“Abandon all hope, you who enter here.” That counsel of despair famously confronts the condemned who pass through the gates of Dante’s Inferno. In that hell, as Robert A. Ferguson observes, everlasting punishment “can never be fully satisfied no matter what the doomed do or say.” Ferguson’s own Inferno: An Anatomy of American Punishment convinces us that our state or federal prisons could aptly place Dante’s inscription on their 21st-century front gate. The book’s descent into the frightening depths of criminal punishment leaves us nearly despondent, but Ferguson refuses ultimately to submit to Dante’s injunction. He proposes, in the end, that American society still retains power to change hell into purgatory.
But first the hell. In the longest portion of Inferno, Ferguson opens our eyes to the brutal facts of American prison conditions. “Legal punishment as we know it is sick and getting sicker,” he says. The United States exercises a passion to punish that is unique among modern democracies in both its frequency and severity.
As one follows Ferguson’s account, the term “American exceptionalism” takes on a new and disgraceful meaning. We possess, he says, a singular “punitive impulse,” accompanied by gross indifference, toward the over two million human beings we keep behind our prison walls in conditions of “unique loneliness, fear, suffocation, anger, danger, hopelessness.” Out of sight, out of mind. American society, at best, fatally accepts (or on some level is even pleased) that it has caused millions to descend into a world of abject fear and violence within institutions ridden with gangs, where the lives of the punished are filled with unnecessary pain and degradation to the point of being barely worth living. Our enormous (and enormously expensive) human warehouses hold 35 percent of the entire world’s prisoners “cheek by jowl, without hope, with nothing to do, under conditions worse than those given to most domestic animals.”
Who should be held to answer for this? Ferguson scrutinizes in turn court decisions, legislative policies and ultimately us, the fundamental democratic bearers of the American impulse to punish. We are all “the legal punishers.”
As to the courts, key decisions have largely relegated to oblivion the claims of prisoners for relief from most kinds of injuries that they must suffer. In the Supreme Court’s long-held view, “courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform.” Except in circumstances so egregious that they are “incompatible with human dignity and [have] no place in civilized society,” the Eighth Amendment’s ban on cruel and unusual punishment will not afford prisoners protection.
It has not helped the more than 100,000 inmates held in prolonged periods of solitary confinement. In effect, once a convict disappears behind the wall, the Eighth Amendment disappears with him, unless the official knows the inmate faces an “excessive risk of serious harm and then unreasonably fails to abate it.” Try proving that.
It is not the courts alone that abet harsh penal conditions. Congress’s Prison and Litigation Reform Act protects prison officials from liability for any mental and emotional injury that an inmate suffers while in custody, unless physical injury is also inflicted. So, if you are merely placed in a cell with human waste, or subjected to the screams of psychiatric patients, or ridiculed for your sexual orientation, or forced to tap dance while naked, or made to crawl around on a leash, you may be out of luck, as some have been, when you look for relief.
Other legislative acts indulge society’s punitive appetite. There are 57 “supermax” prisons across 40 states. In those alone, over 20,000 inmates are held in prolonged solitary confinement for at least a year. Mandatory minimum sentences, harsh drug legislation and “three strikes” laws produce vast overcrowding. Lengthy sentences are usual, far beyond anything imposed in other democracies. Budgetary cuts leave inmates who are lingering for years in our “holding pens” (one out of 10 is serving a life sentence) without adequate mental and physical medical care. Life without parole is common (41,000), even for nonviolent crimes.
And then there is us. It is not the judiciary or the legislatures who are the chief agents of punishment. At least 80 percent of the public supports harsher sentencing. “The punitive impulse has controlled criminal justice in America for almost half a century, and its tenacity continues even though crime rates have dropped in recent decades.” What explains our exceptional attitudes toward punishment? Ferguson looks for the social variables. First, he sees a “culture of fear,” attributable in part to mass media’s pervasive and vivid portrayal of violent crime in movies, videos and news reporting. This fear creates its own reality and produces “an overly reactive reply that it is otherwise difficult to comprehend.”
Second, bias sharpens the desire for punishing. It is “easier to relegate someone to...a secular hell when that person appears to be different than you.” Most prisoners come from impoverished ethnic minorities. Our fear of “the other” allows us to disregard how often we punish or shame them. Ferguson points to a third factor contributing to the inferno. Americans have become so inured to the existence of our penal hell that fatalism infects us. “That is just the way things are,” and there is nothing we can do about it. We do not even care.
In the last segment of his book—when the reader may have given up all hope for reform—Ferguson resists fatalism. As a first positive step, he joins other critics of our penal system who advocate the easing of drug laws, shorter sentences, better physical conditions, the elimination of prison violence and the end of long-term isolation. But, Ferguson argues, more is needed than these “commendable, if stock, recommendations” that stay society’s retributive hand. “A different way of thinking is in order.” Real reform must base itself on something more than and separate from retribution.
We must create a system that esposes the fundamental principle that the life of each inmate “must continue to be worth living.” Ferguson advocates restorative programs aimed at reconstructing a prisoner’s “positive self within the imprisoned self.” His proposals include creating tiered incentive systems with rewards that encourage productive behavior; a secure environment for education, differentiated according to prisoner capacities; and pilot programs leading gradually toward economically viable reintegration in society. It is essentially important, the author warns, that we protect these restorative efforts against anticipated budgetary attacks from those who privilege punishment over rehabilitation. Currently, American society’s punitive impulse confines people in cages with nothing to do and without any future. Ferguson’s major re-envisioning of what incarceration offers us is a chance to turn our present incarcerative hell into a purgative place where hope of redemption can still survive.
Fatalists will dismiss Ferguson’s proposals as a pipedream. Opponents, including powerful correctional unions, will accuse him of coddling criminals with expensive “hug a thug” programs. Surprisingly, however, isolated judicial, legislative and executive activity within the last few months suggests Ferguson may have the audience he needs to begin reform. A federal court in California has signaled an openness to breathing some life into the moribund Eighth Amendment as applied to prison conditions; a commissioner of the second largest jail in the United States has called for incentive programs; some fiscal and religious conservatives in Congress have joined forces with liberals to propose bills that “get smart on crime” in ways Ferguson has proposed.
One senator has even intimated that our prisons should foster inmates “reaching their God-given potential.” That sounds like Ferguson’s restoration of the positive self. Will all this activity prove to be nothing more than a false dawn? It is much too early to tell; but, at least the signals may justify the author’s refusal to despair.
“Criminal justice has gone astray, lost in a dark wood of its own making. It is time, more than time, to find a way out.” Ferguson’s book opens our eyes in the darkness and points to a possible exit. It should be required reading for judges, legislators, politicians, prison authorities and all of us who are democratically responsible for the inferno that together we have created.