What Do We Owe The Incarcerated?

-- By PatrickOConnor - 07 May 2012

Abdication

As a society, we have undertaken the tasks of defining deviant behavior and setting, in broad terms, the appropriate means for mitigating the effects of that behavior on society. We've determined, for example, that some sorts of deviant behavior, such as negligence, are best dealt with through a system of forced financial renumeration. For other types of behavior, we've authorized criminal punishment and specified terms of incarceration for various categories of crime.

Having decided that some activities are deserving of incarceration, we've delegated the task of administering the punishment to federal and state departments of corrections and, more recently, to private corporations. For practical purposes, this delegation was unavoidable. What is troubling is the extent to which we’ve abdicated the responsibilities that accompany the decision to incarcerate. To support this abdication, we have erected procedural and substantive firewalls that insulate society from the financial, and more importantly, moral duties we owe to those we've imprisoned. The most striking instances of this phenomenon are the Supreme Court's decision in Farmer v. Brennan, in which the Court held that the conditions under which prisoners are held do not necessarily constitute "punishment" and the Prison Litigation Reform Act, which limits inmates’ access to federal courts and the scope of pubic liability for harms inflicted on them.

Farmer v. Brennan

In Farmer v. Brennan, the Supreme Court considered the extent to which prison conditions may be considered "punishment" in the context of the 8th Amendment's prohibition of cruel and unusual punishment. The Court decided that only those prison conditions that stem from some deliberate act to punish on the part of a state agent can be considered punishment. Absent this highly specific mens rea, the harmful actions of individual prison employees are not considered an action of the state. In effect, the Court determined that society is not answerable for the harms wrought by the agents authorized to administer punishments. Moreover, the Court indicated that general conditions prevailing in a prison can not be considered punishment, provided they are not the result of an official policy. Accordingly, deprivations resulting from overcrowding, for example, are not punishment, but some other species of treatment.

Prison Litigation Reform Act

In 1996, Congress enacted the Prison Litigation Reform Act to ease the burden of an uptick in prisoner-initiated litigation in federal courts. Among other things, the legislation blocks prisoners’ access to federal courts in the absence of physical injury, severely limiting the availability of redress for denials of mental health care and impositions of solitary confinement. Additionally, the PLRA requires that inmates exhaust all administrative remedies prior to bringing claims in federal courts. This serves to keep most complaints “in house,” as it is exceedingly difficult to navigate the administrative complaint system in many jurisdictions. As a result of these formal restrictions, prisoners are subject to abuse and ad hoc and arbitrary restriction of the extremely limited set of freedoms essential to retaining a sense of self and preparing for life after prison.

The implications of Farmer v. Brennan and the Prison Litigation Reform Act must be considered in the context of the crisis of over-incarceration, during which our desire to incarcerate fellow citizens has outstripped our capacity to house them. More crowded prisons are, in most cases, more dangerous prisons. In order to address the increased volatility of larger prison populations, governments have, very broadly, adopted two distinct approaches. In some systems, prison officials have dramatically increased the restrictiveness of prison life and the severity of punishments for inmate violations. In others, they have erected more extreme barriers between inmates and guards. As a result, individual inmates are no longer guaranteed protection from harms caused by fellow inmates. According to the logic of Farmer, the abuses and deprivations occasioned by these responses to the overpopulation of prisons do not constitute punishment for Constitutional purposes. Moreover, under the PLRA, states are unlikely to be held responsible for even those harms that result from statutory violations.

Working For Change

For someone seeking to address both mass incarceration and the rights of those already incarcerated, like myself, the PLRA and Farmer undeniably constitute significant impediments to justice, and must be studied as such. Yet the PLRA, and less directly, the logic of Farmer are just as important for what they reveal about societal attitudes toward incarceration.

That 399 congressmen voted to pass with PLRA (with only 25 voting in opposition) suggests that increasing the barriers to litigation faced by prisoners was a politically popular policy. Taken in isolation, it is clear that decreasing the extent to which the government is held liable for the harms wrought by incarceration would increase the attractiveness of incarceration as a means of addressing deviance. However, the financial cost of incarcerating vastly more individuals dwarfs any savings associated with limiting liability. That the skyrocketing costs of incarceration have only recently prompted increased political scrutiny of the criminal justice system indicates that society is highly insensitive (in a price elasticity sense) to the costs of incarceration. This strongly suggests that the PLRA was not popular because of its potential effects on state coffers. Rather, there must have been perceived independent value associated with the legislation.

It is likely that this value has to do with the stigmatization of the individuals convicted of crimes and a “see no evil” approach to incarceration. The causal relationship between criminalization and stigmatization is complex. That the criminal justice system is currently out of sync with prevailing norms, particularly with respect to the use of drugs, is a serious problem. However, addressing stigmatization alone will ignore those who, though rightfully removed from society, are currently denied access to the legal system, mental health treatment, and the opportunity to retain some sense of self and dignity.

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