Unfair

by Adam Benforado

  There are some positive recent signs that the gulf between America’s correctional system and those of other industrialized democracies may be narrowing, at least slightly. Although there was a steady upward trend in the number of incarcerated Americans starting in the early 1970s, the prison population has actually dropped a little since its peak in 2009. Part of this reflects the ratcheting back of mandatory minimum sentences, expanded opportunities for inmates to apply for clemency, and efforts to reduce harsh charges for minor, nonviolent drug offenses. Other efforts at the state and federal levels have gone toward diverting more potential prisoners to treatment programs, releasing elderly prisoners who no longer pose a danger to the public, and eliminating the automatic parole-violation triggers that can send people back to prison for minimal infractions. In California, the harshest aspects of the three-strikes law were repealed—the third offense must now be a serious or violent felony for the law to come into play.

  These are all important steps, but we need to realize that they were influenced by a unique confluence of events, including a precipitous drop in crime rates and a severe recession that left government officials scrambling to reduce costs. There is no guarantee that these trends will continue. Moreover, given the starting point, the absolute amount of progress is quite small. There are still five times as many inmates in state and federal prisons as there were in 1978. Three-strikes laws are still on the books in many states, including California. And although, today, shoplifting cannot send a man to prison for the rest of his life, these laws are far from lenient. If Leandro had stolen the videotapes by sticking his finger into the pocket of his sweatshirt and pretending to have a gun, the new reforms would have done him no good at all.

  The truth is that we’re not going to make much more progress until we realize that we are just as ignorant of the effects of our punishments as we are of what actually drives us to punish. Our favored tools of mass incarceration and solitary confinement do not do what we think they do. And we remain wedded to the same mistaken theories espoused some two hundred years ago by the Society for Alleviating the Miseries of Public Prisons.

  Now, as then, the prisoner and potential prisoner are viewed as rational beings who make decisions to offend based on a cost-benefit analysis. To decrease crime, the thinking goes, you just need to increase the magnitude of the punishment until violating the law no longer seems to pay. The more distasteful the punishment—that is, the more we deprive criminals of the things that they normally enjoy—the less likely a person will be to choose to offend in the future. Harsh treatment is acceptable because it’s directed only at people who deserve it in proportion to their wrongdoing. However, as moral individuals, we understand that we shouldn’t cause a prisoner physical pain, which rules out various forms of abuse at the hands of the state. Tough prison sentences, then, are the optimal approach to punishment because they act as a strong deterrent without forcing us to “mistreat” the prisoner. They also provide a ready means for incapacitating people who just don’t respond to the threat of being locked up. Prisoners who are uncontrollable are never let out; the rest, we can feel confident, will now steer clear of crime, knowing how unpleasant it is behind bars.

  Put simply: our prisons are humane; our punishments are deserved; and our system makes us safer. That’s what Eastern State’s progenitors proclaimed, and that’s what we believe. And we are dead wrong.

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  What is solitary confinement actually like?

  To get a sense, walk into your bathroom, shut the door, lie down in your bathtub, and close your eyes. When you reopen them, imagine that this is where you will spend the next five years of your life. Take a look at your new kingdom.

  Wake up in the morning and the fluorescent lights are already on, just as they have been all night. Roll from your bed and you can touch the walls—off-white or white. It may be thirteen by eight, or eight by ten, or fourteen by seven, but take a step and you touch the walls. There are no windows, but maybe you get a slit. There is a toilet and a sink. This is where you sit for twenty-three hours each day for weeks and months and years on end. You get taken out only to shower and, on certain days, for a bit of movement in a slightly bigger cage—a narrow dog run.

  In Maine, no radios or televisions are permitted. At California’s Pelican Bay, those in solitary get a personal phone call only in the case of emergency. It is a bit softer in the Departmental Disciplinary Unit of the Walpole prison in Massachusetts: a radio after thirty days, a thirteen-inch black-and-white television after sixty, and up to four calls a month, if merited by good behavior. Human contact is virtually nonexistent. The doors are often solid metal, preventing you from talking with other inmates. For many, the opening of the door slot for the guard to push through a food tray is it for the entire day. If you want to feel a human touch, your only real chance is to break the rules—block out the lights to sleep or cover the opening in the door, and you can expect an “extraction.” Officers with shields and helmets will rush into your cell, pin you to the ground, and shackle your arms and legs. Your clothes may be cut off your body as they kneel on your legs and back. You may then be strapped naked to a restraint chair.

  More than 185 years after “ONE” walked through the gate of Eastern State, the experience of the solitary American inmate is surprisingly unchanged: a tiny cell, monotonous isolation, and a harsh response to any rule-breaking. Philadelphia’s penitentiary had a “tranquilizing chair” a century before Walpole was even built. The big difference is that we now have far more evidence that solitary confinement is torture.

  Humans need social contact—it’s not a luxury, it’s a necessity. Our brains are wired for connection, arguably because being part of a group provided an evolutionary advantage, allowing us to better avoid predators, garner resources, and find a mate, among other things. According to one theory, when ties are severed we experience the pain of loneliness in order to encourage us to reconnect with people. And evidence collected over the last several decades makes it clear that there are profound health consequences for those cut off from others. Infants die without food, but they also die without social interaction—a reality starkly presented in data from state-run orphanages in Eastern Europe during the second half of the twentieth century. More recently, researchers have found that social relationships are also critical for adults: over a given period of time, those with sound connections are 50 percent more likely to survive than those with weak ones. Put differently, having adequate social ties is comparable to quitting smoking in its effect. It hurts us to be alone; many studies have shown that isolation damages not only our physical health but our mental health and cognitive functioning as well.

  When the U.S. military studied naval aviators captured and imprisoned during the Vietnam War, they found that the practices of solitary confinement by enemy forces produced suffering just as severe as that brought on by physical torture. As a POW, John McCain spent more than two years isolated in a tiny cell, during which time he was also physically abused. When he returned, he did not mince words: “It’s an awful thing, solitary. It crushes your spirit and weakens your resistance more effectively than any other form of mistreatment.”

  Solitary confinement appears not only to aggravate existing mental illnesses but to breed new ones. A healthy person who has been locked alone in a cell for months or years may begin to exhibit depression, anxiety, and cognitive impairment. And many inmates in solitary show evidence of agitation, paranoia, memory lapses, hallucinations, irrational anger, and obsessive revengeful thoughts. A number of these psychological problems can appear within days. Self-mutilation is a regular occurrence, and roughly half of all prison suicides are by prisoners in isolation.

  For all of our seeming progress, it is worth asking how much less barbaric our system is than the one that Philadelphia’s founding fathers sought to replace. Nineteenth-century Philadelphians were no doubt pleased to learn from Tocqueville and Beaumont’s report that of all the American prisons the men visited, o
nly Eastern State’s did not resort to the lash. But if you had asked “ONE” his preference, after months of silent loneliness, would he have chosen the penitentiary over corporal punishment?

  In the modern United States, we have hacked away at the death penalty over the decades—prohibiting it for minors, those with an intellectual disability, and those guilty of rape—and fought hard for procedural reforms to better protect defendants, but have we actually reduced suffering? Are we more humane? Considering the raw numbers, it’s hard to make that case. Our attention may be drawn to the fight against capital punishment, but only a few dozen people are executed each year in the United States. Meanwhile, thousands of our citizens are locked in boxes for months and years, and thousands more imprisoned for decades without the possibility of parole. Few of us stop to consider whether burying people alive is really such an enlightened alternative to lethal injection.

  Yet there have been prominent people exposing the heinousness of the American model of corrections from the very start. On March 8, 1842, during his tour of the United States, Charles Dickens visited Eastern State, remarking to the prison inspectors that “the Falls of Niagara and your Penitentiary are two objects I might almost say I most wish to see.” He subsequently “passed the whole day in going from cell to cell, and conversing with the prisoners.” But despite his initial excitement, he found the whole Philadelphia experiment to be revolting: “I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers….I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body.”

  According to Dickens, it was not a sadistic streak in the Pennsylvania populace that was behind the awfulness. The prison staff, in fact, seemed friendly and “really anxious…to do right.” The problem was not intention to torture; it was inattention in the face of torture. As Dickens wrote, “I am persuaded that those who devised this system of Prison Discipline, and those benevolent gentlemen who carry it into execution, do not know what it is that they are doing.” That we can sleepwalk through atrocity is as true today as it was then. Something “cruel and wrong” can be created and run by people without cruelty in their hearts.

  Our centuries-long somnolence has a lot to do with the comparative invisibility of the harms that arise from solitary confinement and long-term incarceration. In modern Saudi Arabia, punishment for armed robbery can entail beheading with a sword, followed by crucifixion. In Indonesia, a man can be publicly caned for gambling. The brutality and cruelty are flagrant. Dickens was correct: one of the reasons we aren’t compelled to eliminate solitary confinement is that “its ghastly signs and tokens are not so palpable to the eye and sense of touch as scars upon the flesh;…its wounds are not upon the surface, and it extorts few cries that human ears can hear.” It is “a secret punishment which slumbering humanity is not roused up to stay.” But of course the damage is there—and with the aid of modern science, we can now see the once-hidden “signs” in the brain. When researchers studied prisoners of war who had been held captive in the former Yugoslavia, they found abnormalities in two particular types of prisoners: those who had suffered a traumatic brain injury and those who had been kept in solitary confinement.

  Another reason that the suffering created by our prisons fosters so little sympathy is that it happens at a remove and doesn’t seem to implicate us directly. Once again, our reluctance to hurt others can be reduced by distancing ourselves—physically, emotionally, or psychologically—from the person being harmed. It is much more difficult to administer a painful jolt of electricity to someone when you must hold his hand against the shock plate than when you can deliver it remotely from an adjoining room. Similarly, we are more hesitant when we are the ones pressing the button than when we are more tangentially involved in the shocking (if we are simply reading the test questions that prompt the electrical “feedback,” for example). With incarceration, the person suffering is not only in another room, but he is hidden behind massive walls and fences, with little or no contact with anyone outside.

  Moreover, the harm from solitary confinement, in contrast to corporal punishment, happens over time. We know that it’s easier to deliver pain to a stranger when the threshold is reached incrementally—for instance, increasing the voltage by just 15 volts for each wrong answer up to 450 volts, as compared with giving a single 450-volt shock at the outset. And because the injury to the prisoner is not the result of some clear government action like whipping or beating, we take it less seriously. Studies show that harm caused by omission is viewed as less immoral than equivalent harm caused by commission. The notable thing about isolation, of course, is not the infliction of direct suffering; it’s the withholding of the things people need in order not to suffer—in particular, human contact.

  The result is that few of us will ever feel much guilt, even when we learn that an inmate committed suicide in prison. He’s the one who took the razor blade to his wrists, not a prison guard (and certainly not us). Just as important, he committed the crime that landed him in jail in the first place, which leads us to the second myth about prison: that even if the conditions of incarceration are brutal, the inmates “deserve” it.

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  The payback narrative helps us accept treatment that, in any other context, would be considered an atrocity. The Department of Justice estimates that well over two hundred thousand prisoners are sexually abused while in custody each year—with almost a third subjected to rape by force or threat of force. Many of these victims are assaulted multiple times.

  The data no longer seems shocking. Prison rape is a mainstay of television shows, like Oz, and movies, like The Shawshank Redemption. Inmate sexual-assault riffs are completely fair game for standups and late-night talk show hosts. And the fact is that no one really gets upset when the son of the Secretary of Health and Human Services—the department charged with protecting the health of all Americans—is selling a board game called Don’t Drop the Soap, in which you “fight your way through 6 different locations in hopes of being granted parole” and “where no one playing enters through the front door!”

  A big part of why we feel it’s okay to laugh is that going to prison is conceived of as a choice: since you chose to commit a crime, you get what you deserve. But that justification, as we’ve seen, ignores the situational factors that lead to criminal behavior and the troubling fact that in the United States you can land yourself a lengthy prison term without having done anything likely to seriously harm anyone.

  Think back to Leandro Andrade trying to make it out of the Kmart with Free Willy 2, Cinderella, The Santa Clause, and Little Women stuck into his pants. As a heroin addict stealing so that he could buy drugs, how much control did he have over his actions? And what does this military veteran and father of three truly deserve? The threat of sexual assault? By amending California’s three-strikes law, the voters of California ensured that a shoplifter like Leandro would no longer be condemned to sit in prison for fifty years without the possibility of parole. But he would still be locked up and would still face the all-too-prevalent physical dangers of incarceration.

  And it is hard to maintain that narrative of “deserved” suffering when the inmates who are raped in prison are not the worst criminals. They are disproportionately nonviolent first-time offenders. They are disproportionately young and physically small. They are disproportionately mentally disabled. They tend to have histories of being sexually abused as children. And in a horrible twist, those who would seem most deserving of brutal treatment not only avoid the worst abuse in prison but are given carte blanche to act as perpetrators. There is something unquestionably perverse about a system of justice that tacitly sanctions as part of punishment the very abuses that it condemns as mandating punishment.

  Nor is it only the “worst of the worst” who end up in solitary confinement. Given how much more damaging it can be than normal inca
rceration, it is shocking to see how cavalier a warden can be in deciding to place an inmate in solitary, how little oversight there is from other administrators or judges, and what types of activities can cause a transfer. In some prisons, it is enough to get caught with a bit of marijuana under your mattress, have your name show up on a list of gang members, or receive a prohibited tattoo.

  It is particularly unsettling to learn how many people with psychological problems end up in solitary confinement—and in prison more generally. The percentage of inmates who meet the criteria for a mental health disorder is five times greater than in the adult U.S. population as a whole. More than half of the prisoners in supermax facilities in Maine are classified as having a serious mental illness.

  Psychologists have documented that people with psychological disorders often find it difficult to follow rules, which is why many end up incarcerated in the first place. Keeping such people apart from mainstream society makes some sense, in certain cases, because those who struggle with self-restraint can be dangerous. But it seems bizarre to then place these individuals in a world of total control, where every regulation is to be followed strictly and where failure to fall into line is punished harshly. That, however, is the reality: in the United States, there are more than three times as many people suffering from significant mental illness locked in our prisons and jails as there are in our mental health facilities. And only about a third of those individuals have received treatment since their incarceration began.

  When it comes to being model prisoners, these people are doomed to fail. State inmates with mental illness are twice as likely to have been injured in a fight as those with no mental problems, and over half of them end up charged with violating facility rules. When that happens, they can be sent to solitary, which, again, frequently aggravates the symptoms of mental illness. More egregious still, when that person’s psychological condition deteriorates—leading him to throw food or feces or act out against guards—we punish him with more isolation, adding years or even decades onto his sentence.