Socio-legal scholars1 have long spoken of "naming, blaming, and claiming" to describe how disputes arise and move toward legal realization. If the same may be said of polities, than the Supreme Court's oral arguments a couple of days ago, in the great California prison population case (Schwarzenegger v. Plata) may mark the moment when the harm of mass incarceration in America broke out of its canyons of attention, and became a public dispute for the US.
For the Court's "liberals," the staggering portrait drawn by the many experts who testified before both original courts and the three-judge panel of the way physical and mental health needs are unmet appears to have broken through their own instincts to defer on criminal matters. The routine way in which California prisoners met death not through lethal injections, but by fatal neglect of their obvious and remediable medical needs, or by suicide after florid psychotic symptoms were ignored, animated a livelier questioning of the state in a criminal matter than in a long time.
The Court's "conservatives," stripped of their preferred grounds of deference to the state's penological rationality, by the sheer scale of California's organizational failures over a twenty year period, were left to rest on the primal fear of violent crime and the biblical conviction that keeping people locked up must mean fewer crimes. Of course even if the Supreme Court (5-4), upholds the population cap, it will not end mass incarceration. That claim was not yet before the Court (and probably never will be).
The New York Times editorial this week does a nice job of condensing the naming and blaming and moving toward the kind of claiming that would be needed to move from an end to cruel and unusual punishment in California to an end to mass incarceration. Their title, The Crime of Punishment in California, names the harm, that punishment in California is itself fundamentally wrong (not just badly carried out or underfunded). The editorial goes on to further specify where the blame lies, with "California style mass incarceration." These cases are not about imprisonment, per se, or any particular prison conditions, it is about the wholesale and systematic policy of expanding the prison population as an end in itself, with no serious effort to maintain the medical and mental integrity of its inmates let alone reform or discipline them. Not every state has embraced this "style" of imprisonment, it seems to flourish most in the sunbelt (see Mona Lynch's key book Sunbelt Justice, on Arizona), but it is a part of the political culture that sustains high incarceration levels across much of the US and which continues to spread to Europe. The editorial draws its claim, from the growing consensus among American criminologists that mass incarceration (many of the leading lights of which are in the Criminology and Public Policy issue referenced in the editorial) is a massive failure, even at the business of crime control.
Among experts, as a forthcoming issue of the journal Criminology & Public Policy relates, there is a growing belief that less prison and more and better policing will reduce crime. There is almost unanimous condemnation of California-style mass incarceration, which has led to no reduction in serious crime and has turned many inmates into habitual criminals.
America’s prison system is now studied largely because of its failure — the result of an expensive approach to criminal justice shaped by fear-driven ideology. California’s prisons embody this overwhelming failure.
The harm named is "mass incarceration" as bio-political phenomenon. The blame is laid at a "politic of fear" that has little to do with public safety in empirical terms. The claim is that public safety can be upheld and enhanced by abandoning California style mass incarceration.
Of course none of this means you should short your mass incarceration stocks tomorrow. Its going to take years and possibly decades to dismantle mass incarceration. But the essential elements of the public conversation that can end mass incarceration are now out there in official discourse to a degree I would not have expected in 2005.
Cross-posted from Jonathan Simon’s Governing Through Crime.
1: (Felstiner, Abel, and Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, and Claiming, 1981)