risk of torture. Even those prisoners who do not suffer a medical or mental health crisis, for which predictable mishandling leads to torture-like suffering, may well suffer from what I call “torture on the installment plan,” the inevitable progression of chronic illness in the absence of effective individualized care. This is not an accident or a feature of a handful of bad actor states. The conditions in California that led the Supreme Court to approve a partial dismantling of mass incarceration policies to reduce chronic hyperovercrowding were extreme, but not necessarily unrepresentative.  Overcrowding is the norm in state prisons in the United States, and the difference between California and most states may be the absence of a battle-hardened group of prisoner rights lawyers, such as the lawyers for the prisoners in Brown v. Plata who have litigated inhumane conditions for over twenty-five years.

We shall have to see whether more federal trial courts will take up the encouragement of Brown to investigate unconstitutional conditions produced by mass incarceration policies in other states. In the meantime we should carry Brown's strong message that prisons which ignore health needs “are incompatible with human dignity and have no place in a civilized society” directly into the legislative and administrative debates about crime policy.  Justice Kennedy's language is as close as American courts come to saying, “You've got a big human rights problem on your hands.”

Insisting that mass incarceration is a human rights problem is in tension with a different slogan raised by those who oppose mass incarceration, but believe sustained reductions require winning the public's confidence by asserting that mass incarceration is an excessive and wasteful system of crime control that can be replaced by a correctional system based on “evidence-based” programming. The call for evidence-based programs offers an important rejoinder to those who defend the current scale of mass incarceration as necessary to prevent a recurrence of the higher levels of violent crime experienced in the late 1980s and to a large extent since the late 1960s. Criminologists, many of whom were experts in support of the prisoners during Brown, can point to numerous ways that mass incarceration policies promote recidivism, including failing to use proven rehabilitative methods in prison, failing to invest in “reentry” strategies aimed at keeping released prisoners from returning to criminal life patterns, and confining, without treatment, too many people whose problems arose from untreated mental illness in the first place.

Because mass incarceration is a human rights problem, it requires a solution as an urgent priority ahead of the still speculative promise of evidence-based penological treatment and improved reentry supervision strategies. Although few continue to defend expanding imprisonment as a tool to reduce crime, and many propose alternatives to incarceration for some categories of felonies (the nonviolent, nonserious, nonsexual), substantial shrinkage of the prison population is resisted by politicians who are turning the rhetoric of evidence-based penology into a rationale for going slow. Instead of offering significant plans to restructure policing and criminal sentencing, and exercising administrative and legislative measures to bring relief to the currently imprisoned and those burdened by past incarceration, these politicians would stabilize and even grow the prison population. The claim that only prison population reductions achieved through “evidence-based” prison rehabilitation or reentry programs designed to reduce recidivism are compatible with public safety is misleading and risks fostering the kind of correctional system that will continue to violate human dignity. It is misleading because mass incarceration-style sentencing systems in most states and the federal criminal system were not intended to reflect the future dangerousness of offenders; indeed, many of them forbid consideration of individualizing details in favor of a harsh, but indiscriminate, mix of retributive crime-based punishment and groupbased general incapacitation.

California's harsh determinate sentencing system is exemplary. Sentences in California are generally based on crime and criminal record, with the judge choosing among three terms (the judge's choice is now advisory to avoid Sixth Amendment defects). This is overlaid by the notorious Three-Strikes law and other sentence enhancements intended to allow prosecutors more leeway to incapacitate offenders they deem dangerous, but with no “evidencebased” factors required. California's enormous prison population, at least as of Brown v. Plata, was in no systematic way a collection of the most crime-prone people in the state. Thus, California's recent insistence that it cannot identify enough prisoners who would be safe to release in order to comply with the prison population targets affirmed by the U.S. Supreme Court in Brown v. Plata, and reaffirmed by the three-judge court  only a few months ago, ignores that every year it releases nearly 100,000 prisoners based on the expiration of their determinant sentences, and heedless of any individualized risk they pose. To borrow and twist Justice Alito's alarming metaphor in his Plata dissent, a government can hardly complain about having to unleash “an army division” of potential criminals on the population when it regularly unleashes an entire ““field army” of prisoners by virtue of its sentencing laws.

Further, the language of evidence-based penology risks helping defenders of the status quo stabilize mass incarceration and prevent the reforms necessary to conserve the human dignity of the incarcerated because it continues to make criminal risk the anchoring value around which correctional practices should be based. Those being released from contemporary prisons may indeed commit crimes in the future, as indeed may any of us, but it is the distinctive feature of mass incarceration's very tendency to overreach and to damage that, compared to past cohorts of former prisoners, they are more likely to be at risk from the mental and physical illnesses that have been deepened by incarceration and less likely to be professional criminals with criminal skills and social capital.

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