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On June 29, 2006, in the case of Hamdan v. Rumsfeld, the U.S. Supreme Court granted habeas corpus protection to prisoners held by the American military at Guantánamo Bay. The court ruled that the military commissions created by the Bush administration to hear detainees’ cases violated the Geneva Conventions. It recognized that international law requires a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples,” and forbids treatment of prisoners that is “inhumane,” “humiliating,” “degrading.”
One day earlier, in Beard v. Banks, the court had ruled that prisoners in the highest-security unit of Pennsylvania’s State Correctional Institution in Pittsburgh do not have a First Amendment right to newspapers, magazines, and personal photographs.
The Hamdan decision was rightly celebrated by human-rights advocates, but the previous day’s decision received virtually no attention. The oversight is unfortunate. Domestic prison cases often portend future legal developments: past Supreme Court decisions about which punishments count as cruel and unusual-and which do not-were cited in the torture memos that prepared the ground for Abu Ghraib and Guantánamo. Although decisions about the rights of prisoners get little public attention, they have a powerful effect on the policies of penal institutions, both in the United States and in other countries that are either willing or unwilling recipients of our attention. In this light, Beard v. Banks demands our attention.
• • •
The most harrowing pages of Narrative of the Life of Frederick Douglass (1845) are those that cover the ban on reading, the withholding of knowledge from slaves. To be shut up in mental darkness was to be turned into a brute. Describing how his mistress, Mrs. Sophia Auld, changed from angel to demon, Douglass recalled: “Nothing seemed to make her more angry than to see me with a newspaper. She seemed to think that here lay the danger.”
In April 2000, the Pennsylvania Department of Corrections (DOC) decided to increase its control over prisoners held in level two of its Long Term Segregation Unit (LTSU-2), by initiating extreme restrictions on reading. Prison officials had decided that newspapers could be dangerous, and not only for the reasons Douglass had implied. LTSU is reserved for the “most incorrigible” and “recalcitrant” inmates, and, at the time, LTSU-2 housed the worst of these intractable prisoners, who were categorized as threatening to inmates and correctional officers or belonging to a “Security Threat Group” or other unauthorized organization.
Prisoners in LTSU-2—never more than forty at a time—were isolated 23 hours a day in their cells, denied radio and television broadcasts, and prevented from earning a GED (General Education Diploma) or taking special education classes. They ate alone and could not make telephone calls except in emergencies or when related to legal representation. Unable to speak or socialize directly with other inmates, they stared at the unpainted, concrete, and windowless walls onto which nothing could be posted. Except for the occasional touch of an officer’s hand as they were handcuffed and chained to leave their cells, they had no contact with other human beings. Although prisoners could “graduate” out of LTSU-2, the duration of their stay—beyond the minimum requirement of ninety days—was at the discretion of prison administrators, and most did not graduate. In this already severely restricted environment, the new DOC policy categorically prohibited access to magazines, newspapers, or books, except paperbacks from the prison library—called “leisure books” in “LTSU Rules and Regulations”—and books of a legal or religious nature.
Prison officials offered two reasons for this sweeping restriction of prisoners’ First Amendment rights. Newspapers, they said, could be wound up, turned into projectiles, used as night sticks, and deployed to make fires and hide contraband. Moreover, these officials argued, the deprivation of personal photographs and secular periodicals serves the goal of rehabilitation. Prisoners like to read about current events and look at photographs of their loved ones. Take these things away, the theory went, and recalcitrant prisoners, those “who have few other privileges to lose,” would behave.
In October 2001, Ronald Banks, serving a life term for murder, challenged the new policy on behalf of himself and other prisoners in LTSU-2. He questioned the policy’s constitutionality after correctional officers refused to deliver his Christian Science Monitor.
Do prisoners have a free-speech right under the First Amendment to read secular newspapers and magazines? Or should such reading material be a privilege granted at the discretion of prison officials? Prisons are special institutions: they exist for the sake of deterrence and incapacitation; they have their own requirements of security and order; and they are run by officials who have professional expertise as prison administrators. But do First Amendment rights stop at the prison gates, making prison administrators the sole guardians of those rights?
For most of those—legal professionals and citizens alike—who pay close attention to the Bill of Rights, the answer is no. Even Pennsylvania’s Senior Deputy Attorney General, Kemal Mericli, who was deeply involved at every stage of the case as it made its way through the courts, acknowledged the dangerous territory he was treading in an interview with me in July of this year:
“I conceded that prisoners should have access to media . . . .But there has to be a control mechanism—since all these people have gotten into this position based on the wrongs they’ve done. A certain amount of punishment is to be expected. Control is necessary. What are the limits of that control? . . It’s my opinion, based on my reading of the law, that an inmate has a First Amendment constitutional right to have access to newspapers and periodicals. . . . Is it possible, by shifting him to a high security unit, to deprive him of this right? Only in that context could one conceive of such a deprivation.”
Yet Justice Clarence Thomas, who concurred in the majority opinion, would not concede even this much in the court’s final decision.
The Supreme Court’s effort to navigate this territory—to define the rights of prisoners and the limits of legitimate regulations—began more than 30 years ago, with a case involving personal correspondence. In Procunier v. Martinez (1974), the Court held that the First Amendment did not allow administrators to censor prisoners’ personal mail. The majority opinion took prison officials to task for failing to show how the regulations furthered a reasonable penal interest in security or rehabilitation: how, they wondered, could certain kinds of expression used in letters—notably complaints and grievances—lead to riots, and how might this “suppression of complaints” lead to rehabilitation?
In his concurring opinion, Thurgood Marshall argued that “prisoners are . . . entitled to use the mails as a medium of free expression not as a privilege, but rather as a constitutionally guaranteed right,” and that censorship fosters “an artificial increase of alienation from society.” He concluded that the First Amendment protected the needs of “the human spirit—a spirit that demands self-expression.” Such an affront to dignity could not be tolerated: “When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end.” Justice William Douglas put it more starkly: “Prisoners are still ‘persons’.”
In Turner v. Safley (1987), the court again acknowledged prisoners’ “human quality” in recognizing their right to get married. But here the court went further, setting forth a general standard for rules that restrict inmates’ constitutional rights: “when a prison regulation impinges on inmates’ constitutional rights,” the Turner opinion read, “the regulation is valid if it is reasonably related to legitimate penological interests” (emphasis added). In order to establish the reasonableness of prison officials’ actions, the court asked “whether there is a ‘valid rational connection’ between the prison regulation and the legitimate government interest put forward to justify it.” Three other factors were considered in determining the reasonableness of a particular regulation: whether there are alternative means of exercising the right that is open to inmates; the effect on guards and other inmates of accommodating an asserted constitutional right.; and the absence of ready alternatives to the regulation. In the case of inmate-to-inmate mail regulations, the majority decided that, to the extent that prison administrators thought it necessary, these restrictions were valid.
One week after Turner, Chief Justice William Rehnquist, writing for the majority in O’Lone v. Shabazz (1987), decided that Jum’ah, the Friday assembly for Muslim communal prayer, though central to the religion’s practice, was not important enough “to sacrifice legitimate penological objectives to that end.” According to Rehnquist, Muslim inmates had other ways to express their faith. Ignoring the particularity and indispensable nature of Jum’ah, he presented a list of alternatives, such as early breakfast and late dinner during the month of Ramadan and observance of Muslim dietary restrictions. For a Muslim, however, these are not optional substitutes. All are required. But, unlike other rituals that can be performed individually, Jum’ah is not only obligatory, it must be performed in congregation.
Justice William Brennan, joined by Marshall, Blackmun, and Stevens, dissented. They complained that officials had not demonstrated how observance of Jum’ah threatened prison security. They were especially troubled by the use of “reasonableness” as a uniform standard for constitutional challenges by inmates: surely a rule that, for example, prevents prisoners from reading at all should be subject to a more demanding standard than a rule restricting the times when prisoners can go to the library. As Brennan explained, “The Constitution was not adopted as a means of enhancing the efficiency with which government officials conduct their affairs, nor as a blueprint for ensuring sufficient reliance on administrative expertise. Rather, it was meant to provide a bulwark against infringements that might otherwise be justified as necessary expedients of governing.”
For Brennan, rights matter even for those whom, he admits, “most of us would rather not think about.” Though they exist “in a shadow world,” perhaps, prisoners come into the light when they make a constitutional claim. And when they do, Brennan observes, “they invoke no alien set of principles drawn from a distant culture.” The Bill of Rights, and especially the First Amendment, replenishes to some degree the personal identity that prison takes away. Even Justice Sandra Day O’Connor, in the majority opinion in Turner, warned, that prisoners’ rights must be considered: “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”
In 2003, in spite of these decisions, the Rehnquist Court turned a deaf ear to inmate First Amendment claims. In Overton v. Bazetta, the court unanimously upheld broad restrictions on inmate visitation rights. Here, the justices shifted the emphasis away from prisoners’ rights and toward theories of suitable punishment. In a concurring opinion, Justice Thomas was particularly forceful on this issue. For the condemned, he argued, the general principles of the Constitution must be narrowly interpreted. The force of Thomas’s opinion lies in how it dismantles, step-by-step, earlier cases that had preserved some rights for the incarcerated. For Thomas, a guilty verdict removes nearly all rights upon imprisonment. Criminality is the bane. Deprivation is due. “Rather than asking in the abstract whether a certain right ‘survives’ incarceration, the court should ask whether a particular prisoner’s lawful sentence took away a right enjoyed by free persons.” Thomas then focuses on the history of the American penitentiary. Nineteenth-century practices of what he calls “imposed isolation,” once recognized as harmful, humiliating, and cruel, he reclaims as models for the court.
Granting “substantial deference” to the prison officials’ professional judgment, the court denied a re-hearing about regulations limiting prisoner visitation. In the majority opinion, Justice Anthony Kennedy wrote that these “restrictions did not violate the asserted First Amendment right to freedom of association or the Eighth Amendment prohibition against cruel and unusual punishment.” The decision upheld a regulation that barred prisoners who had twice committed drug infractions from any family visits, including non-contact visits, for at least two years.
What alternatives to visits from loved ones are available to inmates? They could write letters. Or if that did not work, since many inmates are illiterate (approximately 40% of the national prison population is functionally illiterate), they could make phone calls. But those are limited to a few minutes and are costly: the exorbitant rates resulting from kickbacks paid to state correctional facilities can force family members to pay up to a 630% markup over consumer rates for collect calls. “Alternatives to visitation need not be ideal, they need only be available,” the court declared in Overton. In concurring with Justice Kennedy’s opinion, Justice John Paul Stevens with Justices Souter, Ginsburg, and Breyer, reminded the Court that the decision, in spite of its triumph for prison officials, did not break with O’Connor’s warning in Turner. They repeated her words: “‘Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.’”
• • •
On October 22, 2003, the Philadelphia-based Third Circuit Court of Appeals heard oral arguments in Banks v. Beard. Jere Krakoff, a well-known civil liberties lawyer, represented Ronald Banks and the other prisoners; Senior Deputy Attorney General Mericli represented Pennsylvania. They appeared before Judges Julio M. Fuentes, Max Rosenn (a Roosevelt appointee who died while still in office, on February 7, 2006, at 96), and Samuel A. Alito, Jr. In our recent telephone interview, Mericli clarified the question that most mattered to him at the time: “Could we satisfy one burden of proof by calling on a deputy warden and relying on his claims that the regulation is reasonable?”
Judges Fuentes and Rosenn were shocked by such an amorphous and apparently ill-defined test. They pushed Mericli hard to clarify the Pennsylvania Department of Corrections’s draconian policy that deprived inmates of access to newspapers, magazines, and personal photographs. Mericli sent me tapes of the oral arguments, even though he was the target of Fuentes’s and Rosenn’s dissatisfaction, not to say exasperation. The judges clearly shared Krakoff’s concern about the dangers implicit in such a sweeping restriction of prisoners’ First Amendment rights. Didn’t Pennsylvania have other ways of achieving its aims? How did prison officials define “religious” as opposed to “secular” Why permit The Christian Science Monitor Magazine but not The Christian Science Monitor? “But if religious material is also a part of First Amendment rights,” the judges asked, “why deprive them of regular reading material?” Mericli answered: “We think that they are not so depraved as to fling human waste with the Koran or set fire to the Bible.” Krakoff intervened: “But I’m Jewish, and we used the Jewish Daily Forward to wrap up and throw out garbage.” More damning, however, was Rosenn’s pressing question to Mericli: “Do you have any evidence that ratcheting up the deprivation corrects behavior?” Mericli replied: “We don’t, but we have an expert opinion by a recognized authority. That’s all we need, according to Overton v. Bazetta.”
Siding with the prisoners, the court found no reasonable relationship between the ban on newspapers and photographs and any “legitimate penological interests of rehabilitation and security.” In their opinion, the policy did not meet Turner’s reasonableness test. As they wrote, “inmates are not requesting unlimited access to innumerable periodicals but for the ability to have one newspaper or magazine and some small number of photographs in their cells at one time.” They also found that the only deposition in the case, the testimony of Joel Dickson—supervisor of the Restricted Housing Unit, which included LTSU-2—did not support this “deprivation theory” of rehabilitation. The very idea, they argued, was “illogical.” Nor, they continued, was there “evidence in the record of the misuse of periodicals or photographs in any of the ways described by the DOC.” There was no testimony as to the frequency of fires in the LTSU, nor testimony about any particular fires, in or out of LTSU segregation, and how and with what materials they were set and fueled. The same is true for the materials’ potential use as weapons.”
Judge Alito dissented. The majority, he argued, “misapplied Turner.” Sanctions for prison misconduct did not need empirical evidence as long as the regulation provided “some incremental deterrent.” Turner, he wrote, required only a “logical connection between the regulation and the asserted goal,” not “empirical evidence that the regulation in fact serves that goal.” According to Alito, the majority did not grant enough deference to prison officials’ judgment. Their best-guess theories are enough, when pushed “as a last resort,” for “the most disruptive and dangerous” prisoners. Eight months after this dissent, President George W. Bush nominated Alito for the Supreme Court; he recused himself when Banks reached the Supreme Court.
How could a newspaper shaped into a “blow gun,” “spear,” or “catapult” for human waste be a threat when used by a man in a cage, a prisoner confronted by uniformed officers? There must be some explanation beyond bald claims of security and rehabilitation. Why would inmates be less likely to use religious newspapers for “nefarious purposes” than secular ones? Why couldn’t an inmate use writing paper, a prison handbook, blankets, bed sheets, or legal periodicals for fires? As the majority noted in its opinion: “We fail to see how an inmate’s hour-long possession of Graterfriends could require further monitoring when at any time an inmate may be in possession of 10 sheets of writing paper, and as many copies of the Watchtower, the Jewish Daily Forward, and the Christian Science Monitor Magazine as can fit in a records center box.”
But perhaps there is method in the apparent madness. Level-two inmates can read leisure books or romances, but are prohibited from reading anything that refers to current political or social events, anything that would allow them to remain informed citizens. The district court had claimed that the ban was “not a blanket prohibition,” because if an inmate behaved appropriately, he could be promoted to LTSU-1. But the onus on the prisoner to behave well is misplaced or futile, since, as the appeals court noted, this “promotion” is not really under the prisoner’s control. Isolation in LTSU-2, after all, “is not linked to a particular infraction, and is of potentially unlimited duration.”
The court’s central concern was the ominous leeway prison officials had to decide the kind of thought possible for those categorized as “the worst of the worst.” As the ACLU argued in an amicus brief in support of Banks and other prisoners before the Supreme Court: “To deny prisoners all traditional outlets for learning about political affairs and other news is to deny their very citizenship—i.e., to say that because they are deemed ‘recalcitrant,’ their knowledge and understanding on matters of public affairs no longer matter.”
On March 27, 2006, a little more than a year after the Third Circuit decision, Pennsylvania went before the Supreme Court to defend its policy. The crucial question was how far a prison can go in removing the right to receive publications, to read, to be free to inquire and think, if its officials believe such deprivation enhances prison security and encourages inmate rehabilitation. During oral argument, the reasonableness of the restriction—and the seriousness of the issue—was lost in mockery. Justice Anthony Scalia sarcastically asked how one might use a “newspaper as a weapon”: “I mean, you know, maybe disciplining a dog or something.” Or, as he quipped during Krakoff’s argument: “Do you know what kind of a fire you can make with the Sunday New York Times?”
Early in the oral argument, the justices were concerned about what limits should be placed on states that set up super-maximum-security units for inmates deemed “incorrigible.” But by the end of the argument, several justices were willing to give Pennsylvania credit for trying to change its worst-behaved prisoners. Louis J. Rovelli, who appeared for the State of Pennsylvania in Mericli’s place, told the justices that the policy is reasonable because inmates can “earn back” the privilege of receiving newspapers and magazines, as well as personal photographs. The state, he insisted, wants to “turn these inmates around.”
Justices Stevens, Kennedy, Ginsburg, Breyer, and Souter seemed unsympathetic to this line of argument. Asked by Stevens how long inmates could remain in LTSU-2, Rovelli responded that they are there “until their behavior improves.” Ginsburg asked about “the rationality” of allowing “paperbacks from the library and not current events.” And Breyer found it difficult to understand the security problem if “he’s there in leg irons looking at the books.”
The Bush administration, represented by the Solicitor General’s office, supported Pennsylvania, arguing that, in matters of prison order and security, the court should defer to official expertise. In his questions for Jonathan L. Marcus, Assistant to the Solicitor General of the US Department of Justice, Justice Souter worried that the withdrawal of a First Amendment right was not really reasonable, but instead an “exaggerated response”: “I don’t see where the logical stopping point is if we accept the—the behavior modification theory.” He pursued his query: “It seems to me that whether we admit it or not . . . we’re making some kind of a judgment as to whether they’re carrying the deprivation for behavior modification purposes in these extreme cases too far.”
Justice Scalia then asked whether “just because a right is enumerated, it means it cannot be entirely taken away in prison.” Marcus argued that only two rights cannot “be limited or even totally prohibited within prison”: access to the courts and cruel and unusual punishment. And Justice Ginsburg pressed: “Apart from these two . . . then anything goes for this set of incorrigible prisoners? They can take away—the First Amendment, in other words, is out the window. They have no First Amendment rights that the State needs to respect?” Marcus turned again to behavior: “Pennsylvania does give prisoners the opportunity to regain those privileges if they behave well.” For First Amendment rights to be legitimately abridged, he argued, “the connection between the regulation and the goals need merely be logical.”
The justices’ initial skepticism dissipated completely when Chief Justice John Roberts began questioning Krakoff. Appearing before the Supreme Court for the first time and highly sensitive to blunt interventions from the bench, Krakoff stumbled as he tried to convince the justices that the policy should be struck down. In his respondents’ brief, he had argued that the deprivation brought before the court was nothing less than a “comprehensive suppression of knowledge.” “The practical implication of the Department’s ban,” he had written, “is to literally wall these inmates off from the contemporary world.”
Now, before the court, Krakoff could not sustain his argument. Roberts pushed him to identify options for prison officials, to clarify the difference, for example, between depriving inmates of television rights and taking away newspapers and magazines. In response, Krakoff seemed to suggest that prison officials should simply give up the fruitless effort to control inmate conduct. He began to list the things whose removal had not worked as incentives for improvement in less restrictive special management units—telephone calls, weekly family visits, group activities, and so on. To which Roberts replied: “You are saying they just have to grin and bear it.” Krakoff agreed. “There comes a time, when you take away so much . . . that, yes, you may have to give up. You may have to keep them in segregation.” Breyer, initially sympathetic, became impatient, pressing Krakoff: “So far your argument is they’re so bad that you might as well give them whatever they want because it won’t matter.”
Though prison officials made an exception in the reading prohibition for religious and legal materials, Krakoff questioned their definition of “religious.” The Christian Science Monitor is forbidden, The Jewish Daily Forward is not: “the Jewish Forward can burn as quickly as the New York Times. The Christian Science Monitor . . .” At that point Roberts snapped, “Now you’re making their situation worse because they tried to make your client’s situation better.” The hostility was palpable, and reflected a willful avoidance of Krakoff’s attempt—even if faltering—to expose the apparent gratuitousness of what prison officials claimed as reasonable. By the end of the argument, Kennedy also turned on Krakoff: “You’re depriving the State of the . . . option to avoid the most extreme circumstances of forgetting about him altogether forever. . . . and it seems to me that . . . your argument is . . . at cross ends with its own purpose.”
Despite the concerns raised in oral argument, the court’s decision approved indefinite confinement in the LTSU, without requiring a lower court to examine the facts. Justice Stephen Breyer wrote the opinion, which Chief Justice Roberts, Justice Kennedy, and Justice Souter joined. Though Justice Alito took no part in the decision, the court validated his dissent in the Third Circuit Court of Appeals.
Breyer’s decision focused on the “professional judgment” of prison officials and argued that, using the Turner framework, the policies reasonably furthered “legitimate penological objectives.” The court argued that the Pennsylvania Department of Corrections had shown, not just a “logical” connection, but a “reasonable relation” that put their policy “within Turner’s legitimating scope.” Citing Overton, the Court concluded that there was simply no other way to “induce compliance with the rules of inmate behavior, especially for high-security prisoners who have few other privileges to lose.”
Justice Thomas, concurring in the judgment and joined by Justice Scalia, dismissed Turner as useless and returned to the approach he had laid out in Overton. The Constitution does not contain “an implicit definition of incarceration”; and, except for minimal Eighth Amendment claims, it does not apply in prisons. He then returned to his exemplary history of “incarceration as punishment,”, calling it “tradition” and finding much to praise in the radical disciplinary regimes of the Pennsylvania (Eastern State Penitentiary) and New York State (Auburn) prison models. Both experiments were condemned for driving prisoners mad, but Thomas concluded they were proof positive that isolation, denial of reading materials, and deprivation of family contact are appropriate methods of punishment. Conditions of confinement long understood as belonging to a heinous past became, in Thomas’s approach, a new foundation for prison practice.
• • •
Freedom of speech and the press are central to the First Amendment, and the deprivations permitted in Beard v. Banks are comparably far-reaching in their effects. David Fathi—former senior counsel for the National Prison Project of the ACLU, current US program director at Human Rights Watch, and principal attorney in numerous prison cases over recent decades—was outraged by the decision, for which he had written an amicus brief when the case went before the Supreme Court. He later told me, “The prison policy at issue here is unique and unprecedented: long-term and indefinite deprivation of virtually all news from the outside world. . . . It is a deliberate attempt to strip prisoners of the most fundamental attribute of citizenship, and even of personhood—the right to know, to learn, and to think about what is happening in the community, the country, the world.”
Beard v. Banks relies ultimately on replacing plain evidence with official proclamations of reasonableness. The result, Fathi urges, is the arbitrary deprivation of basic liberties: “prison officials often do not provide any evidence that their regulation serves a legitimate prison interest but simply come up with a post-hoc, speculative reason to justify the restrictive policy.”
In his dissent Justice Stevens, joined by Justice Ginsburg, warned that the prison regulation “comes perilously close to a state-sponsored effort at mind control.” Arguing against its rationale—even when applied to prisoners deemed the most “recalcitrant and dangerous”—he emphasized the policy’s potential for limitless application: “it would provide a ‘rational basis’ for any regulation that deprives a prisoner of a constitutional right so long as there is at least a theoretical possibility that the prisoner can regain the right at some future time by modifying his behavior.”
As of 2000, three-quarters of LTSU-2 inmates had been held there for more than two years. Justice Ginsburg put the implications of that level of control into bald relief: “Prisoners are allowed to read Harlequin romance novels, but not to learn about the war in Iraq or Hurricane Katrina.” Such “indefinite deprivation” forces us to ask again whether complete cognitive restructuring is the ultimate aim.
Imprisonment is, of course, a highly abnormal condition, and nowhere as much as in these special-management units, where induced helplessness, extreme isolation, and other refinements of behavioral experimentation are legally incorporated into incarceration. Thanks to Beard, a tool of mind alteration is now dubbed “rehabilitation.” One official explained to me that most prisoners are “nothing but animals that we turn into senseless bums.” Under the rubric of “reasonableness,” their prison regimen purges inmates of their ability to think and feel, destroying the human person in a way that leaves no mark on the body. What seems arbitrary—what Justice Stevens condemned as “a mere theory of rehabilitation without any evidence”—might be rather a radical behavioral readjustment that threatens individual identity.
At the end of our conversation, Mericli wanted to assure me that, in spite of the Supreme Court’s decision in Beard v. Banks, things were not so bad for prisoners. What do they need, after all? “These people are not savants, are not intellectuals; they’re not at the Brookings Institution, they’re not professors. . . . I don’t know what their life is about. What they are, to my mind, they’re prisoners in a prison.” But he demurred, “thank goodness we’ve decided that a prisoner is a human being and not a slave of the state. You don’t take their humanity away from them, you don’t deprive them of basic needs.”
But what kind of human being? Emptied of their inner lives, they are, as Justice Stevens wrote, “essentially isolated from any meaningful contact with the outside world.” As far as he was concerned: “the rule at issue in this case strikes at the core of the First Amendment rights to receive, to read, and to think.”
Beaumont and Tocqueville in On the Penitentiary System in the United States (1833) described solitude as a more effective correction than corporal punishment. First “agitated and tormented by a thousand fears,” then succumbing to “the terrors” and a level of uncertainty that nearly drive him insane, the inmate experiences “a dejection of mind” that does not promise “a relief from his griefs” so much as submission to the rules of the prison. Their words remind us how far our law and our prisons are backsliding from fundamental human rights. At what cost compliance? Are there not other ways to control those who, as the Supreme Court recognized, have little else left to lose, from whom nothing much remains to be taken away?
Before our discussions about Beard v. Banks, Mericli had written me: “It helps to keep all ‘brief authority’ in perspective to note that, once the tumult and the shouting died and the captains and the kings departed, the DOC proceeded to quietly abolish LTSU-2 last March.” As it turned out, the whole affair—from policy formation to litigation in the nation’s highest court—was “just one more penal experiment.” The experiment did not work. Prisoners were not rehabilitated, or, in Mericli’s words: “It wasn’t working as a system that changed behavior.”
The lockdown unit is gone, but the legal precedent remains.
Colin Dayan is Robert Penn Warren Professor in the Humanities and Professor of Law at Vanderbilt University. Her books include The Law Is a White Dog: How Legal Rituals Make and Unmake Persons, The Story of Cruel and Unusual, and Haiti, History, and the Gods. She has just published With Dogs at the Edge of Life, a fierce personal enquiry into canine profiling, preemptive justice, and extermination.
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