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The Black Hole of the American Injustice System

Though many Americans know that prisoners often work while behind bars, the conditions under which they toil may be less than clear. Fortune magazine made waves this summer when it reported that “[p]rison labor has gone artisanal,” revealing a multimillion dollar business that puts convicts to work making everything from specialty motorcycles to goat cheese sold at Whole Foods.

And while consumers pay top dollar for the prisoners’ expensive wares – and companies like Colorado Corrections Industries rake in millions – the prisoners themselves often make as little as 60 cents per day. David Fathi, director of the ACLU’s National Prison Project, says that prison labor operates in a “legal black hole” where basic legal protections such as minimum wage are conspicuously unavailable.

That hopeless black hole has swallowed nearly 2.5 million individual Americans, destroying lives and dreams, tearing families asunder and leaving them in financial ruin. As is now a well-known and shameful fact, the United States incarcerates a higher percentage of its populace than any other government on earth. No country sanctioning such a practice can maintain that it is “free” in any but the most ironic, mocking sense.

Such statistical data confirm the United States’ brutal and unjustifiable over-criminalization, the tendency toward outlawing acts that a free society would treat as permissible. Today, a huge percentage of American prisoners at both the state and federal levels are nonviolent offenders, their crimes usually involving the possession of illegal drugs. Most of these captives are black or Hispanic Americans – even though these groups are no more likely to possess “contraband” than white Americans. Subjected to militarized police forces that treat their neighborhoods as occupied war zones, members of these vulnerable groups are routinely harassed, stopped and frisked, watched and arrested without cause. They are made criminals, sent to prison to languish or perform slave labor.

Yet even if we grant, for the sake of argument, the preposterous premise that almost everyone in prison has committed some actual crime, we are nonetheless left with the question of how a free society ought to deal with those who violate the rights of others. The notion that wrongdoers must be punished is the great unexamined assumption. It is not at all clear that justice is served by punishment – much less that justice requires punishment.

In Resist Not Evil, distinguished attorney Clarence Darrow argued that punishment itself represents a great injustice, his great legal mind condemning “the evil and unsatisfactory results of punishment.” Darrow believed the criminal justice system should strive to make a victim whole and to reform the lawbreaker, not to subject the criminal to savagery and vengeance, the barbaric holdovers of less enlightened ages. Darrow went so far as to contend that the state’s simple and mindless revenge, “without any thought of good to follow,” is indeed worse “than any casual isolated crime.” Considering the practice of punishment from all angles, addressing all ostensible rationales, Darrow revealed it as wrong, ineffectual, inhuman.

Market anarchists believe that only acts which violate the equal rights of others ought to be regarded as crimes. Every individual thus has the sovereign right to live her life in whatever way she chooses, as long as she allows everyone else the same right. Under these simple standards, the prison system is an abominable example of injustice and aggression.

“The time will come,” Darrow wrote, “when the public prosecutor and the judge who sentences his brother to death or imprisonment will be classed with the other officers who lay violent and cruel hands upon their fellows.” With American prisons bursting at the seams and giant corporations exploiting the slave labor pool they create, one hopes that the day Darrow wrote of is coming sooner rather than later.

David S. D’Amato is the Benjamin R. Tucker Distinguished Research Scholar in Anarchist Economic Theory at the Center for a Stateless Society (c4ss.org). D’Amato is an attorney and holds a J.D. from New England School of Law and an LL.M. in Global Law and Technology from Suffolk University Law School. A Boston native, D’Amato now lives and writes in Chicago, Illinois.

 

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David D’Amato is an attorney, writer, and law professor.

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