Humphress 1 Incorrect Corrections: The Failure of the American Justice System By Joshua Humphress For as long as there have

been laws, there have been prisons. From public stocks to medieval dungeons to modern correctional facilities, prisons have served four basic purposes throughout the centuries. They have served as a means of secluding undesirables from the public, as a form of punishment, as a deterrent, and as a place of rehabilitation. The various incarnations of prisons have performed each of these services with varying degrees of success in each area. Despite numerous attempts at reform, however, America has struggled with a failing penal system plagued by overcrowding, underfunding, corruption, and a warehouse mentality. Little has changed in the American prison system over the past 235 years. Early American penologist and Commissioner of the Philadelphia Prison Society Robert Vaux described the American prison in 1776 as a corrupt and corrupting assemblage [in which resides] the disgusting objects of popular contemptthe unhappy victim of the lash ... the half naked vagrant--the loathsome drunkard and too often the unaneled malefactor (Barnes 64). Even in the countrys earliest beginnings, it was clear that the penal system was as much a part of the problem as the solution. Prisons were (and remain) little more than warehouses to store the human refuse of society. The conditions were deplorable and the inmates were thrown together with little regard for the degree or severity of their crimes. They were treated like rabid beasts, whether they were guilty of murder or of simply failing to pay a debt. The language Barnes uses gives us some insight as to why all criminals were treated in this manner. He refers to a hardened criminal as an unaneled malefactor. Unaneled is an old English term which translates as unanointed or unbaptized and malefactor, which comes

Humphress 2 from the Latin phrase meaning evildoer, has come to be synonymous with lawbreaker (Merriam-Webster Inc.). This demonization of the criminal stems from the early protestant belief that all men are naturally evil and depraved beings. As Meskell says, Early colonial criminal law was a curious mix of religion, English barbarity, and pragmatism (3). There was little distinction between the laws of the Bible and the laws of the land in early American society, so those who broke the law were seen as breaking Gods law. Because of this, the early justice system revolved around punishment only. Early prisons closely resembled some visions of Hell; a chaotic tangle of madmen and sociopaths assaulting anything within arms reach. Perhaps this was intentionally done to serve as a warning of what awaited criminals should they continue their current path of wrongdoing. It could be the jailors believed that by inflicting purgatory-like suffering on their prisoners, they were cleansing the prisoners souls of sinful crime. Whatever the excuse they made, the downfall of the penal system began at its roots, since its primary purpose was to punish crime. Due to the traumas inflicted on prisoners, both by their jailers and fellow inmates, many relatively harmless individuals were turned into dangerous sociopaths. Meskell relates how Dr. Benjamin Rush, a noted peer of Benjamin Franklins, gave an address in which he claimed Reformation and deterrence of crime ought to be the sole goals of punishment, that the contemporary criminal codes tended to harden criminals and engender hatred towards the government, and that imprisonment be used as the primary criminal punishment (5). Dr. Rushs address displays the futility of punishment for punishments sake. There is no point in punishment if it is not carried out with the betterment of the criminal in mind. Punishment for punishments sake merely breeds a more cunning and resentful criminal. A child who is spanked

Humphress 3 for stealing cookies does not associate stealing cookies with being spanked. Instead, the child associates being caught stealing cookies with getting spanked. The child is not deterred from stealing cookies, nor does the child equate stealing cookies as bad behavior. Rather, the child learns to take the cookies when no one is watching and to eat them out of the sight of the mean, cruel parents that seek to keep the child from having fun. As with the petulant child, trauma inflicted as punishment merely teaches criminals hatred and reinforces the need to not be caught. Dr. Rush not only denounced the system of traumatic punishment but delivered a solution as well. It was his belief that solitary confinement would best serve prisoners as a means of penitence and reform. Others agreed with Dr. Rushs solution, most notably Jeremy Bentham, the social reformer in the 1800s. Bentham believed that a prison could be run more efficiently and humanely if each prisoner were kept separate from the others while being kept under observation by an unseen observer (Foucault 3). To this end, Bentham developed the concept of the panopticon, a style of prison where the inmates were held in individual cells which encircled an observation tower. From the tower, the occupants of each cell could be observed but could not see their observer. By confining each criminal apart from his fellow inmates, there was no possibility of corruption or trauma being passed from one inmate to another. The prisoners would be forced to serve their sentences in solitude, with time for introspection and reflection on their crimes. Not everyone agrees with this approach, however. There are many who believe that solitary confinement is actually harmful to prisoners. Dr. Stuart Grassian, a psychiatrist and faculty member of the Harvard Medical School since 1974, released a report titled Psychiatric Effects of Solitary Confinement in 1993. In it, he states, solitary confinement - that is confinement of a prisoner alone in a cell for all or nearly all of the day, with minimal environmental stimulation and minimal opportunity for social

Humphress 4 interaction - can cause severe psychiatric harm (Grassian). Few can argue that to lock a man in a small, dark room for any great length of time would be damaging to his psyche. It must be remembered, however, that the solitary confinement to which Grassian refers is the punitive confinement above and beyond normal incarceration. In this form of solitary confinement, prisoners are often not allowed even simple amenities, such as bed sheets or clothing, let alone personal effects. Bentham does not suggest solitary confinement as punitive measure beyond incarceration with the general populace, but rather in lieu of it. Even Grassian admits that when prisoners are segregated due to administrative reasons rather than punitive reasons, the effects of solitary confinement are much less severe (Grassian). This is partly due to the fact that prisoners understand they are not being singled out for excessive punishment, but are merely being given the same treatment as everyone else. The other reason is because prisoners who are segregated for administrative reasons are not treated any differently than they would be were they still in the general populace. With that in mind, it makes sense to believe that if the entire population was placed in administrative solitary confinement, with all the comforts of a normal cell, the damaging effects would be minimized while still delivering the reforming potential of solitude. As controversial as solitary confinement might be, there are those who believe that any act of incarceration is tantamount to torture. Historian H. Bruce Franklin came to this decision after the images of torture taken at Abu Ghraib, the American prison in Iraq, inspired him to research American prisons. From his research he determined that American prisons were designed and run to maximize degradation, brutalization, and punishment, [and] overt torture is the norm Indeed, actual pictures from prisons in America have shown worse atrocities than those pictures from the American prisons in Iraq (Franklin). With these images in my mind, it is difficult not to agree with Franklins proposal that incarceration in such a place is torture.

Humphress 5 However, to say that any form of incarceration is torture is to engage in an exercise in hyperbole. While being incarcerated may be uncomfortable, inconvenient, and unpleasant, it is far from inflicting intense pain or agony (Merriam-Webster Inc.). It is not the confinement, but the trauma inflicted during the confinement that could be construed as torture. Great care must be taken to ensure that reformative punishment is not misrepresented as torture. Franklin describes a number of daily occurrences in American prisons that can easily be described as torture; Beatings, electric shock, prolonged exposure to heat and even immersion in scalding water, sodomy with riot batons, nightsticks, flashlights, and broom handles, shackled prisoners forced to lie in their own excrement for hours or even days, months of solitary confinement, rape and murder by guards or prisoners instructed by guardsall are everyday occurrences in the American prison system. Compared to being sexually violated with a broom handle, one would be hard-pressed to argue that being locked in a private room is torture. The difference between torture and just punishment must be recognized if any useful reform is to ever take place. We cannot allow torture to continue in our prisons, but at the same time we must not shy from taking the punitive measures necessary for the reformation of convicted criminals. We must also be clear in our definition of punishment. In and of itself, punishment is neither good nor bad; it is merely a tool to be used. The method and manner of the punishment are what determine its level of appropriateness. Punishment must only be done with the purpose of reforming the punished or it will cause more harm than good. When prisoners understand that their punishment is the fair result of an inherently reasonable process they are less likely to be uncooperative, and the potential for long-term damage is greatly reduced (Grassian). To this end, punishment must be fair, uniform, and equitable to the crime committed. Otherwise, the

Humphress 6 punishment can result in trauma to the prisoner which leads to resentment rather than reformation. In the current justice system, punishment is neither uniform nor equitable, which makes it impossible to be fair. As it stands, two criminals committing the same crimes under the same circumstances can face drastically different punishments. Judges are given sentencing guidelines but these guidelines are so flexible as to give the judges almost unlimited leeway in their decisions. A person convicted of possessing a controlled substance can be given as little as probation or as much as a five year sentence in a federal prison. The film Animal Factory gives an accurate portrayal based on the real-life experiences of ex-convict-turned-writer Edward Bunker. In the film, the main character is a young man from an affluent family who is convicted of possession of marijuana. Under normal circumstances, such a conviction for a first-time offender would result in a fine and a period of probation. Due to the prosecutions desire to appear tough on crime during an election year, however, the main character is sentenced to five years in prison. He enters prison a relative innocent, but after only a few weeks he is traumatized to the point where he is a bitter, resentful and hardened criminal, no longer willing to work within societys bounds. This point is driven home when he learns that an inmate he stabbed lived, though paralyzed, and the only thing he says is, I shouldve slit his throat when I had the chance (Bunker). The films central point is that the American prison system is such a toxic environment that it creates beasts from relatively harmless people. In this respect, Franklin is correct, for to be incarcerated in an American prison is practically a guarantee of being traumatized. It is possible for a person to believe that trauma as a means of punishment remains the focus of the penal system in the modern era, particularly because of the traumatizing effect of

Humphress 7 American prisons. The truth, however, is that the trauma is largely a secondary byproduct of the true focus of the modern prison system; containment for profit. Originally, prisoners were put to hard labor as a means of trying to reform them through honest work, or, as was more often the case, to keep them too preoccupied and tired to cause trouble. Franklin pinpoints the moment this ceased to be the case; This changed in 1865 when Article 13, the Amendment that abolished the old form of slavery, actually wrote slavery into the Constitutionfor people legally defined as criminals: Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States From that moment forward, slaves were freed and prisoners were enslaved. Prisons then became a source of immense profitability. A warden could force his prisoners to work as hard as he wanted them to on any task he desired and would not be required to reimburse them for their labors. It was at this time that the whip moved from the plantation fields to the prison workyards. Prisoners were still being traumatized, but now it was not intended as punishment for their crimes, but as motivation for their work. There have been numerous attempts to reform the prison system to focus on rehabilitation rather than punishment for profit. Each attempt has met with some degree of success, but unfortunately, each inevitably failed after only a few years. This was largely due to the wardens inability (or perhaps unwillingness) to quantify their rehabilitation successes (Meskell). It is much easier for a politician to tell his constituents what a great job hes been doing when hes explaining how much money hes saving them than it is to try to tell them they should feel good

Humphress 8 because an indeterminate number of convicts might be better people now. This kind of political pandering is what makes any kind of meaningful reform difficult to maintain. Not all reforms have been outright failures, nor have they all been for the better. Social reform activist Warren Cikins chronicled one of the most famous reforms spearheaded by none other than Supreme Court Chief Justice Warren Burger. In his 1986 report Privatization of the American Prison System: An Idea Whose Time Has Come? Cikins summarizes Burgers views on American prisons. Too many prisons, he bemoaned, serve only as human "warehouses" which make a high rate of recidivism inevitable (Cikins). Since becoming profitable, American prisons saw an enormous spike in their populations. Partly this was self-causing, as the prison system produced more and more hardened criminals, recidivism rates went through the roof. Recidivism meant that criminals were leaving prison only to go out and commit more crimes, thus being sent back to prison. The other cause behind the enormous population growth was legislation aimed at increasing prison population. Most notable was Californias three strikes law, which mandated extended and harsher penalties for repeat offenders, ending with a life sentence after their third serious conviction, regardless of the crime. Cikins answer to the overcrowding in prisons was to privatize the American prison system. He believed that In a climate of governmental expenditure cut-backs, it is quite logical that the private sector would explore the opportunities created by this governmental impasse (Cikins). So while the government would sit on its hands and bicker amongst itself over the cost of building new prisons versus the dangers of overcrowding, the corporations would step in like knights in shining armor to solve the problem by building privately funded and privately run prisons. The problem with this solution lies in the fact that a corporations primary focus is profits. Prisons were already massively profitable endeavors, and the corporations streamlined

Humphress 9 their every process to maximize their profits. With the privatization of the prison system, justice became an industry. Maximizing profits and rehabilitating prisoners are two goals that are in direct conflict with each other. Privatized prisons have a duty to their corporate shareholders to maximize their profits, and as such, their responsibilities to their wards are often pushed aside. Such is the case at the Walnut Grove Youth Correctional Facility in Walnut Grove, Mississippi, a private prison run by the GEO Group corporation. The Walnut Grove facility is under investigation due to numerous accounts of mismanagement and prisoner torture. Former inmates have claimed that the guards forced them to fight as entertainment. There have been numerous accusations of physical and sexual abuse of the prisoners by the guards. One of the former inmates said, "It'd be like setting up a fight deal like you would with two dogs I did witness twice while I was at Walnut Grove, they actually bet on it. It was payday for the guards" (Burnett). In this instance the prisoners were not people to the staff, but merely numbers on a profit spreadsheet. As such they felt no compulsion to treat them as people and instead used them as living toys to suit their own needs. What is worse is that for years these allegations went unheeded not because they werent believed, but because the prison finances fifteen percent of the towns annual budget, on top of creating jobs for over a third of the towns residents. Sadly, this is not an isolated incident. Even prisons that are not privatized are susceptible to the allure of higher profits. As of February 10, 2011 overcrowding had become such a problem in California prisons that a panel of judges had to order the early release of nearly 60,000 inmates, just to bring the prisons back down to their maximum capacities (Rothfeld). Such massive overcrowding is the natural extension of a punishment for profit system. When each prisoner is equal to $1000 in your pocket, do you give them each their own room, or do you give them bunkbeds and make them

Humphress 10 share a 10x10 cell? If youre a California prison, you triple bunk them in a 10x10 cell and then you fill your gymnasium with wall-to-wall cots to maximize your profits. As long as the justice system continues its punishment for pay philosophy, the situation will only continue to worsen. The quest for greater profits leads to lobbying for laws which keep prisons filled, which leads to overcrowding, which leads to brutality and the traumatizing of inmates, which leads to recidivism, which continues the spiral all over again. The only way to break this self-destructive spiral is to overhaul the justice system and replace it with one that recognizes that people are worth more than the money they can make for you. It must be realized that by gathering all the criminals in one place and throwing them together does not stop crime; all it does is create better criminals.

Humphress 11 Annotated Bibliography Animal Factory. By Edward Bunker. Dir. Steve Buscemi. 2000. This film portrays the conversion of a young man from nave innocent to hardened criminal during his incarceratoin in a federal prison. Barnes, Harry. The Evolution of Penology In Pennsylvania. Montclair, NJ: Patterson Smith, 1968. Barnes traces the history of the early American prison system and describes its beginnings and growth. Burnett, John. "Town Relies On Troubled Youth Prison For Profit." 25 March 2011, NPR. 20 April 2011 <http://www.npr.org/2011/03/25/134850972/town-relies-on-troubled-youth -prison -for-profits>. Burnett reveals the sordid facts of what goes on behind the barricaded walls of a prison in a small town. Cikins, Warren. "PRIVATIZATION OF THE AMERICAN PRISON." Notre Dame Journal of Law, Ethics and Public Policy (1986). In this paper, Cikins chronicles the attempts of Chief Justice Warren Burger to reform the American prison system and open the way for private sector prison building. Foucault, Michel. Discipline & Punish: The Birth of the Prison. New York: Vintage Books, 1995 (original French 1975). Foucault details the various forms of discipline and punishments that gave rise to the modern prison system. Franklin, H. Bruce. "The American Prison and the Normalization of Torture." Historians Against War (2006). This article outlines the various ways that torture has become an accepted part of the American prison system. Grassian, Stuart MD. Psychiatric Effects of Solitary Confinement. Declaration for Madrid v. Gomez. Chestnut Hill, MA, 1993. In this declaration for the case of Madrid v Gomez, Dr. Grassian argues the debilitating effects of punitive solitary confinement on inmates. Merriam-Webster Inc. The Merriam-Webster Unabridged Dictionary. Springfield, MA: Merriam-Webster Incorporated, 2011. The world's foremost resource for defining terms. Meskell, Matthew. "An American Resolution: the history of prisons in the United States from 1777 to 1877." Stanford Law Review (1999). This scholarly paper describes the American prison system from its inception through 1877 , including the social strictures and tenets that helped form and shape it. Rothfeld, Michael. "Judges indicate they may order prison population reduced by 58,000." Los Angeles Times 10 February 2011. This article in the LA Times details the events surrounding the decision of a panel of judges to reduce overcrowding in California prisons.

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Works Cited
Animal Factory. By Edward Bunker. Dir. Steve Buscemi. 2000. Barnes, Harry. The Evolution of Penology In Pennsylvania. Montclair, NJ: Patterson Smith, 1968. Burnett, John. "Town Relies On Troubled Youth Prison For Profit." 25 March 2011. NPR. 20 April 2011 <http://www.npr.org/2011/03/25/134850972/town-relies-on-troubled-youth-prison-for-profits>. Cikins, Warren. "PRIVATIZATION OF THE AMERICAN PRISON." Notre Dame Journal of Law, Ethics and Public Policy (1986). Foucault, Michel. Discipline & Punish: The Birth of the Prison. New York: Vintage Books, 1995 (original French 1975). Franklin, H. Bruce. "The American Prison and the Normalization of Torture." Historians Against War (2006). Grassian, Stuart MD. Psychiatric Effects of Solitary Confinement. Declaration for Madrid v. Gomez. Chestnut Hill, MA, 1993. Merriam-Webster Inc. The Merriam-Webster Unabridged Dictionary. Springfield, MA: Merriam-Webster Incorporated, 2011. Meskell, Matthew. "An American Resolution: the history of prisons in the United States from 1777 to 1877." Stanford Law Review (1999). Rothfeld, Michael. "Judges indicate they may order prison population reduced by 58,000." Los Angeles Times 10 February 2011.