And while consumers pay top dollar for the prisoners’ expensive wares — and companies like Colorado Corrections Industries rake in millions — the prisoners themselves often make as little as 60 cents per day. David Fathi, director of the ACLU’s National Prison Project, says that prison labor operates in a “legal black hole” where basic legal protections such as minimum wage are conspicuously unavailable.

That hopeless black hole has swallowed nearly 2.5 million individual Americans, destroying lives and dreams, tearing families asunder and leaving them in financial ruin. As is now a well-known and shameful fact, the United States incarcerates a higher percentage of its populace than any other government on earth. No country sanctioning such a practice can maintain that it is “free” in any but the most ironic, mocking sense.

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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.”

People often ask what we would do about rapists and murderers without prisons. But as Dean Spade puts it, “The prison is the serial killer; the prison is the serial rapist.” Prisons produce conditions where rape and premature death are rampant, even inevitable. Prisons grant guards total power over prisoners, so that they can intimidate and threaten inmates who dare to report rape. They lock inmates in cramped conditions where they are vulnerable to violence and heat death, and lack access to healthcare. Mass incarceration means mass violence.

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However, even as crucial as Barnett’s work is for libertarian prison abolitionists, it is not a prison abolitionist book. Despite opposing punishment, Barnett does still defend hypothetical prisons on two grounds: incapacitation and restitution. In this post, I’ll try to explain why even Barnett’s very limited defense of prisons still fails.

What is a prison?

Before doing so, it’s important to remember what exactly we mean by “prison” when we say that we are “prison abolitionists.” By prisons, I refer to large compounds where people are involuntarily confined (typically with many other criminals) in response to their having committed a crime, without the right to voluntarily transfer to another location if that other location would confine them just as well, and where the administration has almost total control over those confined. A given prison might not clearly and precisely fit all of these conditions exactly, but this at least gives us a general idea of what we’re talking about. As will be important in what follows, it also shows that one can hypothetically be forcibly confined without the location of their confinement being a prison.

Incapacitation

Barnett holds[1] that one non-punitive purpose for prison and prison sentences can be incapacitation. In other words, he believes that a prison sentence can be legitimate as a means of extended self-defense. If it is legitimate to use force in direct self-defense, then it is clearly legitimate to prevent someone from (for example) leaving a room if you know they would immediately aggress against someone if they did. If this is this the case, and if we accept that certain kinds of actions can communicate intentions toward future actions, then forcibly confining someone based on crimes they’ve committed in the past can also be potentially legitimate.

So far, Barnett’s argument is sound as far as it goes. However, the next step that Barnett takes is where he goes too far. Namely, he contends that this leads to the re-emergence of the crime-tort distinction[2], and consequently, prisons.

While it may be legitimate to forcibly confine people who pose ongoing threats, this is only going to be a very small subset of criminals. Even for violent crimes like murder, the fact that someone has aggressed against another person is not good enough of a reason to believe they will do so again. The average crime is a product of things like passion or circumstance, not of the psychotic nature of someone who genuinely poses an ongoing threat. Furthermore, most people who are ongoing threats are typically ongoing threats to particular people, not the general public, and can often be handled with a restraining order. Those who are ongoing threats to the general public are also not necessarily especially serious ongoing threats, and could potentially be handled in some way other than simply confining them.

When dealing with those remaining serious ongoing threats to the general public, forced confinement can be legitimate. However, it is not legitimate to confine them to a particular location when another location might do just as well. Nor is it legitimate to place them there automatically as a result of the particular crime they committed – Barnett is right to suggest that actions can communicate future actions, but this must be as part of a larger, highly contextual interpretation of those actions.

It is also not legitimate to place them there in such a way that puts them under the near total control of the administration. In fairness to Barnett, he seems to agree there, saying that prisoners “would be entitled to take legal action to ensure that their rights are respected”. It seems difficult, though, to see how that entitlement could be actualized without also allowing even a limited right of exit to another location (provided that the alternative location would work just as well.)

Finally, why this issue gives us the re-emergence of the crime-tort distinction is left unexplained. Surely, tort law is able to handle self-defense just as well as criminal law, and it’s unclear what necessary thing that bringing back the crime-tort distinction actually does in this instance.

Working off Restitution Debts

Barnett’s second, much more far-reaching and problematic justification for prisons involves cases where an aggressor is not immediately able to pay restitution, or might be expected to try avoiding payment[3]. In such cases, Barnett proposes that criminals could be sentenced to prison, where those debts could be worked off. Importantly, Barnett believes[4] that “they would be released only when full restitution had been made or when it was adjudged that reparations could more quickly be made by unconfined employment.”

The main problem with this approach, and especially with Barnett’s use of it, is that it clashes with inalienability. Without a sturdier justification for bringing back the crime-tort justification than the one he gives, restitution debts become legally indistinct from any other debt. Thus, unless Barnett is willing to sanction debt slavery for a debt generated by hitting someone’s car, or even failure to repay a loan, he cannot justify debt slavery for a debt generated by actions we currently think of as crimes. Wages can be garnished, and all sorts of other, more normal methods of debt collection can be used, but you cannot imprison someone and force them to work.

Notice, by the way, that even if you accept Barnett’s limited re-emergence of the crime-tort distinction, this does not justify imprisoning someone simply to collect their restitution debt. This is because Barnett’s justification is only argued for on the basis of incapacitation, and at no time does he provide a reason for also allowing restitution debt as an independent justification for incarceration. If the only reason a particular criminal in Barnett’s hypothetical is still in prison is because they have not yet paid off their restitution debt, then they are there for a reason that Barnett has not argued for.

Inalienable & Nonforfeitable Rights

Barnett might also resist the claim that his defense of inalienability is inconsistent with his defense of restitution-based imprisonment is by drawing a distinction between alienating and forfeiting one’s rights. As he states earlier[5] in the book:

“A claim that a right is inalienable must be distinguished from a claim that it is nonforfeitable. ‘A person who has forfeited a right has lost the right because of some offence or wrongdroing.’ One who wishes to extinguish or convey an inalienable right may do so by committing the appropriate wrongful act and thereby forfeiting it. But notwithstanding the consensual nature of such an action, it is the wrongfulness or injustice of the right-holder’s act, and not the right-holder’s consent, that justifies the conclusion that an inalienable right has been forfeited.”

All this may be enough to justify a distinction between the way we define the concepts of inalienable and nonforfeitable rights, but it does not justify a difference in the way we judge them. Virtually every argument for inalienability will also be an argument for nonforfeitability. Barnett’s own argument[6], that you are indeed physically unable to give up control of yourself, whereas you can easily physically give up control of alienable goods, is one such example. Committing a crime no more makes you able to give up control of your body than saying “I hereby give up control of my body.”

A defender of the claim that criminals can forfeit their rights by committing crimes might say that we need forfeitability in order to account for the justice of self-defense. If I’m coming at you with a clenched fist, clearly with the intent to swing it at your face, I forfeit my right to run in your general direction, and to swing my fists. Without forfeitability, someone might say, we cannot make that judgment, and are reduced to total pacifism.

Where this defense goes wrong is that it mistakes what’s morally going on in this situation. Someone who physically prevents me from attacking you is not acting against a right that I’ve forfeited, but one that I never had in the first place. If I never raised my fist or even had the thought of hitting you, I would still not have the right to use my fists in that way. If I did hit you, I would still retain all the rights that I had previously had to my fists – for instance, you couldn’t retributively cut them off – that I had before doing so. At no point does the concept of forfeitability need to be appealed to in order to explain self-defense.

For these reasons, Barnett’s defense of prisons without punishment does not succeed. Even still, because these reasons do not have to appeal to the concept of punishment, I take them to be the strongest reasons given for prisons. Thus, it is important to take the time to specifically address them independently of more standard justifications.

[1] pp. 187-191.

[2] pp. 190-191

[3] 177-181.

[4] 178.

[5] 78.

[6] 78-79.

The prison system is built on a fundamental paradox of principles. On the one hand, its defenders make pragmatic, consequentialist arguments like “we need to send a clear message to criminals.” But all evidence points to the fact that harsher sentences, longer bids and worse conditions increase recidivism rather than decrease it. It should be obvious, being imprisoned doesn’t make you a better person. It makes you more hostile to the society that put you there and it makes the rest of society more hostile to you — making it more difficult to live a “normal life” once you’ve been released. When faced with these simple arguments, the “tough on crime” crowd sometimes show their true colors — their objective was never to rehabilitate or deter, but to exact vengeance.

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And while consumers pay top dollar for the prisoners’ expensive wares — and companies like Colorado Corrections Industries rake in millions — the prisoners themselves often make as little as 60 cents per day. David Fathi, director of the ACLU’s National Prison Project, says that prison labor operates in a “legal black hole” where basic legal protections such as minimum wage are conspicuously unavailable.

That hopeless black hole has swallowed nearly 2.5 million individual Americans, destroying lives and dreams, tearing families asunder and leaving them in financial ruin. As is now a well-known and shameful fact, the United States incarcerates a higher percentage of its populace than any other government on earth. No country sanctioning such a practice can maintain that it is “free” in any but the most ironic, mocking sense.

Such statistical data confirm the United States’ brutal and unjustifiable over-criminalization, the tendency toward outlawing acts that a free society would treat as permissible. Today, a huge percentage of American prisoners at both the state and federal levels are nonviolent offenders, their crimes usually involving the possession of illegal drugs. Most of these captives are black or Hispanic Americans — even though these groups are no more likely to possess “contraband” than white Americans. Subjected to militarized police forces that treat their neighborhoods as occupied war zones, members of these vulnerable groups are routinely harassed, stopped and frisked, watched and arrested without cause. They are made criminals, sent to prison to languish or perform slave labor.

Yet even if we grant, for the sake of argument, the preposterous premise that almost everyone in prison has committed some actual crime, we are nonetheless left with the question of how a free society ought to deal with those who violate the rights of others. The notion that wrongdoers must be punished is the great unexamined assumption. It is not at all clear that justice is served by punishment — much less that justice requires punishment.

In Resist Not Evil, distinguished attorney Clarence Darrow argued that punishment itself represents a great injustice, his great legal mind condemning “the evil and unsatisfactory results of punishment.” Darrow believed the criminal justice system should strive to make a victim whole and to reform the lawbreaker, not to subject the criminal to savagery and vengeance, the barbaric holdovers of less enlightened ages. Darrow went so far as to contend that the state’s simple and mindless revenge, “without any thought of good to follow,” is indeed worse “than any casual isolated crime.” Considering the practice of punishment from all angles, addressing all ostensible rationales, Darrow revealed it as wrong, ineffectual, inhuman.

Market anarchists believe that only acts which violate the equal rights of others ought to be regarded as crimes. Every individual thus has the sovereign right to live her life in whatever way she chooses, as long as she allows everyone else the same right. Under these simple standards, the prison system is an abominable example of injustice and aggression.

“The time will come,” Darrow wrote, “when the public prosecutor and the judge who sentences his brother to death or imprisonment will be classed with the other officers who lay violent and cruel hands upon their fellows.” With American prisons bursting at the seams and giant corporations exploiting the slave labor pool they create, one hopes that the day Darrow wrote of is coming sooner rather than later.

As prison abolitionists, we can talk at length about the ways that prisons as such encourage abuse, add to recidivism, interlock with other oppressive systems like white supremacy, and are inherently unjust. Yet, for some people to really “get it,” something more is required.

At the time I’m writing this, I’ve finished about a season and a half of Netflix’s Orange Is the New Black, which is set in a women’s prison and loosely based around the real-life Piper Kerman’s prison memoir of the same title. Though it does not take an abolitionist outlook toward the prison system, it is a perfect example of the kinds of stories that need to be told. (It’s not for nothing that the show has even received praise from Angela Davis.)

Most significantly, Orange Is the New Black humanizes prisoners. Rich character development is one of the show’s strong-suits, and that helps to remind viewers that those suffering behind bars are real, flesh and blood people.

By showing flashbacks to their lives on the outside, we see that prison inmates are usually nothing like the caged monsters that are typically imagined in popular discourse surrounding them. They are often much like us, and it becomes difficult to sanction their sentences in good conscience.

Both on the outside and in prison, we seem them capable of compassion, meaningful human bonds, and all sorts of impressive achievements. For most of them, we see otherwise normal women who made one big mistake, not ongoing threats who need to be physically removed from the outside society.

Furthermore, we see that the condition of prison does not rehabilitate these women, but instead hardens them. Women who would normally never even think of hitting another person come close to murder, because of the situation created for them by the prison.

The show’s strong character development is present not only in the inmates, but also the staff, which further helps the show’s utility for abolitionists. This is because when we look at the staff of the show’s prison, we (mostly) don’t see sociopaths. We see ordinary people whose positions of power either require them or bring them to do extraordinarily awful things.

It’s not enough to just change out the people running the prison, because it would still end up looking roughly the same. The problems are structural, not personal.

It is difficult to imagine any situation (at least in the contemporary United States) where one person has as much near total control over another person and their life as a prison guard has over a prisoner. As we should expect, this brings out the worst in those given free rein to do whatever they want with or to others.

For example, in everyday life, one man’s homophobia may be unlikely to ever actually materialize as actual violence. But that same man, when given the power to do so, thinks nothing of sending a prisoner to solitary as part of his temper tantrum against her attraction to women. He feels entitled to do so precisely because of how sharply subordinate prisoners are to the staff.

That incident brings us to another important feature of the show. While its portrayal of prison in general is clearly not pleasant, it reveals solitary confinement for what it is: Hell. Solitary confinement is nothing short of torture, and it is difficult to say otherwise when watching the scenes that take place there.

A character cries out to herself in pain, and a soft voice answers back on the other side of the wall. Even this small amount of human interaction is a godsend, and she nervously asks “are you real?” The reply is chilling: “I don’t know.”

That is where the cramped isolation and dehumanization of solitary confinement leads, and the viewer can see it more clearly than they’d ever want to.

Viewers often assume that the show’s introduction – a sequence of eyes and mouths set to Regina Spektor’s “You’ve Got Time” – is made up of extreme close-ups of the show’s cast. The reality is that all of those faces are the faces of actual formerly incarcerated women.

This serves as a reminder that even for those events in the show that are entirely fictional, something like that has happened to someone, and something like that will happen to someone in the future (at least as long as we have prisons). It is just that sort of reminder that reveals the show’s real value.

By capturing our empathy, Orange Is the New Black forces us to acknowledge that when we accept the prison system, these are the women we are condemning to that life. It refuses to let us lazily fall back into the impersonal justifications we’ve rehearsed for as long as we’ve known about prisons.

We cannot just look away from the people we cage as we talk about why we cage them. We must look them in the eyes as we say it.

Art stirs people’s basic human sympathies toward action, and action is desperately needed to rid ourselves of the prison state. It is for this reason that we need more shows like Orange Is the New Black.

Knefel discusses the various norms that bias jurors in favor of conviction, from legal norms that prohibit lawyers from mentioning jury nullification in court to an authoritarian bias that inclines jurors to defer to police and prosecutors. She then describes nullification’s history, from its origins in 1670 to its use in the trial of the Camden 28, a group of peace activists who broke into a draft board office in protest of the Vietnam War.

The article’s conclusion is excellent:

People must know their rights before they get called to jury duty. Telling a sitting juror about nullification can be considered illegal tampering. But ensuring that all potential jurors know about nullification is not only legal but critical to the administration of justice. “When people start to understand the power they can exercise as jurors, I think that makes them more enthusiastic about jury service,” Butler says. And in an era of mass incarceration, harsh sentencing, racial profiling and police repression, the jury box is arguably the most powerful spot in the courtroom.

Now this is what I’m talking about!

Late last month I presented alongside Kirsten Tynan of the Fully Informed Jury Association on how jury nullification can be used as a tactic against a growing and brutal prison state. Kirsten discussed much of the history that Knefel covers in her piece. I mostly focused on the abuse that occurs inside American prisons, and why jurors should be aware of this as they consider whether someone should be convicted of a crime.

I’ve considered jury nullification a key part of any prison abolitionist toolkit for a while. About a year ago, in my op-ed Prison Abolition Is Practical, I mentioned jury nullification as one tactic for restraining the prison state, writing:

Resist the prison growth industry. Organize against construction of any new prisons, jails, and detention centers. Divest from banks that profit off prisons, such as Wells Fargo, and urge others to do the same. Expose prison profiteers like Jane Marquardt and undermine their political influence. Film cops, finance legal defenses, and promote jury nullification, so fewer people are sent to prison.

But this perspective on jury nullification has in my experience been too often absent from leftist movements against mass incarceration. The Fully Informed Jury Association does amazing work for jury nullification, but has mostly been heard by the libertarian right. So when left-wing publications like The Nation bring up jury nullification explicitly as a tactic against mass incarceration, this gives me hope and suggests I’m not alone. Let’s fight against mass incarceration, disproportionate punishment, and abusive power on all fronts, with juror education and jury nullification as one key tactic.

Resist the prison growth industry. Organize against construction of any new prisons, jails, and detention centers. Divest from banks that profit off prisons, such as Wells Fargo, and urge others to do the same. Expose prison profiteers like Jane Marquardt and undermine their political influence. Film cops, finance legal defenses, and promote jury nullification, so fewer people are sent to prison.

This Wednesday, I’ll discuss where I see jury nullification fitting in as a tactic for challenging criminalization and mass incarceration. I’ll also point out why overcriminalization, police militarization, and other relatively recent trends make jury nullification a moral imperative in many cases.

Some Utah specific criminal justice issues will be discussed, particularly the impending prison move and expansion. This prison expansion illustrates both the dangerous expansionist character of the prison state and the perverse role of politically connected business interests in shaping the criminal punishment system. Other factors that contribute to the prison growth, such as the institutional structure of the federal government and political responses to moral panics will be discussed.

If you can’t make it, you can look forward to video, which we will be linking here at C4SS. You can learn more about upcoming FIJA events here.

“Houses of correction” were first established under Elizabeth to punish and reform able-bodied poor who refused to work. A “widespread concern for the habits and behavior of the poor” is often cited as the reason for the poor laws regarding vagrancy and the establishment of facilities to “reform” the idle poor by confining them and forcing them to work at hard labor. But Chambliss reported that “there is little question but that these statutes were designed for one express purpose: to force laborers (whether personally free or unfree) to accept employment at a low wage in order to insure the landowner an adequate supply of labor at a price he could afford to pay.” Such laws clearly reflected the transfer function of government.

In this case, prisons were used as institutions of violent coercion meant to establish work discipline, enforce the work ethic, drive down wages, and thus transfer wealth from poor and working people to landowners.

Prisons served a similar function in the American South after the 13th Amendment was passed. The 13th Amendment prohibits slavery and involuntary servitude, but it makes an exception for those convicted of a crime. This provided a loophole that Southern states quickly implemented in order to preserve slavery. They passed laws known as the Black Codes that criminalized a litany of harmless behaviors specifically for black individuals. Then they imprisoned blacks in large numbers and leased them to businesses and governments to perform slave labor, in what was known as the convict lease system. This was yet another use of prisons and the criminal law as a wealth transfer, this time from former slaves to the state and elite economic interests.

Prisons are still used for the profits of entrenched interest groups today. Sometimes that means transferring wealth from taxpayers to for-profit prison operators like Corrections Corporation of America, GEO Group, and the Management and Training Corporation. Sometimes it means price gouging prisoners and their families through your state granted monopoly on phone calls to prisoners, as Global Tel*Link does. Medical contractors like Corizon profit by providing inadequate medical care after being granted a monopoly in a prison. The agribusiness industry protects their profits by sending activists to prison for calling attention to abusive conditions in their facilities, through ag-gag laws and the Animal Enterprise Terrorism Act.

But it’s not just for-profit firms that extract wealth from prisoners and the public through the prison industrial complex. Prison guards at “public” prisons are just as much of a concentrated and selfish special interest group. The California prison guards union has pushed prison expansion and draconian “tough on crime” policies in order to ensure their members’ job security. Democrats Dick Durbin and Cheri Bustos praised federal funding for the maximum security Thomson Correctional Center in Illinois on the grounds that it would create jobs. They essentially treat prisons as a make work program for their constituents.

These are just a few of the ways prisons operate as statist wealth transfers to politically connected groups. Like all such transfers, they distort the market, create unseen opportunity costs, and encourage further rent seeking by privileged interests. But prisons are a particularly brutal institution to use for wealth extraction. The costs of prisons are not merely economic. Prisons rob people of their liberty, subject them to rape, bake them to death, scald their skin off, and institutionalize psychological torture. Prisons should be understood as another form of what Bastiat called legal plunder, and a particularly brutal one at that.