While there is a great deal of work to be done in extricating American states from mass incarceration and in clearing the social and individual wreckage it has created, in another sense it is over. Lou Reed would say, "stick a fork in it and turn it over, its done." In California Governor Schwarzenegger acknowledged as much when he called the parole system broken and agreed to allow the courts to take over running the prison medical service. Governor Brown, through his proposed realignment plan (shifting resources and choices from the state to the counties) and his parole policies has also signaled that he wants to steer the state away from mass incarceration. Plata/Coleman, the giant prison health care case now before the Supreme Court has exposed inhumanity of mass incarceration and its rigid inability to actually protect public safety (for example by mismanaging preventive mental health care).
But penal history suggests that regime change requires a new vision of how to bring order to prisons while affirming the values of larger society. Mass incarceration had a moral account of its own, one that stressed the imperative of keeping Californians safe by physically isolating troubled individuals in their communities with a propensity toward crime and graduated levels of custodial security inside. In a sense, mass incarceration was a crude public health strategy, prisons prevent crime by quarantining those who would spread it. While this account is increasingly in tatters, it is not clear what replaces it. A return to the rhetoric of rehabilitation and penal welfarism, while predicted in some quarters, is quite unlikely (and probably not desirable). Neither prisoners or the community is likely to embrace a narrative of prison as a hospital to cure individual diseases of the will.
I believe the humanitarian medical crisis that California's prisons are now experiencing holds some promising clues to a path back toward legitimacy in prisons. Humanitarian medicine is political/therapeutic project that emerged more than one hundred and fifty ago with the Red Cross in Europe. The Red Cross sought to relieve the suffering of the dying and wounded abandoned to their fates on battle fields. Since World War II it has expanded its jurisdiction to natural disasters and pandemics, and from a focus on rescue the suffering to telling their story. While prison health care poses different dilemmas than the battle field or the site of catastrophic disasters, it shares some important features, especially the isolation of prisoners from the normal structures of knowledge and action that link individuals in post-industrial societies and the burden of stigma and fear associated with their crimes.
In Europe a version of this humanitarian medical model for prisons has emerged through the work of the European Community organs like the European Committee for the Prevention of Torture and the Committee of Ministers of the Council of Europe, as well as the European Court of Human Rights. Since the early 1990s, these organs have begun to highlight health care as the crucial framework for preserving dignity in prison. Through a series of reports, guidelines, and through the European Prison Rules, these agencies have made improving prison health care both an upward wedge toward improved prison conditions and regimes overall, and a stopper against regression through overcrowding or violence.
The US constitutional system does not have such innovative human rights organs as the Committee for the Prevention of Torture. But federal courts have enormous power when they encounter unconstitutional conditions. In California the courts have confronted a massive unconstitutional complex that is also a humanitarian medical crisis. Whatever happens in the Supreme Court, California is likely to be grappling with resolving that crisis for years to come. In the short term, the humanitarian medical model itself can provide a crucial tool kit for restoring the legitimate order to our prisons.
Cross-posted from Jonathan Simon’s blog Governing Through Crime.