Reimagining Prison Web Report
Above Photo: Andrew Lichtenstein/Corbis Premium Historical/Getty Images
Mass incarceration in the United States is a crisis the nation must confront. The recent prison strike demonstrated the abusive conditions of prisons that violate human rights, international law and creates problems rather than resolves them.
The Vera Institute for Justice has done excellent work on prison issues for many years. In this report they present Human Dignity as the guiding principle for rethinking incarceration. They put forward three principles to guide the transition of prison:
1: Respect the intrinsic worth of each human being,
2: Elevate and support personal relationships
3: Respect a person’s capacity to grow and change
We hope this report, the demands of people in prison and the reality of the failed system of mass incarceration moves the United States to reconsider its criminal justice system that is dominated by incarceration, and too often results in a racially unfair system that incarcerates the poor and those who have been neglected and prevented from achieving their full potential as human beings. It is time to remake the prison system, more incarceration will not change the failure of mass incarceration. KZ
Why reimagine prison?
This document—unlike anything we have ever produced at the Vera Institute of Justice (Vera)—is about the possibility of radical change. It asserts a dramatic reconsideration of the most severe criminal sanction we have: incarceration. It articulates a view that is sure to be alien to many. Yet we need not accept as a given the way we do things now, and we encourage you to envision a different path. Indeed, our vision has concrete reference points. It is in the hope, daring, and promise of a small unit for young adults in a Connecticut maximum-security facility. It is inspired by what we learned studying and visiting prisons in Germany, where the very conditions and operations of that entire system are defined by a commitment to uphold human dignity—a commitment born of that country’s coming to terms with the Holocaust. And it is rooted in our own obligation—now physically exhibited in a museum and memorial in Montgomery, Alabama—to acknowledge and atone for our brutal history of dehumanization and racial oppression and to understand how it has shaped what we do today in our justice system. Our mission is to link these things and suggest a path forward that is as much about reconciliation as it is about criminal justice reform.
In October of last year, John,*1 a young adult in Cheshire Correctional Institution where—most people spend 22 hours a day in their cells—was accepted into a new small housing unit. Though the unit is within the same facility, John was handcuffed and shackled and placed in a prison van, subjected to strip searches, and given a medical assessment. In transit, John spent time in a kind of purgatorial interstitial space, waiting in what he described as “a full cage from top to bottom, something like on the show Lockup or Hard Time.”
But once inside the new unit, John entered a different world. The corrections officers greeted him and shook his hand. They asked him and the other young men in the unit serious questions about their goals and expressed genuine interest in their thoughts, feelings, and plans. In a letter to his family, John described this place as “not a regular prison environment [but] an open, caring, hopeful environment.” He began to develop relationships both with older men who act as mentors in the unit and corrections officers, with whom he played chess, talked, and reflected on visits with his family. Each day, John attends group discussions with other young men and older mentors, he participates in town hall meetings where everyone gathers to talk about and resolve issues, and he joins programs that teach him about conflict resolution and money management. He spends the majority of his days outside his cell—attending programs, moving freely around the unit, and playing basketball in the outside courtyard. John, like all the men in the unit, is learning about responsibility and actively working to become a better person for himself and society.
John’s prison experience spans two possible futures for America’s prison systems: the continuation of the punitive, retributive, and dehumanizing routines of the past; and the possibility of a reimagined future built on a wholly different set of foundational principles, designed to promote safety and success. The new unit John found himself in—called T.R.U.E., an acronym that stands for Truthfulness (to oneself and others), Respectfulness (toward the community), Understanding (ourselves and what brought us here), and Elevating (into success)—is a groundbreaking model in which we and our partners in Connecticut reimagine incarceration for young men aged 18 to 25. It was inspired by a visit to a young adult facility in Germany, where corrections officials from Connecticut were first exposed to what could be, not just what had always been. It represents a hopeful possibility for change in the way America handles incarceration. According to one of its participants, “the T.R.U.E. program is dedicated to the reclamation of moral integrity,” inherent in which “is the recognition of the dignity of all prisoners in general.”
Unfortunately, while T.R.U.E. has inspired several other similar efforts, at the moment its goals and practices are shared by only a tiny fraction of prisons in America. At the vast majority of the facilities in the massive network of prisons across the country, people spend endless days in cells; they are marched to and from their limited activities; and their names and identities are lost, replaced with numbers, uniforms, and a stultifying idleness and isolation that impede cognition and fundamentally alters social-psychological processes. And for those who work behind the walls, the daily existence can hardly be described as enviable. It is telling that in American prisons, staff count down the years to retirement using the same language as those they are paid to keep locked up. In prison, everyone is serving a sentence.
More than a decade ago, Vera’s own Commission on Safety and Abuse in America’s Prisons tried to bring life behind bars fully into focus. We detailed the punishing and often inhumane conditions of confinement suffered by the hundreds of thousands of men and women who are held in our nation’s prisons. We did so because we believed the country was malignly ignorant of what was going on behind those grey walls. While we painted a picture of these harms, we did not sufficiently examine the deep roots that our current practices have in this country’s history of legalized slavery and racial oppression. We do so here.
Today, in America, we are in a different moment that demands such an examination. We owe it to those on whose behalf we work to be more forthright and more searching. We owe it to the millions of Americans who are grappling with our racism and its implications to a degree that has not existed for decades. We are indebted to the scholars and advocates who have brought these roots painfully and inexorably to the surface over the last few years, as well as to those who dug deep in the century before, but with a less attentive or welcoming audience. The day in which these hard and shameful truths can be spoken—and must be examined—is here. With the opening in Montgomery, Alabama, of the Legacy Museum: From Enslavement to Mass Incarceration, and the National Memorial to Peace and Justice, which memorializes the lives of those lynched in our nation’s campaign of racial terror, Americans are being newly asked to reckon with the truth about our nation’s past and to sow seeds of hope for the future.
Our reckoning must include a deep consideration of the purpose and use of incarceration in this country. While policymakers, the public, and our reform allies now express dissatisfaction with the overwhelming costs—in outright expenditures, persistently high recidivism rates, and opportunities lost—of the current system of incarceration, reform efforts have tended to focus on stanching the flow into our system of mass incarceration. This is good, and right. We must, however, also evaluate our prison practices and include a critical re-envisioning of the purpose and experience of incarceration. Despite the lowest crime rates in decades, we have 1.5 million people behind prison bars. One and a half million—2.2 million if you count jails. Let those numbers sink in. We have lost generations of young men and women, particularly young men of color, to long and brutal prison terms. Even when they return home, they remain lost, as deplorable prison conditions and treatment seriously impair their ability to live productive and healthy lives long after release. And so, we find ourselves at an important crossroads.
In June 2016, we launched this initiative, Reimagining Prison. We sought to explore how America could do things differently—how we could fundamentally alter the way we view people who make mistakes and come into contact with the justice system and how we could fundamentally alter our conception of the obligations we have to them as fellow human beings in this shared enterprise of democracy. This project, and the resulting report, is—as I said above—nothing like any that Vera has ever done in the past. It was an elaborate and challenging thought experiment, which brought together voices and ideas of corrections chiefs, formerly incarcerated people, scholars, thought leaders from across the political spectrum, and members of the public. Through these discussions and through policy, academic, and practical research, we have settled on a singular foundational value—human dignity—on which a new prison system, and new ethos of confinement, should be based. This report presents a vision of what could come to pass should we decide as a country that incarceration will no longer be used as a tool of racial oppression. It presents a vision of what could come to pass should we decide as a country that those whom society fears—those for whom incarceration is the last and only tool we can muster to redress the harms they may have done—are not banished as members of our human family and forever retain the inalienable right of human dignity.
President, Vera Institute of Justice
About the Reimagining Prison Project
Vera formally launched the Reimagining Prison project in June 2016 at the Eastern State Penitentiary Historical Site in Philadelphia—the nation’s first prison—at an event that featured the voices of corrections leaders, formerly incarcerated people, scholars, thought leaders from across the political spectrum, and members of the public. The ideas discussed at this event contributed to the topics explored during the full lifetime of the project, most notably the importance of cultivating positive manifestations of autonomy even during incarceration, a move away from the language of rehabilitation in favor of a focus on providing incarcerated people the tools for success, and the need for a significantly smaller system as a prerequisite to real change.
Recognizing the wide reach of the criminal justice system and the diverse groups of people who are touched by it in different ways, a key component of the project was speaking with groups of stakeholders about their ideas of what prison could be—what it should achieve, how it should achieve that, and what it would take to make a system dedicated to those goals real. In these discussions, Vera introduced stakeholders to a set of proposed foundational values for a new system, an ethos of confinement, and real-world examples of these principles enacted. These groups included researchers, criminal justice and corrections practitioners, conservative thought leaders, advocates for progressive criminal justice reform, government staff, political leaders, those directly impacted by crime and prison, and those who advocate on their behalf—both experts on victimization and currently and formerly incarcerated people. These rich debates contributed a new set of perspectives to the reimagining enterprise. They revealed a need for an in-depth examination of historical and current practice and a strong link in many participants’ minds between economic opportunity, social context, and incarceration. Vera also engaged the architectural firm MASS Design Group to reimagine the physical layout of a prison facility based on the principles set out in this report.
Finally, Vera organized a national prison visiting week, during which more than 400 people participated in public tours of 30 facilities in 17 states. In developing these events, corrections agencies reached out to community members, inviting them in to see their prison facilities. This included outreach to new partners in some instances, such as Chambers of Commerce. This week of events highlighted the possibilities of greater connectedness between prison and community. Through it, corrections agencies showed a great willingness to open their doors to members of the public, and those same laypeople welcomed the opportunity to engage with the prisons in their communities. This experience helped to build Vera’s vision of community-connected prisons and the opportunities these connections might offer.
In addition to these activities, Vera conducted policy, academic, and practical research to ground its vision in American history, current prison practice, and legal principles. These strategies make up the Reimagining Prison project, the goal and product of which is this report, which summarizes and presents the major areas of thought and practice that led to the development of Vera’s foundational principles for a reimagined prison.
Almost 150 years ago, just five years after the end of the Civil War, the Supreme Court of Virginia articulated a vision for prison that was a direct descendant of slavery. The court said that the incarcerated person “not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him,” and that, for the period of time in custody, he was “the slave of the state.”2 This vision of prison was not accidental and would hold sway for generations. It manifested itself in such practices as convict leasing, a brutal and financially lucrative system in the Reconstruction South that created incentives for governments to arrest and convict newly freed black people in order to sell their labor to private industry; and chain gangs, in which incarcerated people, primarily black men, were shackled together, publicly humiliated, and forced to perform public works such as building roads or clearing land.3
Although such practices largely came to an end by the middle of the 20th century, the “slave of the state” vision of prison persists. Over the last 50 years, inhumane working and living conditions and the daily degradations of prison life have been the stated reasons behind continuing prison unrest and protest. In 1971, people incarcerated at the Attica Correctional Facility in New York took over the prison for two weeks, protesting what one participant, Elliot Barkley, described as “the ruthless brutalization and disregard for the lives of the prisoners.”4 He declared: “We are men! We are not beasts and we do not intend to be beaten or driven as such.” In 2013, some 30,000 people in various California correctional facilities refused food—some for close to two months—in protest of the state’s use of long-term solitary confinement.5 In September 2016, the largest nationwide prison strike took place—covering 24 states and including up to 24,000 participants—during which incarcerated people staged work stoppages or hunger strikes to object to unfair use of prison labor, poor wages, abusive guards, overcrowding, and poor health care, among other grievances.6 Commenting on his $2-a-day pay—an amount only sufficient to buy a bar of soap at the commissary or make a short phone call—one participant, David Bonner, declared emphatically, “This is slavery. We’re forced to work these jobs and we get barely anything.”7 And, in April 2018, the dismal reality of life in prison—two meals of “barely nutritional,” sometimes moldy, food; “putrid water;” metal plates placed over windows; sweltering and filthy rooms; and no-hope idleness—simmered into explosive acts of violence at a prison in South Carolina that left seven dead and 17 injured. All incarcerated people; guards had evacuated the unit—and, in August 2018, incarcerated people began a 21-day labor strike in response to the tragic incident in South Carolina to protest U.S. prison conditions, including mandated labor for meager wages.8
Prison in America continues to be a place of severe hardship for those held there—a degree of hardship that is largely inconceivable to people who have not seen or experienced it themselves or through a loved one. It is an institution that causes individual, community, and generational pain and deprivation. For those behind the walls, prison is characterized by social and physical isolation, including severe restriction of personal movement. Prison enforces idleness and denies access to productive activities. It provides insufficient basic care, such as adequate food and medical services, and prevents incarcerated people from securing those services for themselves. Incarceration results in a loss of meaningful personal contact and the deterioration of family relationships. Prison strips people of constitutional rights and avenues to justice. Those who work in prison are not exempt. Corrections officers suffer from post-traumatic stress disorder and commit suicide at significantly elevated rates.9
The harsh conditions within prison have been demonstrated neither to ensure safety behind the walls nor to prevent crime and victimization in the community.
Beyond the walls of prison, incarceration’s impact is broad: mass imprisonment disrupts social networks, distorts social norms, and hollows out citizenship.10 The high rate of incarceration—most notably among black Americans—as well as the individual impact of incarceration, has decimated the communities from which people in prison come.11 Its impact is also intergenerational—the children of incarcerated parents are more likely to experience psychological trauma, difficulties in school, and financial challenges.12 The cumulative result is a pervasive and pernicious denigration of the humanity of those who live and work inside American prisons that ripples out to communities and across generations.
Over this country’s long history of using prisons, American values of fairness and justice have been sacrificed to these institutions in the name of securing the common good of public safety. But the harsh conditions within prisons have been demonstrated neither to ensure safety behind the walls nor to prevent crime and victimization in the community.13 These realities beg the question: isn’t there another way? We have failed to ask this question with sufficient seriousness and thoroughness. The time for us to do so is now.
Policymakers and the general public are now more vocal in calling for a new direction in American criminal justice policy.14 Buoyed by public opinion polls that demonstrate overwhelming public support for alternatives to incarceration, change is afoot in both red and blue states, and criminal justice reform has become one of the few issues that bridges the political divide, with nearly all such reform packages receiving bipartisan sponsorship.15
The reform efforts underway to date have focused primarily on reducing the number of people in American prisons.16 This is with good reason. According to the latest available data, the country holds just under 1.5 million people in its state and federal prisons.17 At the 2007 high water mark, one in 100 American adults was in prison or jail—a direct result of policy decisions that made incarceration the response to all manner of social problems from urban blight to drug use in the community; a phenomenon termed “mass incarceration.”18 Now, paradoxically, mass incarceration is widely viewed as a serious social problem in and of itself.19 Current improvement efforts have sought to reform charging and sentencing practices, divert people from incarceration altogether, and ease reentry barriers to reduce recidivism (the rate at which people return to prison after release).20 These strategies are all crucial to reversing America’s incarceration boom and mitigating the negative impacts that incarceration has on disadvantaged communities, people of color, state and federal budgets and, most importantly, individual potential.
However, we have not yet confronted two fundamental aspects of America’s system of incarceration. First, we pay inadequate attention to reforming the very manner in which we incarcerate—the conditions inside prison and the overarching goals of the system.21 Excepting a few limited examples, corrections practice remains underpinned by the objectives of past eras: retribution, incapacitation, and deterrence.22 Ongoing concern about reducing the number of people in prison has not been matched by an equally forceful focus on transforming incarceration itself—an experience that has become harsher and more onerous in direct response to decades of “tough on crime” political sentiment. It is a problem that so many reformers in the field don’t “do” conditions of confinement—as if the lives of people equal in number to the population of Philadelphia don’t merit it.
Second, we as a nation have not yet fully grappled with the ways in which prisons—how they have been used, the purposes they serve, who gets sent to them, and people’s experiences inside them—are intimately entwined with the legacy of slavery and generations of racial and social injustice.23 The current cultural moment gives us an opportunity to address this long-recognized but uncomfortable reality. More than at any time in the recent past, America is engaged in a pronounced dialogue about racism and racial injustice, both historical and current. Culturally, examples of this firmament abound. Just this year, the National Memorial for Peace and Justice, the nation’s first memorial dedicated to documenting and acknowledging racial terror and lynchings, opened in Montgomery, Alabama.24 Ava DuVernay’s documentary tracing the lineage of mass incarceration to slavery, 13th, was watched by millions, met with critical acclaim, and garnered dozens of awards and accolades.25 In 2016, the National Museum of African American History and Culture—the only national museum devoted to documenting the lives, history, and culture of black Americans—opened as the newest museum of the Smithsonian Institution.26 Figures like Jay-Z, Malcolm Jenkins, and Colin Kaepernick have proactively used their platforms to raise consciousness in the tradition of Muhammad Ali, Harry Belafonte, and Ruby Dee.
Public discourse around the lived experience of being black in America is at an all-time high. Ongoing police violence against black Americans is regularly documented and covered on social and mainstream media.27 The #BlackLivesMatter movement has spawned a new generation of activists and leaders, helping spur political responses to counteract racism.28 The country is in the midst of a genuine sociocultural movement of heightened consciousness about racial and social injustice, triggered by appalling manifestations and validation of racism (even from the current President himself), but strengthened by the growing number of people who are willing to acknowledge the country’s history of racial oppression and support actions to rectify it.
It is time to acknowledge that this country has long used state punishment generally—and incarceration specifically—to subordinate racial and ethnic minorities.
It is time to acknowledge that this country has long used state punishment generally—and incarceration specifically—to subordinate racial and ethnic minorities. And so, to take a truly decisive step away from the past, America needs a new set of normative values on which to ground prison policy and practice—values that simultaneously recognize, interrogate, and unravel the heretofore persistent connections between racism and this country’s systems of punishment.29 Committing to new principles in this way is vital. The end of mass incarceration will not result in zero people in prison. If reform efforts are successful, America would be fortunate to return to incarceration rates seen circa 1970—a rate of less than one person per 1,000 behind bars.30 Should this goal be realized without addressing the values that underlie American prison systems, however, more than 300,000 people would still be subject to the current dismal conditions of confinement and all their known associated negative outcomes.31 And, given the current make-up of the prison population, those who remain would likely come disproportionately from racial and ethnic minorities—unless current policies and practices change.
Through this report, the Vera Institute of Justice (Vera) offers a new and fundamentally different approach to incarceration in the United States—one that is grounded in the single core principle of respect for human dignity. This principle dictates that “[e]very human being possesses an intrinsic worth, merely by being human.”32 It includes the recognition of a person’s capacity for self-respect, self-control, empowerment, autonomy, and rationality.33McCrudden, “Human Dignity,” 2008, 701. It is inviolable—and remains intact even when one breaks rules or engages in criminal behavior while in prison. It applies to people living in prison as well as the corrections staff who work there. Out of this emerges a system dedicated to fairness, equity, and respect. Human dignity relies on an entirely different set of assumptions about incarcerated people than those that not only instigated and sustained the past four decades of tough-on-crime policies, but also America’s historic use of prison as an institution of racist social control.
The principle of human dignity is neither foreign nor unfamiliar—as an organizing legal principle it is well founded in law and practice both domestically and internationally. Human dignity emerged as a central value underpinning international human rights law in the aftermath of World War II—as a response to the Holocaust and other wartime displays of inhumane, degrading, violent, and unequal treatment. In the United States, it is a common legal concept that is said to underlie the Eighth Amendment’s protection against cruel and unusual punishment, and it influences the interpretation of other constitutional amendments. Through study trips taken to Europe, Vera had the opportunity to witness firsthand the many different ways in which human dignity as a normative value finds real expression in German and Dutch prison policy and practice; and Vera is planting seeds of this in places like Connecticut, where an incarcerated young adult described an innovative new unit based on human dignity principles as “an open, caring, and hopeful environment” where people want to “change their lifestyles”—a far cry from the typical prison experience in America.34
Basing American corrections practice on the principle of human dignity would be an intentional acknowledgment of and response to this country’s history of racial and ethnic oppression and the role formal state punishment systems have played in creating and perpetuating inequality. The United States’ legacy of legal slavery and its denial of the personhood of black Americans have direct ties to the disproportionate representation of people of color among prison populations today. In fact, foundational conceptions of outsiderhood—particularly as manifested through the markers of race and ethnicity—are so thoroughly stitched into America’s understanding of punishment that tools of social control—from legislation to case law to institutions such as prison—have gone hand in glove in imposing and reinforcing preferred social hierarchies based on race or ethnicity—and even class.
Coming to terms with the long and pervasive reach of such a difficult history does not come easily, especially since the nation-building enterprise often requires the forging of a country’s own positive self-image.35 This may mean flattening complicated histories that frustrate the ultimate aim of national self-realization—by drawing hard temporal boundaries between past and present, or minimizing or even forgetting challenging and inconvenient historical truths—to better align purported national symbols, narratives, rituals, and memories in a way that supports or reinvigorates a triumphant, progress-oriented national self-image.36 We have done this in America. One only has to look at the national holiday of Thanksgiving for an example of this. While Thanksgiving celebrates a widely accepted United States origin story centered around a celebratory meal and gift-giving between Pilgrim colonists and indigenous people, it silences the fact that colonization of North America was durably destructive to Native Americans—and is instead largely a story of the displacement and subjugation of indigenous people, an enterprise that was entirely constructed on a platform of racial privilege and oppression.37 Recognizing the role of race in American history chastens these types of illusions or sanitized versions of history. The point in this instance is to recognize the role of race in the making of America writ large, which makes it less plausible to fashion and sustain an understanding of how incarceration has specifically evolved in this country—its purposes and uses—without understanding how race, too, made incarceration what it is today.
Movements that seek to reveal, make amends for, and respond to historical social injustice are not novel: they have been pursued by nations that faced similarly complex and painful histories. They mark the global landscape, from de-Nazification in Germany after 1945, to the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families in Australia in the 1990s, to South Africa’s Truth and Reconciliation Commission between 1996 and 1998, among others.38 The United States must engage in a similar endeavor to come to terms with the nation’s history of racial and ethnic subordination, of which this effort to re-center corrections practice is but one part.39 An organizing system principle based on human dignity must govern the new aims of punishment; indeed, a state that recognizes human rights, the rule of law, and democracy demands it.
This report sits at the convergence of the criminal justice reform movement and the wider cultural push to recognize and ameliorate the country’s legacy of racial oppression and its broader connections to law and punishment. But nothing is assured. Historically, every wave of political gain for black Americans—the end of the Civil War, the Great Migration, the Civil Rights movement—has been followed by a prison boom. A fear of crime is fomented, fueled by nativist rhetoric, and vulnerable populations—people of color, immigrants, people with a mental illness—are swept into the control of the criminal justice system. A backlash against the two movements—the one seeking to reform the criminal justice system and the other seeking racial and social justice—is alive and well. The same “law and order” rhetoric uttered by Richard Nixon and Ronald Reagan—who together ushered in the era of mass incarceration—is now being elevated and exacerbated in the anti-crime policies of the current administration.40 People—not just black people—are reduced to “animals.”41 By recognizing and responding to the vestiges of white supremacy in America’s prison system, Vera hopes to breathe life into its call for humanity—and create a blueprint to practice human dignity in prison systems, which may serve to counteract the backlash that is here.
To begin, this report illustrates the current prison experience: it examines who is in America’s prisons today and the conditions they endure. (See “Examining prisons today.”) Recognizing our complex legacy of slavery and racial injustice—and that the prison experience of today is the product of prison experiences of yesterday—the report then delves into the history of prison in the United States, tracing in particular how its origins are deeply intertwined with centuries of unequal treatment of people of color. (See “American history, race, and prison.”) The report then introduces a new vision of incarceration based on respect for human dignity. Vera proposes that human dignity should serve as the cardinal principle that dictates how prison systems in this country organize themselves from top to bottom. (See “Human dignity as the guiding principle.”) Human dignity should act as a standard to which the system must perform, as well as a guide to set the contours of all prison policies and practices. While the vision presented here will no doubt be seen as aspirational by many, or even naive by some, this report proposes a series of practice principles to operationalize the concept and offers concrete guidance on what a system governed by human dignity might look like: namely, that it would (1) respect the intrinsic worth of each human being; (2) elevate and support personal relationships; and (3) respect a person’s capacity to grow and change. (See discussion of Vera’s proposed practice principles.) The report concludes by pointing to how human dignity can be achieved in the short term by outlining how some jurisdictions are already putting it into practice. (See “Achieving human dignity today.”) Even in the midst of the mass incarceration era, there are promising models to draw from that show reimagining prison is possible now.
Examining Prisons Today
“‘I’m beginning to believe that ‘U.S.A.’ stands for the Underprivileged Slaves of America,’ wrote a 20th-century prisoner from Mississippi in a letter detailing the daily violence he witnessed behind prison walls. His statement resounds with a long tradition of prisoners, particularly African-American prisoners, who have used the language and narrative of slavery to describe the conditions of their imprisonment.”
~ Kim Gilmore, “Slavery and Prison: Understanding the Connections,” Social Justice, 200042
“Daily degradations grind away at men’s souls. As one prisoner explained, the [South Carolina] Corrections Department has reduced visits from family members, limited their ability to send food and there are now only ‘two meals a day on weekends’ . . . One man . . . sent pictures of the metal plates that prison officials put over the windows, meaning too little light and fresh air gets into this sweltering and filthy prison. Others have sent photos of the food they are served, which in contrast to the menu that the Department of Corrections posts publicly, looks barely nutritional. The men say it is sometimes moldy, and for those on lockdown, it is served erratically and cold.”
~Heather Anne Thompson, “How a South Carolina Prison Riot Really Went Down,” New York Times, 2018.43
Life in America’s prisons is dismal, and the brunt of these dismal conditions falls overwhelmingly on people of color and those who are socially and economically disadvantaged, the result of their systematic and historic economic and social exclusion from mainstream—predominantly white—American society.44 Once in prison, their ties to that mainstream society are severed—often irreversibly—through prolonged separation from family and community. While behind bars, incarcerated people are subjected to degrading treatment, inhumane conditions, and abusive interactions—all of which result in substantial social, behavioral, and cognitive trauma that handicap them in their efforts to reintegrate into society upon release. In short, prison thwarts their chances for a successful and fulfilling life.
While some advocates, organizations, and policymakers have focused on improving conditions within prison in recent years, the isolation of prison facilities and the staff who work within them make wholesale change a slow and difficult process.45 Changes to practices are introduced slowly and the implementation of new policies and practices is imperfect. Still, in recent years, some corrections agencies have sought to improve life behind bars, for instance by limiting their use of solitary confinement and increasing the number of in-prison postsecondary educational programs.46 Despite these efforts, prison life by and large remains rife with deprivation, isolation, and violence.
Who is in prison?
Who ends up in America’s prisons is the result of decisions made by numerous actors in the criminal justice system. Legislators enact laws that define crimes and set sentence lengths. Police make arrests. Prosecutors negotiate plea deals. Once a person is convicted of a criminal offense—whether as a result of a jury trial or, more likely, by plea—the judge must determine the punishment. Generally, judges are statutorily permitted to impose sentences within a range of lengths and types, such as probation or prison. Those sentences aren’t always served in full. Historically, and in most states still, after a minimum amount of time served, people sentenced to prison may be paroled at the discretion of a parole board based on behavior, evidence of self-improvement, and other factors.47 But between the 1970s and 1990s, the federal government and many state legislatures passed laws limiting judicial and parole board discretion.48 Policies in many jurisdictions shifted toward more structured and transparent sentencing schemes—meaning that the sentence for a crime was predetermined by law, and judges could do little to vary it. This generally resulted in longer sentences for all types of crimes.49 These new laws included sentencing guidelines, determinate sentences (fixed prison terms and no parole), and mandatory penalties (such as mandatory minimum sentences, automatic sentence enhancements, or habitual offender laws).50 Many jurisdictions also passed so-called “truth-in-sentencing” policies, which required individuals to serve a substantial portion of their sentences—often 85 percent—before they could be considered for release.51 By the turn of the 21st century, longer sentences, combined with more aggressive policing strategies for quality-of-life and low-level drug crimes in many urban centers, resulted mostly in more people going to prison—and staying there for longer periods of time.52
These people are disproportionately Americans of color. This is most visible in the number of black Americans behind bars, although other groups—such as Latino and Native American people—are also overrepresented in prison in comparison with their presence in the general population.53 Today, black men and women make up just 13 percent of the country’s population, but they represent more than 35 percent of those incarcerated in American prisons—making black Americans the largest racial or ethnic group in state or federal prisons.54
Other groups of people with characteristics that put them in the minority of American society—such as their sexual orientation or gender identity—are also admitted to prison at disproportionate rates. Lesbian, gay, and bisexual men and women go to prison at three times the rate of their heterosexual counterparts.55 When women are examined alone, that rate jumps to eight to 10 times.56 In addition, transgender and gender nonconforming men and women report spending time in jail or prison at rates double to quadruple the rates of the general population.57
The people who enter prison today are also characterized by social and economic vulnerability.
- They are poorer than the average American.
- They have lower levels of education.
- They experience higher rates of mental illness.
- They have been victims and experienced trauma themselves.
- They suffer from substance use issues at higher rates.
- They are more likely to have a disability.
The prison experience
“[The correctional facility], like countless other penal facilities across the country, is overcrowded and the men held inside have been trying to bring attention to the inhumane conditions they live under for a long time now. But this facility, again like so many others, is far, far away from where most of the prisoner families live as well as far from the media’s gaze. People on the outside can’t see the ‘spoiled food, severe overcrowding, indifference to inmate grievances’ that the men inside have been enduring. They don’t know the extent of the gang problem plaguing the prison, and how desperately prisoners have been asking for help, because prison management manipulates its own data—for example . . . assaults on prisoners are written up as ‘mutual fights’ in order to make them seem better, less predatory, to legislators in the state capitol.”
~Heather Ann Thompson, “Prisons Are Erupting and Why it Matters,” Daily Beast, 201665
“The cell was so small that I could stand in one place and touch both walls simultaneously. The ceiling was so low that I could reach up and touch the hot light fixture. My bed took up the length of the cell, and there was no other furniture at all. . . . The walls were solid steel and painted all white. . . . Shortly after I arrived, the prison staff began construction, adding more bars and other security measures to the cell while I was within it. . . . It is hard to describe the horror I experienced during this construction process. As they built new walls around me it felts like I was being buried alive. . . . Due to the unchanging bright artificial lights and not having a wristwatch or clock, I couldn’t tell if it was day or night. Frequently, I would fall asleep and when I woke up I would not know if I had slept for five minutes or five hours, and would have no idea of what day or time of day it was. . . . I now know that I was housed there for about four years, but I would have believed it was a decade if that is what I was told. It seemed eternal and endless and immeasurable.”
~Thomas Silverstein, describing his experience in solitary confinement to Jean Casella and James Ridgeway, in “Five Unforgettable Stories From Inside Solitary Confinement,” Solitary Watch, 201766
The prison experience in America today is harsh, restrictive, and dehumanizing. No matter what the underlying purpose for imprisonment—retribution, incapacitation, and/or deterrence—prison by its very nature is intended to remove people from society and subject them to state control. That control is all-encompassing—the prison dictates the size, look, and feel of a person’s living space; the necessities a person can obtain (such as food, clothing, and medical care); and the activities a person can participate in, be they social, work, or educational.67
In reinforcing state control, prison policies and practices are designed to diminish the self and weaken the individual. Prison life largely emphasizes two things:
- the loss of each incarcerated person’s sense of self, autonomy, and capacity to control his or her own destiny; and
- the inculcation of a carceral identity—one reinforced by the strict social arrangements inside prisons and the power imbalance between corrections officers and incarcerated people.68
People carry the prison experience and the identities they developed under prison duress with them as they return home, and this impacts their future success, their communities, and their loved ones.69 For many, they remain branded as a criminal—both in their own minds and by society. Elements of the current prison experience contribute to these results, including the architecture of prison facilities, overcrowding within them, and the use of solitary confinement. The experience of incarceration is further marked by a lack of basic necessities, meaningful activities, and connections with the outside world. All of this is compounded by the trauma of the prison experience itself and the loss of the incarcerated person’s constitutional rights. These features of the American prison experience are detailed in the subsections that follow.
Prison design and physical layout
By their very design and aesthetics, the physical buildings and layout of American prisons cultivate feelings of institutionalization, immobilization, and lack of control among the people who live there.70 A typical cell is a small cement and brick box—the size of a typical parking space—with a metal or cement bed (sometimes a bunk bed) covered with a thin mattress, an open metal sink and toilet, perhaps a fixed metal desk, and a small window that is often sealed shut.71 Other interior spaces are similarly utilitarian in nature, with hard fixtures and fittings, cinder blocks, and little color, ornamentation, or natural light.72 These common prison architectural designs do not encourage positive individual or group experiences.73 Even recreation spaces are designed in this way—with little or no access to green spaces, often as covered cages, sometimes outdoors, but too often simply as another indoor space, such as a gymnasium.74 In Madrid v. Gomez—a case challenging the constitutionality of conditions at Pelican Bay State Prison in California—the court remarked that the sight of incarcerated people in the facility’s barren exercise pens created an image “hauntingly similar to that of caged felines pacing in a zoo.”75
Many American prisons are housing the maximum number of people they can hold—or more. In 2015, 27 states and the federal government operated their prisons near or above 100 percent capacity.76 Because of the sheer number of people corrections staff must manage, overcrowding can cause reductions in opportunities for rehabilitative programming and lead to limits on out-of-cell time, recreation, meal times, visitation, and access to staff. Moreover, in overcrowded conditions, individuals experience extreme deprivation of privacy—they may be forced to sleep dozens to a room in dayrooms, classrooms, or gymnasiums; receive inadequate medical care; be subject to victimization at higher rates; and commit suicide at higher rates.77 In Brown v. Plata, the Supreme Court found that overcrowding in California prisons was the “primary cause” of suffering and deaths among those incarcerated, stemming from the “grossly inadequate provision of medical and mental health care.”78
Tens of thousands of people in U.S. prisons are now held in solitary confinement either as punishment for rule breaking or, for a small number, as a preventive safety measure. The precise number of people held in these conditions on any given day is not known, but estimates range from 80,000 to 100,000, and there are indications that the use of such housing has grown substantially in recent years—perhaps by as much as 42 percent between 1995 and 2005.79 Conditions for people held in solitary are dire. Although conditions can vary from jurisdiction to jurisdiction, and even from facility to facility, people held in solitary often are forced to live in cramped cells for 22 to 24 hours per day. They typically cannot participate in programming or other group activities and may be barred from access to reading materials.80 There is often little or no natural light and artificial lights may be left on day and night.81 Long-term isolation also takes a mental and emotional toll: it has been shown to create or exacerbate mental illness and physical health problems, from which some people never recover.82 Nor does solitary enhance safety. Incarcerated people may take on the expected behaviors of the security levels to which they are assigned. Researchers have discussed this as evidence that labeling theory (the theory that individual behavior is influenced by the social expectations of others) applies to prison classification.83 This suggests that restrictive housing units can actually create or escalate behavioral issues and violence among incarcerated people, rather than contain or reduce them.84
Although prisons are constitutionally required to provide their residents with basic necessities—from hygiene to clothing, food, and medical care—many do so in ways that make prison more taxing and dehumanizing.85 For example, the hygienic supplies prisons provide to all residents can be limited in volume and poor in quality, with reports of people running out of toilet paper and other basic necessities—including sanitary pads and tampons.86 Several facilities have begun issuing uniforms or other items of clothing in colors designed to humiliate the wearer, or using fabrics that cause discomfort.87 A growing number of jurisdictions have returned to issuing people striped uniforms for their purported “punitive” effect.88
Even meals may be limited. Access to food has become more restricted in recent years as many states have reduced meals from three to two on some days, or reduced the number of overall calories served in prison.89 In the past decade, reports of insufficient quantities of food have become more widespread.90 Poor quality food and improper food handling have also contributed to a rate of foodborne illnesses among people in prison at six times the rate of the free population.91 The food supplied is also highly processed, often low in fiber and high in cholesterol and sodium, and tends not to include fresh fruits and vegetables or lean proteins, contributing to chronic medical conditions such as hypertension and diabetes, from which black people are more likely to suffer.92
At the same time, prison medical staff struggle to appropriately respond to the medical needs of the incarcerated population. The failure to provide adequate medical care and its extreme consequences is well documented and has been a frequent subject of litigation in recent years.93 Yet incarcerated people continue to report health problems at higher rates than the general population in a wide range of areas.94 Prison environmental conditions, including poor air quality and high temperatures, can exacerbate existing health problems—or create new ones.95
As prison life has become more restricted and punitive, it has simultaneously become more monotonous. Higher levels of security are generally the most restrictive, with more closely supervised movement, less time outside of cells, fewer options for leisure or programming, and more rigorously controlled rules regarding personal property.96 However, no matter where someone is placed—whether a minimum-, medium-, or maximum-security facility—opportunities for paid work, as well as rehabilitative, vocational, and postsecondary programming, have declined across the board—although opportunities for postsecondary education have been increasing in certain jurisdictions.97 This leads not only to a worsening daily existence in prison, but it also hinders the chances of success for people after they leave prison. And fully 95 percent of people in prison will eventually be released—around 600,000 each year.98 But despite research showing that prison violence tends to go down when education and vocational programs are introduced, and that cognitive behavioral and other rehabilitative programming may alleviate the negative impacts of incarceration and improve post-release employment prospects and earnings, in-prison therapeutic programming has become less—not more—available over time.99 In fact, a study conducted in 2005 and 2006 found that although substance abuse treatment programs are available in a majority of facilities, less than 10 percent of people in prison were able to participate in treatment services.100
Where work opportunities do exist in prison, many are now institutional jobs such as food service, laundry, or janitorial assignments that benefit the prison, rather than jobs in which incarcerated individuals can learn or apply new skills to prepare them for the workforce on release.101 Even among those who do obtain jobs, the average number of hours they work has decreased from 40 to 20 per week and median pay has declined to 86 cents per day.102 People in prison are thus able to buy fewer personal items from the prison store or commissary to supplement the limited supplies the prison provides.103Items they may need to purchase include food, toiletries, and hygienic supplies, and supplemental articles of clothing such as undergarments, socks, or shoes. Purchasing supplemental food is particularly important in prisons that have cut meals and calories. See note 89, above. Also see Eldridge, “The Big Business of Prisoner Care Packages,” 2017.[/footnotes]
Connections with the outside
Another reality of the prison experience is loneliness. During the prison boom of the 1990s, many new prisons were constructed in poor, rural areas.104 Siting prisons in rural areas—especially when coupled with restrictive visitation and furlough policies—has made it all the more difficult for people in prison to sustain personal relationships with their families and friends. With prisons farther from population centers, many more people are forced to serve their sentences in places that may be unreachable by public transit—and where visiting can place a substantial cost burden on friends and family, who may have to miss work, pay for childcare, and cover the costs of travel, including a place to stay, food, and gas.105 Receiving fewer visits from family and friends not only exacerbates the isolating experience of prison, but it also implicates community safety, as regular visitation is associated with a reduction in future criminal justice contact after prison.106
On top of this, many state corrections agencies enforce strict visitation policies—including denying physical contact between individuals (even parents and their children), limiting the number of approved visitors, especially non-family visitors, limiting the length of each visit, and restricting the days on which visits are permitted.107 For those people who are able to visit their loved ones in prison, they often must undergo invasive search procedures—standard at most maximum-security facilities, even for children—which can be a traumatic experience that may deter future visits.108 And while advancements in technology theoretically should make it easier for people to stay in touch remotely through phone, email, and video calls, these opportunities are also often restricted and can be quite costly.109 Video calls can be anywhere between $10 and $15 for a 30-minute computer connection; telephone calls are nearly $25 for only 15 minutes.110
The prison experience in America not only crushes one’s individual identity and robs one of dignity; it also produces long-term effects—including social and psychological adaptations to prison conditions and the lasting effects of trauma resulting from incarceration.111 The National Academy of Sciences explains that this social adaptation to prison arises from two primary causes: (1) the “structure and routines [of prison] that can erode personal autonomy;” and (2) “the threat of victimization.”112 The latter cause is key, as violence remains a regular occurrence within prisons. One study of 7,528 incarcerated people in 13 prisons found that nearly 40 percent of men and women in prison had experienced physical or sexual assault by staff or another incarcerated person within the previous six months, a finding echoed by other research.113 In addition, the rate of violence stemming from other incarcerated people—the most approximate measure of community-level violence in prison—was 10 times the rate of assault outside prison.114
Both the fear and actual experience of victimization can result in deep and long-lasting distrust of others, inability to express or share emotions, feelings of anger, and an outsider mentality that can make it difficult for people to seek help from others.115 Psychologists have identified rates of PTSD among those incarcerated in prisons that are two to 10 times the rate of the general population, and they have discovered evidence of compounded versions of this condition in prison populations.116 This “complex” PTSD results specifically from the repeated harms and “deformations of personality” that occur in captivity.117 In addition to trauma arising from personal victimization, vicarious trauma—trauma that is incurred when one is exposed to other people’s suffering and need—also occurs in prison, meaning that few escape the effects of violence behind bars.118
Loss of constitutional rights
The current prison experience further isolates incarcerated people from society through civic exclusion and the denial of constitutional rights guaranteed to those outside of prison. Incarcerated individuals generally lose their right to privacy in prison, and they are not protected from warrantless searches of their persons or cells.119 In all but two states, they are deprived of their right to vote while incarcerated, a ban that can follow them back into the community and sometimes last their whole lives.120 Although people in prison retain some due process rights and are protected against unequal treatment or cruel and unusual punishment, the Prison Litigation Reform Act, together with rulings by the U.S. Supreme Court, serve to deny incarcerated people meaningful access to courts due to a host of unique restrictions and strict legal standards.121 In-prison administrative procedures do not provide people with an adequate substitute forum: weak internal complaint processes limit a person’s ability to alert officials to staff misconduct or other wrongful behavior by the prison administration or staff that violates peoples’ rights.122 Few jurisdictions have the sort of robust prison oversight mechanisms that might allow for independent inspections or investigations that could examine the treatment of people in prison and inquire into specific allegations of wrongdoing.123 For incarcerated people, the right to justice is all but nonexistent.
The prison experience for corrections staff
American History, Race, and Prison
“[In September 2016], on the 45th anniversary of the infamous Attica Prison uprising, tens of thousands of US inmates launched a nationwide protest. . . . The inmates’ grievances [were] as varied as the states they came from: Pennies for labor in South Carolina, racial discrimination in California, excessive force in Michigan. However, they share[d] an overarching goal: End legalized slavery inside American correctional facilities.”
~ Max Blau and Emanuella Grinberg, “Why US Inmates Launched a Nationwide Strike,” CNN, 2016124
In 1970, the era of mass incarceration began. This growth in the nation’s prison population was a deliberate policy. It was inflamed by campaign rhetoric that focused on an uptick in crime and orchestrated by people in power, including legislators who demanded stricter sentencing laws, state and local executives who ordered law enforcement officers to be tougher on crime, and prison administrators who were forced to house a growing population with limited resources.125
From America’s founding to the present, there are stories of crime waves or criminal behavior and then patterns of disproportionate imprisonment of those on the margins of society.
Although the unprecedented increase in prison populations during this period may seem like an aberration, the ground was fertile for this growth long before 1970. Certainly the number of people sent to prison was far greater during the era of mass incarceration than in any other time period, but the policies that fueled that growth stemmed from a familiar narrative: one involving public anxiety about both actual and alleged criminal behavior by racial and ethnic minorities and the use of state punishment to control them.
It is a narrative that repeats itself throughout this country’s history. From America’s founding to the present, there are stories of crime waves or criminal behavior and then patterns of disproportionate imprisonment of those on the margins of society: black people, immigrants, Native Americans, refugees, and others with outsider status. The result has been the persistent and disproportionate impact of incarceration on these groups. From 1850 to 1940, racial and ethnic minorities—including foreign-born and non-English speaking European immigrants— made up 40 to 50 percent of the prison population.126 In 2015, about 55 percent of people imprisoned in federal or state prisons were black or Latino.127
It is a narrative founded on myths, lies, and stereotypes about people of color, and to truly reform prison practices—and to justify the path this report marks out—it is a narrative that must be reckoned with and subverted. We must grapple with the ways in which prisons in this country are entwined with the legacy of slavery and generations of racial and social injustice. No new era is built from a clean slate, but rather each is layered on top of earlier practices, values, and physical infrastructure. Mass incarceration is an era marked by significant encroachment on the freedoms of racial and ethnic minorities, most notably black Americans. But this inequitable treatment has its roots in the correctional eras that came before it: each one building on the last and leading to the prison landscape we face today. This section ties together this country’s history of racism with its history of incarceration and recounts three important junctures in the history of prisons through the lens of America’s troubled and complex history of racial oppression.
Inequitable treatment has its roots in the correctional eras that came before it: each one building on the last and leading to the prison landscape we face today.
Prison in the South: 1865-1940
“The history of Mississippi State Penitentiary is a history of failed reforms. Its creation in 1901 was borne of a statewide shame and frustration at the contemporary system of convict leasing. . . . Under convict leasing, the inmates were essentially slaves again. . . . They worked long hours for no pay, were poorly fed, and slept in tents at work sites doing dangerous jobs like dynamiting tunnels for railroad companies and clearing malaria-filled swamps for construction. Convicts, sometimes including children under age 10, were whipped and beaten, underfed, and rarely given medical treatment. . . .Parchman [Farm]’s first year of operation was in 1905. It was massive, remote, and modeled after a traditional southern plantation. Parchman was originally comprised of three separate farms: a small farm, which was maintained by white convicts, a smaller one farmed by women (mostly black), and a huge sprawling plantation for the prison’s black convicts. Over 20,000 acres and 46 miles, it was intended to be self-sufficient and profitable for the state, and it was.Parchman Farm stayed this way, more or less, for the next 70 years. Cotton picking became mechanized and the state instituted some small reforms. . . . [But the] small vocational and educational programs excluded black prisoners. A maximum security unit with a guard tower, fences, and gates housed individual cells, a gas chamber for executions, and a solitary confinement wing. Otherwise, Parchman remained frozen in time, a segregated, harsh prison farm.”
~ Hannah Grabenstein, “Inside Mississippi’s Notorious Parchman Prison,” PBS NewsHour, 2018128
The year 1865 should be as notable to criminologists as is the year 1970. While it marked the end of the Civil War and the passage of the 13th Amendment, it also triggered the nation’s first prison boom when the number of black Americans arrested and incarcerated surged.129 This was the result of state governments reacting to two powerful social forces: first, public anxiety and fear about crime stemming from newly freed black Americans; and second, economic depression resulting from the war and the loss of a free supply of labor. State and local leaders in the South used the criminal justice system to both pacify the public’s fear and bolster the depressed economy. All across the South, Black Codes were passed that outlawed behaviors common to black people, such as “walking without a purpose” or “walking at night,” hunting on Sundays, or settling on public or private land.130
These laws also stripped formerly incarcerated people of their citizenship rights long after their sentences were completed. Among the most well-known examples are laws that temporarily or permanently suspended the right to vote of people convicted of felonies. Adamson, “Punishment After Slavery,” 1983, 558-59; A. E. Raza, “Legacies of the Racialization of Incarceration: From Convict-Lease to the Prison Industrial Complex,” Journal of the Institute of Justice and International Studies 11 (2011), 159-70, 162-65; Christopher Uggen, Jeff Manza, and Melissa Thompson, “Citizenship, Democracy, and the Civic Reintegration of Criminal Offenders,” ANNALS of the American Academy of Political and Social Sciences 605, no. 1 (2006), 281-310; and Elizabeth Hull, The Disenfranchisement of Ex-Felons (Philadelphia, PA: Temple University Press, 2006), 17-22.[/footnote] Southern law enforcement authorities targeted black people and aggressively enforced these laws, and funneled greater numbers of them into the state punishment systems. By the 1870s, almost all of the people under criminal custody of the Southern states—a full 95 percent—were black.131
State penal authorities deployed these imprisoned people to help rebuild the South—they rented out convicted people to private companies through a system of convict leasing and put incarcerated individuals to work on, for example, prison farms to produce agricultural products.132 In the Reconstruction South, these were fiscally attractive strategies given the destruction of Southern prisons during the Civil War and the economic depression that followed it.133 Convict leasing programs that operated through an external supervision model—in which incarcerated people were supervised entirely by a private company that was paying the state for their labor—turned a state cost into a much-needed profit and enabled states to take penal custody of people without the need to build prisons in which to house them.134
Although economic, political, and industrial changes in the United States contributed to the end of private convict leasing in practice by 1928, other forms of slavery-like labor practices emerged.135 State prison authorities introduced the chain gang, a brutal form of forced labor in which incarcerated people toiled on public works, such as building roads or clearing land. Chain gangs existed into the 1940s.136 And, as with convict leasing before it, those sentenced to serve on chain gangs were predominantly black.137 Prison farms also continued to dominate the Southern landscape during this period. In 1928, Texas was operating 12 state prison farms and nearly 100 percent of the workers on them were black.138
The loophole contained within the 13th Amendment, which abolished slavery and indentured servitude except as punishment for a crime, paved the way for Southern states to use convict leasing, prison farms, and chain gangs as legal means to continue white control over black people and to secure their labor at no or little cost.139 Very few white men and women were ever sent to work under these arrangements.140 By assigning black people to work in the fields and on government works, the state-sanctioned punishment of black people was visible to the public, while white punishment was obscured behind prison walls. By many accounts, conditions under the convict leasing system were harsher than they had been under slavery, as these private companies no longer had an ownership interest in the longevity of their laborers, who could be easily replaced at low cost by the state.141 Although the incarcerated people subjected to this treatment sought redress from the courts, they found little relief.142 Time and again, the courts approved of this abusive use of convict labor, confirming the Virginia Supreme Court’s declaration in 1871 that an incarcerated person was, in effect, a “slave of the state.”143
Prison in the North: 1920-1960
“At the dawn of the twentieth century, in a rapidly industrializing, urbanizing, and demographically shifting America, blackness was refashioned through crime statistics. . . . Northern black crime statistics and migration trends in the 1890s, 1900s, and 1910s were woven together into a cautionary tale about the exceptional threat black people posed to modern society. In the Windy City, in the City of Brotherly Love, and in the nation’s Capital of Commerce this tale was told, infused with symbolic references to American civilization, to American modernity, and to the fictive promised land of unending opportunity for all who, regardless of race or class or nationality, sought their fortunes.”
~ Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, 2010144
The first half of the 20th century saw an expansion of prison populations in the Northern states, which coincided with shifting ideas about race and ethnicity, an influx of black Americans to urban regions in the North, and increased competition over limited jobs in Northern cities between newly arrived black Americans and European immigrants. As a backdrop to these changing demographics, public anxiety about crime flourished. A brief spike in violent crime in the 1920s was met with incendiary media coverage, highly publicized federal interventions into local crime, and the branding of certain suspected criminals as “public enemies,” stoking public fear and supporting criminal stereotypes.145 The growing fear of crime—often directed at black Americans—intensified policing practices across the country and inspired the passage of a spate of mandatory sentencing policies, both of which contributed to a surge in incarceration.146 Between 1926 and 1940, state prison populations across the country increased by 67 percent.147
Between 1910 and 1970, over six million black Americans migrated from the South to Northern urban centers. Known as the Great Migration, this movement of people dramatically transformed the makeup of both the South and the North: in 1910, 90 percent of black Americans lived in the South but, by 1970, that number had dropped to 53 percent.148 These migrants—typically more financially stable black Americans—were fleeing racial terror and economic exclusion.149 This influx of people overlapped with the waves of immigrants from Southern and Eastern Europe who continued to disembark and settle across the country throughout the first half of the 20th century. During this time period, the dominant white class connected criminality to three distinct groups: lower-class whites, immigrants, and black Americans.150 However, while white and immigrant criminality was believed by social reformers to arise from social conditions that could be ameliorated through civic institutions, such as schools and prisons, black criminality was given a different explanation. Widely popular—but since discredited—theories of racial inferiority that were supported by newly developed “scientific” categorization schemes took hold.151 Combined with the popular portrayal of black men as menacing criminals—as represented in the film The Birth of the Nationreleased in 1915—a sharper distinction between white and black Americans emerged, which also contributed to a compression of European ethnic identities (for instance Irish, Italian, and Polish) into a larger “white” or “Caucasian” ethnic category.152
These shifting beliefs regarding race and crime had serious implications for black Americans: in the first half of the 20th century, racial disparities in prison populations roughly doubled in the Northern states most affected by the Great Migration.153
Shifting beliefs regarding race and crime had serious implications for black Americans: in the first half of the 20th century, racial disparities in prison populations roughly doubled in the North.
These beliefs also impacted the conditions that black and white people experienced once behind bars. As in the South, putting incarcerated people to work was a central focus for most Northern prison systems. Until the 1930s, the industrial prison—a system in which incarcerated people were forced to work for private or state industry or public works—was the prevalent prison model. Gratuitous toil, pain, and hardship became a primary aspect of punishment while administrators grew increasingly concerned about profits.154 The rise of organized labor in the 1920s and 1930s, as well as the passage of federal legislation restricting the interstate commerce of goods made by convict labor, brought an end to many industrial-style prisons.155 In their place, the conditions and activities that made up the incarceration experience remained similar, but with purposeless and economically valueless activities like rock breaking replacing factory labor.156
By the mid-1900s, as white immigrant groups were absorbed into the white racial category, the white public became increasingly concerned about the conditions they endured in prison.157 Starting in about 1940, a new era of prison reform emerged; some of the rigidity of earlier prison structures was relaxed and some aspects of incarceration became more physically and psychologically tolerable.158 Under this new “correctional institution” model, prisons were still meant to inflict a measure of pain on those inside their walls, but the degree was marginally reduced in comparison to earlier periods. These prisons offered more recreation, visitation, and communication with the outside world through regular access to the mail, as well as sporadic movies or concerts. Most notably, this period saw the first introduction of therapeutic programming and educational and vocational training in a prison setting.159
These programs were largely justified on the principle that they could bring about the rehabilitation of an incarcerated person. But they weren’t intended to rehabilitate everyone in prison: they were reserved for people deemed capable of reform—by and large white people.160 Incarcerated black Americans and other racial and ethnic minorities also lived in race-segregated housing units and their exclusion from prison social life could be glimpsed only in their invisibility.161 Their experiences were largely unexamined and many early sociological studies of prisons do not include incarcerated people of color at all.162
Prisons nationally: 1960-2000
“The growing menace in our country tonight, to personal safety, to life, to limb and property, in homes, in churches, on the playgrounds, and places of business, particularly in our great cities, is the mounting concern, or should be, of every thoughtful citizen in the United States. Security from domestic violence, no less than from foreign aggression, is the most elementary and fundamental purpose of any government, and a government that cannot fulfill that purpose is one that cannot long command the loyalty of its citizens. History shows us—demonstrates that nothing—nothing prepares the way for tyranny more than the failure of public officials to keep the streets from bullies and marauders.”
~ Barry Goldwater, Speech at the Republican National Convention, accepting the nomination for president, 1964163
“And tonight, it is time for some honest talk about the problem of order in the United States. . . . [L]et us also recognize that some of our courts in their decisions have gone too far in weakening the peace forces as against the criminal forces in this country and we must act to restore that balance. Let those who have the responsibility to enforce our laws and our judges who have the responsibility to interpret them be dedicated to the great principles of civil rights. But let them also recognize that the first civil right of every American is to be free from domestic violence, and that right must be guaranteed in this country. . . . I pledge to you that the new Attorney General will open a new front against the filth peddlers and the narcotics peddlers who are corrupting the lives of the children of this country.”
~ Richard Nixon, Speech at the Republican National Convention, accepting the nomination for president, 1968164
Beginning in the 1960s, a “law and order” rhetoric with racial undertones emerged in politics, which ultimately ushered in the era of mass incarceration and flipped the racial composition of prison in the United States from majority white at midcentury to majority black by the 1990s.165 As in previous periods, the criminal justice system was used to marginalize and penalize people of color. In the 1960s and 1970s, as riots broke out in a number of urban centers and a wave of violent crime rolled across the United States, politicians on both sides of the aisle not only continued to link race and crime in rhetoric, they took action, enacting harsh, punitive, and retributively oriented policies as a solution to rising crime rates.166 As black Americans achieved some measures of social and political freedom through the civil rights movement, politicians took steps to curb those gains. In the 1964 presidential election, Barry Goldwater (Lyndon Johnson’s unsuccessful Republican challenger) campaigned on a platform that explicitly connected street crime with civil rights activism.167 In 1965, President Lyndon Johnson declared the “War on Crime,” and perceived increases in crime in urban centers—which were largely populated by black people—became connected with race in the public’s consciousness.168 Richard Nixon also successfully used a street crime and civil rights activism narrative in his 1968 and 1972 presidential campaigns.169 The message resonated with many Southern whites and Northern working-class whites, who left the Democratic Party in the decades that followed. This tight link between race and crime was later termed the Southern Strategy.170
Compounding the persistent myth of black criminality was a national recession in the 1970s that led to a loss of jobs for low-skilled men in urban centers, hitting black men the hardest.171 The departure of white and middle- to upper-class black Americans from cities to the suburbs further concentrated poor black people in a handful of city blocks.172 Many black Americans found themselves trapped in a decaying urban core with few municipal services or legitimate opportunities for employment.173 The quality of life in cities declined under these conditions of social disorganization and disinvestment, and drug and other illicit markets took hold.174 In the 1980s and 1990s, policymakers continued to turn to punitive policing and sentencing strategies to restore social order and address increasing drug use—resulting in larger and larger numbers of unemployed black urban residents with low levels of education being swept into prisons.175
The numbers are stunning. In 1970, the state and federal prison population was 196,441.176 By 1985, it had grown to 481,616.177 And, by the year 2008, federal and state correctional authorities had jurisdiction over 1.6 million people.178 These numbers have defined the current period of mass incarceration. Prisons overflowed and services and amenities for incarcerated people diminished. People in prison protested and violent riots erupted, such as the uprising at the Attica Correctional Facility in 1971.179 Legal remedies for people in prison also dried up, as incarcerated people lost access to the courts to contest the conditions of their incarceration.180 And this growth in incarceration disproportionately impacted black Americans: in 2008, black men were imprisoned at a rate six and half times higher than white men.181 The incarceration boom fundamentally altered the transition to adulthood for several generations of black men and, to a lesser but still significant extent, black women and Latino men and women.182 By the turn of the 21st century, black men born in the 1960s were more likely to have gone to prison than to have completed college or military service.183
Human Dignity as the Guiding Principle
This country’s current prison practices and environment are built atop a long history of racially motivated incarceration and discriminatory prison practices and policies. That history harms all of us. Efforts to reform or improve the experience of incarceration along the margins—for example, a new focus on reentry, evidence-based programs, or expanded educational offerings—will not suffice to shift the weight of this history, a history that is built into the edifice of the nation’s prison facilities. To effect real and radical change for everyone, we must acknowledge and respond to this country’s history of racial and ethnic oppression and the role our corrections systems have played in creating and perpetuating inequality. Incremental reforms based on the existing system ethos will not do. We must find a redefining principle to underpin the most severe sanction we have: deprivation of liberty.
Vera proposes that human dignity be the foundational, organizing principle of the nation’s corrections system. This principle recognizes every person’s intrinsic worth and capacity for self-control, autonomy, and rationality.184 By establishing dignity as an organizing principle, and not just as an aspirational vision or legal backstop, all aspects of imprisonment—from its very purpose to the experience of everyday life in confinement—will be affected. The principle will serve to ensure that the corrections system does not compromise, abridge, or undermine an individual’s human dignity. Human dignity is a rejoinder to the persistent dehumanization that characterizes current and historic incarceration, which was born precisely because of white supremacy—the belief that black people were subhuman. Where we have denied humanity, we must embrace human dignity.
Radical as this may seem, America would not be the first place to atone for inhumanity by embracing its opposite. In Germany, for example, Article I of its constitution, known as the Basic Law, reckons with the history and horrors of the Holocaust and states plainly: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”185 Moreover, human dignity has deep and ancient philosophical underpinnings. As a modern legal principle, it is well-established both internationally and in the United States. The concept is the basis of international human rights law developed in the aftermath of World War II as a direct response to the dehumanizing bureaucratic horrors of the Holocaust. Human dignity is a founding principle of the United Nations (founded in 1945); a core concept in the Universal Declaration of Human Rights (adopted in 1948); and a persistent theme in international and regional human rights instruments—for example, it forms “one of the cornerstones” of the European Convention on Human Rights (drafted in 1950).186 Human dignity has elevated status within the laws of many countries. It is the foundational value in the constitutional documents of Costa Rica, the Czech Republic, Estonia, Germany, Greece, Hungary, India, Israel, Italy, Japan, Lithuania, Poland, Portugal, Slovakia, South Africa, Spain, and several other countries.187 The South African constitution, for example, states boldly in its very first article that South Africa is a country founded on the value of human dignity and, in section 10, recognizes its universality and everyone’s right “to have his or her dignity respected and protected.”188
Although the phrase “human dignity” does not appear in the U.S. Constitution, the Supreme Court has ruled in a number of cases that the concept animates and even underlies many of the amendments contained in the Bill of Rights, as well as subsequent constitutional amendments. The Court has explicitly relied on the concept of human dignity to limit punishment and protect the rights of those imprisoned (Eighth Amendment); limit unreasonable searches (Fourth Amendment); explain the right to represent oneself (Sixth Amendment); expand the right to privacy regarding marriage, reproduction, and one’s sexual activities and choices (14th Amendment); render illegal racial or other discrimination (14th Amendment); and protect one’s reputation (the common law of libel).189 At the state level, too, dignity is a founding basis for law and citizenship. Dignity is explicitly referenced in the state constitutions of Illinois, Louisiana, and Montana; for example, the Montana constitution (ratified in 1972) recognizes that all human beings have an innate dignity, and that dignity “is inviolable.”190
However, despite a larger commitment to human dignity, in most countries—the United States foremost among them—a standard of human dignity does not guide the law or policymaking processes. The Supreme Court typically addresses only the most extreme, “shock the conscience,” circumstances that arise in prison and elsewhere.191 The Court has, on occasion, offered sweeping platitudes about the application of human dignity to people in prison, but it has never used this concept to do more than ensure that incarcerated people are supplied with their basic needs or to condemn truly degrading treatment.192 Thus, while the Court in Hope v. Pelzer relied on human dignity in assessing the prison officers’ actions, it did not explicitly establish the principle as a new positive standard of treatment. It merely stated the “obvious:” that tying an incarcerated person to a hitching post in the sun for more than seven hours, supplying him with little water, and preventing him from going to the toilet violated the Eighth Amendment’s ban on cruel and unusual punishment.193 The Court has thus not created a clear standard of human dignity and no legislation in the United States explicitly affirms obligations regarding human dignity.
Vera’s proposal elevates the concept of human dignity from one that merely prevents grossly unjust conduct to a cardinal principle that dictates how a prison system must organize itself from top to bottom—a standard to which the system must perform and a guide to set the contours of all prison policies and practices. Importantly, a commitment to human dignity does not undermine the fundamental correctional priorities of safety and security. In fact, human dignity demands that everyone behind the walls—staff as well as those incarcerated—is kept safe and secure.
These proposed practice principles are derived from an expansive view of human dignity, shaped to address the deficiencies in this country’s current prison experience, and respond to America’s history of using prisons as a form of racial oppression.
A prison system grounded in human dignity also directly responds to the faults created by centuries of racial oppression. As two leaders of #BlackLivesMatter and the Black Alliance for Just Immigration explained, “We understand that the black liberation movement in the U.S.—from its inception as an anti-slavery movement, through the Civil Rights Era, and up to now—has never been only for civil rights. The movement is a struggle for the human rights and dignity of black people in the U.S., which is tied to black peoples’ struggle for human rights across the globe.”194 Extending the principle of human dignity to people incarcerated in our country’s prisons would mark a significant milestone in this movement.
In a practical sense, by adopting human dignity as the guiding ideal to govern imprisonment, many aspects of prison life and administration will need to change—including staff training and philosophy, programming and treatment offered to people in custody, the material conditions of confinement that incarcerated people live under, and even an institution’s physical design and layout. Prisons will have to create, improve, or expand policies and practices that facilitate respect for human dignity, while minimizing or avoiding others that will likely corrode it.195
Only a select few countries, such as Germany, commit to human dignity in a manner that affirmatively shapes their prison policies and practices.196 There, the German Prison Act—which sets the standards by which not only detention facilities must operate but also prison managers and staff must behave—explicitly dictates that “(1) life in penal institutions should be approximated as far as possible to general living conditions, (2) any detrimental effects of imprisonment shall be counteracted, and (3) imprisonment shall be so designed as to help the prisoner reintegrate himself into life at liberty.”197 It is now America’s turn. Our circumstance makes us well situated to learn from Germany and other leaders and contribute new theories and strategies for upholding human dignity behind bars to the world.
How can a seemingly nebulous principle like human dignity be put into operation? What would the day-to-day workings of a prison system grounded in human dignity look like? The following sections outline three principles that are intended to help elucidate what a dignity-centered approach to prisons may mean in practice:
- Principle 1: Respect the intrinsic worth of each human being;
- Principle 2: Elevate and support personal relationships; and
- Principle 3: Respect a person’s capacity to grow and change.
These proposed practice principles are derived from an expansive view of human dignity, shaped to address the deficiencies in this country’s current prison experience, and respond to America’s history of using prisons as a form of racial oppression.
Practice principle 1: Respect the intrinsic worth of each human being
The first practice principle honors one of the core tenets of human dignity: by virtue of their personhood, people possess an intrinsic worth and must be treated with basic respect. It is a principle that has been largely absent from this country’s system of imprisonment from the beginning, yet is at the core of our shared humanity. The principle prohibits practices that degrade or demean a person. In other words, policies and practices should not dehumanize, cause humiliation, or evince a lack of respect. It would forbid forcing people to wear uniforms designed to make them feel ashamed or supplying them with insufficient food or inadequate health care. Instead, policies should serve to humanize people in prison, including in ways that mitigate to the extent possible the inherent power imbalance between the prison administration and incarcerated people.
Legal basis for practice principle 1
There is scholarly consensus that personal integrity is an aspect of human dignity.
Putting the principle into practice
“The women [in Utah’s prisons] were given brand-new uniforms the color of plum wine. The prison lifted its ban on cosmetics, and the inmates picked out lip colors, eye shadows and blushes. . . .[I]t seemed to work: Disciplinary problems plummeted. That’s because, thanks to their new uniforms, the women inmates no longer see themselves as prisoners but as people. The clothes they wear have altered how they perceive themselves, and the world.”
~ Susie Neilson, “Prison Uniforms Make It Harder to ‘Go Straight,’” Newsweek, 2016198
“I believe a ‘good morning’ just gets your day started. . . . I encourage the guys. When they have birthdays, we sing ‘Happy Birthday.’ They’re human beings, and it makes a difference. Some of these guys, they’ve never had someone tell them ‘Happy birthday.’ . . . We let them know there’s a different way of thinking and living. . . . It gets them motivated. ‘I can make a difference. I can get a good job. I can go to college. I don’t just have to settle.'”
~ Elwanda Ray, quoted in Cole Waterman, “Michigan Corrections Officer of the Year Motivates Inmates to Do Better,” MLive.com, 2018199
As simple as “treating each person with basic respect” sounds, this requirement implicates nearly every aspect of prison operations. It will no longer be enough to just provide people in prison with the bare necessities, as the application of Eighth Amendment currently requires.200 This practice principle elevates the standards by which people are provided with those necessities and mandates that prison systems deliver them in a way that promotes rather than diminishes people’s dignity.
How can a prison work to respect the intrinsic worth of the people incarcerated inside it? To do so will require the system to infuse humanity into its operations. A prison operating consistently with this first practice principle may consider some of the following measures:
- recognizing dignity by requiring corrections staff to call incarcerated people by their names rather than referring to them by institutionalizing terms that strip individuality away, such as their prison number, “prisoner,” “inmate,” or “tans” (a reference to the color of uniforms incarcerated people are made to wear in some jurisdictions);
- providing high-quality health care on-site at the prison, equivalent to what would be provided at a walk-in clinic or other comparable community-based location, and providing for swift transportation to local hospitals in the event of more serious health issues;
- permitting incarcerated people to make individual choices about attire, either by allowing them to wear their own clothes or by offering variety in institutionally assigned clothing, while prohibiting any type of uniform that is intended to humiliate or degrade, such as pink boxer shorts or tight, white, transparent uniforms;201
- providing an adequate supply and variety of hygienic products that meet moderate standards of quality and offering a selection of additional products at reasonable cost in the commissary—and the products supplied and available should also take into account the cultural and personal preferences of the prison population;202
Policies and practices should not dehumanize, cause humiliation, or evince a lack of respect.
- supplying incarcerated people who menstruate with an adequate supply and choice of sanitary products and strictly prohibiting corrections staff from using such supplies as a way to control the residents;203
- serving a more than adequate quantity of edible and healthy food, including fruits and vegetables, and providing supplemental healthy snacks and items for purchase in the commissary;
- instituting meaningful protection from physical and emotional abuse within the prison, whether perpetrated by staff or other incarcerated people, including private reporting mechanisms, access to emergency medical care following a physical or sexual assault, and access to victim support groups and long-term medical and behavioral health care;204 and
- encouraging corrections staff and incarcerated people to view each other as humans worth getting to know beyond the stereotypical guard-inmate paradigm.
Practice principle 2: Elevate and support personal relationships
Human dignity also encompasses human connection. A person’s inherent worth and sense of dignity is often bound up in his or her relationships with others—in the context of a prison, this means relationships among those living in prison, between corrections staff and residents, and between incarcerated people and their families and friends on the outside.Accordingly, Vera’s second practice principle focuses on allowing people who are living in prison to develop relationships with others and, indeed, facilitating those relationships. It prohibits actions that serve to extinguish or hamper such interactions. At a minimum, the prison should ensure that its residents have a chance to develop and sustain real human relationships.
Legal basis for practice principle 2
Respect for family life is defined as a basic human right in Article 8 of the European Convention on Human Rights.
Putting the principle into practice
“Perhaps the finest example of compassionate American prison design is the recently completed Las Colinas Women’s Detention and Reentry Facility, commissioned by the County of San Diego, designed by KMD/HMC Architects. The complex sits on a 45-acre campus and features residentially scaled buildings clustered around exterior courtyards. Research shows that isolation breeds violence and anger; the more normalized environment is meant to encourage socialization and to “minimize physical and psychological barriers” between inmates and staff. . . . Inside, the floors are a warm brown and sometimes playfully patterned; translucent green accent walls break down the scale of the cafeteria; and materials include not only concrete but also ashlar stone, cork, and wood. Due to the facility’s podular layout, all public spaces feature large windows and an abundance of natural light.”
~ Rachel Slade, “Is There Such a Thing as ‘Good’ Prison Design?” Architectural Digest, 2018205
How can a prison system provide people with opportunities to nurture and grow their personal relationships? Although a prison system cannot force a person sentenced to incarceration to have interpersonal relationships, it can facilitate rather than impede their development. This section discusses several ways that a prison can help incarcerated people build relationships with people inside as well as outside the prison and, in so doing, help keep them in the fold of the larger community.
Interacting with people inside the prison. Ensuring that interpersonal relationships can flourish starts with the layout of the prison itself. The architecture and design of a facility impacts how incarcerated people interact with each other and the relationship between staff and those held in prison. Indeed, research shows that people in prison more negatively assess their relationships with staff when they live in some of the most common housing unit designs in the United States (panopticon, double-celled, and older housing units) rather than in other layouts.206
We recognize that a wholesale and immediate redesign of America’s many prisons is economically unrealistic. But a prison system that prioritizes human dignity and seeks to encourage personal relationships could renovate existing spaces or, where old buildings are crumbling or unsafe, design new facilities to include some of the following features:
- an acoustic environment that minimizes echoes and excess noise;
- spaces for recreation, such as outdoor areas with green lawns and interior or exterior spaces for exercise and team sports;
- buildings and outside spaces that are fully accessible to people with physical disabilities;
- day rooms that facilitate group activities and personal interactions between staff and residents; and
- kitchen areas where incarcerated people can work together to prepare food for themselves and others.
For those incarcerated people subjected to solitary confinement, the value of personal relationships takes on even more significance. Though such housing would be used rarely, if ever, in a prison system based on human dignity—and then only for brief periods of time—a dignity-centric prison system must ensure that those sent to such housing retain meaningful social contact with others by, for example, requiring a minimum amount of staff contact, allowing for social activities with others who are incarcerated, and ensuring interactions with other individuals, such as psychologists, religious representatives, and community volunteers.207
Interacting with people outside the prison. A commitment to fostering human connection must go beyond the prison walls. Given the danger that closed institutions have of falling into social patterns and communication habits so insular as to be unrecognizable to those outside the institution, ensuring outside contact is crucial to this principle.208
A commitment to human dignity mandates that facilities implement policies and practices that encourage families and friends to visit, facilitate the presence of outside organizations within the prison, and provide opportunities for incarcerated people to spend constructive time outside the prison.209 In this way, those in prison are not considered “other,” but rather are seen as integral members of the human family. A prison system aiming to achieve these goals might implement some of the following practices:
- housing incarcerated people in facilities that are as close to their homes and loved ones as possible;
- developing in-person visitation policies that
- allow for a generous number of visits for reasonable durations of time;
- permit physical contact between partners or parents and their children;
- provide reasonable accommodations for visiting, such as a room with natural light, a space that allows for some privacy, a place with food available for purchase, and a space for children and parents to play together; and
- encourage structured activities among visitors, incarcerated people, and staff;
- creating policies that ensure that all visitors are treated respectfully and fairly;
- making phone calls, emails, and video calls available to incarcerated people at reasonable rates—and using video visitation to supplement, rather than replace, in-person visitation opportunities.
A commitment to human dignity mandates that facilities implement policies and practices that encourage families and friends to visit, facilitate the presence of outside organizations within the prison, and provide opportunities for incarcerated people to spend constructive time outside the prison.
- forging relationships with local organizations and giving community members, community organizations, volunteers, educators, and others reasonable access to the prison and its residents;
- providing people living in prison with a meaningful opportunity to receive prison furloughs or other types of prison leave, including for important family events such as funerals, participation in work or educational programs, or in preparation for reentry; and
- implementing compassionate release programs—sometimes called geriatric release or medical parole—that grant early discharge to people on the basis of serious illness or age-related impairment, so that they may spend their final months or years with their loved ones.210
Practice principle 3: Respect a person’s capacity to grow and change
Vera’s final proposed practice principle recognizes that no matter what behavior may have landed a person behind bars, they still have the potential to change. [The role of a prison system operating according to this principle is not to require that a person grow and change, but rather to respect a person’s capacity to do so. The inherent dignity of a human being includes a person’s capacity for self-respect, self-control, empowerment, autonomy, and rationality. This implies a respect for a person’s capacity to exhibit as well as enhance these characteristics. Under this practice principle, the prison should provide a proper setting and suitable opportunities for all incarcerated people to pursue productive activities and to grow and develop as people. At its essence, this is a principle that offers hope—for new opportunities and changed paths.
Legal basis for practice principle 3
While the principle of rehabilitation has early origins in the United States, today this practice principle is far more firmly rooted in international human rights texts and European jurisprudence.
Putting the principle into practice
“Roz, a college graduate serving 50 to life, was interviewed for a study at New York’s Bedford Hills. She told the interviewers that school ‘was a whole new world. I started surrounding myself with people of like minds. Because when I first came here I . . . had a chip on my shoulder that I wanted somebody to knock off . . . when I started going to college that was like the key point for me of rehabilitation, of changing myself. And nobody did it for me, I did it for myself.’”
~ “Inmates Find Self-Worth Through Prison Education,” PrisonEducation.com, 2014211
“[I]n the mornings, I attend a group called current events where we read an up-to-date article and give our opinion on that article. . . . Then we have a group discussion in which we can bring up any issues or topics a person thinks will get the group to start thinking. Some topics that have been brought up are money, family support, unity, and much more. . . . On Wednesdays, we have a town hall meeting where all the counselors, the unit manager, the lieutenant, mentors, and mentees gather together to talk about issues going on in the block and how we can resolve these issues. Other programs we started to attend throughout the week include reflections, conflict resolution, good intentions, bad choices, and money management. Doing all these programs really helps me look within myself and see what I need to work on before I get released.”
~ Jordan, prison resident at T.R.U.E., written for Vera Institute of Justice, “Connecticut’s T.R.U.E. Prison Program Offers New Beginnings,” 2017212
In order to foster people’s ability to grow and change, prison systems must give them the chance to enhance their capacity to do so or to exercise their ability to become more autonomous, especially given that most will be released into the community one day. Providing such programs and activities is not optional, and they must not be subject to elimination due to budget cuts or scarce resources. Making these opportunities available might include
- staffing prisons with case managers who can work with incarcerated people to develop joint case plans that include intermediate and long-term goals related to employment and education, behavioral and mental health needs, medical health care needs, and family responsibilities during and after incarceration;
- affording access to high quality education at all levels provided by qualified instructors, from literacy to postsecondary education, and including career and technical training oriented toward future occupational goals rather than institutional needs, as well as language instruction for English Language Learners;213
- supplying up-to-date reading material, including newspapers, textbooks, legal information, and recreational nonfiction and fiction books;
- offering behavioral health and mental health counseling, addiction and medical withdrawal treatment, and physical and cognitive disability assessment and therapeutic treatment;
- allowing incarcerated people to form clubs or affinity groups to share hobbies and discuss issues of interest;
- providing work opportunities and fair compensation for work performed—along with a fair wage, incarcerated people should have the means to save earnings and a mechanism to pay any financial obligations, such as victim restitution or child support, or send money to family;
- offering in-prison restorative justice programs that bring together people most affected by a crime to address the harm, hold the responsible person accountable, and support the well-being of those harmed;214
- allowing incarcerated people to exercise their right to vote;
- engaging incarcerated people in the creation and enforcement of in-unit rules; and
- ensuring access to all of the above in the primary language of the incarcerated person, including for people with auditory or visual disabilities.
Finally, people living in prison must be provided with reasonable access to justice. Prison systems must let people who are incarcerated exercise their autonomy by seeking redress for wrongs. This can be achieved by constructing a functional prison oversight system.215 Some of the components of the oversight system may include
- repealing or significantly modifying the Prison Litigation Reform Act in order to ensure that incarcerated people have access to the courts;
- developing fair and transparent internal grievance and complaint processes that are based in principles of procedural justice and, wherever possible, use a restorative justice model;
- instituting external inspections to proactively examine the treatment of people in prison;
- allowing for investigations into allegations of wrongdoing to be conducted by an inspector general or independent commission;
- requiring prisons to conduct “quality of confinement” surveys of people living in prison and act on the results;216
- expanding the use of the citizen oversight model—which already exists in different forms across the country—to engage and educate the public about both the successes of prison operations and the challenges of incarceration;217 and
- developing performance measures, including both policy reviews and outcome measures, that reflect the goals of a dignity-centered prison system and regularly reporting these measures to the public and the legislature.218
Achieving Human Dignity Today
“We can nevertheless respect human dignity by enabling the effort to struggle for it. We can provide help—with education, sobriety, anger management, parenting, wellness, and so on—even if the outcome is uncertain. Among those who are greatly disadvantaged, the struggle for dignity itself is intrinsically meaningful, both for them as they envision a better future for themselves and for their community, which will have done something more than abandon the poorest among them.”
~ Bruce Western, Homeward: Life in the Year After Prison, 2018219
Our vision of a system committed to human dignity is indeed a generational, audacious goal. We do not believe it can be achieved over the course of a few years. No corrections systems has the ready financial means, much less the human capacity and political support, to redesign entire prison facilities, introduce new training, recruit more staff, or provide the new types of services required.220 In that sense, a comprehensive human dignity-based model is a North Star.
However, we also believe that even if one could wave a magic wand and in 10 years’ time the American corrections system reflected the three principles we’ve enunciated above, we do not think that alone would be satisfactory. Three changes are essential. We must end mass incarceration, reducing the total prison population to a pre-1970s level of one person per 1,000 residents (or lower, if possible). We must end the practice of locating prisons in the remote rural periphery for economic gain. And we must end the practices that lead to disproportionate impact of incarceration on people of color. Put differently, we do not advocate for a prison and jail system of 2.2 million people, characterized by massive racial disparities, where people remain isolated from family and community, but which has human dignity at its core. These characteristics of our current system are also inimical to human dignity.
- System size. Efforts to date have stabilized the size of the prison population nationally, and in some places led to modest reductions.221 But far more is needed: from sentencing reform to scale back the volume of people sent to prison as well as reduce the extreme sentence lengths for some crimes that were put into place during the “tough on crime” era; to police reforms that reduce overall contact with law enforcement, especially for noncriminal infractions among urban residents; to reentry services that provide meaningful supports for those leaving prison. A smaller system allows for better quality control and permits the expenditures required to achieve things like higher pay, more training for corrections staff, and better-designed facilities.
- Rural siting. Second, we must reject further arguments to build prisons as a means of economic development for rural, depressed communities if we ever hope to reduce the isolation that so many people in prison currently experience. Little has been done to place prisons in regions closer to where the majority of the population originates, which in many cases would result in an increase in facilities closer to metropolitan centers. Such a move would place people in prison closer to family and friends, likely make access to community-based services easier, increase collaborations with a wider variety of local organizations and community groups who may be able to provide more extensive in-prison supports, and enable correctional facilities to hire officers from a greater pool of potential employees.222
The challenge is primarily an economic one: since 1980, the majority of new prisons built have been placed in rural areas, mainly to serve as a vehicle of economic growth—or at least slow economic downturn—in depressed locales.223 And, despite the lack of evidence demonstrating that prisons deliver a sustained economic boost to their hometowns, even when the prison population drops sufficiently to justify the closure of a prison, the political economy of many rural towns is such that continued financial straits and limited alternative development options may push them to support the continued operation of a local prison as the “least-worst economic development option” for the area.224 Until local economies reorient away from the corrections industry and toward more sustainable employment models, prisons in rural areas are likely here to stay.
- Racial disparities. Finally, we must address the pernicious use of prisons to lock up our nation’s people of color. A system that continues our racist history can never be considered truly reimagined, even if human dignity forms its basis. This will require efforts at every phase of the criminal justice system, which unjustly burdens particularly black Americans through the unequal enforcement of seemingly race-neutral laws, and further compounds their entanglement with law enforcement and the courts through the biases that seep into decisions made by police, prosecutors, judges, and juries.225
Despite the challenges of this aspirational goal, movement toward human dignity in America’s prisons is possible today. Every jurisdiction in this country—local, state, and federal—can take tangible steps to begin infusing human dignity into their correctional operations. This is already occurring. On five separate visits over the last five years, Vera and the Prison Law Office, together and separately, have introduced officials from at least a dozen states to several different Northern European corrections systems where human dignity plays a central role, with the aim of inspiring change in correctional approaches here.226 During each visit and in each country, the American delegations toured prisons, met with incarcerated people, and engaged with corrections leaders working within systems founded on the central tenets of resocialization and rehabilitation. The visitors witnessed firsthand systems that were oriented toward building the fundamental skills that incarcerated people would need in the community, including concrete training, education, and job skills, as well as opportunities to make decisions about their own lives, from the clothes they wore to the meals they prepared.227
Those who participated in these trips came back with a new outlook on the role and purpose of corrections. Many states have taken steps—both big and small—to infuse human dignity into their correctional facilities starting now.
- Leann Bertsch, the corrections director of North Dakota, left Norway with a resolution to “implement our humanity” and create conditions inside prisons that more directly related to outside life.228 The Missouri River Correctional Center in North Dakota—a facility that houses people convicted of lesser crimes or those approaching the end of lengthy sentences in the state’s maximum-security state prison—is now equipped with housing units that include up to 36 private rooms, each with toilets, showers, desks, real mattresses, and bulletin boards. Incarcerated people are free to close and lock their doors and wear civilian clothes. Through positive expressions of autonomy and responsibility, they can now earn more freedoms, like shopping excursions and day passes home. They can also serve on the resident committee and have input into the facility’s “Phases System” and, depending on where they are in these phases, they may be permitted to walk a network of trails without accompaniment, ride bikes on the property, shop online for groceries and prepare their own food, take escorted trips into the community for social interaction or to obtain job services counseling, and earn passes to leave the facility unescorted for overnight visits home. The facility also scaled up an existing work-release program so more men could be employed in meaningful jobs outside of prison prior to release.229 People coming out of solitary confinement spend time in a new behavioral therapy unit in order to transition back to the general population.230
- John Wetzel, Pennsylvania’s corrections director, attributes his changed attitude to corrections to his trip to Germany and the Netherlands: “We talk more now about the humanity of inmates, and the impact of harsh environments on both staff and inmates.”231 Following Wetzel’s trip, Pennsylvania launched new transitional housing units that focus on normalization and reintegration. Residents of the units are given access to enhanced reentry services, more individualized need-based support, and specialized vocational programming in high-demand fields.232
- After a visit to Norway in 2016, Idaho Corrections Director Kevin Kempf said, “We came back totally converted,” and he is committed to reforming prison practices to better reflect community norms and expectations.233 While Idaho hasn’t yet launched a new unit or developed a new program, it has taken many small steps that serve to recognize the humanity of its incarcerated people and corrections staff. Idaho has reduced its use of solitary confinement and has created robust incentive systems to reward positive behavior among the incarcerated population. Prison administrators have also allowed staff and incarcerated people to invite their families to meet one another, repainted cafeterias and dayrooms, and replaced metal and plastic chairs with throw rugs and couches.234
A human dignity pilot in Connecticut—and beyond
Nowhere is the impact of these European visits more apparent than at the Cheshire Correctional Institution in Connecticut. Inspired by how the German prison system treats young adults aged 18 to 25, the Connecticut Department of Corrections (CT DOC) established the T.R.U.E. program in early 2017 with assistance from Vera. The program’s name, developed by residents of the unit, is an acronym for Truthfulness (to oneself and others), Respectfulness (toward the community), Understanding (ourselves and what brought us here), and Elevating (into success). In Germany, young adults are often adjudicated as juveniles and, if incarcerated, are separated from the rest of the adult population. Building on this model, T.R.U.E. is a therapeutic unit for young men that focuses on developing their sense of self, autonomy, and responsibility, and keeps a clear focus on preparing for life after prison. This undertaking has required a firm sense of purpose and a commitment to stay the course from CT DOC, which decided to implement this approach not with its most rule-abiding population, but with its most disruptive group: within the state prison system, the highest number of behavioral infractions and violence stems from those aged 18 to 25.
The T.R.U.E. unit exemplifies many of the practice principles set out in this report, and it serves to demonstrate not only that a corrections system can prioritize human dignity as a central value, but also that such a practice can lead to transformational results.
The first practice principle—respect the intrinsic worth of each human being—is at the core of the unit’s existence. The T.R.U.E. unit strives to cultivate a sense of community and camaraderie between staff and the young adults. In T.R.U.E., officers and young men shake hands, play cards, tell jokes and, above all, respect and support each other. Mentorship is key to the unit’s model. A group of older men who are serving life sentences act as mentors to the young men. The mentors live in the unit among their mentees and work together with the staff to develop and lead therapeutic programs. They also work with staff and mentees to establish and enforce agreed-upon rules and multiple systems of accountability. Together, the staff, mentors, and mentees have created an atmosphere of kindness, compassion, and trust—one that recognizes the intrinsic worth of each person who lives or works within its walls.
Unlike in the other units inside the same prison—where officers and young men alike describe an “us versus them” environment, where “tans” (the incarcerated) are always wrong and the “uniforms” (the officers) are always the “bad guys”—the T.R.U.E. unit elevates and supports the development of personal relationships—this report’s second practice principle. This has had a profound impact not only on the mentees and the mentors, but also on the staff—corrections officers and counselors—who work with the men day in and day out. All of the staff who work with T.R.U.E. volunteered for the role, taking what the warden described as the “biggest risk in their career,” swimming against long-established institutional culture and a certain level of fear. Staff received specialized training on topics like family engagement, conflict resolution, motivational interviewing, and mediation. The staff members—many of whom had a dozen or more years of experience working in other units in Connecticut—admitted they had themselves experienced trauma and extreme stress over years of violence, recidivism, and difficult working conditions. On the first anniversary of the T.R.U.E. program, staff and counselors described openly their deep feelings of care toward the men, the pride they took in their work in the unit, and the joy they had in coming to work each day. This change in their attitude toward work has made them better employees, better friends, and better parents.
The unit’s commitment to supporting personal relationships extends to proactively taking steps to involve mentees’ families in the prison experience and helping to build those fundamental connections. This starts with an orientation night for family members where staff explain the T.R.U.E. program, what to expect, and the role they hope family will play during a family member’s term in prison. When family members visit, they are allowed to sit side by side with their loved one, and mentees are encouraged to hold their children and embrace their family members—actions usually prohibited by typical prison visiting rules. Staff and mentors are also encouraged to mingle throughout the visiting period to meet the families, talk about how the mentees are doing, and establish genuine relationships.
This report’s third practice principle—respecting a person’s capacity to grow and change—underlies the bulk of the activities that take place in the T.R.U.E. unit. The programs and sessions attempt to give young adults an opportunity to establish an adult identity that is based on a deep awareness of their relationships with others and society. This approach attempts to generate in the young men a sense of self-worth and individual and social responsibility, and to encourage and prepare them for responsible action within society after release. Some salient manifestations of this approach in the T.R.U.E. unit include the following practices:
- The day begins and ends with a healing circle in which staff and incarcerated people participate. These circles are based on principles of restorative justice and require each participant to share at least one word describing his thoughts or feelings at that time, and they place incarcerated people and staff on equal footing in sharing their experiences. At these circles, issues of importance to the community often surface and are dealt with throughout the day. These circles become places in which participants can share individual-level stresses or hurts, as well as those that affect the full community. Young men often share anxieties or sadness about visits with family or other common hardships of incarceration, about which other participants, mentors, or staff then reach out to check in or offer support throughout the day.
- For 13 hours each day, cell doors are open and the young adults are free to be in the common space, a dedicated outdoor area, or one of many converted cells within the housing unit that serve as a library, study room, meeting room, and quiet space. Their day is heavily structured—filled with therapeutic sessions, school, and life-skills programs.
- The mentees are expected to hold themselves and each other accountable. When traveling to the other parts of the prison for work assignments, school or college, or to see visitors, young men in the T.R.U.E. unit wait at the “bus stop,” where a corrections officer is ready to escort them to the other part of the facility. If a young man does not arrive at the “bus stop” on time, he misses the activity for the day and, if he misses on too many days, may lose the opportunity altogether. This is in direct contrast with movement strategies in other units, where individuals are called out of their cells for their required activities. While it is rare for someone to “miss” work in these other units, neither do the incarcerated men within them build a sense of responsibility about meeting obligations.
- Behavioral issues are also dealt with differently at T.R.U.E. If a mentee acts in a manner that is inconsistent with the unit’s policies and rules, he works with his mentor and a counselor to create a “corrective action plan.” This is developed in collaboration as a suitable response to the level or seriousness of the transgression. T.R.U.E. does not force anyone to change. Instead, it creates the circumstances and environment in which change is possible.
- As part of its commitment to restorative justice, staff and residents in T.R.U.E. have also delved into the history of racial oppression in the United States and its connections to mass incarceration. Having frank discussions about race inside an American prison between staff and incarcerated people encapsulates the unit’s achievements, in the warden’s view. In other units, these discussions would have been avoided for fear of violence, but in T.R.U.E. they were met with respect and openness.
Other jurisdictions are also joining the movement to reimagine the purpose of young adult confinement from punishment and retribution to accountability, restoration, and healing.
The framework under which the T.R.U.E. unit operates—including the structure of the mentor/mentee units, the programs and groups offered during the day, the physical alterations to the unit, and the time in and out of locked cells—was developed as a collaboration between incarcerated people, corrections officers and counselors, administrators, and Vera staff. During these planning sessions, staff and incarcerated people engaged in healing circles. During one of these sessions, a formerly hardline corrections officer overcame one of the fundamental barriers to operationalizing human dignity in prison when he asked the incarcerated men to see him, too, as a whole person and to meet him at the start of this project as someone who is capable of change. A truly dignity-based system recognizes the integrity and capacity of every person within its walls—a commitment that must go both ways. In the year since, this officer has undergone a radical shift in his view of himself within the corrections system. The difficulty he experienced in asking for acceptance during the planning stages and the professional and personal growth he has experienced since has become emblematic of the changes underway in Connecticut and the benefits that can come from such efforts.
Inspired by the success of its T.R.U.E. program—where CT DOC has witnessed striking results across measures of safety and wellness for both young adults and staff in the unit—Connecticut opened a similar unit in May 2018 at York Correctional Institution, the state’s only prison for women, and plans to create another one at Cheshire.235 Other jurisdictions are also joining the movement to reimagine the purpose of young adult confinement from punishment and retribution to accountability, restoration, and healing. In the fall of 2017, Vera began a partnership with the Middlesex County Sheriff’s Office in Massachusetts, which has since opened a similar young adult unit in its jail in February 2018. Shortly after that, through a competitive application process, South Carolina was selected to join these partners in transforming custody for young adults.
Though T.R.U.E. is an enormously promising model, it does not completely reimagine prison in the way this report envisions. The unit, however altered, is a slightly renovated wing of a prison. It still looks and feels like prison. Only one age group is eligible for its benefits—an advantage that doesn’t go unnoticed by the rest of the prison’s population. The people in the unit still wear uniforms, and the food and hygiene products that are offered remain the same as those offered to the rest of the prison. But it is emphatically a place to begin.
“[F]or me, the great evil of American slavery wasn’t involuntary servitude. It wasn’t forced labor. It was this ideology of white supremacy, this narrative of racial difference where black people were perceived as not human, not fully evolved, not the same as other people. And I think when we passed the 13th Amendment, in 1865, we expressly ended involuntary servitude and forced labor, but we didn’t say anything about this narrative of racial difference and because of that, slavery didn’t end. It evolved.”
~ Bryan Stevenson, founder of the Equal Justice Initiative, the National Memorial for Peace and Justice, and the Legacy Museum, interviewed by Michel Martin, “Peace and Justice Memorial Seeks to Make Horror of Lynching Understood,” National Public Radio, 2018236
Our country has a long history of using prisons to warehouse particular segments of the population—particularly racial and ethnic minorities—in ways that create and reinforce the fundamental divide between “us” and “them.”237 Although ostensibly this separation is between those who comply with the law and those who do not, the unambiguously racial and ethnic character of imprisonment in the United States both yesterday and today reflects the outsized influence that our legacy of slavery and racial oppression has played in determining who is impacted by the criminal justice system.238 Prisons in America operate as both a central mechanism to maintain inequality and a locus where people are meant to experience their inequality in ways that further underscore their outsider status—best exemplified in the sort of conditions of confinement that perpetuate what judicial officers have described as “soul-chilling inhumanity.”239
With this report, we break our silence about the connections between our troubled history and our use of prisons. Leveraging the convergence of a movement for criminal justice reform and increased consciousness about racial and social injustice, we bring to the fore a focus on how people are treated behind prison walls. We see, through an examination of current prison conditions, that the fundamental experience remains one of hardship, isolation, and dehumanization. A radical change is needed—not only to disrupt the habit of current practices, but also to break with historical legacy. We call on ourselves and others to reshape the practice of imprisonment by grounding it in the foundational principle of human dignity.
We call on ourselves and others to reshape the practice of imprisonment by grounding it in the foundational principle of human dignity.
Grappling with these issues and charting a course for change takes courage, determination, and compassion. While certain broad conditions may be necessary to completely transform corrections practice, we are today joining partners and working towards building a system consistent with a vision of human dignity. The T.R.U.E. unit in Connecticut is just one example of how change need not wait until the ideal conditions of reform are met. Through this report, we provide an aspirational vision and a blueprint for concrete reforms—which systems can consider, debate, and experiment with today, with the hope that by laying the necessary foundation of human dignity something new and wholly different will come tomorrow.
But this work must go beyond the corrections field. This is an American issue, and one that all Americans should care about. To truly effect radical change will require all of us to take action, not just those who administer and work in our nation’s prisons. Policymakers, advocates, the media, criminal justice system stakeholders and even members of the public must join together to shine a light on these practices and to say, once and for all, that they cannot stand.