I thought it would be useful to consolidate a conversation that's going on in the class facebook group. The material is interesting, important, and relates to our discussions in this class (most obviously regarding Robinson and his work). Hopefully it will also allow us to procrastinate from finishing torts or con law reading. I apologize for the scattershot nature of this post. I may go back and do more editing / summarizing of the links below if there's any interest or this sparks a discussion. Of course I welcome any interested person to do likewise, or just jump off from one of the articles or points and run with it.

A New Yorker article on mass incarceration that provides something of a historical overview. "The Caging of America" by Adam Glopnik, 1/30/2012.

An n+1 article on mass incarceration that advocates the abolition of prisons. "Raise the Crime Rate" by Christopher Glazek, 1/26/2012.

A few takeaways from Glopnik's piece:

1) One argument ("Northern") is that the Bill of Rights emphasizes process and procedure rather than principles, to the detriment of justice in America. This reminds me of the last lines of "Ages of American Law" (Gilmore), which I read for Legal Methods. "The better the society, the less law there will be. In Heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed."

2) A second argument ("Southern"), one that appears often in discussions of mass incarceration, is that our prison system stems from white superiority -"mass imprisonment became a way of re-imposing Jim Crow."

3) Glopnik reviews a new book, "The City That Became Safe," by Franklin Zimring. The book argues that the precipitous fall in the crime rate in NYC over the past few decades did not arise because of mass incarceration but because of "small acts of social engineering," such as "hot-spot policing" and, controversially, the use of "stop and frisks."

4) Glopnik argues that the deterrent effect is very weak, so very few nonviolent offenders should be in jail.

The n+1 article makes a much more radical argument: Glazek advocates the abolition of prison entirely. Glazek goes into grim detail about the horrors of prison. Unlike Glopnik, Glazek writes that mass incarceration has effectively lowered the crime rate -outside of prisons, that is. Inside of prisons, crime (especially rape) occurs at horrific rates. Glazek argues that we effectively condemn and ignore a massive population in order to make the rest of us safer. His framework reminds me a great deal of the Ursula K. Le Guin short story "The Ones Who Walk Away From Omelas" about a society in which happiness for every inhabitant is purchased by the horrible suffering of one innocent child. For Glazek, this is a moral outrage.

Glazek's argument is much too radical for me (I'm a soft, slow reformer at heart), but it forces the reader to confront the moral choices implicit in mass incarceration.

-- ShakedSivan - 19 Feb 2012

Glazek presented some powerful emotional stories regarding crimes that occur in prison and then completely obliterated the force of his argument with the trite way in which I felt he dealt with the pros and cons (pun intended) of his proposed solution – “Over time, though, things will settle. There will be more fathers around, and more state money for things like education and healthcare.”

I found Glopnik’s article and Stuntz’ proposed solution much more compelling and seemingly in line with the functionalism proscribed by Cohen. Instead of focusing on due process rights, and the justice accorded to prisoners, we should be focused on the justness of a punishment (as guided by our gut-reactions) and the reality of what that punishment entails - “Basically…we should go into court with an understanding of what a crime is and what justice is like, and then let common sense and compassion and specific circumstance take over.” So that we may understand what we are really condemning a human being to when we send them to prison, I believe the crimes that occur in prison need to be more publicized, and human faces need to be attached to those crimes.

I think it’s interesting that this year in our criminal law classes all of us hypothesize about and pontificate on the reasons we punish crimes, and why we have certain gradations of punishment, yet we learn almost nothing about what those varying methods of punishment actually entail or do to a man. Like an episode of law & order we learn nothing about what happens to the criminal after he is sentenced. How are we - the supposed future policy-makers of America – to begin to see the larger picture re: punishment, and what it actually entails and does to a man - without learning about it? Similar to the complaint I think is often voiced about how law school doesn’t teach us how to be real lawyers, there is not enough focus on the actual effects of certain policies we are encouraged to think about.

“Conservatives don’t like this view because it shows that being tough doesn’t help; liberals don’t like it because apparently being nice doesn’t help, either. Curbing crime does not depend on reversing social pathologies or alleviating social grievances; it depends on erecting small, annoying barriers to entry.” I liked the solution proposed by Glopnik because it was a functionalist, de-politicized solution so I found it particularly interesting that he thought people in politics wouldn’t like it.

-- SkylarPolansky - 21 Feb 2012

Skylar, all good points, especially on the lack of any focus or discussion in our crim law classes about what happens to people after they're convicted.

I want to jump on a tangent for a second- I hate the term "future policy-maker" or god forbid "future leader." We haven't actually done anything yet. Last year I was delivering pizza and surprisingly few customers saluted my leadership or policy-making abilities. I suppose at the time I was a future future leader and then transformed into a future leader upon acceptance to law school.

I actually found Glopnik's language aggravating because it proposes a moderate, technocratic solution that would probably get wide support if proved successful, but he feels the need to use a familiar strawman. This is a strawman that Obama, of whom I'm a huge fan, has perfected- there are crazy people on the right, and crazy people on the left, and then there's moderate rational me in the middle.

-- ShakedSivan - 22 Feb 2012

Shaked, can you explain your strawman argument a little more? I don’t quite understand it.

I too, despise the phrase “future policy-makers.” When this NYTimes article came out last semester I heard a professor counter the article’s accusation (that top-tier schools are at fault for not teaching their students how to be lawyers) by saying top-tier law schools are not supposed to be teaching its students to be practitioners of law. Top-tier schools assume its students are destined for greater, more influential roles, such as future policy-makers, leaders, professors, and reformers. It’s thus the goal of top-tier schools to teach its students to think critically, assess different policies, network with other fellow future leaders; it’s not the goal to teach us to practice the law.

When I heard this justification I was initially flattered and started patting myself on the back re: the future policies I was going to enact/people I was going to lead. Then I realized I am not future policy-maker or leader. It’s not something I ever considered myself or ever wanted – and it’s not something I want now. I literally want to know how to work the law well – like Robinson. The articles you posted did make me empathize with the prisoners’ plight, but the idea of leading the movement on wide-scale prisoner reform seems daunting and political and like nothing I want to be involved in. I’d rather help people on an individual basis. This is definitely more of a personal tangent but after reading articles like the ones you posted I am often left with less of a desire to reform our whole system, and more of a desire to help the few individuals whose personal stories were told.

-- SkylarPolansky - 23 Feb 2012

Skylar, the strawman goes like this. Someone sets up two strawman positions as reflective of what the left think and what the right think. This reasonable person, of course, believes in neither of those positions, and is all the more reasonable for not thinking like those ideologues. I think Glopnik's using strawmen in this case because I don't see why most of his moderate, incremental proposals would be opposed by the left or right, with a couple of notable exceptions (such as profiling). I will say his idea of no jailtime for almost any nonviolent offenders would indeed get very little support.