Robert Ferguson is a distinguished professor of law at Columbia University, with a deep interest in literature and in American culture. (He has a Ph.D. in the history of American civilization.) He has written an eloquent and learned book about the American criminal justice system today, with emphasis on imprisonment. He argues that prison sentences are too long and that prison conditions are abominable. And that is just the beginning.
Statistics confirm that a much higher fraction of Americans are prison inmates than was the case historically or is the case now in other civilized countries. As Ferguson notes, the per capita imprisonment rate is seven times greater in the United States than in Europe. Our inmates also are inmates for a longer period, because American prison sentences are longer than they used to be and longer than the sentences meted out in those other countries, although it is misleading to say as Ferguson does that “the United States imprisons more people than any other country in the world.” The United States is the third-most populous country in the world, and many countries do not publish accurate prison statistics (does anyone know the size of China’s prison population?). Many countries are unable or unwilling to punish most criminals, and in some countries crime is dealt with largely by extra-legal killing of criminals.
Unsurprisingly, given the number of prisoners, American prisons are overcrowded, living conditions are often squalid, and prison violence (including rape) is endemic. The combination of long prison terms with deplorable prison conditions makes our system of imprisonment, in Ferguson’s view, unspeakably cruel and savage. While we can count the number of prisoners, the frequency and the gravity of substandard prison conditions have not been reliably quantified.
Ferguson’s book is unique in the academic literature on imprisonment in its reliance on imaginative literature to illustrate, indeed to demonstrate, the barbarity (as he conceives it to be) of our prison system. Hence the book’s title, Inferno: the reader who misses the allusion to Dante will be enlightened by the last chapter, which is about the first two books of the Divine Comedy, the Inferno and the Purgatorio. Inferno is a prison for (eternal) life and the guards literally are devils. Purgatory is civilized, rehabilitative in its aim and methods. “Punishment through pain ... works differently in purgatory. It prevents sin, or unlawfulness, from taking place by breaking the habit of it. The goal is correction; pain is the by-product that makes it possible.... The damned struggle alone in hell except when they are fighting or hurting one another [he is forgetting Paolo and Francesca]. Nothing like that ever occurs in purgatory. Instead of screams of pain, we now have welcoming embraces. The setting is noticeably like regular society in its casual conviviality.... The souls in purgatory have sinned through misdirected love, basically selfishness. The antidote, correct love, manifests itself through kindness and mutuality.” And of course the prisoners have hope of eventual release into heaven. The current model for our prisons, Ferguson argues, is hell—he calls the American prison “a secular version of hell.” He would prefer that it were purgatory.
The invocation of Dante in this context is ingenious; but literature, or at least the literature that Ferguson’s book discusses, provides a dubious prism through which to view imprisonment. Consider two of the other literary works that he discusses: Kafka’s short story “In the Penal Colony” and Melville’s short novel Billy Budd. Neither is actually about imprisonment. Kafka’s story depicts a gruesome method of execution by a machine that tattoos the condemned man’s sentence on his body with needles, hour after hour, slowly killing him. The executioner, in despair over the growing public revulsion toward the machine and the inevitability that the authorities will replace it with a more humane form of punishment, frees a prisoner who is about to be executed and immolates himself on the machine, which disintegrates in the process. It is a story rich in masochism, gallows humor, and lament about the difficulties of communication (the machine with the condemned, the executioner with the skeptics about his method). But it sheds no light on the American prison system.
Billy Budd is the story of an attractive young sailor on a British warship during the Napoleonic wars who, in a fit of frustration at his inability to make a lucid defense (because he stammers) against false charges of mutiny leveled at him by the ship’s vicious security officer, kills the officer with a punch. The sailor is court-martialed and forthwith executed. The ship’s captain, though sympathetic toward Billy Budd, makes clear to the officers who preside at the court martial that they should convict, and they do. Ferguson considers the punishment excessive. But that isn’t how Melville portrays it. Maintaining discipline on a ship in wartime is paramount and requires capital punishment. Owing to the respective characters of victim and killer, the captain’s insistence on conviction and punishment is tragic, and, because he is depicted as a sensitive man, agonizing to him. But it is both lawful and in the circumstances inevitable. The relevance of this tale to American criminal justice is obscure.
About conditions inside American prisons Ferguson is passionate, but he is handicapped by an absence of data (not his fault). With 2.3 million prison inmates (of whom almost 10 percent are serving life sentences), the American prison system is certain to be a site of many abuses, even horrors. The critical issue is their frequency, which depends on the number of prisoners who experience abuse—a number that is unknown. Ferguson’s flat statement that “horrible conditions prevail in most American prisons” is not substantiated. Nor is his casual reference to “the law’s general disregard of inmate abuse.” There exist legal remedies for reckless disregard of inmates’ health and safety by guards and other prison personnel. Those remedies could be strengthened, but they are not, as Ferguson implies, completely ineffectual. Federal lawsuits to enforce the constitutional rights mainly of state prisoners are frequent and sometimes successful.
It is also an overstatement to say that “high recidivism rates are the product of prison life.” It is true that prisoners make contacts with other prisoners that may facilitate criminal activity when they are released, and that a prison record makes it extremely difficult to obtain decent lawful employment upon release as an alternative to resuming a criminal career. But these are consequences of imprisonment rather than of squalid or abusive prison conditions (“prison life”). Our prison sentences are almost certainly too severe on average, but criminals have to be punished. And if American prisons are as horrific as Ferguson believes, their horrors must persuade at least some of the inmates to go straight upon release.
Doubtless the frequency of prison abuses is a function of the number of prisoners and (what largely drives that number) the average length of imprisonment. The more prisoners there are, the more costly the prison system is to operate, and so the greater is the likelihood that for the sake of economy prisons will be allowed to become dilapidated and overcrowded and the ratio of guards to prisoners allowed to fall. And the longer a person is imprisoned, the likelier he is to encounter bad prison conditions and violence by fellow prisoners. As the costs of administering prisons grow, moreover, resources devoted to attempting to rehabilitate prisoners, so that they can be released earlier, in the realistic expectation that they will seek and obtain lawful employment rather than resume a criminal career, shrink. The total cost of American prisons and jails is $80 billion a year, with more than 90 percent borne by state and local governments, some of them starved for money.
The only realistic solution to deplorable prison conditions is to reduce the number of prisoners, a solution that Ferguson fears is blocked by American culture, which he believes to be excessively punitive and largely responsible for the immensity of the prison population. There is a lot to that, but it ignores increased concern, against a background of the nation’s economic troubles, with the sheer cost of mass imprisonment, and it ignores also the increased willingness of the courts to crack down on prison overcrowding as creating cruel and unusual punishment. The result of these pressures is likely to be fewer prisoners and therefore better prison conditions.
It can help to build on the conventional observation that imprisoning convicted criminals has four distinct aims: to deter the population at large from committing crimes (pour encourager les autres, as the French say sarcastically) by threat of punishment; to deter the prisoner from committing crimes when he is released, by making him experience punishment at firsthand; to prevent criminals from committing crimes (other than crimes against other inmates) while they are locked up; and to make it less likely that they will commit crimes after they are released, not only by deterring them but also by equipping them in prison for lawful employment on the outside by giving them, if necessary, psychiatric treatment, education, and vocational training. As a detail, I note that once deterrence is in the picture, Ferguson’s contention that “punishment should be proportional to the crime” requires qualification. A crime may not be especially heinous, but if it is especially lucrative a heavy punishment may be necessary to deter it. That is one reason the production and distribution of illegal drugs are punished as heavily as much graver crimes.
Imprisonment is an indispensable social practice, and it is more humane than killing, mutilating, flogging, or visiting punishment on the criminal’s relatives as well as on the criminal himself. Some criminals are at once dangerous and incorrigible, and for them there is no practical alternative to long prison terms. But it is demonstrable that too much conduct has been made criminal in this country, and that many prison sentences are far too long. About half our prison inmates are drug dealers: were the purchase and sale of illegal drugs decriminalized, the prison population would plummet, and as a result prison conditions would improve dramatically. Oddly Ferguson does not advocate decriminalization but merely amnesty for those drug offenders “who conquer their addiction in prison.” There are also other candidates for decriminalization, such as prostitution and copyright infringement (which should be just a civil offense); and it is time that the age of consent were reduced to 16 or even 15, in recognition of contemporary sexual mores. Gambling should be decriminalized, and probably environmental offenses as well, such as killing a migratory bird; such offenses should be left to the civil law, with its financial sanctions.
The sale and possession of marijuana are en route to being decriminalized; and I am inclined to think that cocaine, heroin, methamphetamime, LSD, and the rest of the illegal drugs should be decriminalized as well—though not deregulated. They should be regulated by the Food and Drug Administration for safety, like other drugs, and they should be taxed heavily, like alcohol and cigarettes. Alcohol and cigarettes are “recreational” drugs, too—and quite possibly more destructive of the users than the illegal drugs are, and, in the case of alcohol, also of acquaintances, family members, drivers, and pedestrians. The revenue from a sales tax on marijuana alone would pay for a substantial chunk of the cost of our prison system.
Sentences even for serious crimes are too long. A bank robber, convicted of his latest bank robbery at the age of thirty, may find himself sentenced to life in prison. Yet like other crime that is violent or potentially so (many bank robberies are committed by unarmed criminals who hand the teller a threatening note, or brandish a fake gun, yet even robbery by note frightens bank employees and customers and can end in a dangerous high-speed chase), bank robbery tends to be a young man’s crime, one that criminals age out of. Our thirty-year-old bank robber will be unlikely to commit bank robberies, or for that matter other serious crimes (he may have no aptitude for criminal activity other than robbery), after he turns fifty. Then the only possible social benefit from imprisoning him for the rest of his life will be to deter others from committing bank robberies. But if we bear in mind that potential bank robbers, like most violent criminals, tend not to be intelligent or imaginative, and often have serious problems of impulse control, we may wonder whether the incremental deterrent effect of threatening a potential bank robber with a sentence of more than fifteen or twenty years will be great enough to offset the direct and indirect costs that the much longer sentence will impose on the criminal justice system.
Burnout is a general characteristic of a career in crime; and it is not limited to violent crimes. Often a criminal will realize after having served several prison sentences that crime really doesn’t pay, and he will either find lawful work or live on welfare, charity, and cadging from relatives and friends, in lieu of continuing a life of crime. A good prison work program might even instill in some inmates habits and attitudes conducive to finding and even flourishing in lawful work. But such a program will be expensive.
Selective decriminalization and shortening of prison sentences would help to alleviate the problems that so distress Ferguson—as would a more vigorous effort to reduce poverty and near-poverty, which make crime often a more feasible method of obtaining income than lawful work would be, and expanding the social safety net. The fact that it is much less generous than the safety nets of other developed countries is doubtless a factor in our high crime rates; some people need to turn to crime to make a bare living. But all such reforms will be inhibited by the American characteristic that Ferguson emphasizes: hatred of criminals. Not that the inhabitants of foreign countries do not hate criminals; the canonical celebration of hatred of criminals was by the great English jurist James Fitzjames Stephen (Virginia Woolf’s uncle), who said that “it is morally right to hate criminals” and in fact “highly desirable that criminals should be hated” because otherwise there would not be strong pressure to enforce the criminal law unless people understood the purely utilitarian benefits of such enforcement. But the American hatred of criminals is especially unforgiving, reflecting our “sink or swim” mentality—the belief that America is the land of unlimited lawful opportunity and whoever fails to take the opportunity offered, turning to crime instead, has only himself to blame for his perverse choice and his condign punishment. We punish not only to deter or to incapacitate, but also to express our indignation. It is the Calvinist spirit at work. (Ferguson notes the philosophical and religious roots of penal severity in Machiavelli, Calvin, and Kant.) This is further intensified by the nation’s ethnic, religious, and racial diversity, for people have difficulty sympathizing with the failings of persons who are “other.” America is not one big happy family.
Yet the exceptional severity of our criminal punishments is too recent to be explained by hatred. Crime rates fell sharply during World War II because so many young males were in the armed forces and unemployment was virtually nonexistent. They remained low until the 1960s, when they took off, probably as a consequence of the turmoil of the 1960s and early 1970s, such as the growth of black militancy, which caused the police to reduce their presence in black communities—so black-on-black crime surged. At first the crime wave did not generate a significant increase in imprisonment—which might have amplified the wave. But beginning in the early 1970s the inmate population soared, and by 2000 its percentage of the total population had quadrupled, though the overall crime rate fell by a third in the 1990s and has continued falling.
The liberal decisions of the Supreme Court in the 1960s, the era of the “Warren Court,” gave criminal suspects and defendants more rights. That in turn increased the prosecutorial resources required for the conviction of a criminal defendant (and there were more defendants because there were more criminals) and might have resulted in fewer prosecutions and more crime. A Supreme Court widely believed to be “soft on crime” contributed to a backlash in Congress and state legislatures, resulting in more police and prosecutors, higher minimum and maximum sentences, and a host of new criminal prohibitions. Prosecutors were given multiple options for nailing an offender, options that in combination with extremely heavy maximum sentences persuade most criminal suspects to plead guilty, often to a stiff sentence, rather than go to trial and, if convicted (by far the likeliest outcome), receive an even stiffer one. The more defendants who plead guilty, the more can be prosecuted without an increase in prosecutorial resources. The backlash regime of heavy sentences enabled a relatively inexpensive increase in the number of convictions, which combined with longer sentences increased the inmate population even as the crime rate fell. Prison and prosecution budgets tend to be separate, with the result that prosecutors are not held back from prosecuting by the cost of an additional conviction to the prison system.
So American hatred of criminals is by no means the only force at work in making us an outlier nation in the severity with which criminals are treated. Nor should we allow indignation at that excessive severity to push us to the opposite extreme of belittling serious crime by regarding the criminal as the real victim and the authors of punishment—the legislators who enact harsh criminal laws, the prosecutors, the judges who sentence, and the prison staffs who guard the sentenced—as the malefactors, and the crime victims as merely bystanders. Granted, the officials have much to answer for, especially the legislators, who trip over each other in their efforts to make the criminal law more encompassing (there are now some four thousand separate federal crimes alone) and criminal punishments more severe, lest anyone think them soft on crime. The judges, too, are not blameless, for many of them sentence on a hunch and make no serious effort to become knowledgeable about what is known to social science about the effects of punishment. (Still, I don’t know where Ferguson got the idea that “judges conclude a sentence by pounding a gavel in punctuation of punishment.” I’ve never heard of that.)
Yet criminals must not be romanticized, as Hollywood did in Bonnie and Clyde, and as Ferguson comes close to doing in his discussion of the infamous Jack Abbott. In 1965, Abbott, then twenty-one and serving a prison sentence for forgery, murdered a fellow inmate and was sentenced to an additional term in prison. He escaped, committed a bank robbery, and was caught and re-imprisoned. While in prison he wrote an eloquent book called In the Belly of the Beast, a memoir of a life spent largely in reform schools and prisons. He was thirty-seven when it was published in 1981. Norman Mailer, with whom Abbott had corresponded from prison, became his champion and was instrumental in Abbott being paroled over the misgivings of prison officials. And sure enough, six weeks after being released on parole (the same year his book was published), he committed another homicide, this time of a waiter with whom he had gotten into an argument. He was apprehended, convicted of manslaughter, and re-imprisoned. He committed suicide in prison in 2002. As a criminal turned successful author, Abbott was a kind of American Jean Genet; but unlike his illustrious French predecessor, having turned author he remained a criminal.
In the Belly of the Beast makes criticisms of prison conditions that resonate with Ferguson. The fact that Abbott was a psychopath does not invalidate those criticisms. But I am troubled by Ferguson’s asking rhetorically, “Is prison itself partially responsible for creating Jack Abbott?” He does not answer the question directly, but he implies an affirmative answer. He quotes repeatedly from Abbott’s book, as if Abbott were a neutral, unimpeachable authority about the baleful effects of long imprisonment. Abbott was a talented writer who happened to be a madman, and he could not be allowed to live outside prison; it is rootless speculation that prison made him a killer, rather than that crime made him a prisoner. I am troubled by Ferguson’s saying of Abbott that “no matter what the crime and no matter how deserved the sentence, prison means oppression to those confined within its walls.” The statement is true, but offered as a criticism of imprisonment as a punishment for crime, it makes one wonder whether it is possible or even desirable for imprisonment not to be “oppressive.”
We must not lose sight of the fact that despite our severe punishments, the rate of violent crime in the United States is much higher than in the other wealthy countries. Our murder rate, for example, though half of what it was twenty years ago (and could that not be attributable in part to our severe punishments?), is four times the British murder rate and six times the German rate. Ferguson states that “the United States, by any measure one can reasonably make, has long been the safest civilization that history has ever seen.” Yet in support of that dubious proposition he cites only our very heavy military expenditures (which he considers excessive). We are reasonably secure against attack by a foreign nation (though not by foreign terrorists), but our military does not protect us against crime.
Ferguson’s treatment of Abbott illustrates another problem with his book: it ignores the considerable role that mental illness (broadly defined, as it should be) plays in prison violence and other prison disorder. Sadistic guards are not the main causal factor; nor is prison itself. By ignoring mental illness Ferguson is able to make devastating-seeming criticisms of “segregation,” the euphemism for solitary confinement. Prisoners in segregation are confined to their one-man cells for twenty-three of the twenty-four hours in a day. Ferguson is correct that solitary confinement has effects much like those of torture. And there are many prisoners in segregation. But he ignores the fact that many prisoners are too wild, too dangerous, too crazy-violent to be allowed to mingle with other prisoners. These violent prisoners, unless they respond well to drugs for controlling violent behavior, have to be locked away from the other prisoners. There is no alternative, and so it is a contradiction to denounce both prison violence and segregation.
What is most unfortunate is that when mentally ill prisoners are released from prison, rarely is follow-up treatment offered or available to prevent them from quickly resuming their violent behavior, as did Abbott. But post-release supervision of prisoners is very costly because there are so many released prisoners (a consequence of the size of the prisoner population and hence of the ex-prisoner population). So it is very limited.
Nothing that I have said is meant to diminish the significance of the problem that Ferguson has identified or the power and eloquence of his criticisms. Too many bad things go on in our prisons. The result is a vicious cycle. The worse the treatment meted out to prisoners, the more recidivism there is, and thus the more crime. The more crime there is, the more prisoners, and so the more overcrowding of prisons, and so the worse prison conditions are, and so the more crime there is. The solution lies in decriminalization of much conduct that is now criminalized, in fewer and shorter prison sentences, in a more generous social safety net, in greater willingness to learn from foreign penal policies and experience, and in more attention to the mental health needs of inmates. If these reforms are adopted, the problem of abusive prison conditions that is the principal focus of Robert Ferguson’s impressive book will fade away.
Richard A. Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.