A
prison is a trap for catching time. Good reporting appears often about
the inner life of the American prison, but the catch is that American
prison life is mostly undramatic—the reported stories fail to grab us,
because, for the most part, nothing happens. One day in the life
of Ivan Denisovich is all you need to know about Ivan Denisovich,
because the idea that anyone could live for a minute in such
circumstances seems impossible; one day in the life of an American
prison means much less, because the force of it is that one day
typically stretches out for decades. It isn’t the horror of the time at
hand but the unimaginable sameness of the time ahead that makes prisons
unendurable for their inmates. The inmates on death row in Texas are
called men in “timeless time,” because they alone aren’t serving time:
they aren’t waiting out five years or a decade or a lifetime. The basic
reality of American prisons is not that of the lock and key but that of
the lock and clock.
That’s why no one who has been inside a
prison, if only for a day, can ever forget the feeling. Time stops. A
note of attenuated panic, of watchful paranoia—anxiety and boredom and
fear mixed into a kind of enveloping fog, covering the guards as much as
the guarded. “Sometimes I think this whole world is one big prison
yard, / Some of us are prisoners, some of us are guards,” Dylan sings,
and while it isn’t strictly true—just ask the prisoners—it contains a
truth: the guards are doing time, too. As a smart man once wrote after
being locked up, the thing about jail is that there are bars on the
windows and they won’t let you out. This simple truth governs all the
others. What prisoners try to convey to the free is how the presence of
time as something being done to you, instead of something you do things
with, alters the mind at every moment. For American prisoners, huge
numbers of whom are serving sentences much longer than those given for
similar crimes anywhere else in the civilized world—Texas alone has
sentenced more than four hundred teen-agers to life imprisonment—time
becomes in every sense this thing you serve.
For most privileged,
professional people, the experience of confinement is a mere brush,
encountered after a kid’s arrest, say. For a great many poor people in
America, particularly poor black men, prison is a destination that
braids through an ordinary life, much as high school and college do for
rich white ones. More than half of all black men without a high-school
diploma go to prison at some time in their lives. Mass incarceration on a
scale almost unexampled in human history is a fundamental fact of our
country today—perhaps the fundamental fact, as slavery was the
fundamental fact of 1850. In truth, there are more black men in the grip
of the criminal-justice system—in prison, on probation, or on
parole—than were in slavery then. Over all, there are now more people
under “correctional supervision” in America—more than six million—than
were in the Gulag Archipelago under Stalin at its height. That city of
the confined and the controlled, Lockuptown, is now the second largest
in the United States.
The accelerating rate of incarceration over
the past few decades is just as startling as the number of people
jailed: in 1980, there were about two hundred and twenty people
incarcerated for every hundred thousand Americans; by 2010, the number
had more than tripled, to seven hundred and thirty-one. No other country
even approaches that. In the past two decades, the money that states
spend on prisons has risen at six times the rate of spending on higher
education. Ours is, bottom to top, a “carceral state,” in the flat
verdict of Conrad Black, the former conservative press lord and newly
minted reformer, who right now finds himself imprisoned in Florida,
thereby adding a new twist to an old joke: A conservative is a liberal
who’s been mugged; a liberal is a conservative who’s been indicted; and a
passionate prison reformer is a conservative who’s in one.
The
scale and the brutality of our prisons are the moral scandal of American
life. Every day, at least fifty thousand men—a full house at Yankee
Stadium—wake in solitary confinement, often in “supermax” prisons or
prison wings, in which men are locked in small cells, where they see no
one, cannot freely read and write, and are allowed out just once a day
for an hour’s solo “exercise.” (Lock yourself in your bathroom and then
imagine you have to stay there for the next ten years, and you will have
some sense of the experience.) Prison rape is so endemic—more than
seventy thousand prisoners are raped each year—that it is routinely held
out as a threat, part of the punishment to be expected. The subject is
standard fodder for comedy, and an uncoöperative suspect being
threatened with rape in prison is now represented, every night on
television, as an ordinary and rather lovable bit of policing. The
normalization of prison rape—like eighteenth-century japery about
watching men struggle as they die on the gallows—will surely strike our
descendants as chillingly sadistic, incomprehensible on the part of
people who thought themselves civilized. Though we avoid looking
directly at prisons, they seep obliquely into our fashions and manners.
Wealthy white teen-agers in baggy jeans and laceless shoes and multiple
tattoos show, unconsciously, the reality of incarceration that acts as a
hidden foundation for the country.
How did we
get here? How is it that our civilization, which rejects hanging and
flogging and disembowelling, came to believe that caging vast numbers of
people for decades is an acceptably humane sanction? There’s a fairly
large recent scholarly literature on the history and sociology of crime
and punishment, and it tends to trace the American zeal for punishment
back to the nineteenth century, apportioning blame in two directions.
There’s an essentially Northern explanation, focussing on the
inheritance of the notorious Eastern State Penitentiary, in
Philadelphia, and its “reformist” tradition; and a Southern explanation,
which sees the prison system as essentially a slave plantation
continued by other means. Robert Perkinson, the author of the Southern
revisionist tract “Texas Tough: The Rise of America’s Prison Empire,”
traces two ancestral lines, “from the North, the birthplace of
rehabilitative penology, to the South, the fountainhead of
subjugationist discipline.” In other words, there’s the scientific taste
for reducing men to numbers and the slave owners’ urge to reduce blacks
to brutes.
William J. Stuntz, a professor at Harvard Law School
who died shortly before his masterwork, “The Collapse of American
Criminal Justice,” was published, last fall, is the most forceful
advocate for the view that the scandal of our prisons derives from the
Enlightenment-era, “procedural” nature of American justice. He runs
through the immediate causes of the incarceration epidemic: the growth
of post-Rockefeller drug laws, which punished minor drug offenses with
major prison time; “zero tolerance” policing, which added to the group;
mandatory-sentencing laws, which prevented judges from exercising
judgment. But his search for the ultimate cause leads deeper, all the
way to the Bill of Rights. In a society where Constitution worship is
still a requisite on right and left alike, Stuntz startlingly suggests
that the Bill of Rights is a terrible document with which to start a
justice system—much inferior to the exactly contemporary French
Declaration of the Rights of Man, which Jefferson, he points out, may
have helped shape while his protégé Madison was writing ours.
The
trouble with the Bill of Rights, he argues, is that it emphasizes
process and procedure rather than principles. The Declaration of the
Rights of Man says, Be just! The Bill of Rights says, Be fair! Instead
of announcing general principles—no one should be accused of something
that wasn’t a crime when he did it; cruel punishments are always wrong;
the goal of justice is, above all, that justice be done—it talks
procedurally. You can’t search someone without a reason; you can’t
accuse him without allowing him to see the evidence; and so on. This
emphasis, Stuntz thinks, has led to the current mess, where accused
criminals get laboriously articulated protection against procedural
errors and no protection at all against outrageous and obvious
violations of simple justice. You can get off if the cops looked in the
wrong car with the wrong warrant when they found your joint, but you
have no recourse if owning the joint gets you locked up for life. You
may be spared the death penalty if you can show a problem with your
appointed defender, but it is much harder if there is merely enormous
accumulated evidence that you weren’t guilty in the first place and the
jury got it wrong. Even clauses that Americans are taught to revere are,
Stuntz maintains, unworthy of reverence: the ban on “cruel and unusual
punishment” was designed to protect cruel punishments—flogging and branding—that were not at that time unusual.
The
obsession with due process and the cult of brutal prisons, the argument
goes, share an essential impersonality. The more professionalized and
procedural a system is, the more insulated we become from its real
effects on real people. That’s why America is famous both for its
process-driven judicial system (“The bastard got off on a technicality,”
the cop-show detective fumes) and for the harshness and inhumanity of
its prisons. Though all industrialized societies started sending more
people to prison and fewer to the gallows in the eighteenth century, it
was in Enlightenment-inspired America that the taste for long-term,
profoundly depersonalized punishment became most aggravated. The
inhumanity of American prisons was as much a theme for Dickens, visiting
America in 1842, as the cynicism of American lawyers. His shock when he
saw the Eastern State Penitentiary, in Philadelphia—a “model” prison,
at the time the most expensive public building ever constructed in the
country, where every prisoner was kept in silent, separate
confinement—still resonates:
I
believe that very few men are capable of estimating the immense amount
of torture and agony which this dreadful punishment, prolonged for
years, inflicts upon the sufferers. . . . I hold this slow and daily
tampering with the mysteries of the brain, to be immeasurably worse than
any torture of the body: and because its ghastly signs and tokens are
not so palpable to the eye and sense of touch as scars upon the flesh;
because its wounds are not upon the surface, and it extorts few cries
that human ears can hear; therefore I the more denounce it, as a secret
punishment which slumbering humanity is not roused up to stay.
Not roused up to stay—that
was the point. Once the procedure ends, the penalty begins, and, as
long as the cruelty is routine, our civil responsibility toward the
punished is over. We lock men up and forget about their existence. For
Dickens, even the corrupt but communal debtors’ prisons of old London
were better than this. “Don’t take it personally!”—that remains
the slogan above the gate to the American prison Inferno. Nor is this
merely a historian’s vision. Conrad Black, at the high end, has a scary
and persuasive picture of how his counsel, the judge, and the
prosecutors all merrily congratulated each other on their combined
professional excellence just before sending him off to the hoosegow for
several years. If a millionaire feels that way, imagine how the ordinary
culprit must feel.
In place of abstraction, Stuntz argues for
the saving grace of humane discretion. Basically, he thinks, we should
go into court with an understanding of what a crime is and what justice
is like, and then let common sense and compassion and specific
circumstance take over. There’s a lovely scene in “The Castle,” the
Australian movie about a family fighting eminent-domain eviction, where
its hapless lawyer, asked in court to point to the specific part of the
Australian constitution that the eviction violates, says desperately,
“It’s . . . just the vibe of the thing.” For Stuntz, justice
ought to be just the vibe of the thing—not one procedural error caught
or one fact worked around. The criminal law should once again be more
like the common law, with judges and juries not merely finding fact but
making law on the basis of universal principles of fairness,
circumstance, and seriousness, and crafting penalties to the exigencies
of the crime.
The other argument—the Southern argument—is that
this story puts too bright a face on the truth. The reality of American
prisons, this argument runs, has nothing to do with the knots of
procedural justice or the perversions of Enlightenment-era ideals.
Prisons today operate less in the rehabilitative mode of the Northern
reformers “than in a retributive mode that has long been practiced and
promoted in the South,” Perkinson, an American-studies professor,
writes. “American prisons trace their lineage not only back to
Pennsylvania penitentiaries but to Texas slave plantations.” White
supremacy is the real principle, this thesis holds, and racial
domination the real end. In response to the apparent triumphs of the
sixties, mass imprisonment became a way of reimposing Jim Crow. Blacks
are now incarcerated seven times as often as whites. “The system of mass
incarceration works to trap African Americans in a virtual (and
literal) cage,” the legal scholar Michelle Alexander writes. Young black
men pass quickly from a period of police harassment into a period of
“formal control” (i.e., actual imprisonment) and then are doomed for
life to a system of “invisible control.” Prevented from voting, legally
discriminated against for the rest of their lives, most will cycle back
through the prison system. The system, in this view, is not really
broken; it is doing what it was designed to do. Alexander’s grim
conclusion: “If mass incarceration is considered as a system of social
control—specifically, racial control—then the system is a fantastic
success.”
Northern impersonality and Southern revenge converge on a
common American theme: a growing number of American prisons are now
contracted out as for-profit businesses to for-profit companies. The
companies are paid by the state, and their profit depends on spending as
little as possible on the prisoners and the prisons. It’s hard to
imagine any greater disconnect between public good and private profit:
the interest of private prisons lies not in the obvious social good of
having the minimum necessary number of inmates but in having as many as
possible, housed as cheaply as possible. No more chilling document
exists in recent American life than the 2005 annual report of the
biggest of these firms, the Corrections Corporation of America. Here the
company (which spends millions lobbying legislators) is obliged to
caution its investors about the risk that somehow, somewhere, someone
might turn off the spigot of convicted men:
Our
growth is generally dependent upon our ability to obtain new contracts
to develop and manage new correctional and detention facilities. . . .
The demand for our facilities and services could be adversely affected
by the relaxation of enforcement efforts, leniency in conviction and
sentencing practices or through the decriminalization of certain
activities that are currently proscribed by our criminal laws. For
instance, any changes with respect to drugs and controlled substances or
illegal immigration could affect the number of persons arrested,
convicted, and sentenced, thereby potentially reducing demand for
correctional facilities to house them.
Brecht
could hardly have imagined such a document: a capitalist enterprise
that feeds on the misery of man trying as hard as it can to be sure that
nothing is done to decrease that misery.
Yet a
spectre haunts all these accounts, North and South, whether process
gone mad or penal colony writ large. It is that the epidemic of
imprisonment seems to track the dramatic decline in crime over the same
period. The more bad guys there are in prison, it appears, the less
crime there has been in the streets. The real background to the prison
boom, which shows up only sporadically in the prison literature, is the
crime wave that preceded and overlapped it.
For those too young to
recall the big-city crime wave of the sixties and seventies, it may
seem like mere bogeyman history. For those whose entire childhood and
adolescence were set against it, it is the crucial trauma in recent
American life and explains much else that happened in the same period.
It was the condition of the Upper West Side of Manhattan under liberal
rule, far more than what had happened to Eastern Europe under socialism,
that made neo-con polemics look persuasive. There really was, as Stuntz
himself says, a liberal consensus on crime (“Wherever the line is
between a merciful justice system and one that abandons all serious
effort at crime control, the nation had crossed it”), and it really did
have bad effects.
Yet if, in 1980, someone had predicted that by
2012 New York City would have a crime rate so low that violent crime
would have largely disappeared as a subject of conversation, he would
have seemed not so much hopeful as crazy. Thirty years ago, crime was
supposed to be a permanent feature of the city, produced by an alienated
underclass of super-predators; now it isn’t. Something good happened to
change it, and you might have supposed that the change would be an
opportunity for celebration and optimism. Instead, we mostly content
ourselves with grudging and sardonic references to the silly side of
gentrification, along with a few all-purpose explanations, like
broken-window policing. This is a general human truth: things that work
interest us less than things that don’t.
So what is the
relation between mass incarceration and the decrease in crime?
Certainly, in the nineteen-seventies and eighties, many experts became
persuaded that there was no way to make bad people better; all you could
do was warehouse them, for longer or shorter periods. The best research
seemed to show, depressingly, that nothing works—that rehabilitation
was a ruse. Then, in 1983, inmates at the maximum-security federal
prison in Marion, Illinois, murdered two guards. Inmates had been (very
occasionally) killing guards for a long time, but the timing of the
murders, and the fact that they took place in a climate already prepared
to believe that even ordinary humanity was wasted on the criminal
classes, meant that the entire prison was put on permanent lockdown. A
century and a half after absolute solitary first appeared in American
prisons, it was reintroduced. Those terrible numbers began to grow.
And
then, a decade later, crime started falling: across the country by a
standard measure of about forty per cent; in New York City by as much as
eighty per cent. By 2010, the crime rate in New York had seen its
greatest decline since the Second World War; in 2002, there were fewer
murders in Manhattan than there had been in any year since 1900. In
social science, a cause sought is usually a muddle found; in life as we
experience it, a crisis resolved is causality established. If a pill
cures a headache, we do not ask too often if the headache might have
gone away by itself.
All this ought to make the publication of
Franklin E. Zimring’s new book, “The City That Became Safe,” a very big
event. Zimring, a criminologist at Berkeley Law, has spent years
crunching the numbers of what happened in New York in the context of
what happened in the rest of America. One thing he teaches us is how
little we know. The forty per cent drop across the continent—indeed,
there was a decline throughout the Western world— took place for reasons
that are as mysterious in suburban Ottawa as they are in the South
Bronx. Zimring shows that the usual explanations—including demographic
shifts—simply can’t account for what must be accounted for. This makes
the international decline look slightly eerie: blackbirds drop from the
sky, plagues slacken and end, and there seems no absolute reason that
societies leap from one state to another over time. Trends and fashions
and fads and pure contingencies happen in other parts of our social
existence; it may be that there are fashions and cycles in criminal
behavior, too, for reasons that are just as arbitrary.
But the
additional forty per cent drop in crime that seems peculiar to New York
finally succumbs to Zimring’s analysis. The change didn’t come from
resolving the deep pathologies that the right fixated on—from jailing
super predators, driving down the number of unwed mothers, altering
welfare culture. Nor were there cures for the underlying causes pointed
to by the left: injustice, discrimination, poverty. Nor were there any
“Presto!” effects arising from secret patterns of increased abortions or
the like. The city didn’t get much richer; it didn’t get much poorer.
There was no significant change in the ethnic makeup or the average
wealth or educational levels of New Yorkers as violent crime more or
less vanished. “Broken windows” or “turnstile jumping” policing, that
is, cracking down on small visible offenses in order to create an
atmosphere that refused to license crime, seems to have had a negligible
effect; there was, Zimring writes, a great difference between the
slogans and the substance of the time. (Arrests for “visible” nonviolent
crime—e.g., street prostitution and public gambling—mostly went down through the period.)
Instead,
small acts of social engineering, designed simply to stop crimes from
happening, helped stop crime. In the nineties, the N.Y.P.D. began to
control crime not by fighting minor crimes in safe places but by putting
lots of cops in places where lots of crimes happened—“hot-spot
policing.” The cops also began an aggressive, controversial program of
“stop and frisk”—“designed to catch the sharks, not the dolphins,” as
Jack Maple, one of its originators, described it—that involved what’s
called pejoratively “profiling.” This was not so much racial, since in
any given neighborhood all the suspects were likely to be of the same
race or color, as social, involving the thousand small clues that
policemen recognized already. Minority communities, Zimring emphasizes,
paid a disproportionate price in kids stopped and frisked, and detained,
but they also earned a disproportionate gain in crime reduced. “The
poor pay more and get more” is Zimring’s way of putting it. He believes
that a “light” program of stop-and-frisk could be less alienating and
just as effective, and that by bringing down urban crime stop-and-frisk
had the net effect of greatly reducing the number of poor minority kids
in prison for long stretches.
Zimring insists, plausibly, that he
is offering a radical and optimistic rewriting of theories of what crime
is and where criminals are, not least because it disconnects crime and
minorities. “In 1961, twenty six percent of New York City’s population
was minority African American or Hispanic. Now, half of New York’s
population is—and what that does in an enormously hopeful way is to
destroy the rude assumptions of supply side criminology,” he says. By
“supply side criminology,” he means the conservative theory of crime
that claimed that social circumstances produced a certain net amount of
crime waiting to be expressed; if you stopped it here, it broke out
there. The only way to stop crime was to lock up all the potential
criminals. In truth, criminal activity seems like most other human
choices—a question of contingent occasions and opportunity. Crime is not
the consequence of a set number of criminals; criminals are the
consequence of a set number of opportunities to commit crimes. Close
down the open drug market in Washington Square, and it does not
automatically migrate to Tompkins Square Park. It just stops, or the
dealers go indoors, where dealing goes on but violent crime does not.
And,
in a virtuous cycle, the decreased prevalence of crime fuels a decrease
in the prevalence of crime. When your friends are no longer doing
street robberies, you’re less likely to do them. Zimring said, in a
recent interview, “Remember, nobody ever made a living mugging. There’s
no minimum wage in violent crime.” In a sense, he argues, it’s
recreational, part of a life style: “Crime is a routine behavior; it’s a
thing people do when they get used to doing it.” And therein lies its
essential fragility. Crime ends as a result of “cyclical forces
operating on situational and contingent things rather than from finding
deeply motivated essential linkages.” Conservatives don’t like this view
because it shows that being tough doesn’t help; liberals don’t like it
because apparently being nice doesn’t help, either. Curbing crime does
not depend on reversing social pathologies or alleviating social
grievances; it depends on erecting small, annoying barriers to entry.
One
fact stands out. While the rest of the country, over the same
twenty-year period, saw the growth in incarceration that led to our
current astonishing numbers, New York, despite the Rockefeller drug
laws, saw a marked decrease in its number of inmates. “New York City, in
the midst of a dramatic reduction in crime, is locking up a much
smaller number of people, and particularly of young people, than it was
at the height of the crime wave,” Zimring observes. Whatever happened to
make street crime fall, it had nothing to do with putting more men in
prison. The logic is self-evident if we just transfer it to the realm of
white-collar crime: we easily accept that there is no net sum of
white-collar crime waiting to happen, no inscrutable generation of
super-predators produced by Dewar’s-guzzling dads and scaly M.B.A.
profs; if you stop an embezzlement scheme here on Third Avenue, another
doesn’t naturally start in the next office building. White-collar crime
happens through an intersection of pathology and opportunity; getting
the S.E.C. busy ending the opportunity is a good way to limit the range
of the pathology.
Social trends deeper and less visible to us may
appear as future historians analyze what went on. Something other than
policing may explain things—just as the coming of cheap credit cards and
state lotteries probably did as much to weaken the Mafia’s Five
Families in New York, who had depended on loan sharking and numbers
running, as the F.B.I. could. It is at least possible, for instance,
that the coming of the mobile phone helped drive drug dealing indoors,
in ways that helped drive down crime. It may be that the real value of
hot spot and stop-and-frisk was that it provided a single game plan that
the police believed in; as military history reveals, a bad plan is
often better than no plan, especially if the people on the other side
think it’s a good plan. But one thing is sure: social epidemics, of
crime or of punishment, can be cured more quickly than we might hope
with simpler and more superficial mechanisms than we imagine. Throwing a
Band-Aid over a bad wound is actually a decent strategy, if the
Band-Aid helps the wound to heal itself.
Which
leads, further, to one piece of radical common sense: since prison plays
at best a small role in stopping even violent crime, very few people,
rich or poor, should be in prison for a nonviolent crime. Neither the
streets nor the society is made safer by having marijuana users or
peddlers locked up, let alone with the horrific sentences now dispensed
so easily. For that matter, no social good is served by having the
embezzler or the Ponzi schemer locked in a cage for the rest of his
life, rather than having him bankrupt and doing community service in the
South Bronx for the next decade or two. Would we actually have more
fraud and looting of shareholder value if the perpetrators knew that
they would lose their bank accounts and their reputation, and have to do
community service seven days a week for five years? It seems likely
that anyone for whom those sanctions aren’t sufficient is someone for
whom no sanctions are ever going to be sufficient. Zimring’s research
shows clearly that, if crime drops on the street, criminals coming out
of prison stop committing crimes. What matters is the incidence of crime
in the world, and the continuity of a culture of crime, not some
“lesson learned” in prison.
At the same time, the ugly side of
stop-and-frisk can be alleviated. To catch sharks and not dolphins,
Zimring’s work suggests, we need to adjust the size of the holes in the
nets—to make crimes that are the occasion for stop-and-frisks real
crimes, not crimes like marijuana possession. When the New York City
police stopped and frisked kids, the main goal was not to jail them for
having pot but to get their fingerprints, so that they could be
identified if they committed a more serious crime. But all over America
the opposite happens: marijuana possession becomes the serious crime.
The cost is so enormous, though, in lives ruined and money spent, that
the obvious thing to do is not to enforce the law less but to change it
now. Dr. Johnson said once that manners make law, and that when manners
alter, the law must, too. It’s obvious that marijuana is now an almost
universally accepted drug in America: it is not only used casually
(which has been true for decades) but also talked about casually on
television and in the movies (which has not). One need only watch any
stoner movie to see that the perceived risks of smoking dope are not
that you’ll get arrested but that you’ll get in trouble with a rival
frat or look like an idiot to women. The decriminalization of marijuana
would help end the epidemic of imprisonment.
The rate of
incarceration in most other rich, free countries, whatever the
differences in their histories, is remarkably steady. In countries with
Napoleonic justice or common law or some mixture of the two, in
countries with adversarial systems and in those with magisterial ones,
whether the country once had brutal plantation-style penal colonies, as
France did, or was once itself a brutal plantation-style penal colony,
like Australia, the natural rate of incarceration seems to hover right
around a hundred men per hundred thousand people. (That doesn’t mean it
doesn’t get lower in rich, homogeneous countries—just that it never gets
much higher in countries otherwise like our own.) It seems that one man
in every thousand once in a while does a truly bad thing. All other
things being equal, the point of a justice system should be to identify
that thousandth guy, find a way to keep him from harming other people,
and give everyone else a break.
Epidemics seldom
end with miracle cures. Most of the time in the history of medicine,
the best way to end disease was to build a better sewer and get people
to wash their hands. “Merely chipping away at the problem around the
edges” is usually the very best thing to do with a problem; keep
chipping away patiently and, eventually, you get to its heart. To read
the literature on crime before it dropped is to see the same kind of
dystopian despair we find in the new literature of punishment: we’d have
to end poverty, or eradicate the ghettos, or declare war on the broken
family, or the like, in order to end the crime wave. The truth is, a
series of small actions and events ended up eliminating a problem that
seemed to hang over everything. There was no miracle cure, just the
intercession of a thousand smaller sanities. Ending sentencing for drug
misdemeanors, decriminalizing marijuana, leaving judges free to use
common sense (and, where possible, getting judges who are judges rather
than politicians)—many small acts are possible that will help end the
epidemic of imprisonment as they helped end the plague of crime.
“Oh,
I have taken too little care of this!” King Lear cries out on the heath
in his moment of vision. “Take physic, pomp; expose thyself to feel
what wretches feel.” “This” changes; in Shakespeare’s time, it was
flat-out peasant poverty that starved some and drove others as mad as
poor Tom. In Dickens’s and Hugo’s time, it was the industrial revolution
that drove kids to mines. But every society has a poor storm that
wretches suffer in, and the attitude is always the same: either that the
wretches, already dehumanized by their suffering, deserve no pity or
that the oppressed, overwhelmed by injustice, will have to wait for a
better world. At every moment, the injustice seems inseparable from the
community’s life, and in every case the arguments for keeping the system
in place were that you would have to revolutionize the entire social
order to change it—which then became the argument for revolutionizing
the entire social order. In every case, humanity and common sense made
the insoluble problem just get up and go away. Prisons are our this. We
need take more care.
†
