Unfair (27 page)

We would very much like to believe that superstition has no place in our courthouses and that we are never driven by blood revenge. We would like to think that we take no pleasure in punishment.
We want to believe that feelings of warmth toward our fellow man always outweigh feelings of disgust and hatred—that, in the words of Nelson Mandela, “deep down in every human heart, there [i]s mercy and generosity” and that “love comes more naturally to the human heart than its opposite.” Mandela's words resonate because this is what we want to hear. But the reality of the matter sounds in dissonant chords.

It is true that, in the West, we no longer have public executions—for pigs or humans. It is true that we no longer break people on the rack or draw and quarter. But are we “better angels” on the inside, or have we merely constructed elaborate structures that camouflage the retributive drives within us? When we look closely at the
effects
of our punishments—the topic of the next chapter—we may find that our practices are not as enlightened as we might hope. What does our penal system actually do to people and for people—criminals, would-be offenders, victims, everyday citizens? Do we end up delivering payback to those who most deserve it? Does the suffering we dole out in the name of justice actually encourage people to swear off crime? Does it leave us safer?

Eastern State Penitentiary is known today, first and foremost, for its premier haunted house. People line up down the block.
It runs for weeks around Halloween, and purchasing advanced tickets is advisable.
Each year it's meant to be a little more frightening—“Darker. Bloodier.
Terror
like you've never felt,” according to the website.
In 2013, the prison began offering visitors the option of being grabbed by the sadistic guards, deranged doctors, and murderous inmates who lurk about the eleven-acre compound.
For an extra $70, there is even a VIP tour that includes a guided visit to death row, Al Capone's cell, and the underground punishment block.
The “special Terror Behind the Walls LED flashlight” is included in the cost of admission.

Amidst the bars and bistros of Fairmont Avenue, the penitentiary, with its turrets and immense stone walls, seems strikingly out of place—a relic more fitting for a strategic medieval crossroads than the stroller-filled streets of modern Philadelphia. It is hard to imagine that the crumbling ruins and derelict cells once held men who could not wipe off the makeup and head home at night's end. But while the body has decayed and been repurposed, the spirit of Eastern State is more alive than ever, animating our current approach to punishment in the United States.

It may have been foreordained that Philadelphia's first European settlers would take the lead on corrections.
Pennsylvania was, after all, the creation of a convict.
Before setting off for the New World, the great William Penn achieved the unenviable distinction of having roomed in both the Tower of London and Newgate Prison.
And many of his fellow Quakers—reluctant immigrants fleeing persecution—were all too aware of the ineffectiveness of English punishment and the suffering it caused.

As a result, the early penal code that Penn adopted sought a new path, largely eliminating the harsh corporal and capital punishments of England in favor of more civilized imprisonment. By the mid-eighteenth century, however, this noble vision had devolved into a detestable reality.
While the lash had been effectively abandoned, the conditions of incarceration in Pennsylvania had grown squalid, overcrowded, and disorderly. It fell upon a new generation to reinvigorate Penn's legacy.
Operating as the Society for Alleviating the Miseries of Public Prisons, these disciples—Philadelphia icons like Benjamin Franklin and Dr. Benjamin Rush, the father of American psychiatry—pushed through a series of reforms culminating in the building of what was arguably the world's first fully realized penitentiary, Eastern State.

The key innovation was solitary confinement.
After touring Eastern State on behalf of the French government in 1831, Alexis de Tocqueville and Gustave de Beaumont explained the rationale in stark terms: “Thrown into solitude…[the prisoner] reflects. Placed alone, in view of his crime, he learns to hate it; and if his soul be not yet surfeited with crime, and thus have lost all taste for any thing better, it is in solitude, where remorse will come to assail him.”

The first inmate at the prison was Charles Williams, admitted on October 25, 1829.
He had light black skin, a broad mouth, and a scarred nose.
He was a farmer by trade, but he could read.
And he had been convicted of burglary—coming away with a twenty-dollar watch, a gold seal, a gold key.
He was received by the first
warden, Samuel Wood, who examined Charles from head (eyes: black) to toe (foot: 11 inches) and then watched as a hood was lowered over his carefully mapped face.

The hood was a critical component of this monastery of compulsion, designed to prevent communication, interaction, and knowledge of the surroundings.
Whenever Charles was led from his cell, it would be in this hood.
And when it was removed for the first time, he saw what lay ahead for the next twenty-four months of his life: whitewashed walls, an iron bedstead, a stool, a rack for clothes, and supplies for eating and cleaning. He was left alone. And so began the regimen of solitude: no chats with fellow prisoners or visits from children, no news of the world outside the walls, no whistling.
He occasionally interacted with the prison staff, but even here there were rules.
Charles was no longer Charles; he was addressed as “ONE”—the number sewn onto his clothing and hung over the door of his cell.

To contemporary reformers, this was not torture; indeed, it was the opposite. If the standard prison was a place of pointless suffering and cruelty—a refuse heap for the discarded to rot—the penitentiary, by contrast, was an institution of purpose, designed to cure the criminal and deter the future offender.

That did not mean coddling the inmate—far from it. Incarceration was designed to be exceedingly unpleasant: after all, inflicting extreme misery could be quite effective in discouraging criminal behavior. But barbarism was out.
The interior of the prison, with its vaulted cellblocks and skylights, showed that this was not some medieval dungeon but a beacon of progress.
At a time when the president of the United States had no running water in the White House, prisoners at Eastern Penitentiary had flush toilets and central heating.

The modern prison had arrived.

It is interesting to think what Tocqueville—who described Philadelphia, in 1831, as a city “infatuated…with the penitentiary system”—would say today about the City of Brotherly Love, or these broader United States.
America accounts for less than 5 percent of the world's population, but almost a quarter of all prisoners.
Some 2.3 million individuals are behind bars across the country, and in excess of 6 million are under “correctional supervision”—more, by far, than in any other nation.
Even at their height, the Gulag labor camps never came close to the number of our citizens currently on probation, in jail or prison, or on parole.
Take one hundred thousand Americans, and 707 of them are languishing in a cell.
By contrast, 284 out of every hundred thousand Iranians are locked up, 118 out of every hundred thousand Canadians, and only 78 out of every hundred thousand Germans.

A country that abolished slavery 150 years ago now has a greater number of black men in the correctional system than there were slaves in 1850 and a greater percentage of its black population in jail than was imprisoned in apartheid South Africa. Black, male, and no high school diploma?
It's more likely than not that you will spend time in prison during your life.

Although there are many factors behind America's high incarceration rates, the ever-expanding list of criminal violations and the harshness of our sentencing are front and center.

When Illinois's criminal code was updated in 1961, it was 72 pages, but by 2000 it had grown to 1,200 pages.
Illinois is no anomaly: in every state, we imprison people for relatively minor, nonviolent crimes—like using drugs or passing a bad check—that would receive a slap on the wrist in other countries.
While no more than 10 percent of those convicted of crimes in Germany and the Netherlands are sentenced to prison, in the United States it's 70 percent.
We also hand out much longer prison sentences than in other parts of the world.
Burglarize a house in Vancouver, and on average you can expect five months in a Canadian facility.
But drive an hour south to Bellingham, Washington, and commit the same offense, and you'll spend more than three times as long in prison. The same pattern is true for serious crimes.
In Norway, for example, no one can be given a sentence of more than twenty-one years, while in the United States we regularly lock people up and throw away the key.

Unlike many of our European counterparts, we also have all sorts of penalty enhancements and mandatory rules that can turn a seemingly small infraction into decades in prison.
Forrest Heacock shared cocaine with three other people at a party, one of them accidentally overdosed and died, and Heacock was sentenced to forty years in jail for felony murder.
Leandro Andrade shoplifted nine children's videotapes and received a sentence of fifty years to life because, twelve years earlier, he had been convicted of three counts of residential burglary.
In California, the law said three strikes and you're out, even if that third strike was walking out of a Kmart with a copy of
Cinderella
tucked into your waistband.
When the U.S. Supreme Court reviewed Leandro's case, in 2003, they said there was nothing cruel and unusual about his sentence. In many other countries the highest courts would have disagreed.

Our exceptionalism extends to the particular way we punish.
While the United States is the only Western country to carry out capital punishment, what may set us apart even more is our embrace of solitary confinement. The practice was largely abandoned in the United States during the nineteenth and twentieth centuries, but over the last three or four decades we have found our way back to the model of Eastern State.
Today, solitary confinement is widespread in American prisons, with more than eighty thousand people kept in isolation.

There are some positive recent signs that the gulf between America's correctional system and those of other industrialized democracies may be narrowing, at least slightly.
Although there was a steady upward trend in the number of incarcerated Americans starting in the early 1970s, the prison population has actually
dropped a little since its peak in 2009.
Part of this reflects the ratcheting back of mandatory minimum sentences, expanded opportunities for inmates to apply for clemency, and efforts to reduce harsh charges for minor, nonviolent drug offenses.
Other efforts at the state and federal levels have gone toward diverting more potential prisoners to treatment programs, releasing elderly prisoners who no longer pose a danger to the public, and eliminating the automatic parole-violation triggers that can send people back to prison for minimal infractions.
In California, the harshest aspects of the three-strikes law were repealed—the third offense must now be a serious or violent felony for the law to come into play.

These are all important steps, but we need to realize that they were influenced by a unique confluence of events, including a precipitous drop in crime rates and a severe recession that left government officials scrambling to reduce costs. There is no guarantee that these trends will continue. Moreover, given the starting point, the absolute amount of progress is quite small.
There are still five times as many inmates in state and federal prisons as there were in 1978.
Three-strikes laws are still on the books in many states, including California. And although, today, shoplifting cannot send a man to prison for the rest of his life, these laws are far from lenient. If Leandro had stolen the videotapes by sticking his finger into the pocket of his sweatshirt and pretending to have a gun, the new reforms would have done him no good at all.

The truth is that we're not going to make much more progress until we realize that we are just as ignorant of the effects of our punishments as we are of what actually drives us to punish. Our favored tools of mass incarceration and solitary confinement do not do what we think they do. And we remain wedded to the same mistaken theories espoused some two hundred years ago by the Society for Alleviating the Miseries of Public Prisons.

Now, as then, the prisoner and potential prisoner are viewed
as rational beings who make decisions to offend based on a cost-benefit analysis.
To decrease crime, the thinking goes, you just need to increase the magnitude of the punishment until violating the law no longer seems to pay. The more distasteful the punishment—that is, the more we deprive criminals of the things that they normally enjoy—the less likely a person will be to choose to offend in the future. Harsh treatment is acceptable because it's directed only at people who deserve it in proportion to their wrongdoing. However, as moral individuals, we understand that we shouldn't cause a prisoner physical pain, which rules out various forms of abuse at the hands of the state. Tough prison sentences, then, are the optimal approach to punishment because they act as a strong deterrent without forcing us to “mistreat” the prisoner. They also provide a ready means for incapacitating people who just don't respond to the threat of being locked up. Prisoners who are uncontrollable are never let out; the rest, we can feel confident, will now steer clear of crime, knowing how unpleasant it is behind bars.

Put simply: our prisons are humane; our punishments are deserved; and our system makes us safer. That's what Eastern State's progenitors proclaimed, and that's what we believe. And we are dead wrong.

What is solitary confinement actually like?

To get a sense, walk into your bathroom, shut the door, lie down in your bathtub, and close your eyes. When you reopen them, imagine that this is where you will spend the next five years of your life. Take a look at your new kingdom.

Wake up in the morning and the fluorescent lights are already on, just as they have been all night.
Roll from your bed and you can touch the walls—off-white or white.
It may be thirteen by eight, or eight by ten, or fourteen by seven, but take a step and you touch the walls.
There are no windows, but maybe you get a slit.
There is a toilet and a sink.
This is where you sit for twenty-three hours each day for weeks and months and years on end.
You get taken out only to shower and, on certain days, for a bit of movement in a slightly bigger cage—a narrow dog run.

In Maine, no radios or televisions are permitted.
At California's Pelican Bay, those in solitary get a personal phone call only in the case of emergency.
It is a bit softer in the Departmental Disciplinary Unit of the Walpole prison in Massachusetts: a radio after thirty days, a thirteen-inch black-and-white television after sixty, and up to four calls a month, if merited by good behavior.
Human contact is virtually nonexistent.
The doors are often solid metal, preventing you from talking with other inmates.
For many, the opening of the door slot for the guard to push through a food tray is it for the entire day.
If you want to feel a human touch, your only real chance is to break the rules—block out the lights to sleep or cover the opening in the door, and you can expect an “extraction.”
Officers with shields and helmets will rush into your cell, pin you to the ground, and shackle your arms and legs.
Your clothes may be cut off your body as they kneel on your legs and back.
You may then be strapped naked to a restraint chair.