Why are there so many Americans in prison? More specifically, why was there a massive increase in the American prison population from the 1970s through the 2000s? Sociologists, criminologists, and political scientists have been considering this question for quite some time now.
(Political scientists were late to the game, for some reason slow to realize that the study of government should include the study of prisons, which are important government institutions. Thankfully there has been some really good political science scholarship on this topic in recent years).
There are at least two factors to consider: First, what domestic political developments led to this massive increase in American incarceration? Second, why have similar countries not increased their prison populations? These are important questions but I here take a different tack. I will consider the American case before turning to a discussion of the political theory underlying the system of mass incarceration.
But first, let’s take a look at the numbers. There are around 2.3 million Americans behind bars. Put simply, America has the most prisoners in the world, in both absolute and per capita terms. As critics of mass incarceration often point out, America has roughly 5% of the world’s population but 25% of its prisoners.
Moreover, the rates are mind-boggling. Nearly 1 out of 100 American adults are imprisoned, with millions more under regular surveillance via probation and parole. Furthermore, looking into the prison population is like holding a magnifying glass up to the profound race and class stratifications that underly American society. One positive? After increasing for decades, the number of Americans behind bars has stagnated and even slightly declined in the past decade.
The incarcerated population is also worse off in terms of income and education and is more likely to suffer chronic physical and mental illness than the general population. They are also disproportionately black and latino. According to the NAACP, 56% of the prison population is black or latino compared to just 32% of the general population. It is no exaggeration to say that America’s prisons are filled with a collection of poor black, latino, and white castaways.
Furthermore, recidivism rates indicate that prisons do not rehabilitate. Ex-convicts re-enter a society without training, resources, connections, or opportunities, and navigate a legal web in which they are always in danger of violating parole and frequently unable to procure gainful employment. Michel Foucault, discussing prisons in the 1970s, called them “the terrible solution”—they don’t work but mainstream perspectives struggle to come up with something better. To be blunt, America’s system of mass incarceration is a totalitarian monstrosity sitting right at the heart of a liberal democratic society.
How could this happen? How could something so glaringly awful not just happen but endure for decades? These are complicated questions. It is here that political theory can shed some light on the situation. What follows is a brief summary of my article “Putting Cruelty First: Liberal Penal Reform and the Rise of the Carceral State.”
As political theorist Judith Shklar famously argued, liberalism is defined by “putting cruelty first.” What Shklar meant was that the western philosophy of liberalism, from John Locke to Thomas Jefferson and mainstream American thinking today, is concerned not simply with individual rights and protections against government tyranny. It is also fundamentally concerned with reducing cruelty. For the liberal tradition, cruelty is defined in purely physical terms. According to Shklar, cruelty is “the willful inflicting of physical pain on a weaker being.”
Focusing exclusively on physical cruelty, classic liberal thinkers were blind to psychological forms of cruelty. In my article I discuss Cesare Beccaria and Jeremy Bentham, two 18th century European reformers concerned with making punishment more humane and less cruel. Beccaria and Bentham were admirably focused on eliminating torture and other forms of corporal punishment while also making laws public and fairly applied to all. However, as I note in my article, “their sensitivity to physical pain and torture does not translate into an equivalent sensitivity toward incarceration and the psychological harm it produces.” This is because, as Shklar recognizes, liberalism as a philosophy is focused on physical cruelty while being ambivalent towards, or even unconcerned with, psychological cruelty.
This is a problematic oversight, for as anyone who has read accounts of torture knows, psychological torture is a key and sometimes deeply painful part of the torture regime. We see this in Alexandr Solzhenitsyn’s discussion of Soviet sleep deprivation and other psychological torments as well as the often psychological torture inflicted on detainees in Guantanamo Bay by the American military.
The most extreme demonstration of this blindness to psychological cruelty can be found in Jeremy Bentham’s Panopticon. The Panopticon was Bentham’s design for an institution of total surveillance that could be applied to schools, barracks, mental hospitals, and prisons. Specifically, he thought that if prisons were organized into the Panopticon they would no longer need to resort to corporal punishment.
Why? In the panoptic prison, there is a central guard tower that can see into every prison cell at all times. Prisoners are thus under total, 24/7 surveillance. Because of this, they can never misbehave without being caught. Therefore, over time, the prisoners will learn to self-police and cease misbehaving all together. By placing them under total surveillance, the prisoners will effectively be restrained and thus will not need to be punished physically, for they will no longer misbehave. For Bentham, this would admirably lead to the elimination of all physical forms of punishment. As should be obvious to us, it also forces a totalitarian mode of surveillance onto the prisoner. Freed from physical punishment, they are nevertheless now encaged, surveilled, and destined to suffer severe psychological cruelty. Physical punishment almost sounds less cruel than a multi-decade sentence in the Panopticon, with your every move monitored.
Now, Bentham’s Panopticon was hypothetical, though some prisons approximate its principles. But this in itself doesn’t explain why the US has so many more prisoners than Europe. Liberal penal reform has impacted both. My account does, however, help to explain how reformers could admirably oppose torture, corporal punishment, and other forms of physical cruelty while being blind to the cruelty of putting a human in a cage for an extended period of time. This is because being imprisoned, i.e. kept in a cage, is a terrible form of psychological cruelty even if you are never physically tortured. It thus helps to explain why Europe and North America in the 1700s and 1800s increasingly turned towards imprisonment and away from other forms of punishment. And this blind eye towards psychological cruelty goes a long way towards explaining how, at its worst, we have embraced punishments that are as, or more, cruel than earlier forms of corporal punishment.
As professor and former cop Peter Moskos provocatively asks, would you rather receive ten lashes or five years in prison? The answer seems glaringly obvious: ten lashes is far less cruel that five years in prison, a fairly standard prison sentence in America.
This is not to defend corporal punishment but to suggest the following: if whipping is more desirable than imprisonment, perhaps our system of punishment is not as enlightened as we like to believe. I prefer to believe, or at least to hope, with MLK that “the arc of history is long but it bends towards justice.” But it should also be clear that moral progress is never guaranteed.
This bears some reflection. Figures as diverse as Jesus and Friedrich Nietzsche have suggested that punishment, judgment, and vengeance are central questions of both individual morality and political justice.
As Nietzsche said: Beware those in whom the impulse to punish is strong. The hangman and the bloodhound look out of their eyes.
As Jesus said: Do not judge or you too will be judged.
How we handle these issues says much about who we are as a society. Are we scared, vindictive, and cruel? Or are we generous, magnanimous, and forgiving?