Before I was incarcerated and began exploring the history of American law and the historical appearance of the American prison system, I used to, like a lot of other people, refer to the criminal justice system as broken. I have since changed my mind. It is daunting to acknowledge, but this country’s massive use of prisons on a scale the world has never before seen offers testimony not of a broken system but one that is ruthlessly effective. The prison system as it stands now, disappearing more and more people, corroding and damaging the human personality, robbing people of their individuality and creativity, if not their humanity, is working according to plan: making social problems temporarily invisible to create the mirage that something has been done.
This interpretation is at odds, I know, with reformist notions of liberalism. The liberal political agenda has never included prison abolition. Liberals have mentioned the intentions of Quaker reform, they have talked about the harm caused by mandatory minimum sentencing schemes, and even acknowledge how the war on drugs drastically increased the number of people in American prisons, but they have never seemed concerned with the realities that make prison a central American institution.
The Founding Fathers, the majority of whom were lawyers by profession—men wealthy in land, slaves, manufacturing, or shipping—enshrined their political philosophy that the rich must, in their own interests, either control the government directly or control the laws by which the government operates. The government they were forming was going to do more than play referee between various competing interests. It was going to protect the rich from the poor since the Founding Fathers estimated the rich would always be in the minority. The Founding Fathers were putting their billfolds on the scale when creating a new government of laws and order.
Today “law and order” is assumed to be both natural and necessary, but it was actually through the creation of laws that the new government would maintain a special kind of order: a disproportionate distribution of power and wealth. It’s not by chance that the rich get richer and the poor get prison. Anyone who disrupts or who has the potential to disrupt that order would be reviled, harassed, or have the proverbial book thrown at them—punished to the full extent of the law. The Constitution was not simply the work of wise men trying to establish a decent and orderly society. It was the work of elites trying to maintain their privilege while giving just enough rights and liberties to ensure popular support.
The absence of slaves, women, and white men without property at the Constitutional Convention was not the result of a scheduling conflict. The Constitution was not written with their interests in mind. Nor was it a miswording eighty-eight years later when the Thirteenth Amendment to the US Constitution made prison the new Black (i.e., slavery):
Neither slavery nor involuntary servitude, except as punishment for crimes whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Yes, you read that correctly. The Thirteenth Amendment to the US Constitution did not end slavery, like most of us were taught in grade-school history class. The Thirteenth Amendment merely placed stipulations on who could own slaves—the state—and that instead of being confined to plantations, jails, prisons, probation, and parole would be the new form of control and domination. Read the Thirteenth Amendment again. Neither slavery nor involuntary servitude except as punishment for crime. Slavery went from cotton-picking slaves to constitutional slaves, from economic control and domination to social control and domination, from Blacks to anyone duly convicted of a crime.
Of course, one of the first questions that anyone just discovering this would ask is how could this be in America, the land of the free? Well, the elites that controlled the state, an agency of concentrated power, defined it as the legitimate and only authority for resolving conflicts and harms, the legitimate and only agency for responding to loss and trauma. Authority and agency that used to rest with the family and community. The state began treating conflict and harm as property, real estate that the state then appropriated for itself. Backed by superior weapons and organized force, the state called the shots. That is, made the laws. And since this administrative unit of the state is by nature a war machine, its response to breaking its laws is deprivation of time and space, exclusion, punishment-violence, and execution.
It is disingenuous, surely, for those that traffic in incarceration to affect surprise each time it is revealed that more and more people are being imprisoned, for longer periods of time, for many “offenses” that were previously resolved by the family and community, or that incarceration causes more harms than it supposedly prevents. I articulate in this book of letters how incarceration is not an accident. How it is not random in distribution or effect. Prison serves the exact purpose for which it was originally intended—to run roughshod over and control the groups not represented at the Constitutional Convention. People of color are disproportionately imprisoned, women are the fastest growing population of prisoners, and poor whites are showing up on more and more prison count sheets.
I articulate in In Spite of the Consequences what living inside a prison is really like, for example, how people entering prison are immediately stripped of individual identity; how this practice of forced mixing of age, ethnic, and racial groups can lead to feelings of being contaminated by undesirable fellow prisoners and to self-segregation and gangs; how a breakdown of the barriers ordinarily separating sleep, work, and play—which are in prison all conducted in the same place and under a single authority—breaks down the barriers preventing guards from becoming tyrants; how a denial of heterosexual opportunities induces fear of losing one’s masculinity and therefore produces a dangerous brand of hypermasculinity; and how after incarcerated men and women have been subjected to unfair and excessive punishment and treatment more degrading than that justified by law they often come to justify actions which could not have been justified when committed. I articulate what is seldom said, if it ever is, because millions of people never think to turn to incarcerated men and women as a reliable source of information and news about what goes on inside American prisons. You will discover that they should be.
I suppose there are some people who truly are surprised because the sources they turn to for information and news almost universally project ideologically selected images of who is incarcerated and what the reasons are. These images have to be true if they are on the news, if they are shown over and over again, if they are preceded by the word “official,” right? Wrong. The sources most people turn to for information and news often present a warped image of American prisons. As a consequence, millions in our country remain ignorant of tools besides coercion and violence to resolve conflict and harm, pain, and suffering.
Studying American culture and law in an effort to hold on to my sanity and acquire tools for survival, I learned that the stage is set for more of the same—even though the American public is assured by both major political parties that prison reform is coming. How do we reform something that is not broken? We don’t. Reform is a ruse. We work to abolish prisons. We demand initiatives exhorting the community and society at large to respond differently to interpersonal harm and, on a more ambitious level, exhort us all toward a restorative culture, one of the most important paradigm shifts that could ever happen.
What the prison system needs is not reform, but vision, seeing justice not primarily as the infliction of pain and revenge through the imprisonment of the wrongdoer but essentially the restoration of fractured and broken relationships. The process will be complex, requiring a remarkable kind of moral and collective leadership that challenges, invites, and rewards greater participation. This book of letters is a contribution to that vision and part of that process.
This is an excerpt from In Spite of the Consequences, Introduction.
