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Foreword: Incarceration American-Style
Sharon Dolovich*
The prison is the centerpiece of American criminal justice policy. But
in the United States today, incarceration is more than just a mode of criminal
punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. The aesthetic of incarceration—orange
jumpsuits, cell blocks, bars, barbed wire—has become a cultural referent so
familiar it may be readily exploited for political1 and even comedic purposes.2 As for the technique definitive of the practice, although perhaps less
widely recognized, its key features have become the default way for maintaining custodial control over imprisoned populations: greatly restricted
movement;3 limited media access to the facility;4 strict limits on visits and
communication with family and friends on the outside;5 minimal access to or
* Professor of Law, UCLA School of Law. As I indicate in the text, I am indebted to the
work of anthropologist Lorna Rhodes. I am grateful to Rhodes as well for her comments on an
earlier draft of this essay and for permission to quote from her unpublished manuscript,
Dreaming of Psychiatric Citizenship: A Case Study of Supermax Confinement, the reading of
which sparked the central argument I develop here. I also thank Bernard Harcourt for providing me the opportunity to engage with Rhodes’ work, the Harvard Law & Policy Review for
providing this forum, James Forman, Jody Freeman, Hayley Horowitz, and Terry Kupers for
their comments and suggestions, and Eli Tomar and the reference librarians of the UCLA
Hugh and Hazel Darling Law Library for their research assistance.
1
The popular outrage over bonuses awarded to executives at AIG Insurance, a company
that received a multi-billion dollar bailout from Congress in 2008, provided innumerable examples by which the aesthetics of incarceration were invoked to make a political point. See
e.g., Dave Chandler, Wanted: Economic Populist Obama, METRODENVERGREENS.ORG, Mar.
21, 2009 (“[T]he concept that AIG executives who brought down the roof should get anything
besides pink slips and orange jumpsuits is sickening.”); schwabob.com, Now They Want/Got
150 Billion?!?!?!, http://www.shwabob.com/blog/?cat=21 (last visited July 19, 2009) (featuring a photograph of the bars of a prison cell, and one of a poolside resort, with the caption
“AIG Execs Should Be Here [i.e. in prison]. . . Not Here! [i.e. at a resort]”).
2
See, e.g., The Onion, Prison Economy Spirals As Price of Pack of Cigarettes Exceeds
Two Hand Jobs (video clip), http://www.theonion.com/content/video/prison_economy_spirals_
as_price (last visited July 13, 2009) (featuring “Big Dap Ramirez,” an “inside expert” on the
prison economy represented in an orange jumpsuit with a cellblock backdrop, and “Onion
Network Prison Economics Expert Hal Rogan,” shown in front of a prison complex, complete
with guard towers and barbed wire).
3
For statutes regulating and limiting inmate movement, see, e.g., CAL. CODE REGS. tit. 15,
§ 3274 (2009); CAL. CODE REGS. tit. 15, § 3333(a) (2009).
4
See Hannah Bergman, Barring Journalists, NEWS MEDIA & L., July 1, 2006, at 1;
MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS §14.1 (3d ed., West 2008) (“[T]he media has
not always had an easy time in gaining entry into prisons.”); Mikel-Meredith Weidman, The
Culture of Judicial Deference and the Problem of Supermax Prisons, 51 UCLA L. REV. 1505,
1528 (2004) (noting that “nine states now bar reporters from conducting face-to-face interviews with inmates”) (citation omitted).
5
See, e.g., Overton v. Bazzetta, 539 U.S. 126, 129–32 (2003) (upholding regulations significantly restricting visits to prisoners); see also Donald Braman, Families and Incarceration,
in INVISIBLE PUNISHMENT: THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 117,
120 (Marc Mauer & Medea Chesney-Lind eds., 2002) (explaining that phone calls from prison

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control over personal effects;6 a lack of privacy vis-`a-vis staff or other prisoners;7 limited access to meaningful work,8 education,9 or other programming;10 little if any concern for the self-respect of the incarcerated;11 an “us”
versus “them” dynamic between the incarcerated and custodial staff;12 and
increased reliance on solitary confinement for the purpose of punishment or
control.13
Incarceration in this sense is most commonly employed in the criminal
justice context as a way to punish convicted offenders. But its reach has also
come to include many others who have not been criminally sentenced but
whom the state has nonetheless targeted for the strict control that incarceration provides. Thus, in addition to convicted criminal offenders, we incarcerate pretrial detainees.14 We incarcerate the mentally ill.15 We incarcerate
can be expensive and noting that “many families have their phones disconnected within two
months of [a family member’s] incarceration”).
6
See, e.g., CAL CODE REGS. tit. 15, § 3191 (2009) (regulating and limiting prisoners’
possession of personal property).
7
See Hudson v. Palmer, 468 U.S. 517, 527-28 (1984) (holding that prisoners are not
entitled to Fourth Amendment protection against searches of their cells and personal property
since they have no reasonable expectation of privacy).
8
“[B]y 1997, only 6.2% [of the prison population] was gainfully employed. . . . Intellectually challenging positions are few, and many prisoners do not find their abilities tapped by
the menial jobs available.” MUSHLIN, RIGHTS OF PRISONERS § 7.1 (3d. ed., 2003). See also
Robert P. Weiss, “Repatriating” Low-Wage Work: The Political Economy of Prison Labor
Reprivatization in the Postindustrial United States, 39 CRIMINOLOGY 253, 269 (2001) (arguing
that “in an extremely coercive penal environment, work can be liberating”).
9
See 20 U.S.C.A. § 1091(r)(1) (West 2009) (excluding any student from federal loan eligibility following a drug-related conviction); 20 U.S.C.A. § 1070a(b)(7) (West 2009) (excluding from Pell grant eligibility “any individual who is incarcerated in any Federal or State penal
institution”); Joshua Page, Eliminating the Enemy: The Import of Denying Prisoners Access to
Higher Education in Clinton’s America, 6 PUNISHMENT & SOC’Y 357, 373 (2004) (arguing that
by eliminating Pell grant eligibility for incarcerated persons, Congress “committed prisoners
to ‘social death’, [by] eliminat[ing] the only vehicle that many prisoners had for accumulating
valued cultural capital”).
10
See Jamie Lillis, Prison Education Programs Reduced, CORRECTIONS COMPENDIUM,
Mar., 1994, at 1 (“At least half of all U.S. state correctional systems have made cuts in their
inmate education programs during the last five years, especially in vocational and technical
training.”).
11
See James M. Binnall, Respecting Beasts: The Dehumanizing Quality of the Modern
Prison and an Unusual Model for Penal Reform, 17 J.L. & POL’Y 161, 162 (2008); Zvi D.
Gabbay, Justifying Restorative Justice: A Theoretical Justification for the Use of Restorative
Justice Practices, 2005 J. DISP. RESOL. 349, 354 (2005).
12
See John J. Gibbons & Nicholas De B. Katzenbach, Commission Co-Chairs, Prison
Reform: Commission on Safety and Abuse in America’s Prisons [A Report of The Commission
on Safety and Abuse in America’s Prisons], 22 WASH. U. J.L. & POL’Y 385, 406, 465 (2006);
Andrea Jacobs, Prison Power Corrupts Absolutely: Exploring the Phenomenon of Prison
Guard Brutality and the Need to Develop a System of Accountability, 41 CAL. W. L. REV. 277,
281–84 (Fall 2004).
13
See Atul Gawande, Hellhole: The United States Holds Tens of Thousands of Inmates in
Long-Term Solitary Confinement: Is This Torture?, THE NEW YORKER, Mar. 30, 2009, at 36.
14
See WILLIAM J. SABOL & TODD D. MINTON, U.S. BUREAU OF JUSTICE STATISTICS, BULLETIN: JAIL INMATES AT MIDYEAR 2007, 11 tbl. 7 (2007), available at http://www.ojp.usdoj.
gov/bjs/pub/pdf/jim07.pdf (reporting that, at midyear 2007, 479,400 adults in American jails
were classified as “awaiting trial or in [an]other unconvicted category”).
15
See Terry A. Kupers, What To Do With the Survivors? Coping With the Long-Term
Effects of Isolated Confinement, 35 CRIM. JUST. & BEHAV. 1005, 1013–15 (2008) (explaining

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undocumented immigrants, asylum seekers, and legal immigrants with prior
felony convictions.16 We incarcerate juvenile offenders.17 We incarcerate, as
a preventive measure, previously convicted sex offenders.18 In some cases,
we even incarcerate children without homes of their own.19 And we incarcerate—in military-run institutions often closely mirroring standard domestic American prisons—those labeled “enemy combatants” in the “war on
terror.”20 Incarceration, in short, has become the first-line policy response to
a range of social problems, the instinctive American response to perceived
threats to the social order.
The puzzle is why. It is not as if mass incarceration in the criminal
context has been an unmitigated policy success. In fact, the weight of the
evidence suggests the opposite. As for crime prevention, as Todd Clear and
James Austin explain in this volume, mass incarceration does considerably
less than might be thought to reduce crime and foster public safety.21 It is,
moreover, extremely expensive,22 expending funds that could otherwise be

that a number of states authorize the “postrelease civil commitment” of convicted offenders
judged to pose a threat to public safety as a consequence of mental illness).
16
See MARK DOW, AMERICAN GULAG: INSIDE US IMMIGRATION PRISONS 8-9 (2004).
17
As of 2006, almost 93,000 juvenile offenders were held in residential placement facilities. See OFFICE OF JUVENILE JUSTICE AND DELINQUENCY PREVENTION, OJJDP STATISTICAL
BRIEFING BOOK (Sept. 12, 2008), available at http://ojjdp.ncjrs.gov/ojstatbb/corrections/qa
08201.asp?qaDate=2006.
18
See, e.g., CAL. WELF. & INST. CODE §§ 6600–6608 (West 2009) (establishing that convicted sex offenders found to pose a future threat to society may be detained indefinitely in a
secure mental health treatment facility administered by the California Department of Corrections); see also Kansas v. Hendricks, 521 U.S. 346, 350-53 (1997) (upholding as constitutional
a Kansas statute providing for the indefinite civil commitment of repeat sex offenders determined to pose a future risk of “predatory acts of sexual violence”).
19
See NELL BERNSTEIN, ALL ALONE IN THE WORLD: CHILDREN OF THE INCARCERATED
212 (2005) (describing the Orange County “children’s shelter”—a facility situated next to the
juvenile detention center—where the children slept two to a room “along a long corridor,”
“the doors locked from the outside,” “windows were covered with wire mesh,” and the children, when taken outside, “play[ed] beneath barbed wire”).
20
The numerous aesthetic and technical parallels between the domestic incarceration of
convicted criminal offenders and the military detention of those designated “enemy combatants” are not coincidental. To the contrary, the military drew on those with expertise in American corrections to establish its prison systems in Iraq, Afghanistan, and Guant´anamo Bay. See
Avery F. Gordon, Abu Ghraib: Imprisonment and the War on Terror, 48 RACE & CLASS 42, 46
(2006) (citing Mark S. Inch, Twice the Citizens, CORRECTIONS TODAY 79 (Dec. 2003));
Gordon, supra, at 46–47 (citing Maj. Gen. Donald J. Ryder, Military and Civilian Corrections:
The Professional Bonds, CORRECTIONS TODAY 8 (Dec. 2003)); see also Fox Butterfield, The
Struggle for Iraq: Prisoners; Mistreatment of Prisoners is Called Routine in US, N.Y. TIMES,
May 8, 2004, at 16 (reporting that Lane McCotter, appointed to direct the reopening of the
Abu Ghraib prison in Iraq, had formerly been the director of the Utah Department of Corrections, but had resigned from the post “after an inmate died while shackled [naked] to a restraining chair for 16 hours”).
21
See Todd R. Clear & James R. Austin, Reducing Mass Incarceration: Implications of the
Iron Law of Prison Populations, 3 HARV. L. & POL’Y REV. 307, 307–11 (2009); see also
Shawn D. Bushway & Raymond Paternoster, The Impact of Prison on Crime, in DO PRISONS
MAKE US SAFER?, 119, 144–45 (Steven Raphael & Michael A. Stoll eds., 2009) (noting the
lack of evidence that our criminal justice laws effectively prevent crime).
22
See John W. Ellwood & Joshua Guetzkow, Footing the Bill: Causes and Budgetary
Consequences of State Spending on Corrections, in DO PRISONS MAKE US SAFER?, supra note

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spent on more socially productive enterprises.23 And as Nkechi Taifa and
Catherine Beane observe, mass incarceration has inflicted considerable social harm on children, families, and communities.24 Yet the prison population continues to grow, and effective strategies for reform persist in eluding
even those legislators who seek real change.25 That this practice has spread
so widely beyond the criminal justice context only deepens the mystery.
The contributions to this symposium focus on the criminal justice component of the puzzle. Considering different aspects of the issue—judicial
discretion,26 sentencing policy,27 and the risk factors for criminal conduct28—
these essays together explain how we have found ourselves with so many
people in prison (over 2.3 million at last count29) and suggest how we might
reverse this trend. In this Foreword, I focus on a related phenomenon: the
way that, although it falls well short of serving society’s interests, the American carceral system has in recent decades come to seem immune from challenge, and indeed to have taken on a life of its own. My basic claim is that
this perception is accurate—that this system has become self-generating.
Using the example of the prison, I argue that American-style incarceration,
through the conditions it inflicts, produces the very conduct society claims
21, at 207, 208 (explaining that in 2000, states spent an average of $1 billion annually on their
prison systems, up from an annual average of $280 million per state in 1980).
23
By the mid-1990s, for example, California was shifting resources away from education
and toward the cost of corrections. A report by the Justice Policy Institute noted that “in 1980,
higher education accounted for 9.2% of [California’s] General Fund expenditures, while corrections accounted for 2.3%. [In 1997], for the first time in California’s history, more money
[was] spent on corrections (9.4% of the General Fund) than on higher education (8.7%).”
TARA-JEN AMBROSIO & VINCENT SCHIRALDI, THE JUST. POL’Y INST., FROM CLASSROOMS TO
CELL BLOCKS: A NATIONAL PERSPECTIVE 2, 15 (Jan. 1997). Ellwood and Guetzkow report that
nationally, “a 1 percentage point increase in the share of the budget devoted to correctional
spending is associated with a decline of about 1.7 percentage points in welfare [spending].”
Ellwood & Guetzkow, supra note 22, at 228. And even where an increase in the cost of
corrections is not directly linked to a reduction in state spending in other areas, mass incarceration diverts public resources from more socially productive enterprises, since any money the
state spends on corrections is money unavailable to be spent elsewhere.
24
See Nkechi Taifa & Catherine Beane, Integrative Solutions to Interrelated Issues: A
Multidisciplinary Look Behind the Cycle of Incarceration, 3 HARV. L. & POL’Y REV., 283, 288
(2009); see generally TODD R. CLEAR, IMPRISONING COMMUNITIES (2007); BERNSTEIN, supra
note 19; INVISIBLE PUNISHMENT, supra note 5. See also Bruce Western & Christopher Wildeman, The Black Family and Mass Incarceration, 621 ANNALS OF THE AM. ACAD. OF POL. &
SOC. SCI. 221, 239 (2009) (“Survey data indicate that men who have been incarcerated are
much more likely to have violent relationships with their partners, even if they were incarcerated for nonviolent offenses”). On the material effects on children of having an incarcerated
parent, see infra note 95 and accompanying text.
25
See Clear & Austin, supra note 21.
26
See Judge Nancy Gertner, Supporting Advisory Guidelines, 3 HARV. L. & POL’Y REV.
261 (2009).
27
See Clear & Austin, supra note 21.
28
See Taifa & Beane, supra note 24.
29
See THE PEW CENTER ON STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 5
(2008). This number, moreover, understates the scope of incarceration, not taking into account
the more than 650,000 people who have been released annually from state and federal prison
since 2000—only to be replaced with other prisoners. WILLIAM J. SABOL & HEATHER COUTURE, U.S. BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2007, at 4 tbl. 4
(2007), available http://www.ojp.usdoj.gov/bjs/pub/pdf/pim07.pdf (revised June 2008).

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to abhor, and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. To make this case, I draw first
on the work of anthropologist Lorna Rhodes,30 which traces this process in
the particular context of the supermax prison. I then look to the prison more
generally and consider the multiple ways the institution of incarceration as a
whole effects a similar (and in some respects identical) reproductive process.
I argue, moreover, that this process does more than merely ensure that incarceration remains the favored means of criminal punishment. It also operates
to create a class of permanently marginalized and degraded noncitizens,
marked out by the fact of their incarceration for perpetual social exclusion
and ongoing social control.
This is not, of course, the way the system is generally understood by
those committed to its use. The prevailing justificatory discourse is instead
one of rationality and free will,31 on which the incarcerated are incarcerated
as a consequence of their own culpable acts freely undertaken.32 But once
one recognizes the many structural mechanisms by which the carceral system secures its own reproduction, it is hard not to be skeptical of this radically individualistic notion. It is not that incarcerated offenders have not
committed crimes. But the question of why people break the law is more
complicated than the ideology of personal choice and free will is able to
acknowledge.33 And although, in the prevailing political climate, it is sometimes easy to forget, the state is not bound to answer crime with imprisonment. One often hears it asserted that “those who do the crime must do the
time.” This easy slogan, however, is too quick. It misses entirely the fact
that the “time” prescribed for any given offense is not preordained, but is
instead a political decision made by legislators with the power to craft alternative responses if they so choose. The ready recourse to incarceration that
typifies the current system is thus by no means inevitable. Yet incarceration
continues to dominate the universe of policy responses to all but the most
minor crimes, suggesting that what drives the carceral process is not the
offenders’ choice to offend, but society’s choice to respond to those offenses
with time in prison. That prison sentences are persistently justified with reference to personal responsibility and free will only indicates the extent to
which society and its legislators have failed to perceive—or are wholly in30

See LORNA A. RHODES, TOTAL CONFINEMENT: MADNESS AND REASON IN THE MAXISECURITY PRISON (2004) [hereinafter RHODES, TOTAL CONFINEMENT].
31
See Lorna A. Rhodes, Supermax Prisons and the Trajectory of Exception, 47 STUD. IN
L., POLS. & SOC. (NEW PERSPECTIVES ON CRIME AND CRIMINAL JUSTICE) 193, 207 (2009)
[hereinafter Rhodes, Supermax] (“The contemporary correctional discourse in the United
States emphasizes that prisoners have made choices. Historical or social contextualization is
minimized in favor of an intense focus on the volitional nature of crime and the culpability of
the individual.”) (emphasis in original).
32
The readiness with which this discourse is internalized is crisply illustrated in a cartoon
by David Sipress, published in The New Yorker on April 15, 2002. A man, standing in front of
a monkey cage, says to the boy whose hand he is holding: “He didn’t do anything, Gregory.
This is a zoo.”
33
For a discussion of the many factors contributing to criminal behavior, see Taifa &
Beane, supra note 24.
MUM

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different to—the way a carceral system may create the very “deviants”
whose exclusion from society is thought to be so urgently needed.
First, consider supermax.34 In these “prisons within prisons,” people
“are confined for 23 or more hours a day in small single cells and removed—cuffed, tethered, and under escort—only for brief showers or solitary exercise.”35 Those who misbehave are subject to forcible cell
extractions, pepper spray, tasers, confinement in restraint chairs, and “the
imposition of ‘isolation time’ during which they receive no exercise or showers.”36 These highly restrictive conditions are typically justified as necessary
to house the “worst of the worst”37—those prisoners whose extreme violence and unruly behavior make them unfit for life in the prison’s general
population. As Rhodes demonstrates in her study of the “control” units of
the Washington state prison system, the reigning discourse is that of autonomous choice, on which prisoners are understood to be in supermax because
they have “chosen to be bad.”38 The official message to residents is that
they can earn their way back to the relative freedom of the general population units by “choosing to be good.” And when they are not good—when
they engage in “disruptive activity” like yelling, banging on their cell doors,
or throwing feces, blood or urine—they alone are considered “accountable”
for the extra time added as punishment to their supermax terms.39
The problem, of course, is that the notion of the purely rational actor
making calculated decisions, well known to be a myth in other spheres, is
particularly mythical in the supermax context.40 Rhodes’ work reveals a system in which human beings who are denied any healthy way of expressing
themselves struggle against a system that operates on “an economy of attention” in which the more desperate they become for interpersonal interaction,
the more studiously the officers ignore them.41 It should be no surprise if
34
Details of design and regulation vary among supermax units, but “the essential features” of this form of confinement are “isolation, intensive surveillance, and elaborate precautions against assault and escape whenever prisoners are out of their cells.” Lorna A. Rhodes,
Changing the Subject: Conversation in Supermax, 20 CULTURAL ANTHROPOLOGY 388, 406–07
n. 6 (2005) [hereinafter Rhodes, Conversation].
35
See Lorna A. Rhodes, Dreaming of Psychiatric Citizenship: A Case Study of Supermax
Confinement 6 (draft paper on file with the author) [hereinafter Rhodes, Dreaming].
36
Id.
37
RHODES, TOTAL CONFINEMENT, supra note 30, at 58.
38
See id. at 61. Rhodes quotes from a Massachusetts “prison media booklet,” explaining
that it “is the sincere hope of the [Department of Corrections] that inmates will conform their
conduct to a minimum level of good behavior and leave the [supermax unit] at less than full
occupancy; however, that choice will be up to the inmate.” Id.
39
Id. at 66–67.
40
See Rhodes, Supermax, supra note 31, at 207–10. For a critique of the myth of the
rational actor, see Russell Korobkin & Thomas S. Ulen, Law and Behavioral Science: Removing the Rationality Assumption from Law and Economics, 88 CAL. L. REV. 1051 (2000).
41
RHODES, TOTAL CONFINEMENT, supra note 30, at 204. Even acts of self-destruction that
seem plainly to be cries for help are regarded by officers in supermax units as manipulative
bids for attention. For example, in the eyes of one officer, an inmate who has repeatedly cut
himself “knows what he is doing. He’s manipulating us.” As this officer sees it, “this guy . . .
has been trained that good things happen to him when he acts as he does [he is sent to the
infirmary, gets attention.]” This officer proposes a different approach: to “stop making good

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prisoners, driven to extremes, resort to violent disruption or antisocial behavior or if, over time, some residents of supermax become unfit for any
form of community life, whether inside or outside the prison.
As one of Rhodes’ subjects eloquently puts it, supermax “breaks inmates it is not meant for, and it makes inmates it is meant for.”42 It is the
second half of this insight that bears emphasizing here: supermax makes its
own inmates. Certainly, this cannot literally be true, since all supermax prisoners originally had to come from some other carceral facility, and officials
had to deem them supermax-eligible before they could be exposed to such
conditions. There thus may well have existed, prior to supermax, prisoners
so violent and volatile that they could only be held safely under highly restrictive conditions. But the construction of supermax facilities, and the official determination embodied in this construction—that prisoners posing
serious behavioral problems must be housed in this way—positioned
supermax as the necessary and inevitable policy response to unruly prisoners. And the consignment to life under supermax conditions of prisoners
who might, under other circumstances, have been regarded as emotionally
troubled or mentally ill43 but who now find themselves labeled “the worst of
the worst” in turn guarantees a regular supply of prisoners whose continued
bad behavior justifies the ongoing use of supermax confinement.44 There are
thus two senses in which supermax may be understood to “make its own
inmates” by: (1) defining the policy universe of possible ways to view—and
respond to—disfavored behaviors, and (2) creating conditions of confinement likely to reproduce the very disfavored behaviors that justified incarceration under those conditions in the first place.
But supermax is not the only carceral institution that makes its own
inmates. The same is arguably true of the American prison in general. I have
already alluded to one aspect of this process: the way it is taken for granted,
both politically and popularly, that the appropriate policy response to all but
things happen and start making him suffer consequences.” Id. at 155–56 (brackets in the
original).
42
Rhodes, Dreaming, supra note 35, at 13.
43
See Madrid v. Gomez, 889 F. Supp. 1146, 1265–66 (N.D. Cal. 1995) (noting that, for
mentally ill inmates, confining them under supermax conditions is “the mental equivalent of
putting an asthmatic in a place with little air to breathe”).
44
In a chilling article, psychiatrist Terry Kupers traces the process by which an underresourced system denies prisoners with serious mental illnesses meaningful psychiatric treatment and then buries them in supermax conditions that all but guarantee their continued “acting out” and thus the extension of their time in supermax. See Kupers, supra note 15, at
1008–10 (2008). Two mechanisms further assure the indefinite detention of the seriously mentally ill. First, under “postrelease civil commitment” laws, prison officials may keep any
prisoner in custody whose mental illness justifies a finding that he “poses a substantial danger
of physical harm if released.” Id. at 1013–14. Second, rather than issuing disciplinary tickets
for conduct such as “throwing” (i.e. throwing bodily waste at officers) or physically lashing
out, prison officials may instigate criminal prosecutions for assault. With a conviction comes
time added to the original sentence, which the defendant will in all likelihood spend in
supermax. In this way, Kupers explains, the system can effectively bury those people who
have become out-of-control as a consequence of the carceral conditions to which they have
been subjected. See id. at 1013 (labeling this process “hiding the evidence”).

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the most minor crimes is a term of imprisonment.45 This assumption calls
out for critical inquiry, especially given the disproportionate number of people in prison who suffer from drug addiction46 and severe mental illness,47
who are poor,48 unskilled, poorly educated,49 and likely to have been subject
to neglect or abuse as children.50 It is not obvious that people with such
profiles, especially those who committed non-violent offenses,51 should be
labeled as criminals deserving incarceration. In a society not already committed to a carceral path, they might as easily—and arguably more appropriately—be regarded as people whom society has failed, who for that reason
warrant a more sympathetic response. Also demanding critical scrutiny are
the behaviors society has chosen to criminalize. The war on drugs is one
obvious example of a penal strategy not entailed by the targeted conduct,
since the phenomenon of narcotics use could as readily call for regulation
and demand-reduction as for interdiction and criminalization. Yet having
constructed a system of routinely incarcerating drug offenders—users as
45
See Clear & Austin, supra note 21, at 308 (noting that incarceration rates in the United
States are “almost five times higher than the historical norm” over the twentieth century, and
“three to five times higher than in other Western Democracies”); see also James Forman,
Exporting Harshness: How the War on Crime Has Made the War on Terror Possible, 33
N.Y.U. REV. L. & SOC. CHANGE 101, 111–16 (2009) (comparing the scope of incarceration in
the United States and in other nations of comparable wealth, demonstrating that the U.S. is an
extreme outlier, and attributing this difference to the way “we have chosen to respond to . . .
crime” over the last four decades).
46
See infra note 54 and accompanying text.
47
See infra note 55 and accompanying text.
48
Of all state prisoners arrested in 1997, from 61.4 percent to 84.9 percent (depending on
education level) earned less than $2,000 in the month before their arrest. CAROLINE WOLF
HARLOW, U.S. BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: EDUCATION & CORRECTIONAL POPULATIONS 8 tbl. 14 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/ecp.
pdf. Fewer than twenty percent of felony defendants in state courts in the country’s seventyfive largest counties in 1996, and only a third of felony defendants in federal court in 1998,
could afford their own attorneys. CAROLINE WOLF HARLOW, U.S. BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000), available at http://
www.ojp.gov/bjs/pub/pdf/dccc.pdf.
49
See JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY
4 (2003) (“Fully one-third of all prisoners were unemployed at their most recent arrest, and
just 60 percent of inmates have a GED or high school diploma (compared to 85 percent of the
U.S. adult population). . . . 11 percent of inmates, compared with 3 percent of the general
population, self-reported having a learning disability.”).
50
This is especially true of women prisoners. See CAROLINE WOLF HARLOW, U.S. BUREAU OF JUSTICE STATISTICS, SELECTED FINDINGS: PRIOR ABUSE REPORTED BY INMATES AND
PROBATIONERS 1 (1999), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/parip.pdf (reporting that in a national inmate survey “[b]etween 6% and 14% of male offenders and between
23% and 37% of female offenders reported they had been physically or sexually abused before
age 18”).
51
Among state prisoners serving terms in excess of one year, 47 percent are non-violent
offenders. HEATHER C. WEST & WILLIAM J. SABOL, U.S. BUREAU OF JUSTICE STATISTICS,
BULLETIN: PRISONERS IN 2007, at 21–22 (2007), available at http://www.ojp.usdoj.gov/bjs/
pub/pdf/p07.pdf (revised May 2009). In 2002, only one quarter of jail inmates were being held
for a violent offense. See DORIS D. JAMES, U.S. BUREAU OF JUSTICE STATISTICS, SPECIAL
REPORT: PROFILE OF JAIL INMATES, 2002, at 1–4 (2002), available at http://www.ojp.usdoj.
gov/bjs/pub/pdf/pji02.pdf (revised Oct. 2004). See also Ambrosio & Schiraldi, supra note 23,
at 2 (noting that “[f]ully 84 percent of the increase in state and federal prison admissions
[between 1980 and 1997] was accounted for by nonviolent offenders”).

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well as dealers—it has become difficult for Americans to conceive of other
responses to the use and sale of drugs. At a minimum, these examples raise
the possibility that the American prison, like supermax itself, may by its
very prevalence shape perspectives on penal policy so as to make certain its
own continued use.
Here, however, I mean to focus on the second and more direct sense in
which carceral institutions reproduce themselves, and to consider how it is
that the people who have been marked out for incarceration may become
through the experience of incarceration the very “anti-social” misfits whose
exclusion from society was thought so necessary. The most obvious mechanism for this form of institutional parthenogenesis is the infliction of significant burdens on the incarcerated, both during the prison term and afterwards,
which collectively increase the likelihood that they will commit new crimes
after release. As just noted, those whom society incarcerates for their crimes
are already drawn disproportionately from society’s most disadvantaged
members.52 Presumably, a system committed to helping former prisoners
pursue a different path would take steps to address what Taifa and Beane in
this volume describe as the “interrelated risk factors” for criminal conduct,
factors that together “fuel the cycle of incarceration.”53 Yet as things stand,
it is hard to imagine a system less well-designed to facilitate successful reentry.
In American prisons today, there is little effective drug treatment, although as many as half or more of incarcerated offenders have reported
problems with drug and/or alcohol addiction.54 Nor is there anything like
sufficient mental health care to provide adequate treatment for the estimated
fifty-six percent of state prisoners who suffer from serious mental illness.55
The emphasis on custody over what might be termed “rehabilitation” means
that whatever skills people may have had on admission are likely to deteriorate during their prison term,56 and also that few people are likely to develop
new skills while in prison that will be useful to them on release. Strict limits
on visiting, combined with the high cost of phone calls from prison57 and the
widespread practice of siting prisons far from the urban centers where pris-

52

See supra notes 46–50 and accompanying text; Taifa & Beane, supra note 24, at 304.
Taifa & Beane, supra note 24, at 301.
See CHRISTOPHER J. MUMOLA & JENNIFER C. KARBERG, U.S. BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: DRUG USE AND DEPENDENCE, STATE AND FEDERAL PRISONERS,
2004, at 6 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/dudsfp04.pdf (revised
Jan. 19, 2007); JENNIFER C. KARBERG & DORIS J. JAMES, BUREAU OF JUSTICE STATISTICS
SPECIAL REPORT: SUBSTANCE DEPENDENCE, ABUSE, AND TREATMENT OF JAIL INMATES, 2002,
at 1–2 (2002), available at http://www.ojp.gov/bjs/pub/pdf/sdatji02.pdf (revised July 2005).
55
See Kupers, supra note 15, at 1008 (citing U.S BUREAU OF JUSTICE STATISTICS, SPECIAL
REPORT: MENTAL HEALTH PROBLEMS OF PRISONS AND JAIL INMATES (2006), available at http:/
/www.ojp.usdoj.gov.bjs.pub/pdf.mhppjin.pdf).
56
See Bruce Western, et al., Black Economic Progress in the Era of Mass Imprisonment,
in INVISIBLE PUNISHMENT, supra note 5, at 165, 176.
57
See Braman, supra note 5.
53
54

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oners’ families are most likely to live,58 mean that few people in prison are
able to retain close family ties59—even though “one of the predictors of
post-release success is the quality of a person’s ongoing contact with loved
ones.”60 Grossly inadequate medical care61 leaves many prisoners with serious and/or chronic medical conditions which can impair successful reintegration. Severe overcrowding in often unhygienic conditions, together with
what is frequently an absence of institutional strategies for preventing the
spread of disease, means that prisoners face infection rates for HIV, hepatitis
C, tuberculosis, and even staph that are far in excess of infection rates
outside the prison.62 Add to this picture the multiplicity of civil disabilities63—some formal, some informal—that make it hard for former prisoners
to piece together the components of a stable life (home,64 family,65 work,66
58

See Tracy Huling, Building a Prison Economy in Rural Areas, in INVISIBLE PUNISHsupra note 56, at 197.
59
See Braman, supra note 5.
60
Terry A. Kupers, Prison and the Decimation of Pro-Social Life Skills, in THE TRAUMA
OF PSYCHOLOGICAL TORTURE 127, 132 (Almerindo E. Ojeda ed., 2008).
61
See generally BENJAMIN FLEURY-STEINER WITH CARLA CROWDER, DYING INSIDE: THE
HIV/AIDS WARD AT LIMESTONE PRISON (2008). “[O]n average, an inmate in one of California’s prisons needlessly dies every six to seven days due to constitutional deficiencies in the
[Department of Correction’s] medical delivery system.” Plata v. Schwarzenegger, No. C011351 TEH, 2005 U.S. Dist. LEXIS 43796, at *2-3 (N.D. Cal. Oct. 3, 2005).
62
See, e.g., S. 714, 111th Cong. § 2(14) (2009) (“Prisons have become public health
risks. The number of State prisoners with HIV is 2.5 times greater than the general population.
The number of State prisoners with hepatitis C is 9 times that of the general population.”);
Jessica R. MacNiel, Mark N. Lobato & Marisa Moore, An Unanswered Health Disparity:
Tuberculosis Among Correctional Inmates, 1993 Through 2003, 95 AM. J. PUB. HEALTH 1800
(2005); Brent Staples, Editorial Observer; Treat the Epidemic Behind Bars Before it Hits the
Streets, N.Y. TIMES, June 22, 2004, at A18; Silja J.A. Talvi, Deadly Staph Infection ‘Superbug’
Has Dangerous Foothold in U.S. Jails, ALTERNET, Mar. 23, 2009, http://www.alternet.org/
story/69576.
63
See Marc Mauer & Meda Chesney-Lind, Introduction in INVISIBLE PUNISHMENT, supra
note 5, at 4–5 (“ ‘[A]s a result of his conviction a formerly incarcerated person may be ineligible for many federally-funded health and welfare benefits, food stamps, public housing, and
federal education assistance. His driver’s license may be automatically suspended, and he may
no longer qualify for certain employment and professional licenses. . . .’”) (quoting AMERICAN
BAR ASSOCIATION TASK FORCE ON COLLATERAL SANCTIONS, PROPOSED STANDARDS ON COLLATERAL SANCTIONS AND ADMINISTRATIVE DISQUALIFICATION OF CONVICTED PERSONS (Jan.
18, 2002)).
64
Gwen Rubinstein & Debbie Mukamal, Welfare and Housing—Denial of Benefits to
Drug Offenders, in INVISIBLE PUNISHMENT, supra note 5, at 45 (“Tenants who have been
evicted from federally assisted housing because of drug-related criminal activity are ineligible
for federally assisted housing for a period of three years. The new laws also give local authorities discretion to deny admission to applicants with other kinds of criminal records.”).
65
Before regaining custody of their children, newly released parents may be required,
among other things, to attend parenting classes, complete drug-treatment programs, and provide stable residences. Meanwhile, finding work and housing is difficult, and many parents
must reimburse foster parents, and even the government, for support their children received
during their incarceration. Unable to meet these unrealistic demands, many parents find their
parental rights permanently terminated. See BERNSTEIN, supra note 19, at 154–56.
66
See Becky Pettit & Christopher J. Lyons, Status and the Stigma of Incarceration: The
Labor-Market Effects of Incarceration, By Race, Class, and Criminal Involvement, in BARRIERS TO REENTRY? THE LABOR MARKET FOR RELEASED PRISONERS IN POST-INDUSTRIAL
AMERICA 203–05 (Shawn Bushway, Michael A. Stoll, and David F. Weiman eds., 2007)
MENT,

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schooling67), and it should come as no surprise if many former prisoners are
unable to avoid reoffending on release.
In turn, furthermore, these burdens have profound and deleterious effects on the children of imprisoned parents, effects that increase the likelihood of intergenerational incarceration. There are at present 2.4 million
American children with a parent in prison or jail.68 For African-American
children, the risk of having an incarcerated parent is especially high—nine
times that of white children.69 All these children experience their own psychological trauma at the disappearance of their parents, trauma that can turn
to anger and frustration at an extended absence that they may not understand, and anger and resentment toward the parent (and the world) once they
are old enough to make sense of the loss.70 And, of course, there are material effects of having an incarcerated parent. The children lose their parents’
emotional support and daily presence. They are forced to face the attitudes
of authority figures (teachers, police officers, etc.) who expect them to
“wind up just like their parents.”71 And they are more likely to grow up in
poverty or to end up in foster care,72 where they “are significantly more
likely to be abused and neglected . . . than their peers in the general population,”73 and thus less able to develop the resilience they need if they are to
forge a healthier life path than their parents. Indeed, the experience of being
in foster care “is one of the best predictors there is that a child will wind up
behind bars.”74 Not all children facing these circumstances will end up in
prison. Many will not. But given the many material and psychological burdens that come with having an incarcerated parent, the odds that such children will themselves be incarcerated at some point in their lives are notably
higher than they would be had their parents remained free.75
For incarcerated offenders themselves, in addition to the material barriers to successful reentry, the day-to-day experience of imprisonment can
(“Employers express a reluctance to hire inmates, and ex-inmates face earning penalties of
between 10 to 30 percent.”) (citations omitted).
67
See Lillis, supra note 10.
68
See BERNSTEIN, supra note 19, at 2, 4 (noting that “[t]hree in every hundred American
children has a parent behind bars”).
69
See id. at 61. Twenty-five percent of African-American children born in 1990 had a
parent sent to prison. See Western & Wildeman, supra note 24, at 236. By the early 2000s,
“around half of black children whose parents dropped out of high school had a parent sent to
prison.” Id.
70
See BERNSTEIN, supra note 19, at 59 (noting that a “child who loses his parents to
prison may lose his faith in the state” and face “a kind of moral jeopardy”).
71
Id. at 211; see also ANN ARNETT FERGUSON, BAD BOYS: PUBLIC SCHOOLS IN THE MAKING OF BLACK MASCULINITY 1–2 (2001) (describing an incident in which a staff member at a
public middle school pointed out a ten-year-old African-American boy and stated “matter-offactly” that “[t]hat one has a jail-cell with his name on it”).
72
See BERNSTEIN, supra note 19, at 144 (noting that “[a]t any given moment, ten percent
of the children of women prisoners and two percent of the children of incarcerated men are in
foster care”).
73
Id. at 145–46.
74
Id. at 147.
75
See id. at 212 (“In all, as many as half of male children whose parents have been
incarcerated will wind up behind bars.”).

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take a severe emotional and psychological toll, which, as Terry Kupers puts
it, can “destroy prisoners’ ability to cope in the free world,” leaving them
“broken, with no skills, and a very high risk of recidivism.”76 The experience of long-term incarceration alone can undermine a person’s capacity to
function in a healthy “pro-social” way on the outside.77 Psychologist Craig
Haney labels this phenomenon “prisonization,” the “psychological process
of adapting to life in an institution where one is neither expected nor permitted to make decisions, where trust is a liability and intimacy a danger.”78
Given the “learned passivity” that comes with a total loss of control over
one’s life,79 it is not to be wondered if those who have served their time are
unable to take the steps required to build a successful post-prison existence—and if those who remain behind bars come to seem necessarily and
inevitably the subject of continued confinement.
Moreover, once one takes into account the compromised character of
American prison conditions, it becomes clear that the process by which this
institution “makes its own inmates” is at once more complex and more insidious than may have at first appeared. It is not only that those who have
been to prison for committing a crime will face material and psychological
challenges making them more likely to commit further crimes on release. It
is also that the experience of living under the conditions that currently define
life in many of the nation’s prisons and jails can do such psychological and
emotional damage that at least some people subject to those conditions,
whatever their character prior to imprisonment, will invariably come to resemble the image of the angry, unstable, anti-social, and potentially dangerous deviant that already justifies the state’s persistent recourse to
incarceration.
Consider the matter of personal space. As Justice Marshall noted in his
dissent in Rhodes v. Chapman, “long term inmate[s]” require a minimum
amount of personal space if they are “to avoid serious mental, emotional,
and physical deterioration.”80 But American prisons today are often chronically overcrowded, which means that people routinely live jammed into dormitories81 or doubled up in tiny cells designed for a single person,82 a
76

Kupers, supra note 60, at 129.
See id.
78
BERNSTEIN, supra note 19, at 183 (summarizing the findings of Craig Haney, The Psychological Impact of Incarceration: Implications for Postprison Adjustment, in PRISONERS
ONCE REMOVED: THE IMPACT OF INCARCERATION AND RE-ENTRY ON CHILDREN, FAMILIES, AND
COMMUNITIES 33, 66 (Jeremy Travis & Michelle Waul, eds., 2003)).
79
See BERNSTEIN, supra note 19, at 182 (citing JUDITH HERMAN, TRAUMA AND RECOVERY
74 (Basic Books 1992)).
80
Rhodes v. Chapman, 452 U.S. 337, 371 (1981) (Marshall, J., dissenting).
81
As of 2006, over 15,000 California inmates were sleeping in prison common areas
“such as prison gymnasiums, dayrooms, and program rooms.” OFFICE OF GOVERNOR ARNOLD
SCHWARZENEGGER, PRISON OVERCROWDING STATE OF EMERGENCY PROCLAMATION, Oct. 14,
2006, available at http://gov.ca.gov/proclamation/4278.
82
These cells are often as small as 55 square feet (including bunk bed, desk, toilet and
sink), and routinely house two men, leaving each inmate approximately “20–24 square feet”
of living space, “an area about the size of a typical door.” Rhodes, 452 U.S. at 371 n. 3 (1981)
(Marshall, J., dissenting). This is far less than the minimum of 40 to 80 square feet of living
77

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situation that alone may seriously compromise prisoners’ “mental [and]
emotional” capacities, and which can readily give rise to anger, tension, and
hostility—and thus to disorder and violence— even among people not typically prone to aggression.83
At the same time, the increased use of solitary confinement as punishment for disciplinary infractions means that more and more prisoners are
experiencing the damaging effects of isolation. In this way, in addition to
producing those cases of extreme dysfunction that justify the ongoing use of
punitive isolation, whether in supermax or under less extreme conditions, the
carceral system is also undermining the psychological and emotional capacities of innumerable prisoners who will at some point be released.84 Studies
show that people who have lived in supermax are likely to be not only more
erratic and violent in their behavior, but also angrier. Haney’s research involving prisoners in the “secure housing unit” (SHU) of California’s Pelican
Bay facility found that “almost ninety per cent of [residents] had difficulties
with ‘irrational anger,’ compared with just three per cent of the [prison’s]
general population.”85 These combined effects on residents can lead to
longer stays in isolation.86 But the self-perpetuating tendencies of supermax
and other forms of solitary confinement have also meant that in a growing
number of cases, prisoners are completing their sentences while in highly
restrictive solitary confinement and being released directly to the community.87 Unsurprisingly, when prisoners are freed straight from any type of
solitary confinement, “there is often trouble,” since “[t]he anger that has
been mounting during their stints in isolation causes many prisoners great
difficulty controlling their tempers just after being released.”88 Thus, both
crowding and isolation contribute to the reproductive logic of the prison,
producing inmates whose anger, volatility, and general inability to function
successfully in a social milieu are very likely to prompt disruptive and antisocial behavior both out in the free world and in the prisons themselves.
Such behavior, in turn, seems to validate the collective commitment to the
ongoing use of the carceral form.
space per person recommended by the many professional correctional associations that have
studied the issue. See id. at 371 n. 4.
83
See Kupers, supra note 60, at 130.
84
“[F]or just about all prisoners”—even those without documented mental health histories—“being held in isolated confinement for longer than 3 months causes lasting emotional
damage if not full-blown psychosis and functional disability.” Kupers, supra note 15 at
1005–06. This suggests that courts considering Eighth Amendment challenges to supermax
conditions should not distinguish between prisoners who showed signs of mental illness prior
to their transfer to supermax and those who did not, but should instead grant relief to all
prisoners held under supermax conditions. See Rhodes, Conversation, supra note 34, at 404;
Weidman, supra note 4, at 1529–46 (exploring the various ways that federal courts facing
Eighth Amendment challenges to supermax conditions have distinguished mentally ill prisoners and accorded them special protections that are not granted to supermax inmates as a
whole).
85
Gawande, supra note 13.
86
See supra text accompanying notes 39–41.
87
Kupers, supra note 15, at 1011.
88
Id. at 1010.

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There is still another component of life in the modern American prison
that powerfully contributes to the institutional project of making the inmates
it is meant for: the ever-present possibility of violence. Although this phenomenon has many explanations, prison violence is most frequently traceable to a complex set of institutional dynamics, especially prevalent in
higher security men’s facilities, reflecting what is best understood as a culture of “hypermasculinity.”89 In this culture, there is a behavioral code that
“says carry yourself like a man, be hard and tough, and don’t show weakness.”90 Those who act against this code risk being labeled a “punk” and
thus becoming a target for all manner of abuse, from intense verbal harassment and theft of personal property to serious physical assault and rape.91
Men in prison therefore work hard at seeming tough and avoiding any word
or act that might suggest weakness or vulnerability.92
Being forced to maintain a constant front of hypermasculinity over a
long period can take a profound psychological toll. Men who have lived
under these conditions report corrosive effects on the possibility of meaningful interpersonal interaction, since “[w]ithout trust or letting someone know
at least some of your weaknesses, no strong bonds can develop.”93 The effect of these emotional barriers is more than just loneliness. Over time, the
need to project a tough image, and thus to build emotional walls, compromises one’s ability—crucial to a stable, healthy life—to forge meaningful
bonds with others, whether inside or outside the prison. In addition, the
unrelenting need to project an image of “hardness and toughness”94 demands a constant readiness to use violence to prove one’s own “manliness.”
This posture too can become instinctive if sustained long enough. Such instincts may serve a person well in a carceral context, but their likely accom89
See generally Terry A. Kupers, Rape and the Prison Code, in PRISON MASCULINITIES
111 (Don Sabo, Terry A. Kupers & Willie London eds., 2001); see also Part III: The Social
Construction of Prison Masculinity, in PRISON MASCULINITIES, supra, at 59.
90
Derrick Corley, Prison Friendships, in PRISON MASCULINITIES, supra note 89, at 106.
91
See Kupers, supra note 89, at 114. For a thoughtful treatment of the phenomenon of
prison rape generally, and its cultural and legal dimensions in particular, see Alice Ristroph,
Sexual Punishments, 15 COLUM. J. GENDER & L. 139 (2006).
92
See Don Sabo, Doing Time, Doing Masculinity: Sports and Prison, in PRISON MASCULINITIES, supra note 89, at 61, 64 (“The meanings around hardness and softness also flow from
and feed homophobia, which is rampant in prison.”). While conducting research at the Los
Angeles County Jail, I myself witnessed a particularly memorable display of the collective
performance of this cultural code. In a dormitory housing around 100 medium security general population prisoners, perhaps 15 or 20 men watched a television from which emanated the
pop song Sweet Dreams (are Made of These) by the Eurythmics. This song is one to which
people listening will often sing along and even dance or at least move to the music. However,
although the majority of the dorm’s residents were young enough to be familiar with the song,
the men whose eyes were fixed on the screen were sitting stock still. One young man, plainly
having difficulty retaining this posture, was mouthing the words with an otherwise straight
face. Had the song been playing in one of the dorms that housed the gay male and transgender
prisoners who were the focus of my study, there would have been without fail a small riot of
dancing and singing. But then, the Jail’s segregation unit for gay male and transgender prisoners is notable for the absence of any sign of the culture of hypermasculinity that is so obviously present in the Jail’s general population units.
93
See, e.g., Corley, supra note 90, at 106–07.
94
Sabo, supra note 92, at 65.

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paniments—belligerence, insensitivity, a hair-trigger temper, an inability to
admit error, back down, compromise, or work through differences in a mutually respectful way—are precisely the antisocial tendencies that society fears
in former prisoners. They are also tendencies that are very likely to keep
their possessors caught in “the cycle of incarceration” even after they have
served their initial prison terms.95
There is an even worse malignancy in all this pressure to seem tough,
which is arguably the source of the greatest damage done by incarceration in
American prisons: the direct link between the culture of hypermasculinity
and the fear of rape.96 In many facilities—especially the overcrowded
ones97—the threat of rape motivates a gendered economy of respect, in
which the more masculine one appears, the more respect one gets, and thus
the greater one’s protection from victimization. Sexual predators, by their
predation, prove themselves to be men,98 and those prisoners who appeal to
correctional officers for protection will often be told to “fight or fuck.”99 In
such a climate, even those not otherwise prone to violence must be constantly prepared to fight.100 Those unable to defend themselves can escape
their dilemma only by “hooking up” with more powerful prisoners, who
will protect them from violent rape by other prisoners in exchange for unlimited sexual access and other “wifely” duties like cooking and cleaning.101

95
See Taifa & Beane, supra note 24, at 283. Nell Bernstein argues that the metaphor of a
“cycle” is too “elegant a word to describe the process,” and prefers instead that of “being
caught in a turning gear.” BERNSTEIN, supra note 19, at 217. Bernstein is focused on the
experience of children of incarcerated parents who try to avoid becoming incarcerated themselves, but the point applies just as well—and perhaps better—to the experience of former
prisoners trying to avoid reoffending.
96
See sources cited supra note 91. Although the focus here is on men’s prisons, sexual
violence is also present, and does considerable damage, in women’s prisons.
97
In crowded dorms, “there are rows of bunks blocking the view,” so that “beatings and
rapes can go on in one part of the dorm while officers sit at their desks in another area. The
noise level is so loud that muffled screams cannot be heard.” Kupers, supra note 60, at 130.
And when two men are housed in a single cell, the more vulnerable one may be entirely
subject to the will of the other when they are locked in at night.
98
See James E. Robertson, ‘Fight or F—-’ and Constitutional Liberty: An Inmate’s Right
to Self-Defense When Targeted by Aggressors, 29 IND. L. REV. 339, 399 (1995) (quoting JACK
H. ABBOTT, IN THE BELLY OF THE BEAST 121 (1981)) (“Many times you have to ‘prey’ on
someone, or you will be preyed on yourself.”); Stephen “Donny” Donaldson, A Million Jockers, Punks, and Queens, in PRISON MASCULINITIES supra note 89, at 118, 119 (“The sexual
penetration of another male prisoner by a Man . . . is seen as a validation of the penetrator’s
masculinity.”).
99
Ristroph, supra note 91, at 155; Robertson, supra note 98, at 339. In a memoir of his
time in a violent Michigan prison, T.J. Parsell tells of one prisoner, forced into sexual slavery
by his “owner,” who, “when he once tried to get into [protective custody, was told by the
guards] that if he didn’t like fucking no more, then he should go back out on the yard and fight
like a man.” T.J. PARSELL, FISH: A MEMOIR OF A BOY IN A MAN’S PRISON 152 (2006); see also
id. at 98 (“You either fight or submit.”).
100
See JAMES GILLIGAN, VIOLENCE: REFLECTIONS ON A NATIONAL EPIDEMIC 163 (1994)
(noting that “the very conditions that occur regularly in most prisons may force prisoners to
engage in acts of serious violence in order to avoid being mutilated, raped, or murdered
themselves”).
101
See Donaldson, supra note 98, at 120.

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This last resort, sometimes referred to as “protective pairing,” has also perhaps more aptly been described as “sexual slavery.”102
Not all prison environments reproduce these dynamics. Nor, even in
those that do, are all prisoners caught up in them.103 But for those who are
not so lucky, the experience of living in such a culture is deeply degrading
and dehumanizing, and can do serious emotional and psychological damage.
Prisoners facing such conditions are not free just to walk away. They must
instead remain in what can only be a permanently traumatized state, bereft of
any peace of mind and constantly terrorized.104 Would it be any wonder if,
having endured such conditions for months or even years on end, a person
might be so full of rage and self-loathing, so incapable of forming bonds of
trust with other people, that he might have trouble (re)building stable,
healthy relationships or even navigating ordinary social interactions on the
outside? Or that he might react with anger and violence to encounters that
would cause no stress or tension to one who had not been so abused?
As this brief sketch suggests, incarceration in the American prison is
not a practice designed to achieve the successful social reintegration of the
people who have served their time. What is effected instead is a process of
dehumanization whereby incarcerated persons, through repeated humiliations, come to occupy a degraded position in the eyes of both prison officials
and the public at large.105 In a variety of ways, the prison’s operation reinforces the notion that prisoners are “a breed apart . . . the scum of the

102
See id. at 119 (explaining that punks are, “for all practical purposes, slaves [who] can
be sold, traded, and rented or loaned out at the whim of their ‘Daddy’”); see also GILLIGAN,
supra note 100, at 180; Adam Liptak, Ex-Inmate’s Suit Offers View into Sexual Slavery in
Prisons, N.Y. TIMES, Oct. 16, 2004, at A1 (describing one prisoner’s experience in a Texas
prison, where for eighteen months, as a sex slave to a gang, he was “forced into oral sex and
anal sex on a daily basis,” “bought and sold” and “rented . . . out” for sex for the benefit of
the gang); see also HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS 70
(2001).
103
Older prisoners, prisoners known to be connected to powerful people inside or outside
the facility, and others who for whatever reason are respected and left alone may be able to
shield themselves from the sexual violence of the prison culture. See Kupers, supra note 89, at
116 (noting that in prison, “some frail intellectuals make themselves invaluable to other prisoners by becoming knowledgeable about law . . . ” thereby “becom[ing] immune to gladiator
battles” because “the prison toughs leave them alone.”).
104
See BERNSTEIN, supra note 19, at 182 (quoting JUDITH HERMAN, TRAUMA AND RECOVERY 74 (1992)) (explaining that “[p]rolonged, repeated trauma . . . occurs only in circumstances of captivity”). For further discussion on the likely psychological effects as well as the
normative implications of such conditions, see Sharon Dolovich, Cruelty, Prison Conditions
and the Eighth Amendment, 84 N.Y.U. L. REV. (forthcoming 2009).
105
In this sense, incarceration and its effects may be understood to constitute one long
“status degradation ceremony.” See JAMES GILLIGAN, VIOLENCE: OUR DEADLY EPIDEMIC AND
ITS CAUSES 152-53 (1996) (quoting Harold Garfinkel, Conditions of Successful Degradation
Ceremonies, 61 AM J. SOC. 420, 420 (1956)). The process starts early, with the “ritual degradation of booking,” when prisoners are stripped naked and forced to bend over in front of a
group of officers and other inmates and submit to “digital anal rape,” a process that “is consciously and deliberately intended to terrify and humiliate the new inmate.” GILLIGAN, supra,
at 154.

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earth.”106 The degradation of prisoners, an integral part of the prison culture
itself, no doubt helps maintain the system of sexual violence that is often
met with indifference and inaction by correctional officers.107 But it also
provides a pat normative justification for the perpetuation of the whole
carceral system. If prisoners are “a breed apart,” and if, despite knowing
the consequences, they persist in their “choice to be bad,” then perhaps
there is nothing left for society but to shut them out of the public space
altogether, in a place where the threat they pose can be contained. In this
way, society never has to confront the fact that the perceived need to control
an out-of-control population may stem from the conditions, both inside and
outside the prison, to which the incarcerated have been subjected. The absence of any meaningful re-integrative project is thus revealed as both cause
and effect of the system’s reproductive success; without such a project, prisoners’ re-entry efforts will in many cases be doomed to fail, and one can
expect no real social investment to reintegrate those regarded as (non)people
unfit for society. Here is an effective recipe for simultaneous social abandonment and continued carceral control, as those who have been incarcerated and subsequently deprived of any meaningful social or psychological
support are sure to become ever more marginalized from the body politic,
and the more marginalized they become, the more likely they are to wind up
back in prison.
That the criminal justice system has long since abandoned rehabilitation
for an agenda of controlling marginalized populations is well recognized by
contemporary criminologists.108 In a landmark essay published in 1992,
Malcolm Feeley and Jonathan Simon sketched the contours of what they
called “the new penology,” the goal of which is merely “to manage populations of marginal citizens with no concentrated effort toward integration into
mainstream society.”109 Feeley and Simon traced the emergence of this
“new penology” to the existence of an enduring American “underclass,” a
“permanently marginal population, without literacy, without skills, and
without hope; a self-perpetuating and pathological segment of society that is

106

See Dolovich, supra note 104, Part II.D (quoting KELSEY KAUFFMAN, PRISON OFWORLD 231 (1988)). This perception “plays an important part in lowering
barriers to violence in prison.” Officers trained not to touch prisoners or even call them by
their names speak of “maggots killing each other, of inmates bleeding and dying, not men.”
KAUFFMAN, supra, at 231.
107
See James E. Robertson, A Clean Heart and an Empty Head: The Supreme Court and
Sexual Terrorism in Prison, 81 N.C.L. REV. 433, 446 (2003) (“According to some inmates,
staff regard rape as a legitimate deterrent to crime and a just desert for its commission.”);
James E. Robertson, Cruel and Unusual Punishment in United States Prisons: Sexual Harassment among Male Inmates, 36 AM. CRIM. L. REV. 1, 42 (1999) (discussing correctional officers’ inability to maintain order and protect prisoners).
108
See, e.g., DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN
CONTEMPORARY SOCIETY (2001); Malcolm M. Feeley & Jonathan Simon, The New Penology:
Notes on an Emerging Strategy of Corrections and Its Implications, 30 CRIMINOLOGY 449, 463
(1992).
109
See Feeley & Simon, supra note 108, at 463.
FICERS AND THEIR

R

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not integratable into the larger whole, even as a reserve labor pool.”110 Almost two decades later, incarceration has become a sure mark of membership in the underclass, a mark that only the most resilient and most fortunate
are able to erase. Being so marked signals to mainstream society both difference and danger—that one is not like other people, and that one represents a threat to the social order, a threat demanding ongoing surveillance
and probable reincarceration.
The humiliation and dehumanization of the people we incarcerate is a
key component of this transformation from citizen to perpetual potential inmate—which brings us back to the orange jumpsuits. There is no penological reason why, within limits, people in prison cannot wear their own
clothes. In France and Germany, “[p]rison uniforms have generally been
abolished.”111 But in the United States, orange jumpsuits are considered an
integral part of the carceral process, arguably because of the way being
forced to wear them makes prisoners feel, as James Whitman puts it, “diminished, lessened, lowered.”112 If this is so, the degradation of the people we
incarcerate is not a byproduct of the practice but instead a central component, one that both stems from and feeds the wholesale indifference with
which American society generally regards the fate of its prisoners.
Prisons, in short, “make their own inmates” by constructing and branding as inmates the people in their custody. More than simply a term indicating a single aspect of one’s personal experience, “inmate” becomes a fixed
social identity, placing those to whom it is ascribed simultaneously within
the reach of state control and outside society’s moral circle. What is being
mapped here are the pieces of a social system, complete with its own justificatory discourse (rationality/free will), identity categories (free citizen, inmate), structuring mechanisms (institutionalized degradation), and profound
material effects (the burdens and harms inflicted on the incarcerated113).
This system, however, cannot be a closed loop. Like residents of supermax,
all those who are today coded as “inmates” had to start out as non-inmates,
and thus had to come from somewhere. But from where?
If the profile of the current prison population is any guide, the answer is
plain: in the United States, inmates typically start out as poor people of
color—poor African-Americans in particular.114 It is this group that forms
110

Id. at 467.
JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 8 (2003).
112
Id.
113
A complete accounting of these material effects would also include the benefits, both
financial and psychological, that accrue to citizens in general, and in particular to those who
make a living from the carceral system. For consideration of the financial dimensions of incarceration and an argument as to the illegitimacy of considering potential economic benefits
when setting carceral policy, see Sharon Dolovich, State Punishment and Private Prisons, 55
DUKE L.J. 437, 515–45 (2005).
114
Although African-Americans make up no more than 12.8 percent of the American
population, U.S. CENSUS BUREAU, USA STATE & COUNTY QUICKFACTS, http://quickfacts.census.gov/qfd/states/00000.html (last visited July 7, 2009), almost 42 percent of the people behind bars in the United States are African-American. See WILLIAM J. SABOL & HEATHER
111

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the core of society’s surplus population, the “permanently marginal” of Feeley and Simon’s telling, who comprise “a self-perpetuating and pathological
segment of society . . . not integratable into the larger whole.”115 Many
prisoners, of course, are not African-American. Indeed, almost forty percent
of American prisoners are white.116 But in today’s carceral culture, in which
morality has replaced slavery’s use of biology as the legitimizing discourse
of exclusion and control, the category of the socially dispossessed will necessarily capture whites (and other racial groups) as well as blacks. In any
case, “black” and “white” are not biological traits. They are cultural ascriptions of social status.117 And as the history of race in America has consistently shown, the identity of those perceived as a threat to the social order has
invariably been defined by an association with the subjects of slavery.118
That thousands of prisoners are white does not make the category of “inmate” in the United States today any less a racialized one.
This is not the place to explore the deep legacy of slavery for American
criminal justice policy. It is, however, hard not to see a connection between
the distinct penal practices adopted in the wake of Emancipation—the plantation prison, convict leasing119—and the then-emerging political imperative
of controlling newly freed Blacks. It is, moreover, telling that, as Lo¨ıc Wacquant has observed, the dramatic expansion of the penal system that began in
COUTURE, U.S. BUREAU OF JUSTICE STATISTICS, BULLETIN, U.S. DEPARTMENT OF JUSTICE,
PRISON INMATES AT THE MIDYEAR 2007, at 7 tbl. 9 (2008), available at http://www.ojp.usdoj.
gov/bjs/pub/pdf/pim07.pdf (estimating that of the 2,090,800 people behind bars in the United
States in 2007, 814,700 were black men and 67,600 black women); see also THE SENTENCING
PROJECT, FACTS ABOUT PRISONS AND PRISONERS (2009), available at http://www.sentencing
project.org/Admin/Documents/publications/inc_factsaboutprisons.pdf (estimating that forty
percent of persons in jails or prisons in 2008 were black). Latinos too are overrepresented,
making up almost twenty percent of the incarcerated population, see HEATHER C. WEST &
WILLIAM J. SABOL, U.S. BUREAU OF JUSTICE STATISTICS, PRISONERS IN 2007, at 4 (2007),
available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p07.pdf (revised May 12, 2009), although
they make up no more than 14.8 percent of the population in general. See U.S. CENSUS BUREAU, supra. The same is true of Native Americans. See RONALD B. FLOWERS, MINORITIES
AND CRIMINALITY 111 (1990); SUZANNE J. CRAWFORD & DENNIS F. KELLEY, AMERICAN INDIAN RELIGIOUS TRADITIONS: AN ENCYCLOPEDIA 486 (2005).
115
Feeley & Simon, supra note 108, at 467. See also Lo¨ıc Wacquant, Deadly Symbiosis:
When the Ghetto and Prison Meet and Mesh, 3 PUNISHMENT & SOC’Y 95, 105 (2001) (arguing
that what he calls “the hyperghetto” today “serves the negative economic function of storage
of a surplus population devoid of market utility, in which respect it also increasingly resembles the prison system”) (emphasis in the original).
116
See WILLIAM J. SABOL & HEATHER COUTURE, U.S. BUREAU OF JUSTICE STATISTICS:
PRISON INMATES AT MIDYEAR 2007, at 7 (2007), available at http://www.ojp.usdoj.gov/bjs/
pub/pdf/pim07.pdf (revised June 2008) (reporting numbers indicating that non-Hispanic whites
represented 37.1 percent of the 2,299,100 people incarcerated at midyear 2007).
117
See Lo¨ıc Wacquant, The New ‘Peculiar Institution’: On the Prison as a Surrogate
Ghetto, 4 THEORETICAL CRIMINOLOGY 377, 379 (2000) (arguing that “the creation of a racial
caste line separating what would later become labeled ‘blacks’ and ‘whites’” was “an unforeseen by-product of the systematic enslavement and dehumanizing of Africans and their descendants on North American soil”) (emphasis in the original).
118
See WHITMAN, supra note 111, at 173 (observing that the “identification of prisoners
with slaves is of central importance for the history of the generalization of low status [to
prisoners] in American punishment”).
119
See DAVID OSHINSKY, WORSE THAN SLAVERY: PARCHMAN FARM AND THE ORDEAL OF
JIM CROW JUSTICE (1996).

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the 1970s followed a period that saw the dismantling of Jim Crow, urban
race riots in the north (to which millions of blacks had emigrated to escape
“continued peonage in the rural South”) and the rise of the civil rights
movement.120 If a “ghetto” may be understood as a site of “stigma, constraint, territorial confinement, and institutional encasement” for the management of an ostracized minority, it may not be too great a stretch to regard
the modern American prison, as Wacquant puts it, as a kind of “juridical
ghetto,” in which disfavored populations, disproportionately black, may be
forcibly and effectively kept physically apart from society.121
In this Essay, I have focused on the process by which the prison may be
said to “make its own inmates.” No doubt, each existing carceral context
(jail, juvenile detention, immigration detention, the military detention of
“enemy combatants,” etc.) will differently manifest its own reproductive
logic depending on the particularities of its own internal culture and justificatory discourse. But appreciating the central role the American prison
plays in sustaining the divide between mainstream America and the set of
“dispossessed and dishonored” people who have become the primary repository of society’s hatred and fear122—largely poor, young, black (and brown)
men123—prompts one to notice the way these various carceral forms operate
in tandem to maintain that racialized divide. Together, they form a single
carceral system, one which, through its tenacity and sheer size, has established itself as a key component of American society in general. And on
behalf of that society, this carceral system at once excludes and controls
whatever populations—most frequently populations of color—the isolation
and management of which have come to seem socially and politically
desirable.
Those individuals who can be found guilty of a crime are moved
straight into the prison system. But the array of carceral institutions that has
120

See Wacquant, supra note 117, at 381.
Id. at 383; see also id. at 384 (arguing that today’s “black ghetto,” together with the
contemporary American prison, “constitutes a single carceral continuum which entraps a redundant population of younger black men (and increasingly women) who circulate in closed
circuit between its two poles in a self-perpetuating cycle of social and legal marginality with
devastating personal and social consequences”) (emphasis in the original).
122
Id at 95.
123
It is notable that the group of African Americans invariably regarded with hatred and
fear is now just a subset of the larger racial group. Indeed, as James Forman has suggested,
several developments in the criminal justice context, including the move to community policing and the hiring of appreciable numbers of black police officers, indicate the extent to which
many African Americans are no longer perceived as a threat to the social order merely by
virtue of their race. James Forman, Community Policing and Youth as Assets, 95 J. OF CRIM. L.
& CRIMINOLOGY 1, 23 (2004); see also Wacquant, supra note 117, at 99 (noting that “as
African Americans differentiated along class lines and succeeded to full formal citizenship, . . .
a burgeoning middle and upper class of professionals and salary earners [has been able] to
partially compensate for the negative symbolic capital of blackness with their high status cultural capital and proximity to centers of political power”). Forman asks whether “the innercity minority community writ large [has] been rescued from its historical association with
criminality” by the identification of “an even more marginal sub-group on which to pin the
blame” and suggests that it is young black men who have emerged as the new, concentrated
target of hatred and fear in American society. Forman, supra, at 23.
121

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arisen alongside the prison indicates that the legal justification of a criminal
conviction has not proved sufficient to satisfy American society’s existing
appetite for social control. Other parallel institutions have thus emerged to
fill the gaps. There is now often seamless movement among the various
carceral contexts, so that a person who is caught up in one institution will
become more likely to be caught by another. Sometimes this institutional
transfer is legally cued, as when individuals eligible for deportation are
transferred directly from prison or jail to immigration detention,124 or when
people who are mentally ill are incarcerated indefinitely on completion of
their sentences.125 In other cases, the move from one carceral context to
another is simply the predictable result of prior incarceration of whatever
form. No one is surprised, for example, when a young man who has spent
more than nominal time in juvenile detention “graduates” to adult prison or
jail. And though it may be too soon for this phenomenon to have emerged
from the incarceration of so-called “enemy combatants” in the “war on terror,” given the systematically restrictive and degrading conditions to which
some prisoners at Abu Ghraib and Guant´anamo Bay have been subjected
and the likely emotional and psychological damage they have suffered, it
should be no surprise if even those detainees who were previously innocent
of hostile acts against the United States were motivated on release to take up
arms against the nation responsible for the treatment they endured—thus
opening the way for their perhaps permanent reincarceration should they
again be caught.
That this vast carceral system has emerged in a nation with such a deep
self-professed commitment to the ideal of universal liberty may seem profoundly paradoxical. But this conjunction may be no accident. In a related
context, Steve Martinot argues that the racial categories of “white” and
“black” can exist only in relation to each other. One knows that one is
“white,” and what it means to be “white,” only by keeping always in mind
what it means to be “black” as that state has been defined by the prevailing
culture.126 Whites, Martinot suggests, must as the dominant group “inferiorize[ ] another group in order to superiorize itself.”127 Perhaps, in the same
124
See 8 U.S.C.A. § 1357(d) (West 2009) (providing, with regard to controlled substance
laws, that if “a detainer is issued and the alien is not otherwise detained by Federal, State, or
local officials, the Attorney General shall effectively and expeditiously take custody of the
alien”); Maria Fernanda Parra-Chico, An Up-Close Perspective: The Enforcement of Federal
Immigration Laws By State and Local Police, 7 SEATTLE J. FOR SOC. JUST. 321, 333–35 (2008)
(“Under current practice, if a police officer brings an undocumented noncitizen to jail following an arrest, a stay at the jail—regardless of the length of the stay and even if no charges are
[ultimately] filed—will most likely lead to the deportation of the noncitizen once an immigration detainer is issued.”); Bridget Kessler, In Jail, No Notice, No Hearing. . . No Problem? A
Closer Look at Immigration Detention and the Due Process Standards of the International
Covenant on Civil and Political Rights, 24 AM. U. INT’L L. REV. 571, 583-85 (2009) (explaining that the Department of Homeland Security may “take custody over an individual who is
already in jail after he or she has completed his or her criminal sentence”).
125
See supra note 15.
126
STEVE MARTINOT, THE RULE OF RACIALIZATION: CLASS, IDENTITY, GOVERNANCE 186
(2003).
127
Id. at 59.

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way, freedom in twenty-first-century America depends on the un-freedom of
some other unfortunates, the “dishonored and dispossessed,”128 against
whose radically constrained existence the life of the modern American citizen seems wonderfully unfettered by comparison, however circumscribed by
social, political, and economic realities.129
In colonial days and in the early decades of the Republic, American
citizens had African enslavement against which to measure their treasured
ideal of liberty and give it substance.130 In the United States today, there are
no more slaves, but there are plenty of inmates—who were, it bears noting,
once juridically construed as “slaves of the state.”131 The “reduced status
and state”132 of those tagged with this contemporary degraded identity certainly offers a standard against which the conditions of life of even the
worst-off free-world citizens in American society would favorably compare.
It is telling that, as Clear and Austin report in this volume, even those
state officials committed to reining in the growth of their prison systems
have been able to do no more than nip around the edges of the problem.133 It
would seem that, having built penal institutions of the sort explored here,
legislators are now unable to decarcerate on anything close to the scale necessary to make a difference. In this Essay, I have suggested a number of
explanations for why this might be. It may be that, having commenced the
practice of incarceration and pursued it so profligately, we are unable to
stop, since the conditions to which prisoners have been subjected make it
hard for them to adjust to life on the outside, leading them continually to
reoffend. Or perhaps, having commenced this practice, we are afraid to
stop, because having marked out certain people as appropriate subjects for
incarceration, we can no longer regard them as among the body of citizens
for whom a life free from ongoing surveillance and control is desirable or
appropriate. Or maybe, having grown accustomed to mass incarceration, we
do not want to stop, since what is being done to the people in the orange
jumpsuits enables the American ideal of liberty by marking its opposite,
making the rest of us feel ourselves to be the free, self-directed and selfactualizing agents of our national narrative.
These theories, if at all compelling, together indicate the enormity of
the challenges facing those committed to dramatically reducing, if not elimi-

128

Wacquant, supra note 117, at 95.
Martinot himself applies this logic to the emergence of the first penitentiaries in early
nineteenth-century America. MARTINOT, supra note 126, at 73 (finding it “significant that the
idea of the penitentiary arose during the 1830s, during the Jacksonian era, just at the moment
the nation was priding itself on its openness and freedom”).
130
See TONI MORRISON, PLAYING IN THE DARK: WHITENESS AND THE LITERARY IMAGINATION 38 (1992), quoted in MARTINOT, supra note 126, at 73 (“The concept of freedom did not
emerge in a vacuum. Nothing highlighted freedom—if it did not in fact create it—like
slavery.”).
131
See, e.g., Ruffin v. Commonwealth, 62 Va. (21 Gratt.) 790, 793 (1871).
132
See MARTINOT, supra note 126, at 63.
133
See Clear & Austin, supra note 21, at 314 tbl. 1.
129

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nating altogether, the practice of American-style incarceration.134 But a
theme evident in the Essays to follow may point the way out. That theme is
an insistence on acknowledging the humanity and individuality of the people
we put behind bars. It is embodied in Taifa and Beane’s call for an evidencebased approach to tackling the risk factors for criminal conduct; in Judge
Gertner’s endorsement of evidence-based sentencing practices and guided
discretion; and even in Clear and Austin’s macro-level demand that policymakers reduce the prison population by eliminating mandatory sentencing.
The self-perpetuating character of the American carceral system will not be
disrupted until society as a whole begins to see that it is fellow human beings we are incarcerating. Until this fact is recognized, the wise strategies
for change proposed by these authors will not be widely or seriously considered. But once it is recognized, those same strategies will be irresistible.

134
No doubt even in a much reduced carceral system, public safety would require the
incapacitation of some especially dangerous individuals. But such incapacitation need not take
the current form. Indeed, this Essay has suggested reasons to think that the public interest in
reducing the incubation of violence and other unhealthy behaviors in the prisons would be
better served by a very different approach.

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