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Abolish the Prison System

America is the authoritarian carceral state par excellence, ignominious the world over for the zeal with which she imprisons her citizens, for the absurdity of her criminal charges and sentences, for the stark racial disparities that characterize her cynical applications of “justice.” It is ironic that the United States should bear the honorific title “land of the free” even as it has the world’s highest per capita incarceration rate . America is a place where one’s life can be utterly ruined, cast into the black hole of arrests, prisons, and parole, for the most trifling offences, particularly if one happens to have the wrong color skin. America’s shameful history of racism —legally enforced and systematic—endures today in the humanitarian crisis that is its criminal justice and prison system. The stakes could hardly be higher: 2.3 million of our fellow human beings are currently caged in U.S. correctional facilities, many for crimes without victims, that is, crimes that should not be crimes at all.

While reform at the margins is welcome and necessary, it is not sufficient, our present crisis crying out for a wholesale reimagining of criminal justice, all the way down to the most basic fundamentals. Though it is not taken seriously in American political discourse, there are serious arguments in favor of the abolition of the prison system as we know it, as well as for leaving behind the failed and fundamentally flawed punitive model of criminal justice. Legal philosopher Vincent Luizzi explains the theory underpinning punishment of criminals: “Usually we think about offsetting the wrong, harm, or evil of the offender with penalties that, in effect, deliver something bad or unpleasant to the offender.” Punishment does not—indeed, cannot —help a victim, whose best hope to be made whole almost always requires that the perpetrator is able to obtain gainful employment. What, then, is this addition of a new wrong, this delivery of unpleasantness, accomplishing if it is not the redress of a wrong? The hope of deterring would-be criminals is offered as one reason for this baffling compounding of wrongs, the idea being that harsh punishments will trumpet a warning to others. Proponents of punishment further argue that it gives the criminal what he deserves, taking an eye for an eye, accomplishing a restoration of balance and, therefore, justice. To take an eye for an eye is no more than thoughtless animal revenge, a reflexive stooping to the criminal’s low instead of a reflective and human pursuit of true balance, which demands compensation, a good. Luizzi’s work suggests that we pursue a “New Balance” to replace the old, that we rethink the scales of justice by offsetting a harm with good, rather than abortively attempting to offset harm with still further harm.

It is well known that punishment does not deter criminal activity. Prisons are training grounds for criminals, and one who spends time in a prison is likely to return to criminal activity. A report last May from the Bureau of Justice Statistics found that “[f]ive out of six state prisoners were arrested at least once during the nine years after their release.” And this is to say nothing about the reasons prisoners in the United States are locked up, that is, about the crimes of which they’ve been convicted. The war on drugs has aggravated the crisis of mass incarceration and its baleful inequalities. The unfair, unequal treatment of black people under failed war on drugs policies is well-documented, black people accounting for almost 40 percent of those incarcerated in the U.S. for drug law violations, despite the fact that black people make up a mere 13 percent of the country’s population. The war on drugs is also increasingly a war on women, with the number of women in state and federal prisons increasing by almost 800 percent in the years between 1978 and 2014 . Further, most Americans trapped in this broken prison system are battling a substance abuse problem or a mental health issue—or both—in need not of punishment, which won’t work in any case, but of treatment.

Rather than fighting or deterring crime, the prison system and the outmoded ideas upon which it stands perpetrate a vast criminal conspiracy against civil society and the rule of law, properly understood. When we punish, torture, and humiliate other people, we cannot reasonably be surprised when these indignities turn them to violent, antisocial behavior. And when such behavior manifests, we bear part of the responsibility. A society’s humaneness can be judged in large part by the way it treats its prisoners, those it casts out of society and out of freedom, ostracized and disowned. America’s prison system is an indefensible holdover from the unthinking cruelty and sadism of a more barbarous time, when vengeance substituted for justice.

It can and should be upended.

Only consider how earnestly and assuredly slavery’s apologists declared that stain on humanity to be a permanent, indelible aspect of our heritage. Such defenders of the status quo were the intellectual leading lights of their time, their radical detractors, abolitionists, the naive idealists impertinently daring to challenge the established order. Today, the notion that we could do away with prisons is dismissed as unrealistic utopianism, hopelessly far-flung, disconnected from supposedly eternal facts about human nature. But just as slavery was never truly an inescapable aspect of human nature, neither are the brutal injustices of America’s prison system permanent features of human life. To change it is within our power; to change it is our responsibility to one another as free and equal individuals.

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

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