Brooklyn’s now infamous Metropolitan Detention Center is just the latest prison to spark outrage over conditions testing the Eighth Amendment’s protections against “cruel and unusual punishments.” A power outage in late January left inmates without heat as a polar vortex drove temperatures well below freezing. Subsequently, officials discovered ruinous facilities, medical neglect and prisoners denied access to counsel. Investigations have been launched and lawsuits filed.
Yet Brooklyn is no anomaly: Throughout the country and across the world, prisoners endure wretched conditions. As philosopher and activist Jennifer Lackey writes, temperature is but one of the tools “the American criminal-justice system uses to send the message that inmates are less than human.” Last month, Florida’s Department of Corrections was sued for depriving inmates of their music, while a federal judge found that Michigan’s treatment of deaf and hard-of-hearing prisoners violated the Americans With Disabilities Act.
The sense that convicted criminals have a lesser claim to society’s consideration, and even to the barest necessities of life, makes depressingly regular appearances in public discourse. (Recall the furor over prisoners receiving “holiday steaks” during the partial government shutdown.) But this view is not the product of contemporary partisan politics. Rather, the move to deny prisoners moral significance vis-a-vis “law-abiding citizens” is at least as old as the modern penal system itself. Recognizing the depth of these historical roots helps explain why these scandals keep happening, as well as the challenges to reforming criminal justice.
There have been designated places for confining people, whether to punish, coerce or control, since at least the days of Ancient Greece. But the prison as we know it, as the default form of judicial punishment, emerged in the late 18th century. One of its prophets was the English philosopher Jeremy Bentham, the founder of utilitarianism. In 1787, Bentham published “Panopticon,” a scheme for a perfect prison organized around inmates’ sense of constant surveillance.
According to Bentham, inmates deserved neither more nor less than was dictated by the greatest good of the greatest number (including the inmates themselves). To this end, the Panopticon operated under “the rule of severity,” according to which the prisoner’s situation should be no better than that of the very poorest in free society. In theory, this would deter would-be criminals.
Practically, thanks to the ongoing, often-brutal Industrial Revolution, this allowed Bentham to justify any hardship: bread “as bad as wholesome bread can be,” exorbitant fees, constant labor (naturally, paid at below-market wages). All it took was some poor soul outside the walls surviving something worse. And so, seven-and-a-half hours’ sleep was generous, since Bentham had met a maidservant who saw her bed once a week, otherwise managing on a few hours’ rest in a chair. No prisoner should be idle when factories found work for children as young as 4. If “so many honest men” did not have enough to eat, criminals should not complain when their plates were filled with unpalatable fare.
The reference to “honest men” gets at the heart of the matter.
Bentham had an abiding moral intuition against letting the convict “rank upon a par with honest men.” He wrote those words a decade before “Panopticon,” criticizing a 1776 act that provided for “houses of hard labour” where convicts were put to work in what Bentham considered outrageous comfort. He was appalled that inmates had bread, a luxury “unknown” to hundreds of thousands of “his Majesty’s honest subjects,” and worked only eight hours a day — apparently, half the labor of “the honest poor” was “a lot too hard for felons.” The innocent did without running water and shared a single room for entire families — why should convicts enjoy anything better?
Despite Bentham’s notional respect for prisoners’ interests, and however elaborate his plans, his work also reflects a simpler sentiment, one of lasting influence: that criminals are a different, lesser sort of being than the free citizen. The 19th-century founders of the U.S. penal system, many of them avid readers of Bentham, took this for granted. Within the prison’s gates, the inmate was, to quote one warden, “literally buried from the world.” Early American prisons enforced total silence, liberally administered beatings and solitary confinement, stripped prisoners of their names and effects and limited contact with the outside world, even family members.
By secreting punishment behind walls, the reformers distanced the criminal from the public, fostering a sense of unbridgeable distance between the guilty and the innocent. Charles Dickens, touring Philadelphia’s Eastern State Penitentiary (famed for solitary confinement), protested that “this slow and daily tampering with the mysteries of the brain” was “immeasurably worse than any torture of the body.” What is more, he lamented, these “ghastly signs and tokens are not so palpable to the eye,” the prison “extorts few cries that human ears can hear.”
Just as Bentham urged, American prisoners were put to work, making fortunes for entrepreneurs who leaped at a source of cheap labor, free from the threat of strikes. The wanton indifference to the inmates’ welfare was summed up by one lessee: “One dies, get another.” And when organized labor did get involved, it was to protest the injustice and indignity of “honest workingmen” forced to compete with criminals.
Even the 13th Amendment excluded inmates from its protection: Involuntary servitude was abolished “except as a punishment for crime whereof the party shall have been duly convicted.” To this day, conviction justifies every bit of Panopticon economizing: spartan meals, extortionate fees, labor so pitifully paid it verges on parody. Many explanations suggest themselves for the success of Bentham’s ideas — frugality, a desire for retribution, the racial, ethnic and class difference that mark prison populations — but not least of these is its resonance with existing intuitions about guilt, innocence and moral worth. It seems only common sense.
Bentham describes prisoners as those “against whom justice has shut the door of sympathy,” and so it has proved. In 1884, the New York Court of Appeals held that despite faulty tools and managerial indifference, Warren Lewis was himself responsible for the grievous injury he sustained while working in prison: “If in the course of service he sustained injury, it must be attributed to the cause which placed him in confinement.”
More recently, we might think of the “war on crime” declared by President Lyndon B. Johnson, the bipartisan political hay still being made from being “tough on crime,” the reluctance to fund prison education, amenities and even health care. Not only do these attitudes contribute to abuses and recidivism (though they do), and not only are innocence and guilt disturbingly bound up in race and class (though they are), but Bentham’s “common sense” chains our society to a punitive logic, in which difference and disdain, not equality, become the self-evident truths.
It is heartening to see New York Gov. Andrew M. Cuomo (D) tweet, “Prisoners are human beings. Let’s treat them that way;” it is still more so to see criminal-justice reform making piecemeal progress at the federal and state levels. But these hopeful signs must contend with a centuries-old prejudice against permitting prisoners to “rank upon a par with honest men” — and dislodging that assumption is all the more difficult because its historical roots are so entrenched.