Invisible Prisons
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Invisible Prisons M. Eve Hanan* Modern punishment theory is based on an inadequate conceptualization of the severity of incarceration. While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing. This lack of official attention to how prison is experienced by incarcerated people is one of the drivers of mass incarceration. This Article is the first scholarly work to analyze the weaknesses of punishment theory using a new and flourishing branch of political philosophy: epistemic injustice theory. The theory posits that disfavored social groups are excluded from contributing information about their experience that should be relevant to policy decisions. Epistemic injustice theory can be applied to analyze why incarcerated people’s accounts of prison’s cruelties are ignored or discounted in punishment decisions. As a disfavored group, prisoner accounts of prison’s harshness are discredited. As a result, sentencing decisions are made with only the thinnest understanding of the punishment being imposed — number of years of lost liberty — and with no accounting for the actual impact of incarceration on the person sentenced. * Copyright © 2020 M. Eve Hanan. Associate Professor, University of Nevada Las Vegas, Boyd School of Law, J.D. University of Michigan Law School. I thank Monica Bell, Erin Braatz, Erin Collins, Malcolm Feeley, Thomas Frampton, RaShya Ghee, Miriam Gohara, Daniel Harawa, Alexis Karteron, Benjamin Levin, Kathryn Miller, Teri McMurty-Chubb, Lydia Nussbaum, William Ortman, Shaun Ossei Owusu, Anna Roberts, Ashley Rubin, Maneka Sinha, Kimberly Thomas, Emma Thompson, Robin Walker Sterling, Fred Van Dyk and the organizers of conferences at which I presented this Article, including, the Law and Society Association’s annual conference, NYU Law School’s Clinical Writer’s Program, LatCrit, CrimFest, the University of Colorado Junior Scholars Forum, and the AALS Clinical Conference. I offer special thanks to Elizabeth Manriquez for her exceptional skills as a research librarian locating hard-to-find sources. 1185 1186 University of California, Davis [Vol. 54:1185 Applying the framework of epistemic injustice to explore the thinness of punishment theory serves more than a descriptive function. It also forms the basis for concrete recommendations to improve sentencing policy and practice. To this end, the Article suggests (1) how sentencing authorities can exercise epistemic responsibility in punishment decisions; (2) how incarcerated people can participate in knowledge-creation; and (3) how the problem of variability of prison conditions can be accounted for in sentencing. TABLE OF CONTENTS INTRODUCTION ................................................................................. 1187 I. THE RELEVANCE OF PRISON’S CRUELTIES TO SENTENCING ..... 1193 A. Punishment as a Number ................................................. 1197 B. Prison-As-Experienced and the Traditional Goals of Sentencing ....................................................................... 1203 1. Proportionality in Retribution.................................. 1204 2. Parsimony in Deterrence and Incapacitation ........... 1206 3. Frustrating Rehabilitation and Specific Deterrence . 1208 C. Towards a Theory of Injustice in Punishment .................. 1210 II. EPISTEMIC INJUSTICE: DISINTEREST AND IGNORANCE ............. 1213 A. The Philosophical Study of Epistemic Injustice ................. 1214 B. Hidden Punishment’s Open Secrets ................................... 1219 III. EPISTEMIC VIRTUE IN SENTENCING DECISIONS ....................... 1223 A. Responsible Listening ....................................................... 1226 B. Incarcerated Voices in Punishment Decisions ................... 1229 1. Participation in Sentencing Policy and Practice ...... 1229 2. Writing from Prison ................................................. 1233 C. Variation in Prison Experiences ....................................... 1238 1. Variation as an Epistemic Concern .......................... 1238 2. A Proposal for Dealing with Variability: Assume the Worst .................................................................. 1241 CONCLUSION..................................................................................... 1242 2020] Invisible Prisons 1187 INTRODUCTION Life inside U.S. prisons is both the object of public fascination and invisible in sentencing policy. On the one hand, popular culture demonstrates an obsession with prison stories.1 Whether fancifully, such as television shows set in prison,2 or seriously, such as journalistic reports of prison conditions,3 impressions of what prison is like are available at our digital fingertips. Beyond what is easily digestible in video, podcast,4 and blog5 format, are decades of social science studies 1 See CALEB SMITH, THE PRISON AND THE AMERICAN IMAGINATION 6 (2009). 2 See, e.g., ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? 18 (2003) (remarking upon the widespread belief that we think we know what prison is like because of depictions of prison in television shows like Oz). Netflix claimed that over one hundred million viewers have tuned in to watch Orange is the New Black, a television series based on Piper Kerman’s memoir of her incarceration in federal prison. Ron Lyons, Jr., Netflix Says 105 Million Subscribers Have Watched an Episode of Orange Is the New Black, SLATE (July 19, 2019, 6:33 AM), https://slate.com/culture/2019/07/orange-is-the-new-black- netflix-105-million-viewers.html [https://perma.cc/W73V-9RX3]. 3 For example, The New York Times’ two-part series on an Alabama prison, which drew on diverse sources such as photographs and prisoner letters. ‘No One Feels Safe Here’: Life in Alabama’s Prisons, N.Y. TIMES (Apr. 29, 2019), https://www.nytimes.com/ 2019/04/29/us/alabama-prison-inmates.html [https://perma.cc/KZ87-4W62]. 4 For example, EAR HUSTLE, https://www.earhustlesq.com (last visited Dec. 13, 2020) [https://perma.cc/MF54-JRZ9], a podcast made by prisoners in San Quentin Correctional Facility, California. 5 See, for example, Byron Case, The Pariah’s Syntax: Unbound Notes from an Innocent Man, PARIAH BLOG, http://www.pariahblog.com (last visited Dec. 13, 2020) [https://perma.cc/Z3BE-6QUY] (describing life inside of maximum-security prison); INMATE BLOGGER, https://inmateblogger.com (last visited Dec. 13, 2020) [https://perma.cc/3RXR-FHDG], a web platform where incarcerated men and women blog about their experiences; PRISON WRITERS, http://prisonwriters.com (last visited Dec. 13, 2020) [https://perma.cc/H6AY-9AAR], a web platform showcasing the writing of incarcerated people. 1188 University of California, Davis [Vol. 54:1185 on prison life.6 Moreover, prisoner memoirs,7 poetry,8 and newspapers,9 provide direct sources of prisoner perspectives on their experiences of incarceration. Some formerly incarcerated people practice as attorneys,10 and serve as our academic colleagues in law11 and criminology.12 In short, it is possible to immerse oneself in information about what it is like to be in prison and thereby achieve some understanding, however imperfect, of what I will call prison-as- experienced. 6 For a summary of twentieth century studies of prison life, see, for example, Lori Sexton, Penal Subjectivities: Developing a Theoretical Framework for Penal Consciousness, 17 PUNISHMENT & SOC’Y 114, 116-118 (2015) (reviewing literature regarding prison studies conducted in the twentieth century). Sexton’s article also promulgates a new framework for how prisoners understand their punishment. See id. at 128-31. 7 See, e.g., JACK HENRY ABBOTT, IN THE BELLY OF THE BEAST (1981) (describing incarceration in a series of letters to Norman Mailer); WILBERT RIDEAU, IN THE PLACE OF JUSTICE: A STORY OF PUNISHMENT AND DELIVERANCE (2010) (describing the author’s experience serving a life sentence at Louisiana’s “Angola” prison). 8 See, e.g., JIMMY SANTIAGO BACA, A PLACE TO STAND: THE MAKING OF A POET (2001) (describing the author’s process of becoming a poet while incarcerated); REGINALD DWAYNE BETTS, FELON: POEMS (2019) (detailing a formerly incarcerated poet’s perspective through a compilation of poetry). 9 The most acclaimed prison newspaper was The Angolite, published by prisoners in Louisiana State Penitentiary, which received numerous journalism awards. See Stephanie Kane, An Interview with the Most Rehabilitated Prisoner in America, 39 LITIG. 16, 16 (2013) (interviewing prison journalist, Walter Rideau, about his work and awards as the editor of The Angolite). 10 See, e.g., Innocence Staff, Exoneree Jarrett Adams Defends Kevin Bailey’s Innocence in Chicago Court, INNOCENCE PROJECT (Dec. 20, 2016), https://www.innocenceproject. org/exoneree-back-in-court-as-lawyer/ [https://perma.cc/43Z3-7KHE] (profiling Jarrett Adams, an exoneree who went on to become an attorney working with the Innocence Project). 11 See, e.g., Shon Hopwood, GEORGETOWN LAW, https://www.law.georgetown.edu/ faculty/shon-hopwood/ [https://perma.cc/2BSE-795Y] [hereinafter GEO. LAW] (profiling Georgetown Law Associate Professor Shon Hopwood, whose research includes sentencing policy and practice). See generally Shon Hopwood, Second Looks and Second Chances, 41 CARDOZO L. REV. 83 (2019) (investigating ways that the criminal justice