Justice for All
Ending the scourge of mass incarceration will require seeking justice not just for the innocent but for the guilty.
At the annual Beyond the Bars conference in New York last month, Angela Davis observed that the increasingly crowded “bandwagon” against mass incarceration has nevertheless managed to leave some of our most pernicious narratives about race and poverty, criminality and punishment intact. In considering Davis’s point, perhaps it’s worth taking a closer look at those whose encounters with the criminal justice system have — and have not — been embraced by this consensus.
Kalief Browder’s harrowing, much-publicized ordeal is an instructive case in point. Since his prolonged confinement and subsequent suicide last June, Browder has become the face of prison reform. As Jennifer Gonnerman recounted in the article that first brought his saga to public view, Browder was arrested in the spring of 2010, just shy of his seventeenth birthday, after being falsely accused of stealing a backpack. That led to over a thousand days spent on Rikers Island, where he suffered beatings and languished in solitary confinement.
Drawing the attention of everyone from President Obama to Rand Paul to the hosts of ABC’s The View, Browder’s story has gone on to sear itself into the national imagination, reverberating beyond the notoriously cruel, and in this case fatal, dysfunction of New York’s correctional system to reshape the ongoing debates about mass imprisonment in the United States.
Closer to home, his name has become ubiquitous in the mounting calls to shut down Rikers Island; a recent editorial in the New York Times even proposed that once the jail complex is closed for good, and “the poison is removed,” the land on which it sits should be rechristened Browder’s Island.
I taught Browder’s case this past winter to a dozen men at Sing Sing Correctional Facility, a maximum-security prison in New York. They are students in my class, “States of Confinement,” studying the history and anthropology of incarceration. I expected them to react to the account of Browder’s detention much as my undergraduate students at Columbia University had, and as critics of the carceral state more generally have: with empathy and outrage.
Yet as our discussion unfolded, it became clear that what unsettled them was not only the brutality and injustice he endured. Surprisingly, it was the very aspect of the story that most galvanized advocates — Browder’s innocence — that the men in my class, many of them serving life sentences for a range of violent crimes, found particularly troubling.
“What about us?” one student asked. “What about those of us who really are guilty?”
Another student, Mateo, a forty-two-year-old man from the Bronx currently twenty-one years into a life sentence for felony murder — a controversial legal category that broadens the definition of murder to include those with no proven intent to kill — elaborated on this sentiment. He too worried that Browder’s case had resonated in such a powerful way with the general public less because of the trauma inflicted on Browder by a corrupt and unfair system than because he so perfectly fit the mold of the faultless victim.
Similar to the notion of the “worthy” or “deserving” poor, the Browder story, he felt, had reinforced the boundary separating those deemed suitable for empathy from men like himself and his fellow classmates — men who, whatever their individual experiences, and however comprehensive their rehabilitation, have been placed beyond the pale of public consideration.
It’s easy to see the tragedy and robbed humanity in a story like Browder’s. Yet my students made me wonder about those other stories, those other lives it allows us to avoid acknowledging — lives such as their own.
Could it be that Browder’s saga, poignant as it is, serves to fortify the terms of our collective sympathy, our limits of grievability? Does it prevent us from having to struggle with a more difficult — and arguably more urgent — set of questions about the meaning of justice in this country? In short, are we willing to rethink our orthodoxies regarding punishment even for those who, unlike Browder, have been convicted of violent crimes?
These questions are ones that even the most ardent champions of criminal justice reform in the United States have had a hard time hearing — much less answering. In part, it has to do with the pervasive myth, espoused across the political spectrum, that the problem of mass incarceration is attributable, fundamentally, to our having locked up people who should never have been imprisoned to begin with.
The idea is that if we simply released all the “nons” (nonviolent, non-serious, and non-sex offenders) from prison, and ensured that those innocent, like Kalief Browder, had recourse to the constitutional rights they’ve been deprived of, we would remedy the catastrophe that is America’s carceral system.
Hillary Clinton articulated this conventional wisdom in a speech last year. “Of the more than 2 million Americans incarcerated today, a significant percentage are low-level offenders: people held for violating parole or minor drug crimes.” “It’s time to change our approach,” she declared. “It’s time to end the era of mass incarceration.”
It’s appealing to think that shrinking our bloated prison population is as easy as reconceiving the ways we deal with “low-level offenders.” The only problem, as numerous observers have pointed out, is that it has little grounding in reality.
Putting aside the difficulties of determining what constitutes a violent as opposed to nonviolent criminal to begin with — the “misleading view,” as political scientist Marie Gottschalk puts it, “that there are clear-cut, largely immutable, and readily identifiable categories of offenders who are best defined by the offense that sent them to prison” — the fact remains: release each and every low-level drug offender from both state and federal institutions, and America will continue to lay claim to the contemptible distinction of caging more of its citizens than any other country in the world.
We do need to end the War on Drugs and the harsh, inequitable, often racist punitive practices that have defined it. We should be horrified and ashamed when a teenage boy is allowed — or forced — to languish in appalling conditions on Rikers Island for a crime he did not commit.
But the crucial point — corroborated by the numbers, and driven home to me by my students — is that real, transformative change will only occur when our national conversation about incarceration, and indeed criminality, begins to take a very different form: when we stop reserving our moral deliberations only for the most ideal, “respectable” candidates for our concern; when we pull back the curtain and ask what justice looks like, or ought to look like, for those convicted of violent and even sexual offenses.
It will only occur when we stop perpetuating the contrast, so endemic to our current discourse, between “good” and “bad” criminals — between those deserving of basic dignity and second chances, on the one hand, and those monstrous “super-predators” (to use Clinton’s infamous term) who can be left to wither away and die.
This is not to deny the gravity of the crimes that land many men and women in America’s prisons. In fact, despite the multi-generational cycles of poverty and incarceration into which many of my students were born (one young man, for example, wrote a class essay recalling his fate being “sealed” when, visiting his mom at Rikers Island as an eight-year-old, an officer typed his name into the jail registry), I’ve been struck by how insistent they are on shouldering responsibility for their offenses, resisting any narrative or social theory that would absolve them of this burden.
That they assume responsibility for their actions, however, does not relieve us, as a society, of the need to take responsibility for ours. Through deliberate, racially targeted disinvestment in America’s most vulnerable communities, we have consistently and systematically, since the late 1960s, created the conditions in which violent crime can flourish — and then, through the carceral system, consigned those who commit such acts to a life of near non-existence when it does. It’s time we recognize this fact.
Yet as for my students, so for us: remorse is not enough. In the words of the anthropologist Talal Asad, “a ‘bad conscience’ is no bar to further immoral action, it merely gives such action a distinctive style.” If we are to undo the damage wrought by decades of vindictive, often “progressive” penal policy, we must go beyond feeling bad about it.
As activist organizations such as All of Us or None, Critical Resistance, and JustLeadershipUSA have been insisting for years now, there are a range of concrete measures that can help facilitate this repair: comprehensive sentencing reform (including the elimination of mandatory minimums, three strikes laws, and life without the possibility of parole); making reintegration, not retribution, the chief objective of correctional institutions; abolishing the costly, counterproductive “nature of the crime” criterion in parole hearings, which keeps a growing population of aging prisoners behind bars irrespective of how little risk they pose to public safety; and expanding mental health and addiction treatment programs to which court-involved individuals can be diverted.
These must be accompanied by a concerted, large-scale effort to redress — by way of massive reinvestment in schools, social services, health care (especially Medicaid), and affordable housing — the economic degradation of America’s urban peripheries.
But I learned another, perhaps more vital lesson from my students at Sing Sing: that ending the scourge of mass imprisonment must involve dismantling our degrading, dehumanizing narratives about both the innocent and the guilty, and that this can only happen once we’re willing to listen to their voices — all voices, not just the ones we’re already primed to hear.