Abstract
From the 1970s, the USA has been feeding into its prisons an increasing number of men and women, with the underlying rationale evolving from attempting to ‘reform’, to ‘incapacitating’ and ‘warehousing’. In an effort to explain this upsurge in incarceration, a number of scholars have collected and analysed figures, statistics and trends (Garland, 2001; Zimring and Hawkins, 1991). But the ‘qualitative story’ of mass incarceration had yet to be told. Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America tells this story.
The book is an exemplary exercise in scholarly efficiency: it is concise and accessible, while remaining conceptually engaging. It undertakes a unique, detailed and informed analysis of the case law that has placed mass incarceration on trial. In six substantive chapters, Mass Incarceration on Trial walks the reader through the journey of cases leading up to the 2011 US Supreme Court’s landmark decision in Brown v. Plata. Chapter 1 provides the context for these cases, tracing California’s eventual embrace of ‘total incapacitation’ (Simon, 2012). The ‘fear of crime’—triggered in part by the 1971 San Quentin uprising and fuelled by the media, state officials and a zealous prison officers union—has reshaped the image of the prisoner from an individual who had gone astray and was in need of treatment to one who is a revolutionary terrorist and intractable serial killer. This imagery shift has diminished society’s empathy towards prisoners and paved the way to an overarching embrace of total incapacitation. Within this mind-set, drastic sentencing laws have been enacted, leading to an endlessly growing prison population. By the 1990s, California found itself trapped in a Sisyphus-like conundrum: regardless of how many individuals would be sent to prison, it would never be enough to protect society.
Chapters 2 and 3 examine two court cases in 1995 that unveil the grim reality of mass incarceration: the Madrid v. Gomez case and the Coleman case. The Madrid case discussed the plight of prisoners in supermax prisons that were introduced in the 1980s in California. An increasing number of prisoners, mainly ‘gang members’, were exposed to patterns of excessive violence and inhumane conditions in these facilities, leading to serious mental deterioration for those in places such as the Pelican Bay Security Housing Unit (SHU). The court decided that keeping prisoners with ‘serious mental illness’ in a SHU violated the Eighth Amendment’s prohibition against cruel and unusual treatment. While the court did not go as far as finding mass incarceration unconstitutional, it did take a step towards questioning the humaneness of certain types of penal institutions. The Coleman case extended that logic to address the inhumane nature of the system for each and every prisoner suffering from a serious mental illness, regardless of whether they had been held in solitary confinement like the prisoners in SHU. Coleman placed the entire system of mass incarceration on trial.
In Chapter 4, Simon reminds us that, up until the 1970s, medical staff and prison officials had collaborated to provide medical assistance. The Supreme Court, in Estelle v. Gamble (1976) had decided that denying necessary medical care violated the Eighth Amendment. With the rise of mass incarceration, the ties between medical care and custody had withered. The growth of the prison population serving longer sentences only aggravated the already existing health crisis as it increased the prevalence of chronic illnesses, which require particular technologies and continuous treatment. The 2001 Plata v. Davis case addressed this medical catastrophe. The case marks a significant change of tone from the Coleman and Madrid cases, brushing aside any previous justification such as prison officials having to bear the ‘unenviable task’ of keeping ‘dangerous men’ in safe and humane conditions (p. 106). Under Plata, it was made clear that California had built prisons without taking into account prisoners’ human rights. From this perspective, inmates were no longer seen as enemies posing a threat; they were human beings at risk of dying due to a lack of care.
Chapter 5 looks at the Coleman-Plata v. Schwarzenegger case of 2009; unlike the previous cases which assessed whether prison conditions created by mass incarceration violated the Eighth Amendment, it instead examined whether the number of prisoners could be reduced without impacting public safety. Finally, in Chapter 6, Simon discusses the 2011 US Supreme Court decision of Brown v. Plata, which upheld the Coleman order. In this landmark decision, the Court revived the notion of ‘dignity’, a concept that had some appeal in the past but had been brushed aside during the spread of mass incarceration in the 1980s. It provides a new lens through which to view prisoners and prisons. Simon argues that this new vision will spread to the greater public and generate a new ‘common sense’ that sees prisoners as human beings suffering under the inhumane conditions of prisons, as opposed to the common sense that started in the 1970s which sees prisoners as violent criminals in need of total incapacitation (Chapter 7).
After reading Mass Incarceration, no one can remain in a state of ‘denial’ (Cohen, 2001) to the plight of prisoners. In the words of Jock Young (2011: 218), it has the propensity of fostering a ‘genuine social transformation’. Simon first uses powerful analogies to war, to contextualize how inhumane practices could manifest in places like California’s Pelican Bay supermax prison where prisoners are perceived as enemies against whom prison officers are perpetually at war. The author also creates a powerful visual setting for his claims. The book is peppered with references to water; he speaks of a dignity ‘cascade’ (Chapter 6) and concludes: ‘like Noah’s children, we stand just after the high-water maker of an epic flood of imprisonment, a flood that drowned whole communities and harmed and disabled millions’ (p. 171). Mass Incarceration then calls upon our shared humanity by displaying pictures and including prisoners’ accounts. By doing so, the book successfully humanizes those held behind bars, and makes visible their invisible suffering.
I will conclude with a note of caution. Mass Incarceration implies that European states have strong and ongoing ties with human rights and have successfully regulated imprisonment (pp. 141–142, 165) and countered penal populism (p. 169). Despite having developed a wide array of tools to preserve prisoners’ dignity and created agencies to report and prevent human rights violations, the story of imprisonment in Europe is also disconcerting. Recent media reports have documented how the number of inmates committing suicide in England and Wales has dramatically increased as a result, in part, of poor and inadequate health care. Similarly in Belgium, an inmate was recently granted the right to be euthanized, as the conditions of prison had become unbearable (Fink, 2014). And in 2012, the French prison, Les Baumettes, was placed under the spotlight for holding prisoners in degrading conditions. Dignity, human rights, may all be appealing to foster what Simon calls a ‘new common sense’. They may also, and somewhat ironically, propel a misleading message to the rest of the world. Their existence does not ensure that prisoners will not be exposed to neglect and inhumane conditions. Without continuous action to challenge the status quo, inmates’ undignified reality is at risk of being veiled by the availability of luring humanitarian concepts.