Mass Incarceration Found Guilty

Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, by Jonathan Simon, The New Press, $26.95 hardcover, 224 pages.

Anyone who believes that the United States does not torture prisoners in domestic lock-up need only read Jonathan Simon’s book, Mass Incarceration on Trial, to be disabused of this delusion. The book serves up a litany of abominations, all of them taking place in California prisons.

Throughout the text, Simon uses the term “total incapacitation” to describe the government’s “deliberate indifference to the needs of prisoners.” His meticulous research documents a wide swath of heinous conditions in California’s supermax prisons – where prisoners spend 23 hours a day locked in cages. “Not even prison officers interact with a prisoner more than it takes to shove a tray through a narrow slot,” he writes.

He also chronicles the use of “bad beds,” the literal stacking of bunks in an 80-square-foot cell, giving crammed-in prisoners neither privacy nor alone time. Other misery also comes to light thanks to severe prison congestion. “The number imprisoned per 100,000 population quadrupled nationally from 117 in 1977 to 464 in 2009,” Simon writes. “In California, the rate went from 88 in 1977 to 478 in 2009, one of the highest swings in the nation. In absolute terms, California went from having fewer than 20,000 prisoners in 1977 to nearly 100,000 in 1990 and nearly 160,000 in 2003.”

Simon attributes this astounding growth to, in part, public terror – prisoner rebellions at San Quentin and Attica state prisons in the early 1970s combined with brutal serial killings by the likes of Charles Manson and The Family. Add in hysterical media coverage and it didn’t take long for many people to begin seeing violent predators lurking behind every door.

The upshot was a call for “protection.” “With the new iconic image of violence threatening citizens wherever they lived, any reduction in the level of imprisonment would be a direct reduction in the security of people in their homes,” Simon concludes. “Incapacitation fit well with the general sense of pessimism about the capacity of government to change individual behavior; the belief that most criminals are irredeemable became something of a consensus among criminologists and other social scientists in the 1970s, something liberals and conservatives agreed on.”

The end result – a lock ’em up and throw away the key mentality – led to severe systemic overload, the repressive control of prisoners, and a dearth of social and health services to assist the men inside.

Mass Incarceration on Trial highlights numerous examples of gut-churning mistreatment, indignities that prompted attorneys to sue the state of California for the violation of Eighth Amendment protections against cruel and unusual punishment. One case, a 1995 class action called Coleman v. Wilson, gave the litigants an on-paper victory by demonstrating that untreated mental illness was a widespread problem within the state’s prison system.

A decade later the problem had not abated – in fact, it may have become worse. Simon notes that by 2006, the suicide rate in state jails was 80 percent higher than the California average. “In absolute terms,” he writes, “approximately a prisoner per week committed suicide; more than 70 percent of these suicides were estimated to be preventable if adequate treatment were available.”

Physical maladies were similarly ignored, and Simon lists case after case of willful neglect. In fact, by 2005, the state’s refusal to provide sufficient medical care to inmates was so blatant that the court appointed a receiver to run on-site clinics. This was an encouraging start and according to Simon, “in late 2006, a year after the receivership order placed prisoner medical treatment under direct court control and 11 years after the Coleman decision ordered reform in prison mental health care, lawyers for the prisoners in both cases returned to their respective courts and asked the judges to strengthen previous orders and impose a population cap as a way of relieving chronic, extreme overcrowding.”

Nearly three years later, in August 2009, a panel of judges ordered California to reduce its prison population by 40,000 inmates – bringing it to a still-cramped 137 percent of design capacity – within two years. The US Supreme Court upheld the decree in May 2011. Writing for the 5-4 majority, Justice Anthony Kennedy noted, “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”

Simon sees the decision as a decisive victory for prisoners and their allies and advocates, and writes that it has already had a discernible impact. For one, people convicted of “non-serious, non-violent and non-sexual” offenses can be sentenced at the discretion of county judges – and are no longer bound by three-strike or mandatory minimum laws. What’s more, prisoners released on probation can be sanctioned, rather than re-imprisoned, if they commit a minor rules infraction. “Jail remains an option,” Simon concludes, “but with state prison no longer mandated by rigid laws and policies, mass incarceration in California, for now at least, is dead.”

Whether or not you agree with this conclusion, Simon’s take on the consequences of mass incarceration is a revealing read. That said, it is unfortunate that the book is exclusively focused on male inmates, leaving readers to wonder about the surging number of women and girls who are presently serving time. It’s an unexplained hole. Similarly, he pays far too little attention to the dynamics of race and the ways racism has played into incarceration policy. Lastly, he places far too much stock in legal remedies to social problems. Still, Simon, a law professor at the University of California-Berkeley, has written an accessible, thought-provoking, important book about crime, punishment and the pathology that favors penalization over rehabilitation or treatment.

Overall, Simon concedes that prison policies have a long way to go in respecting the human rights of individual lawbreakers. While he reports that other states are following California’s lead, reducing their prison populations and reviewing sentencing guidelines, he knows that this is not enough. Instead, he hopes that legislators and policy makers will look to the Universal Declaration of Human Rights for guidance as they formulate new policies. “No one shall be subjected to torture, or to cruel, inhuman, or degrading treatment or punishment,” it promises. While these terms are open to interpretation, a healthy debate about law, order and the rebuke of criminal behavior has to start somewhere.