argumentative essay the american prison industry

“Work Don’t Hurt Me”: A Study Of Prison Labor And Prison Industries In America

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“Work don’t hurt me, Like the early rise, Well, work don’t hurt me, But that’s the thing that hurts my pride.” —“Tamping Ties,” traditional work song

In his essay “Prison Labor, Slavery & Capitalism In Historical Perspective,” Stephen Hartnett cites the testimony of Shaka, an inmate who refuses to participate in prison labor because he equates it with slave labor, stating that “during slavery, work was understood to be a punishment, and became despised as any punishment is despised. Work became hated as does any activity which accomplishes no reward for the doer. . . . I unequivocally refuse to be a slave.” While Shaka’s equation of contemporary American prison labor to slavery may seem hyperbolic, his testimony, nevertheless, raises questions about the meaning and the principles behind contemporary American prison labor programs. Today, there are two dominant perspectives on convict labor. The first states that penal work programs are rehabilitative; they prepare the convict to be a functioning individual in society at large. The second reflects Shaka’s argument: that prison labor is exploitation on the level of slavery.

If Shaka is right, and our prison labor programs really are slavery, American industry does not seem to have a problem with making a profit from them. Presently, individual prisons in America earn millions of dollars from the sale of goods produced by inmates (Wisely). According to an article published by the Center For Research On Globalization:

The federal prison industry produces 100% of all military helmets, ammunition, belts, bullet proof vests, ID tags, shirts, pants, tents, bags, and canteens . . . 98% of the entire market for equipment assembly services; 93% of paints and paintbrushes; 92% of stove assembly; 46% of body armor; 36% of home appliances; 30% of headphones/microphones/speakers; and 21% of office furniture. (Pelaez)

These numbers are striking. Prison labor clearly comprises an important portion of America’s economy, yet prisoners are typically paid either minimum wage or well beneath it. Many state prisons deduct costs of living from these wages so that inmates may earn only twenty or sixty cents an hour (Pelaez). Is this exploitation? As a nation that supports the fair treatment of all laboring citizens, it is important to ask whether or not America is profiting from a system that is unjust and cruel. Does prison labor exploit or reform the convict? Are contemporary American prisoners working for their own benefit or are they, as Shaka so passionately claims, slaves to the prison system?

American policy has always maintained that prison labor is rehabilitative, that it works to reintegrate the criminal into society through useful work and participation in the economy of the outside world. In 1816 the Auburn Prison was opened in the state of New York, operating under a philosophy of reforming prisoners through precise, communal work environments and solitary confinement rather than capital punishment and torture (“Auburn Prison Model”). Prisons built in the Auburn model began to spring up all over America. For a long period in the nineteenth century, prison labor was the rule at Rhode Island State Prison, which had their inmates craft shoes, “manufacture stained and grained furniture,” and meet quotas (Garman 123). This enforced work environment supposedly was designed for “reordering dysfunctional lives” (120). The inmate was seen as possessing a “dysfunction” and labor programs provided the means of reforming criminals—rewiring their circuitry to be functioning individuals in society.

The U.S. Prison Industries Reorganization Administration’s 1937 study, “The Prison Labor Problem in California,” praised road work as an effective rehabilitative method:

Under these freer surroundings . . . where discipline is maintained on an honor basis and all men are engaged in hard work to maintain themselves and provide something for dependents and their own eventual release, where rest and occasional holidays mean something else than just another dreary day, prisoners are preparing themselves physically, mentally and morally for the responsibilities of normal living on the outside.

This passage lucidly expresses the historical perspective on prison labor as rehabilitation: that labor subverts the punishing quality of prison by releasing inmates from absolute containment. Labor, thus, “prepares” prisoners for “normal living on the outside” by allowing them a rehearsal space to practice certain liberties. In addition, the passage suggests that prison labor affirms the importance of responsibility. If prisoners are to enjoy “rest and occasional holidays,” they must adhere to “an honor basis” and must be “engaged in hard work to maintain themselves.” Prison labor potentially instills in criminals the causality essential to outside living: if you are going to enjoy freedom, you have to do useful work to maintain it.

Many contemporary sociologists would agree with the 1937 study’s claim that prison labor is less like slavery and more like liberty, or at least, like a rehearsal space for free living. Robert D. Atkinson, for example, explains that many prisoners “volunteer for work, because it is a lot . . . more rewarding than watching TV all day.” Atkinson might respond to Shaka’s assessment of prison labor as slavery by arguing that no one is forcing the prisoners to do anything; prisoners willingly participate in work to escape the monotonous boundaries of the prison system. Convict labor thus resembles work on the outside because it is voluntary and even earns prisoners a salary.

Contemporary proponents of prison work programs also echo the historical perspective that prison labor provides inmates with useful work skills. Atkinson claims that “prison labor looks like normal labor; workers sewing garments, building furniture, recycling computers, answering phones, etc.” Former Supreme Court Justice Warren E. Burger agrees that “if we place these inmates in factories, making ball-point pens, hosiery, cases for watches, parts for automobiles, lawn mowers, computers, or other machinery . . . we will stand a better chance to release from prison persons able to secure gainful employment” (755). Rehabilitating a criminal partly depends on teaching the prisoner skills to be applied in the outside world, and proponents argue that prison labor achieves this objective.

In fact, advocates of prison labor argue that it provides more than just physical work skills. Sociologist Gordon Hawkins supports prison work programs because work is “a major source of status and of a sense of adult independence.” He argues that, without labor in prisons, prisoners become idle and dependent on others (87), hardly behavior that will support them on the outside. Hawkins seems to suggest that labor programs help to mature the criminal mind—to settle a childish “dependence on others” (87), and to instill the pride and self-reliance necessary to life on the outside. Hawkins perceives work as a rite of passage, and a means of achieving important character qualities for free living. So, through prison labor, good qualities are learned as well as useful skills.

All of these rehabilitative qualities of prison labor are said to affect recidivism rates. Furthermore, many prisons contend that work programs help to reintegrate the prisoner into his surrounding environment, even while contained. A USA Today article explores a prison work program in Maryland that produces office supplies with strange state pride: “the list . . . reads like a Maryland geography lesson: Silver Spring, Chesapeake, Potomac, New Windsor, etc.” (Dishneau). The fact that the products cannot be sold out of state in part justifies these names, but perhaps these state-pride products also attempt to reintegrate the prisoner into his outside environment. By crafting products specific to the location that they inhabit, prisoners may come to feel as if they have an economic stake in the surrounding communities, a 42.8 million dollar stake in the case of Maryland (Dishneau).

Of course, none of these arguments for rehabilitation would be compelling enough without evidence that prison labor helps inmates re-enter society. The executive director of Maryland Correctional Enterprises claims that “inmates who work in the plants tend to re-offend and return to prison at about half the rate of those who don’t” (Dishneau). Other prisons have claimed a similar recidivism rate due, seemingly, to the prison labor programs (Atkinson). Once again, it appears, from data at least, that prisoners have been reintegrated successfully into the outside world through the work of labor programs. In summation, the concept of labor as rehabilitation relies on the assumption that labor helps to reintegrate convicts back into society insofar as the labor is voluntary, teaches useful work skills, and constitutes the convicts’ presence in the local state economy.

So how can Shaka, as well as others, reasonably claim that prison labor equates to slave labor when the benefits seem so obvious? To begin, they dispute that prison labor is voluntary, and therefore equate it to slave labor. Matthew Parker, a Columbia University graduate and writer who served approximately eleven years in and out of state prisons in Arizona, dispels the notion that work is wholly voluntary: “In a medium security prison, everybody’s gonna work. Otherwise they’ll just increase security and throw you in ‘max.’ Everybody works.” Parker points to the complex power system at play that “inspires” so-called voluntary labor amongst inmates. In addition to avoiding increased security, there are other incentives for prison labor, including decreased sentences, and better treatment by guards (Erlich). Work is not, under these circumstances, a voluntary act, participated in to obtain a salary. In Parker’s assessment, prison labor does not transcend the walls of the penal complex by substituting for the kind of voluntary work available on the outside, but rather remains nested in the complex web of forces that comprise a prison.

So, if not exactly voluntary, does prison labor not redeem itself by giving prisoners “a better chance . . . to secure gainful employment” by teaching them useful skills (Burger 755)? In Reese Erlich’s article “Prison Labor: Workin’ For The Man,” an inmate from the California prison system named Dino Navarette speaks out about his experience with prison labor: “They put you on a machine and expect you to put out for them. . . . Nobody wants to do that. These jobs are jokes to most inmates here.” This particular inmate considers prison labor menial and unwanted; he claims that the jobs have no value for prisoners besides the possibility of a shorter sentence. From his perspective, the work has no real substance in granting the prisoners useful skills, but is only another force of opposition to be endured by convicts. In fact, many prison labor programs do not even pretend to grant prisoners useful work skills. Matthew Parker describes a specific job assignment in the Arizona State Prison called the “rock crew,” which consisted of moving rocks from one side of the yard to the other. This job seems absurd in its misuse of prisoners’ time and energy. Moving rocks hardly seems like an activity designed to help employ convicts upon reentry. Indeed, many of the jobs in prison labor programs are simply there to make inmates work.

Even to those prisoners who are actually learning useful skills, the reintegration process can be daunting. An article by David R. Jones in the Gotham Gazette claimed that some states uphold policies that bar ex-convicts from obtaining licenses for skills they learned in prison. He cites the story of a New York State prisoner who applied for a barber’s license but was denied because “owing to state law, La Cloche could only practice his trade . . . if he remained behind bars.” The skills La Cloche learned had been confined by policy. This particular policy, practiced by many states in America, renders any skill gained from prison labor useless on the outside, therefore undermining the rehabilitative quality of prison labor.

Moreover, securing a job is no easy task for an ex-con, even without such policies. A report published for the Urban Institute Reentry Roundtable claims that even when ex-convicts possess some job training “most employers are reluctant to hire those with such records” (Holzer et al. 8). This reluctance among employers on the outside may come from legal restrictions in federal law, fear of litigation, and even employer attitudes towards “ex-offender status” (7). In short, employers fear and mistrust ex-convicts—they fear that they may be negligent in their work, that they will steal, but mostly, that they bear a mark of ignominy as a criminal. Even with effective job training attained from labor in prison, reintegration is difficult when you bear the title of convict.

Reentry for any convict is a trying process. Although many prisons boast that work programs decrease the chances of a prisoner reoffending, it seems an oversimplification to claim statistics about decreased recidivism are directly related to prison labor programs. Prison reentry policy is “geared to fail,” says Parker. “They want you to work at McDonalds. That’s why they won’t let you drive. The only way to get to a construction site after you get out of prison is to drive, but on parole you can’t do even that.” Indeed, Parker’s feeling of containment lasted long after he was released from prison. Despite proclaimed reduction in recidivism rates due to prison labor programs, Parker insists that he did not benefit from prison labor once released. Rather, he and others former prisoners are confronted with the same barriers and walls they endured while detained, making any chance at reentry difficult, if not impossible.

So maybe prison labor does not supply inmates with useful work skills that will apply to the outside, but one might still argue that the very function of prison industries support the convict’s reintegration into local economies. Maryland prison systems sell hand-crafted furniture to local businesses and prisoners are paid wages, although limited, for their services. Does not prison labor reflect the work process that normal people go through on the outside? Doesn’t prison labor, as Robert D. Atkinson claims, “look like normal labor?”

To assume that the inmate is an actual participant in the economy at large is rendered absurd by several circumstances. Dino Navarette articulates his frustration with the fact that California has been exporting prison-made goods: “‘You might just as well call this slave labor, then’, says Navarette. ‘If they’re selling it overseas, you know they’re making money. Where’s the money going to? It ain’t going to us’” (Erlich). Navarette’s consternation with low wages and his suspicion of exploitation is shared in prisons where exporting goods is not practiced. We have already heard from Shaka, who “unequivocally refuse[s] to be a slave.” It is difficult for either Navarette or Shaka to imagine that they are participating in the economy of the outside world. Rather, they both feel shackled by their society rather than associated with it. The minimal wages that they are paid are only a painful reminder that they are being punished and someone else is profiting from their toil.

Professor Gordon Lafer concurs that “prison labor is analogous to slave labor,” but for a different reason. He states that “convict labor not only takes decently paid jobs out of the economy; it also undermines the living standards of those who remain employed by forcing their employers to compete with firms that use prisoners.” Evidence of this competition is everywhere. The same USA Today article that discusses Maryland’s Prison Industry ends with a disturbing acknowledgment of how local businesses have to compete unfairly with the cheap cost of prison labor and their high profits (Dishneau). Lafer cites instances in which “a south Georgia recycling plant laid off 50 workers . . . and replaced them with prison laborers,” and “in Eugene, the church-owned Sacred Heart Hospital canceled its contract with a unionized linen service and redirected the work to a prison laundry.” What this competition highlights is the unusual economic nature of prison labor. Prison labor is generally cheaper and more profitable than any kind of legal, regulated industries on the outside. This makes prison work programs a target for opposition from companies, labor unions, and federal overseers. Therefore, prison labor is not typical labor. It incites opposition from the economic world on the outside, because prison labor does not fairly compete, and can do so because it exploits its workers.

Paradoxically, while prison work may be exploitative and not nearly as rehabilitative as its proponents claim, disposing entirely of prison labor might present its own dangers. While criticizing many of the functions of prison labor, Parker claims that prison work programs still serve an important purpose: maintaining sanity. “You’ll go crazy without working for a while. If I didn’t have a job in prison, I would’ve been climbing the [expletive] walls.” Here is a seasoned ex-inmate, well acquainted with the prison labor system, advocating working in prison for its “therapeutic” purposes. Parker points to the basic human desire to work and be useful. Even with jobs as absurd as the “rock crew,” prison labor offers inmates the chance to make use of their bodies in an environment that otherwise supports idleness. Parker may agree, therefore, with the arguments of Hawkins and Atkinson that prisoners labor to resist the paralyzing effects of containment.

Yet Parker claims that the merits of prison labor are utterly confined within the prison. While locked up, many inmates want to work—not to better themselves, not to learn useful skills, not even to participate in their local economy, but simply to work. Parker presents an honest assessment of prison labor. Work stimulates the detained body, but does it improve, reform, or rehabilitate the person inside it?

From what we have examined so far, the answer can hardly be yes. And to assume that labor is rehabilitative is to support a rather disconcerting philosophy. First, return to Former Supreme Court Justice Burger, who writes (as I have partly quoted before):

Most prison inmates, by definition, are maladjusted people. . . . They do not observe the concepts of work and accountability that made this country great. They were not taught . . . the moral values that instill respect and concern for the rights of others and in turn foster self-respect. If we place these inmates in factories, making ballpoint pens, hosiery, cases for watches, parts for automobiles, lawnmowers, computers, or other machinery . . . we will stand a better chance to release from prison persons able to secure gainful employment. These will be persons whose self-esteem has improved enough to afford a better chance of living a normal life. (755)

Justice Berger combines the rhetoric of economically reconditioning the prisoner with the somewhat problematic rhetoric of redefining the character of the prisoner—of rewiring the criminal mind. Of course, it would be best if we had fewer “maladjusted” people in society, but Berger’s rhetoric remains troubling. It seems as if he is diagnosing the general social disease that persists among prisoners and prescribing labor as a means of eradicating that disease. In essence, he claims that prison labor gains authority over the character of individual convicts. Ultimately, the process of “making ballpoint pens, hosiery, cases for watches” etc. becomes a means of molding the human being. Prison labor, when considered rehabilitative, becomes an exercise of power—a means of overriding the inmate’s will.

This is the argument of philosopher Michel Foucault, who, in his assessment of modern punishment, claims that “if one intervenes upon [the body] to imprison it, or to make it work, it is in order to deprive the individual of a liberty that is regarded both as a right and as property. . . . From being an art of unbearable sensations punishment has become an economy of suspended rights” (11). Foucault places prison labor within his “economy of suspended rights,” and claims that this economy’s object is ultimately “a punishment that acts in depth on the heart, the thoughts, the will, the inclinations” (16). What could be more salient to Foucault’s claims than the argument that prison labor is rehabilitative? Does not Burger claim that prison labor comes to have precedence over the values and the character of prisoners? Are not the arguments that work programs “reform” the inmate reliant on the idea that prison labor exercises control over the inmate’s person? Do we not assume that we can convert the prisoner by forcing him to work? By attempting rehabilitation through work, we use force to manipulate the soul.

At its best, prison labor may not hurt the prisoner. It may even provide, as Parker asserts, a therapeutic outlet. But let us not trick ourselves into thinking that prison labor performs a rehabilitative task. Prisoners go through the movements of crafting furniture, manning sewing machines, and printing license plates to satisfy their natural desires. If we assume that the purpose of prison labor is reintegration and reform, we uphold the idea that labor exercises absolute control over the body and the will—a philosophy that strikes at the very heart of the inmate.

Contemporary prison labor is not the black-and-white issue proponents or opponents of it may claim it to be. Prison labor is neither rehabilitation nor clear-cut slavery. If we continue to support prison labor as rehabilitation, we become disingenuous in assuming that such work effectively reforms the character of the prisoner and reintegrates him into society. If we discard the programs entirely, we may deny prisoners the outlet they need to prevent them from “climbing the [expletive] walls.” Instead, we need to examine the idle environment of prisons and reform the conditions that make prison labor a necessary component. Our support should lie with programs that both stimulate the prisoner and rehabilitate him—such as education. For as long as we continue to view prison labor as effective rehabilitation, we ignore the severe policy errors which prevent real, meaningful reintegration, and favor a system that exercises power rather than one that fosters reform.

WORKS CITED

Atkinson, Robert D. “Prison Labor: It’s More than Breaking Rocks.” Progressive Policy Institute . 23 May 2002. http://www.ppionline.org/ppi_ci.cfm?knlgAreaID=119&subsecID=213&contentID=250533.

“Auburn Prison Model.” World of Criminal Justice , Gale. Farmington: Gale, 2002. Credo Reference. 11 May 2004. Web. 10 Apr. 2010. http://www.credoreference.com/entry/worldcrims/auburn_prison_model.

Burger, Warren E. “Prison Industries: Turning Warehouses into Factories with Fences.” Public Administration Review 45, Spec. issue of Law and Public Affairs (Nov. 1985): 754-757. http://www.jstor.org/stable/3135032

“Convict Labor.” The Columbia Encyclopedia . New York: Columbia UP, 2008. Credo Reference. 7 Nov. 2008. Web. 10 Apr. 2010. http://www.credoreference.com/entry/columency/convict_labor.

Dishneau, David. “Web Catalog Offers Prison-Made Products.” USAToday.com . 27 November 2006. http://www.usatoday.com/tech/news/2006-11-27-prison-catalog_x.htm.

Erlich, Reese, “Prison Labor: Workin’ For The Man.” Covert Action Quarterly 54 (Fall 1995). http://www-unix.oit.umass.edu/~kastor/private/prison-labor.html.

Foucault, Michel. Discipline & Punish. Vintage Books, 1995.

Garman, James C. Detention Castles of Stone and Steel: Landscape, Labor, and The Urban Penitentary . Knoxville: The University Of Tennessee Press, 2005.

Hartnett, Stephen. “Prison Labor, Slavery & Capitalism In Historical Perspective.” History Is A Weapon.com . http://www.historyisaweapon.com/defcon1/hisprislacap.html.

Hawkins, Gordon. “Prison Labor and Prison Industries.” Crime and Justice 5 (1983): 85-127.

Holzer, Harry J, Steven Raphael, Michael A. Stoll. “Employment Barriers Facing Ex-Offenders.” Proceedings of the Urban Institute Reentry Roundtable . New York University Law School, 19-20 May 2003. http://www.waynerawlins.com/downloads/Employment%20Barriers.pdf.

Jones, David R. “Ex-Prisoners and Jobs.” Gotham Gazette. 24 May 2006. http://www.gothamgazette.com/print/1862.

Lafer, Gordon. “Captive Labor: America’s Prisoners As Corporate Workforce.” The American Prospect . 1 September 1999. http://www.prospect.org/cs/articles?article=captive_labor.

Parker, Matthew. Personal Interview. 22 April 2010.

Pelaez, Vicky. “The Prison Industry in the United States: Big Business or a New Form of Slavery?” Centre for Research on Globalization. 10 March 2008. http://www.globalresearch.ca/index.php?context=va&aid=8289.

Prison Labour North American Style. Campaign Against Prison Slavery. 8 March 2010. http://www.againstprisonslavery.org/caps_news.html#us&canada.

U.S. Prison Industries Reorganization Administration. Prison Labor Problem in California. Washington, D.C.: 1937. Print.

Wisely, Willie. California’s Prison Industry Authority . Web. 22 April 2010. http://sonic.net/~doretk/ArchiveARCHIVE/Prison/PRIS.TOPICS/ California’sPrisonIndustry.html.

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• Analysis & Opinion

How Atrocious Prisons Conditions Make Us All Less Safe

The American prison system seems designed to ensure that people return to incarceration instead of successfully reentering society.

• Shon Hopwood
• Prison and Jail Reform
• Social & Economic Harm

This essay is part of the  Brennan Center’s series  examining  the punitive excess that has come to define America’s criminal legal system .

Imagine one of those dystopian movies in which some character inhabits a world marked by dehumanization and a continual state of fear, neglect, and physical violence — The Hunger Games , for instance, or Mad Max . Now imagine that the people living in those worlds return to ours to become your neighbors. After such brutal traumatization, is it any wonder that they might struggle to obtain stable housing or employment, manage mental illness, deal with conflict, or become a better spouse or parent?

This is no fantasy world. American prisons cage millions of human beings in conditions similar to those movies. Of the more than 1.5 million people incarcerated in American prisons in 2019, more than 95 percent will be released back into the community at some point, at a rate of around 600,000 people each year. Given those numbers, we should ensure that those in our prisons come home better off, not worse — for their sake, but for society’s as well.

Yet our prisons fail miserably at preparing people for a law-abiding and successful life after release. A long-term study of recidivism rates of people released from state prisons from 2005 to 2014 found that 68 percent were arrested within three years and 83 percent were arrested within nine years following their release. And evidence confirms the great irony of our American criminal justice system: the longer someone spends in “corrections,” the less likely they are to stay out of jail or prison after their release. The data tells us that people are spending more time in prisons and the longest prison terms just keep getting longer, and thus our system of mass incarceration all but assures high rates of recidivism.

It is not difficult to understand why our prisons largely fail at preparing people to return to society successfully. American prisons are dangerous. Most are understaffed and overpopulated. Because of inadequate supervision, people in our prisons are exposed to incredible amounts of violence, including sexual violence. As just one example, in 2019 the Department of Justice’s Civil Rights Division concluded that Alabama’s prison system failed to protect prisoners from astounding levels of homicide and rape. In a single week, there were four stabbings (one that involved a death), three sexual assaults, several beatings, and one person’s bed set on fire as he slept.

Our prisons are so violent that they meaningfully impact the rehabilitation efforts for those inside them. There is an ever-present fear of violence in our gladiator-style prisons, where people have no protection from it. Incarcerated people who frequently witness violence and feel helpless to protect against it can experience post-traumatic stress symptoms — such as anxiety, depression, paranoia, and difficulty with emotional regulation — that last years after their release from custody. Because escalating conflict is the norm for those serving time in American prisons (often provoking violence as a self-defense mechanism), when they face conflict after being released, they are ill-equipped to handle it in a productive way. If the number of people impacted by prison violence was small, this situation would still be unjust and inhumane. But when more than 113 million Americans have had a close family member in jail or prison, the social costs can be cataclysmic.

Part of the reason our prisons are so violent is due to the idleness that occurs in them. As prison systems expanded over the last four decades, many states rejected the role of rehabilitation and reduced the number of available rehabilitation and educational programs. In Florida, which is the nation’s third largest prison system, there are virtually no education programs for prisoners, even though research shows that those programs reduce violence in prison and the recidivism rate for those released from prison.

It is not just the violence that is harmful. How American prisons are designed negatively impacts the ability of people to be self-reliant after their release. Prisons create social isolation by taking people from their communities and placing them behind razor wire, in locked cages. Through strict authoritarianism, rules, and control, prisons lessen personal autonomy and increase institutional dependence. This ensures that people learn to rely upon the free room and board only a prison can offer, thus rendering them less able to cope with economic demands upon release .

The location of our prisons also causes harm. Many prisons are located far away from cities and hundreds of miles from prisoners’ families. Consequently, family relationships deteriorate, impacting both prisoners and their loved ones. Just this past Mother’s Day, more than 150,000 imprisoned mothers spent the day apart from their children. As children with an incarcerated parent run greater risks of health and psychological problems, lower economic wellbeing, and decreased educational attainment, the aggravating effect of imprisonment far from one’s family is obvious.

The ill-considered location of prisons also increases the likelihood of inadequate attention paid to people with serious mental issues, who are widely present in our prisons. Prisons in remote and rural areas fail to hire and retain mental health professionals , and due to a lack of such resources, misdiagnosis of serious mental health issues is more likely. And not only is the treatment of such prisoners inadequate, but false negative determinations can also make it more difficult for them to receive disability benefits or treatment once released.

Prisons tend to rinse away the parts that make us human. They continue to use solitary confinement as a mechanism for dealing with idleness and misconduct, despite studies showing that it creates or exacerbates mental illness. Our prisons also foster an environment that values dehumanization and cruelty. At the federal prison in which I served for more than a decade, I watched correctional officers handcuff and then kick a friend of mine who had a softball-sized hernia protruding from his stomach. Because he was asking for medical attention, they treated him like a dog. There was little empathy in that place. And for over 10 years of my life, when those in authority addressed me, it was with the label “inmate.” The message every day, both explicitly and implicitly, was that I was unworthy of respect and dignity. Such an environment leads people to have a diminished sense of self-worth and personal value , affecting a person’s ability to empathize with others. The ability to empathize is a vital step towards rehabilitation, and when our prisons fail to rehabilitate, public safety ultimately suffers.

In sum, if you were to design a system to perpetuate intergenerational cycles of violence and imprisonment in communities already overburdened by criminal justice involvement, then the American prison system is what you would create. It routinely and persistently fails to produce the fair and just outcomes that will make us all safer.

So what can be done to fix our prisons? One of the reasons why our prison systems are so immune to change is because the worst of prison abuses occur behind closed doors, away from public view. Few prison systems have the independent oversight and transparency needed to ensure that they implement the best policies or comply with constitutional protections such as the Eighth Amendment prohibition on cruel and unusual punishment .

There is no reason why our prisons should not be modeled on the principle of human dignity , which respects the worth of every human being. If you translated that into policy, it would mean that people in prison would be protected from physical, sexual, and emotional abuse and would be provided with adequate mental health and medical treatment. It would mean prison systems would foster interpersonal relationships by placing people in facilities close to their loved ones and allowing ample in-person, phone, and video visitation. It would mean providing training on how to become better citizens, spouses, and parents. And it would mean offering educational and vocational programs designed to provide job skills for reentry, and behavioral programs designed to create empathy and autonomy, thereby preparing former prisoners to lead law-abiding and successful lives.

Shon Hopwood is a lawyer and associate professor of law at Georgetown University Law Center. He served over 10 years in federal prison and is the author of Law Man: Memoir of Jailhouse Lawyer .

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The Caging of America

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.

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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. ♦

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