As prison system inspectors visited Franklin Correctional Institution they discovered an incident from three years prior in which an inmate, 27-year-old Randall Jordan-Aparo, begged officer Rollin Suttle Austin, to take him to the hospital because of a blood disorder and the officer ordered him “gassed.” Jordan-Aparo died that night.

The inspectors rightfully found that the fiasco constituted “sadistic, retaliatory” behavior by the guards, but they allege that when they brought their findings to Florida Department of Corrections Inspector General Jeffrey Beasley, he told them he would “have their asses” if they didn’t back off. The involved officers remain on staff, although the U.S Department of Justice is investigating the situation.

That makes me feel so much better…

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But I think it’s worth looking beyond ballot initiatives and the particulars of this election cycle, and instead examining how elections intersect with the prison state. One obvious intersection is felon disenfranchisement. According to the Sentencing Project, “an estimated 5.85 million Americans are denied the right to vote because of laws that prohibit voting by people with felony convictions.” There are major racial disparities in this disenfranchisement, “resulting in 1 of every 13 African Americans unable to vote.” These disparities are exacerbated by what the Prison Policy Initiative calls prison-based gerrymandering. In many states, prisoners are counted on the census not for the communities or regions they have been forcibly taken from, but for the community in which the prison is located. This dilutes the voting power of black communities and other communities torn apart by mass incarceration. Moreover, it increases the voting power of communities that receive concentrated economic benefits from prisons, such as communities where prison guards live.

The result is that those most directly harmed by the state have no vote on how it is operated. Those who spend their lives not interacting in the voluntary sphere of communities and markets but under the constant power of the state’s prison guards get no vote regarding the government that controls the prisons. Those who have had their friends, family, and community members taken from them and locked in cages have their voting power diluted through prison based gerrymandering. And when prisoners are released, they typically remain disenfranchised. While the violence of the law has taken years of their life from them, and licensing laws restrict them from entering many professions based on their criminal records, they have no vote on the government that forcefully impacts their life. Clearly, the government does not operate with the consent of those who are most brutally governed by it.

My friend Ørn Hansen points out that this ought to seriously undermine arguments about every American having a duty to vote, writing:

Before you call people out for not voting or you call people stupid or worthless or privileged for not voting, remember that some of us people are legally prohibited from voting because of legal issues. Your system is a sham and cuts out a large portion of people from it because they have been convicted of certain crimes or because they don’t have certain forms of ID. Maybe that’s why we don’t trust your system: because they don’t want to hear from us.

The system excludes people from participating in its elections, and then the system’s sycophantic lapdogs blame and shame them for not participating in the state’s grotesque decision making rituals. Of course, it’s worth noting that even if everyone ruled by the U.S. government were permitted to vote, there would be no duty to vote, as Jason Brennan explains.

Just as mass incarceration impacts how electoral processes work, electoral processes have played a key role in the rise of mass incarceration. As the federal government gained control over sentencing policy and other criminal justice issues, crime became a key election issue. According to the National Research Council,  “The two parties embarked on periodic “bidding wars” to ratchet up penalties for drugs and other offenses. Wresting control of the crime issue became a central tenet of up-and-coming leaders of the Democratic Party represented by the center-right Democratic Leadership Council, most notably “New Democrat” Bill Clinton.”  These frenzies of punitive power tend to reach a boiling point in the lead up to elections. The National Research Council’s report notes that “the U.S. House and U.S. Senate have been far more likely to enact stiffer mandatory minimum sentence legislation in the weeks prior to an election. Because of the nation’s system of frequent legislative elections, dispersed governmental powers, and election of judges and prosecutors, policy makers tend to be susceptible to public alarms about crime and drugs and vulnerable to pressures from the public and political opponents to quickly enact tough legislation.”  Electoral politics likewise tends to make prosecutors and judges behave in more punitive ways. “In the United States, most prosecutors are elected, as are most judges (except those who are nominated through a political process). Therefore, they are typically mindful of the political environment in which they function. Judges in competitive electoral environments in the United States tend to mete out harsher sentences.”

So democratic participation in elections in a sense gave us mass incarceration, a policy that has disenfranchised and excluded many from participating in electoral democracy. Yet this disenfranchisement is one of the least destructive impacts of  mass incarceration. Rape, torture, murder, the caging and abuse of children, forcible denial of basic health care, the rich and well-connected stealing from the poor, and countless other atrocities mark the true costs of the carceral state. No election, no public opinion poll, no amount of political participation can make this just or acceptable. Even if all the prisoners and their families were given full voting rights, Lysander Spooner‘s words would ring true: “A man is none the less a slave because he is allowed to choose a new master once in a term of years. Neither are a people any the less slaves because permitted periodically to choose new masters. What makes them slaves is the fact that they now are, and are always hereafter to be, in the hands of men whose power over them is, and always is to be, absolute and irresponsible.”

The Growth of Incarceration in the United States: Exploring Causes and Consequences, a recent report by the National Research Council, helps explain the growth of America’s prison state. Last week I discussed the report’s findings regarding the impact of impact of mandatory minimum sentences, three strikes laws, truth in sentencing laws, and other harsh sentencing policies. This week I’ll discuss the report’s findings on the underlying causes of mass incarceration.

The authors begin by exploring how the federal government’s power and influence over criminal justice matters grew, and the substantial impact this had on the rising prison state:

Before World War II, the making, implementation, and enforcement of criminal justice policy in the United States were almost exclusively within the purview of the states or local authorities, not the federal government. From the 1940s onward, public officials and policy makers at all levels of government—from federal to state to local—increasingly sought changes in judicial, policing, and prosecutorial behavior and in criminal justice policy and legislation. These changes ultimately resulted in major increases in the government’s capacity to pursue and punish lawbreakers and, beginning in the 1970s, in an escalation of sanctions for a wide range of crimes. Furthermore, criminal justice became a persistent rather than an intermittent issue in U.S. politics. To a degree unparalleled in U.S. history, politicians and public officials beginning in the 1960s regularly deployed criminal justice legislation and policies for expressive political purposes as they made “street crime”—both real and imagined—a major national, state, and local issue. (105)

In response to race riots and other social unrest, “President Harry S. Truman and his supporters invoked the need for more “law and order” as they sought a greatly expanded role for the federal government in the general administration of criminal justice and law enforcement at the local and state levels and in the specific prosecution” (107). While Truman and his allies largely did not see their legislative proposals enacted, “all this legislative activity in the 1940s and 1950s deeply influenced how future discussions of law and order, crime, and the federal role in law enforcement would unfold. In advocating these measures, Truman and his allies helped establish a federal role in state and local law enforcement” (108).

The process of increasing federal control over criminal law continued, fueled by voices across the political spectrum. Civil libertarian impulses paved the way for an end to indeterminate sentencing and the rise of mandatory minimums. “The American Bar Foundation’s expansive research agenda in the 1950s and 1960s on the problem of discretion and arbitrary power also was a contributing factor to the political push for more uniformity, neutrality, and proceduralism in law enforcement and sentencing.” Also influential was “the American Legal Institute’s project to devise a Model Penal Code (to guide sentencing policy)” (108).

Of course, much of the political push for increased penal power came from the right. For example, the Goldwater campaign was among the first to push “law and order” as a key issue. After the Goldwater campaign, “the law-and-order issue became a persistent tripwire stretching across national and local politics. Politicians and policy makers increasingly chose to trigger that wire as they sought support for more punitive policies and for expansion of the institutions and resources needed to make good on promises to “get tough”” (108).

The 1965 Law Enforcement Assistance Act was a bipartisan bill that helped expand federal power in the realm of law enforcement. Liberal Democrats initially supported the act as a way of pushing proceduralism, police professionalism, uniformity, and fairness. However, more conservative politicians in both parties placed provisions into the act that served to expand police power and undermine the various rights that had been granted to suspects, defendants, and prisoners by the Warren Court. “Thus, with mixed motivations, both liberals and conservatives helped clear the political ground for this and subsequent measures that expanded the criminal justice system and ultimately gave local, state, and federal authorities increased capacity for arrest, prosecution, and incarceration” (110).

A similar process occurred with the Omnibus Crime Control and Safe Streets Act of 1968. The bill was initially supported by liberals, because early drafts “provided federal grants to police for equipment, training, and pilot programs and also greater federal investments in rehabilitation, crime prevention, and alternatives to incarceration” (110).  Republicans and southern Democrats substantially influenced the bill, however, and “successfully inserted provisions on wiretapping, confessions, and use of eyewitnesses that curtailed the procedural protections that had been extended by Supreme Court decisions” (111).

There were a variety of racial factors at play in the rise of the “tough on crime” politics that pushed increased incarceration. The Democratic Party’s split on Civil Rights issues enabled the Republican Party to use crime as a wedge issue and a key component of their “southern strategy.” Associating crime and racial fears for political gain was nothing new. The major distinction was the coded nature of this racism:

The southern strategy was different in that it rested on politicizing the crime issue in a racially coded manner. Nixon and his political strategists recognized that as the civil rights movement took root, so did more overt and seemingly universally accepted norms of racial equality.14 In this new political context, overtly racial appeals like those wielded by Goldwater’s supporters in the 1964 campaign would be counterproductive to the forging of a new winning majority. Effectively politicizing crime and other wedge issues—such as welfare—would require the use of a form of racial coding that did not appear on its face to be at odds with the new norms of racial equality. As top Nixon aide H.R. Haldeman explained, Nixon “emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while appearing not to [emphasis in original]” (Haldeman, 1994, p. 53). (116)

The southern strategy was key to the rise of mass incarceration, and white voters consistently support more punitive policies than blacks. However, it would be an oversimplification to suggest that black leaders and voters played no role in supporting the rise of punitive policies. For example, “some black activists in Harlem supported the Rockefeller drug laws, as did the city’s leading black newspaper (Barker, 2009; Fortner, 2013). In New York City and elsewhere, black leaders called for tougher laws for drug and other offenses and demanded increased policing to address residents’ demands that something be done about rising crime rates and the scourge of drug abuse, especially the proliferation of open-air drug markets and the use of illegal drugs such as heroin and then crack cocaine (Barker, 2009; Fortner, 2013; Forman, 2012)” (119).

Republicans often led the way in pushing punitive policies, but the push was generally bipartisan. Indeed, “The two parties embarked on periodic “bidding wars” to ratchet up penalties for drugs and other offenses. Wresting control of the crime issue became a central tenet of up-and-coming leaders of the Democratic Party represented by the center-right Democratic Leadership Council, most notably “New Democrat” Bill Clinton (Stuntz, 2011, pp. 239-240; Murakawa, forthcoming, Chapter 5; Schlosser, 1998; Campbell, 2007)” (120).

Ultimately, the U.S. government’s institutional features play a key role in explaining the rise of mass incarceration. As the National Research Council report notes, “the U.S. House and U.S. Senate have been far more likely to enact stiffer mandatory minimum sentence legislation in the weeks prior to an election. Because of the nation’s system of frequent legislative elections, dispersed governmental powers, and election of judges and prosecutors, policy makers tend to be susceptible to public alarms about crime and drugs and vulnerable to pressures from the public and political opponents to quickly enact tough legislation” (124). Electoral politics likewise makes prosecutors and judges behave in more punitive ways. “In the United States, most prosecutors are elected, as are most judges (except those who are nominated through a political process). Therefore, they are typically mindful of the political environment in which they function. Judges in competitive electoral environments in the United States tend to mete out harsher sentences (Gordon and Huber, 2007; Huber and Gordon, 2004)” (124).

This fits what we would expect from a public choice perspective. Research by Daniel D’Amico explores the perverse political incentives that give rise to disproportionate punishment in detail. Similar problems have also been explored in Paul Larkin‘s work on public choice theory and overcriminalization. This research can help us understand how America became the world leader in mass incarceration. Hopefully it can give us an idea of the institutional and ideological shifts that are necessary to change it.

In April, the National Research Council released a report, The Growth of Incarceration in the United States: Exploring Causes and Consequences. The report explains many of the reasons incarceration rates have increased so dramatically in the United States, and analyzes the consequences of mass incarceration. 

The report largely ascribes the growth of America’s prison population to changes in sentencing policies. Until the 1970’s, the federal and state governments employed a system of “indeterminate sentencing,” in which “sentencing was to be individualized and judges had wide discretion” (72). But over the next few decades, America’s sentencing laws changed drastically. The report identifies three phases of this shift. During the first phase, from “1975 to the mid-1980s, the reform movement aimed primarily to make sentencing procedures fairer and sentencing outcomes more predictable and consistent. The problems to be solved were “racial and other unwarranted disparities,” and the mechanisms for solving it were various kinds of comprehensive sentencing and parole guidelines and statutory sentencing standards.” These changes were designed with liberal goals in mind, and often featured “population constraints” to control the growth of prison populations. The second phase, however, was far more punitive. “The second phase, from the mid-1980s through 1996, aimed primarily to make sentences for drug and violent crimes harsher and their imposition more certain. The principal mechanisms to those ends were mandatory minimum sentence, three strikes, truth-in-sentencing, and life without possibility of parole laws.” The authors characterize the third phase as a “period of drift” with relatively few increases in punitive policies (73).

The authors primarily blame the prison population’s growth on this second phase. They note that “truth-in-sentencing” laws, which require prisoners to serve a minimum percentage of their sentence before being released on parole, substantially increased prison populations. Citing research from the Urban Institute, the authors note that “When implemented as part of a comprehensive change to the sentencing system, “truth-in-sentencing laws were associated with large changes in prison populations”” (80). These laws primarily increase prison populations over the long term. The authors quote Spelman, who notes “Truth-in-sentencing laws have little immediate effect but a substantial long-run effect. This analysis makes sense: Truth-in-sentencing laws increase time served and reduce the number of offenders released in future years; the full effect would only be observed after prisoners sentenced under the old regime are replaced by those sentenced under the new law.”  Because these laws only show their full effects in the long term, many studies understate their impact on incarceration rates. “The Urban Institute, Vera, and RAND studies underestimate the effects of truth-in-sentencing laws on prison population growth because they cover periods ending, respectively, in 1996-1998 (for Ohio), 2002, and 1997. Mandatory minimum sentence, truth-in-sentencing, and three strikes laws requiring decades-long sentences inevitably have a “sleeper” effect,” the report notes (82).

In addition to expanding the prison population, these sentencing policies put a lot of discretion in the hands of prosecutors. The authors note that “Two centuries of experience has shown that mandatory punishments foster circumvention by prosecutors, juries, and judges and thereby produce inconsistencies among cases (Romilly, 1820; Reekie, 1930; Hay, 1975; Tonry, 2009b). Problems of circumvention and inconsistent application have long been documented and understood.” While mandatory minimums, truth-in-sentencing laws, and other mandatory punishments were designed to produce more standardized, consistent, and certain punishment, they can actually have the opposite impact. The authors provide specific examples of how this operates:

“Legislative prescription of a high mandatory sentence for certain offenders is likely to result in a reduction in charges at the prosecution stage, or if this is not done, by a refusal of the judge to convict at the adjudication stage. The issue…thus is not solely whether certain offenders should be dealt with severely, but also how the criminal justice system will accommodate to the legislative charge” (Remington, 1969, p. xvii). Newman (1966, p. 179) describes how Michigan judges dealt with a lengthy mandatory minimum sentence for drug sales: “Mandatory minimums are almost universally disliked by trial judges…. The clearest illustration of routine reductions is provided by reduction of sale of narcotics to possession or addiction…. Judges … actively participated in the charge reduction process to the extent of refusing to accept guilty pleas to sale and liberally assigning counsel to work out reduced charges.” Newman (1966, p. 182) tells of efforts to avoid 15-year mandatory maximum sentences: “In Michigan conviction of armed robbery or breaking and entering in the nighttime (fifteen-year maximum compared to five years for daytime breaking) is rare. The pattern of downgrading is such that it becomes virtually routine, and the bargaining session becomes a ritual. The real issue in such negotiations is not whether the charge will be reduced but how far, that is, to what lesser offense” (Newman, 1966, p. 182). Dawson (1969, p. 201) describes “very strong” judicial resistance to a 20-year mandatory minimum sentence for the sale of narcotics: “Charge reductions to possession or use are routine. Indeed, in some cases, judges have refused to accept guilty pleas to sale of narcotics, but have continued the case and appointed counsel with instructions to negotiate a charge reduction.” (78-79)

This has a variety of consequences. It erodes the deterrence that is supposed to come with harsher sentencing. But perhaps more importantly, “Mandatory punishments transfer dispositive discretion in the handling of cases from judges, who are expected to be nonpartisan and dispassionate, to prosecutors, who are comparatively more vulnerable to influence by political considerations and public emotion” (79). In addition to putting leniency in the hands of prosecutors, harsher sentences enable prosecutors to secure convictions without due process, as they can stack charges in order to coerce defendants into accepting plea bargains.

These harsher sentences also play a key role in producing racial disparities. The report summarizes the literature on racial bias at various points in the criminal justice process, including bias against black people who match particular stereotypes. While this racism is clearly present, the authors argue it is statistically small compared to the impact of sentencing policies. They argue that, “The reason for increased racial disparities in imprisonment relative to arrests is straightforward: severe sentencing laws enacted in the 1980s and 1990s greatly increased the lengths of prison sentences mandated for violent crimes and drug offenses for which blacks are disproportionately often arrested” (96).

If social science had played a leading role in policy discussions, these harsh sentencing laws would likely have been seen as undesirable when they were proposed. Unfortunately, “consideration of social science evidence has had little influence on legislative policy-making processes concerning sentencing and punishment in recent decades. The consequences of this disconnect have contributed substantially to contemporary patterns of imprisonment. Evidence on the deterrent effects of mandatory minimum sentence laws is just one such example. Two centuries of experience with laws mandating minimum sentences for particular crimes have shown that those laws have few if any effects as deterrents to crime and, as discussed above, foster patterns of circumvention and manipulation by prosecutors, judges, and juries” (90). It’s predictable that the state would ignore social science evidence. Voters are rationally ignorant, as the cost of studying relevant social science exceeds the benefits to voters of understanding issues. But worse still, as Byran Caplan documents in The Myth of the Rational Voter, voters are rationally irrational. That is, it is instrumentally rational for them to persist in irrational biases that are directly counter to social science, rather than simply being ignorant and agnostic.

The harsh sentences passed during the 1980s and 1990s have been extraordinarily destructive. They have shifted more power into the hands of prosecutors, undermined proportionality, exacerbated racial disparities in the criminal justice system, and played a key role in bringing us an America that incarcerates more people than any  other nation on earth.

Scavando tra i documenti della prigione, alcuni giornalisti hanno trovato diversi casi di abusi e di cosiddetti “usi impropri della forza”.

In visita all’Istituto Correzionale Franklin, gli ispettori del sistema penitenziario sono venuti a conoscenza di un incidente avvenuto tre anni prima. L’incidente aveva per protagonista un carcerato ventisettenne, Randall Jordan-Aparo, che chiedeva all’agente Rollin Suttle Austin di essere ricoverato in ospedale per via di un disturbo del sangue. L’agente diede l’ordine di “gasarlo” (pestarlo a sangue, es). Jordan-Aparo morì quella stessa notte.

Gli ispettori giustamente hanno definito il comportamento delle guardie “sadico e vendicativo”. Ma, dicono, quando i risultati degli accertamenti sono stati portati davanti all’ispettore generale del dipartimento penitenziario della Florida Jeffrey Beasley, quest’ultimo ha risposto: “vi faccio fottere” se non ve ne andate. Nonostante il dipartimento federale della giustizia continui con le indagini, gli agenti coinvolti restano in servizio.

Questo mi fa sentire molto meglio…

Un altro incidente vide coinvolto un carcerato con disturbi mentali, Darren Rainey; dopo aver defecato nella cella fu rinchiuso dagli agenti nel box doccia, “bombardato con acqua bollente,” insultato e lasciato a morire. Testimoni dichiarano di averlo trovato nel piatto doccia con la pelle a brandelli.

Questi incidenti di male puro sono considerati semplici storie da chi si sforza di giustificare lo stato prigione. Quanti altri esempi di abusi odiosi occorrono per capire che il problema è strutturale? Quanto altro sangue deve finire sulle mani dei carcerieri perché siano considerati, correttamente, nemici e non protettori di una società pacifica?

Se da un lato le vittime sono semplici nomi su un pezzo di carta per i vari funzionari di stato che fingono di interessarsi ai loro casi, dall’altro erano persone vere, in carne ed ossa, che hanno sofferto le pene della tortura per mano dello stato prigione. Randall Jordan-Aparo e Darren Rainey non sono semplici storie. Sono esempi di un problema istituzionale molto più grande.

Ecco perché i licenziamenti non risolveranno nulla. Gli abusi dello stato prigione, nella loro tristezza, sono una conseguenza prevedibile del fatto che la “giustizia” è affidata al monopolio dello stato. Lo stato prigione è un sistema oppressivo che rende normali gli abusi di potere e gli atti di terrore lasciando i carcerati alla mercé di guardie prive di responsabilità.

La mancanza di responsabilità, come nel caso dell’agente Austin, è un fatto normale. La logica interna del sistema carcerario monopolistico semplicemente non incentiva a tenere a bada le guardie carcerarie. Solo quando qualche giornalista esterno scava nei rapporti, il che accade raramente, lo stato è costretto ad agire “responsabilmente”. E anche allora la risposta è spesso più uno spettacolo fatto per placare il pubblico che un cambiamento reale. Dopotutto, un vero cambiamento comporterebbe l’estinzione del potere statale: l’ultima cosa che un funzionario di stato vorrebbe permettere.

Ci sono voluti tre anni perché la morte di Randall Jordan-Aparo venisse alla luce, e tutto quello che abbiamo è una “indagine”, il sonnifero preferito dallo stato. Un’indagine sembra una ricerca della responsabilità, ma in realtà non lo è affatto. Una vera e propria responsabilità si potrebbe avere solo con la dispersione del potere, ovvero con l’abolizione dell’intero sistema.

Lo stato reclama il monopolio della giustizia, ma non è così. La verità è che lo stato elimina ogni possibilità di giustizia.

Traduzione di Enrico Sanna.

Intuitively, it seems like we should. We’re instinctively outraged that cops can outright murder people and almost never get locked up for it. We’re understandably incensed that politicians from Richard Nixon to Ted Kennedy can commit heinous crimes and stay free, just because of their high social standing.

More fundamentally, even when cops and politicians are operating strictly within the limits of the law, they commit acts that would otherwise be seen as high crimes. As long as they follow all the right rituals of law, cops can threaten and kidnap completely peaceful people, and batter them if they resist. By waging war, politicians commit mass murder, and by expanding the prison state for campaign contributions, they literally sell people into slavery.

Ordinary people would certainly at least go to prison if caught doing any of those things. Anarchism is in part defined by a rejection of political authority, which means that we do not morally distinguish between the actions of a cop or politician and the actions of any other individual. So, one might think that the straightforward conclusion here is to one day set up libertarian tribunals to dish out punishments against agents of the state.

This view is understandable, but gravely mistaken.

Before law enters into the situation, we tend to hold to a pretty strict standard of self-defense. Which is to say: in any interpersonal conflict, we reject the initiation of force and only accept violence to the extent that it’s both proportional and genuinely necessary to protect the person being harmed or threatened. When someone goes beyond that minimally necessary amount of force, then they also become an aggressor, and their actions must also be condemned. After the fact, we demand that aggressors make restitution to their victims, but never counsel revenge.

There are very, very rare instances in which forced confinement may be justified, but this is only the case when someone is proven to actually be an ongoing threat to everyone in the community. Even then, this justification doesn’t apply for even the vast majority of violent criminals, and a justification for forced confinement does not justify forced confinement in any particular place. Nor does it justify the near total control that prisons have over prisoners. Hence why prisons are still inherently unjust.

A response might be offered that cops and politicians are indeed ongoing threats to the community at large. That much is true.

Yet the reason cops and politicians are ongoing threats to the community is not because of some psychological condition shared by all cops and politicians. Nor is it about any other quality shared by the particular individuals who occupy those positions of power. Rather, the individuals in those positions of power are ongoing threats to the community precisely because of their positions of power.

In other words, the minimal amount of force necessary to subdue them is just to get them fired or out of office, with the long-run goal of eliminating their jobs entirely. As for getting justice, what should be demanded is restitution – either in the form of hefty monetary compensation, or making amends through some other restorative process. Unlike punishment, that restitution can actually work toward giving back some of what’s been taken from their victims.

Which brings us to what may be the most important point: putting cops and politicians in prison does absolutely nothing to actually solve anything. When some on the left called for the trial and incarceration of George W. Bush (and others in his administration), prison abolitionist Dean Spade dissented, writing:

[T]he call to imprison Bush Administration officials is unsatisfying to me.  Imprisoning them would do nothing for those who have been killed in the wars, and making the call, to me, suggests that we believe the criminal punishment system is an apparatus for dealing with dangerous people and seeking justice, which is not true.  I would rather we put our energies into fighting for things we actually think can ameliorate the harm that has been done and prevent it from continuing.

Even if Bush had gone to prison, the United States government would still be bombing Iraq again in 2014. Even if Darren Wilson goes to prison, the police will continue to arrest black youth at wildly disproportionate rates. To the extent that their sentences would count as victories, they would only be symbolic victories. Those symbolic victories would lead many of us to believe everything was finally under control, numbing our passions for justice, and distracting us from the root causes of their aggression. Just like any other case of punishment.

The desire to fill prisons with those who are most truly dangerous in our society – namely, agents of the state – is a hard one to shake. Even still, it must be seen as a lingering form of retributivism felt by radicals brought up in a culture of criminal law, and like all forms of retributivism, it must be rejected. Especially given that its rationale is the same that empowers the very people it’s trying to fight against.

Reporters digging deeper into the prison records found multiple incidents of abuse and so-called “inappropriate uses of force.”

As prison system inspectors visited Franklin Correctional Institution they discovered an incident from three years prior in which an inmate, 27-year-old Randall Jordan-Aparo, begged officer Rollin Suttle Austin, to take him to the hospital because of a blood disorder and the officer ordered him “gassed.” Jordan-Aparo died that night.

The inspectors rightfully found that the fiasco constituted “sadistic, retaliatory” behavior by the guards, but they allege that when they brought their findings to Florida Department of Corrections Inspector General Jeffrey Beasley, he told them he would “have their asses” if they didn’t back off. The involved officers remain on staff, although the U.S Department of Justice is investigating the situation.

That makes me feel so much better …

Another incident involved mentally ill inmate Darren Rainey; after defecating in his cell he was locked in a closet like shower, “blasted by hot water,” taunted and then abandoned by officers to die. Witnesses report he was found on the shower drain with chunks of his skin falling off.

These incidents of pure evil are deemed anecdotal by those who continue to try and justify the prison state. How many examples of despicable abuse will it take for people to realize the problem is structural? How much more blood will prison guards have to get on their hands until they are rightly viewed as enemies of a peaceful society, rather than its protectors?

While the victims are merely names on a paper for various state functionaries to pretend to look into, they were real, flesh and blood individuals who suffered sickening torture at the hands of the prison state. Randall Jordan-Aparo and Darren Rainey are not anecdotes. Rather, they are examples of a much bigger, institutional problem.

That’s why the layoffs are not going to solve anything. The abuses of the prison state, while sad, are a predictable consequence of handing “justice” over to a state monopoly. The prison state is a system of oppression that normalizes abuses of power and acts of terror, leaving inmates at the mercy of unaccountable guards.

Unaccountability, as in the case of officer Austin, is routine. There are simply no incentives for the inner workings of the prison monopoly to tend toward keeping guards’ power in check. Only when outside reporters delve into the reports — a rare occurrence — is the state forced to act “responsibly.” And even then, the response is often mere show to appease the public rather than actual change. After all, real change would involve relinquishing state power – the last thing state functionaries will allow.

It took three years for Randall Jordan-Aparo’s death to even come to light and now all we get is an “investigation” — the state’s favorite appeasement technique. While it looks like accountability, an investigation by a fellow state functionary is no such thing. Real, true accountability is only achievable through a dispersion of power — and that means abolishing the whole system.

The state claims a monopoly on justice, but that’s not the real truth. The real truth is that the state removes any chances of justice.

Translations for this article:

• Italian, Nessuna Giustizia dallo Stato Prigione.

This injustice primarily impacts the poor. The key ways to being released from pretrial detention are hiring an attorney, paying bail, or bribing officials. Naturally, the poor have the least access to these options. There are also racist impacts from pretrial detention. As Schoenteich notes, “Ethnic minorities are also disproportionately represented in pretrial detainee populations around the world — Dalits in India, African Americans in the United States, Aboriginal people in Australia.” The report also notes that individuals with mental illnesses and cognitive disabilities are more likely to be detained awaiting trial.

The Open Society report examines the problem globally. But when I think about pretrial detention, two specific cases come to mind: Chelsea Manning and Matthew Stewart.

Chelsea Manning is the heroic whistleblower who released classified evidence of war crimes and other US government misconduct to the journalistic organization WikiLeaks. Manning’s disclosures shed light on what McClatchy Newspapers called “evidence that U.S. troops executed at least 10 Iraqi civilians, including a woman in her 70s and a 5-month-old infant, then called in an airstrike to destroy the evidence.” The outrage caused by exposure of this brutal war crime helped end the U.S. occupation of Iraq. Manning’s disclosures revealed that Hillary Clinton ordered diplomats to spy on and commit identity theft against UN officials. Her disclosures also uncovered evidence related to child sexual abuse by US military contractors in Afghanistan. 

Were any of the criminals Manning exposed held accountable? Of course not. Instead, Chelsea Manning was held in pretrial detention for years before being convicted and sentenced to 35 years in prison, simply for releasing information. She was held in solitary confinement, a cruel form of psychological torture, throughout her detention. UN Special Rapporteur on Torture Juan Mendez investigated the conditions under which Manning was held and concluded “that the 11 months under conditions of solitary confinement… constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture.” Moreover, there is some evidence that the torture was a bigoted response to Manning’s gender identity and expression. As Joanne McNeil reported in Jacobin,

Manning was tortured in part because he [sic] signed a few letters from the brig as “Breanna Elizabeth.” Marine Corps Master Sgt. Craig Blenis defended his cruelty in a December pre-trial hearing. Coombs asked why the marine thought Manning’s gender dysphoria should factor into his “prevention of Injury” status. Blenis answered because “that’s not normal, sir.”

In a sense, the pretrial torture of Chelsea Manning was not just a crime, it was a hate crime.

Matthew Stewart did not survive pretrial detention long enough to be convicted or acquitted. Late at night on January 4th, 2012, armed men broke into his home with guns blazing. Matthew, a startled gun owner and Iraq war veteran, fired back on the home invaders, killing one and wounding several others. But because they were police officers carrying out a drug raid, Matthew was not treated as a homeowner engaged in legitimate self-defense. Instead, he was locked up in the Weber County Jail and charged with murder. He was subjected to social isolation and other abuses for a year and a half before he eventually committed suicide. He was found in his cell hanging from a bedsheet. After his death, the degradation still didn’t end. Police officers trespassed in his home again even after he was dead and the state’s case against him was closed. Officer Jason Vanderwarf harassed Matthew’s grieving family members on Facebook, writing “now you all can feel our pain.” Vanderwarf was one of the initial aggressors, having lied on the initial search warrant and participated in the home invasion.

Pretrial detention is an appalling human rights abuse. Obviously, it undermines the right to due process and the presumption of innocence. It can be used to torture and brutalize detainees, especially political prisoners who have offended state functionaries, as Matthew Stewart and Chelsea Manning did. And pretrial detention is most often used to cage and abuse the most vulnerable in our society: the poor, ethnic minorities, and people with psychiatric and cognitive disabilities. Let’s end this injustice.

The key here is remembering that in order for a reform to actually be a reform, it needs to be a step forward, without any steps backward. Mapping out which way a reform is going, though, requires remembering that prisons are inherently unjust.

For example, measures that meaningfully work against something like prison rape should be supported, all other things being equal. However, all other things are sometimes not equal, as the introduction of women’s prisons has shown us. Since their beginning, the construction of women’s prisons has had the same effect that the construction of any prison does: higher and higher rates of incarceration . In this case, it has led to higher and higher rates of female incarceration specifically. This in turn leads to more and more women in danger of prison rape, especially from guards.

Outside of proposed reforms to prisons themselves, the prison abolitionist outlook also helps to structure our commitments on other social reforms. Hate crime laws provide a good example of this. Obviously, the libertarian prison abolitionist opposition to all punishment to begin with gives good moral reasons for opposing harsher punishments based on the motives of the offender. Beyond just that, though, keeping the structural problems related to prisons and criminal law in mind at all times helps us to see the actual effect of these laws. Namely, they do very little if anything to actually prevent hate crimes, while leading to plenty of real, tangible harms against the minorities they’re designed to protect.

Any expansion of hate crime laws (for example, to include gay or transgender victims) means an expansion of the prison state. Since the prison state is most likely to aim especially its aggression against the oppressed groups hate crime laws are ostensibly designed to protect – by locking up people of color and those who refuse to conform to heteronormative standards of gender or sexuality – this means strengthening the world’s biggest hate criminal. As prison abolitionist law professor Dean Spade tells us, hate crime laws are only about having the law say that oppressed people matter, not about treating them as if they actually do matter. With this in mind, he writes that “we must stop believing that what the law says about itself is true and that what the law says about us is what matters.”

As these and other examples show, insisting on an abolitionist rather than reformist stance is not some useless display of self-righteousness. It is a necessary consideration for making sure that every step taken is a step in the right direction. The incentive structures created by any system of domination and institutionalized aggression are such that it will co-opt any attempt at reform that is not aimed at abolition. We cannot afford to let the prison entrench itself any further. As the abolitionist of slavery William Lloyd Garrison said, “gradualism in theory is perpetuity in practice.”

Balko begins by discussing the arrest of Shaneen Allen:

Last October, Shaneen Allen, 27, was pulled over in Atlantic County, N.J. The officer who pulled her over says she made an unsafe lane change. During the stop, Allen informed the officer that she was a resident of Pennsylvania and had a conceal carry permit in her home state. She also had a handgun in her car. Had she been in Pennsylvania, having the gun in the car would have been perfectly legal. But Allen was pulled over in New Jersey, home to some of the strictest gun control laws in the United States.

Allen is a black single mother. She has two kids. She has no prior criminal record. Before her arrest, she worked as a phlebobotomist. After she was robbed two times in the span of about a year, she purchased the gun to protect herself and her family. There is zero evidence that Allen intended to use the gun for any other purpose. Yet Allen was arrested. She spent 40 days in jail before she was released on bail. She’s now facing a felony charge that, if convicted, would bring a three-year mandatory minimum prison term.

In other words, a woman of color was arrested for a completely victimless crime and now faces a clearly disproportionate mandatory minimum sentence. This incident challenges the way most Americans think about gun control, which is often framed in terms of a conflict between pro-gun reactionary conservatives and anti-gun anti-racist liberals. Yet here a woman of color is facing outrageously disproportionate punishment for a victimless crime precisely because of the gun control laws that are typically associated with progressive liberalism.

This is not an isolated incident. Racially disparate impacts have been a disturbing reality of gun control for years now. Balko explains the disparity as follows:

Last year, 47.3 percent of those convicted for federal gun crimes were black — a racial disparity larger than any other class of federal crimes, including drug crimes. In a 2011 report on mandatory minimum sentencing for gun crimes, the U.S. Sentencing Commission found that blacks were far more likely to be charged and convicted of federal gun crimes that carry mandatory minimum sentences. They were also more likely to be hit with “enhancement” penalties that added to their sentences. In fact, the racial discrepancy for mandatory minimums was even higher than the aforementioned disparity for federal gun crimes in general.

Many liberals and progressives are aware of the racial disparities that plague our criminal justice system and are exacerbated by mandatory minimum sentences. But it’s important for them to recognize that these same dynamics are at play in gun control laws. As Anthony Gregory explains,

When it comes to restricting firearms, liberals have an amazing ability to ignore the hard truth of what they are advocating—putting more people in cages. That is what gun control is.

Why are those incarcerated for gun crimes so disproportionately people of color? Largely because gun control laws, like all victimless crime laws, give police enormous discretion. As Balko explains:

When someone robs a bank with a gun or kills someone with a gun, there’s no debate about who needs to be investigated and prosecuted. When a police agency is charged to seek out and prosecute people who are illegally possessing or transferring guns, they’re required to use their own discretion when it comes to what communities to target and what methods they’ll use to target them.

Inevitably, this will manifest as sting operations against communities with little political clout. (Or, just as troubling, deliberately targeting people for political reasons.)

Expanding the scope of criminal law beyond crimes with clear victims towards victimless crimes that police need to seek out expands the role of discretion in a manner that makes the already marginalized even more vulnerable. This is evident when trans women of color are profiled as sex workers. It’s evident when police searching for drugs stop pull over people for “driving while black.”  And it’s evident in how gun control laws are enforced in practice.

Balko quotes a particularly appalling recent example of racially biased sting operations by the Bureau of Alcohol, Tobacco, and Firearms (ATF). According to an investigative report by Brad Heath in USA Today:

The Bureau of Alcohol, Tobacco, Firearms and Explosives has more than quadrupled its use of those stings during the past decade, quietly making them a central part of its attempts to combat gun crime. The operations are designed to produce long prison sentences for suspects enticed by the promise of pocketing as much as $100,000 for robbing a drug stash house that does not actually exist.

At least 91% of the people agents have locked up using those stings were racial or ethnic minorities, USA TODAY found after reviewing court files and prison records from across the United States. Nearly all were either black or Hispanic. That rate is far higher than among people arrested for big-city violent crimes, or for other federal robbery, drug and gun offenses.

The ATF operations raise particular concerns because they seek to enlist suspected criminals in new crimes rather than merely solving old ones, giving agents and their underworld informants unusually wide latitude to select who will be targeted. In some cases, informants said they identified targets for the stings after simply meeting them on the street.

The ATF had very wide discretion in these sting operations, and that discretion resulted in large numbers of people being enticed into committing crimes and then locked up. Upwards of 91% of those caged are minorities. This is outrageous. And it should cause liberals who support the ATF as an essential part of gun control enforcement to seriously reconsider their views. Rachel Maddow has condemned the NRA for calling the ATF “jack booted thugs” and blocking the appointment of ATF leadership officials. Given the ATF’s role in actively perpetuating systemic racism, I think liberals like Maddow should strongly reconsider their support for the ATF.

Prison abolitionists should lead the charge against gun control laws, and prevent the prison state from growing as part of a knee jerk response to tragedies like mass shootings. Dean Spade of the Sylvia Rivera Law Project provided a good example of what a leftist resistance to gun control laws might look like after the Newtown shooting, writing:

In the wake of the Newtown shooting, the issue of gun control is being framed in very selective ways that ignore the realities of violence in our communities. The truth is that the most deadly, in terms of numbers, gun owners are police forces and the US military. When we have a conversation about gun violence that ignores the realities of state violence, it often produces proposals that further marginalize and criminalize people of color, poor people, people with disabilities, immigrants and youth. In Washington State, we’re fighting against a new bill that would create mandatory jail time for youth caught possessing a gun. We know that mandatory jail and prison sentences are part of what has created the massive boom in US imprisonment in recent decades that have devastated communities of color. We know that jailing youth does not make our communities safer, it just damages the lives, health outcomes, and educational opportunities of young people.

Any discussion of violence in society needs to recognize that the state and its criminal law enforcement apparatus are violent. Anyone who cares about equality or social justice should recognize when laws, even those supported by people they like, have grossly unequal consequences. Understanding these points should help us recognize gun control laws as part of a grotesque prison state that exacerbates inequality and injustice.