16 Berkeley Journal of Criminal Law 259 (2011)
Theorists of punishment typically construe the criminal justice system as the means to achieve retribution or to deter or otherwise prevent crime. But a close look at the way the American penal system actually operates makes clear the poor fit between these more conventional explanations and the realities of American penal practice. Taking actual practice as its starting point, this essay argues instead that the animating mission of the American carceral project is the exclusion and control of those people officially labeled as criminals. It maps the contours of exclusion and control, exploring how this institution operates, the ideological discourse that justifies it, and the resulting normative framework that has successfully made a set of practices that might otherwise seem both inhumane and self-defeating appear instead perennially necessary and appropriate.
Appreciating the “cognitive conventions” by which current penal practices are rendered at once logical and legitimate proves to shed light on a number of mystifying features of the Americanpenal landscape, including why LWOP and supermax have proliferated so widely; why sentences are so often grossly disproportionate to the offense; why, given the multiple complex causes of crime, the state persists in responding to criminal conduct by locking up the actors; why prison conditions are so harsh; why recidivism is so high; why extremely long sentences are so frequently imposed even for relatively non-serious crimes; and even why the people we incarcerate are disproportionately African-American. Without claiming to provide comprehensive answers to these vexing questions, this essay offers a framework that helps to explain these striking aspects of the American carceral system. This framework takes as its starting point the practical demands incarceration imposes on the state itself: the exclusion and control of the people sentenced to prison. But as will be shown, in the American context, efforts to make sense of this way of responding to antisocial behavior quickly lead beyond practicalities to a moral economy on which the incarcerated lose not only their liberty but also their full moral status as fellow human beings and fellow citizens. What happens to them is thus no longer a matter for public concern. And as a consequence of this collective indifference, penal practices that may otherwise seem counterproductive, unnecessarily harsh, and even cruel become comprehensible and even inevitable.
Part II of this essay sketches the structure of the American carceral system, exposing both its dependence on the logic of exclusion and control and the moral economy that drives it. Part III explores the self-defeating nature of current carceral practices — the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will return to society more prone to criminal activity than previously. Part IV considers the question of how such an evidently self-defeating system has been able to sustain itself, and locates the answer in the radically individualist ideology, pervasive in the criminal context, that construes all criminal conduct as exclusively the product of the offender’s free will. Part V illustrates the way this individualist discourse constructs criminal offenders as not just unrepentant evildoers but also sub-human — a process referred to as “making monsters” — and examines the work this normative reframing does both to vindicate the penal strategy of exclusion and control and to justify the arguably inhumane treatment of prisoners. Part VI explores the way that perceiving criminal offenders as moral monsters makes it difficult to distinguish the relatively few individuals who are genuinely congenitally violent and dangerous from the vast majority who are not; through this ideological (re)construction, all people who persist in committing crimes, even nonviolent offenders, can come to seem appropriate targets for extended and even permanent exclusion. Part VII considers the racial implications of exclusion and control, in particular the way the cultural construction of African Americans as “incorrigible” may explain why members of this group are overrepresented as targets of the American carceral system. Part VIII shifts the focus to the prison itself, where the self-defeating logic of exclusion and control has reappeared behind bars in the form of the supermax prison. Finally, the Conclusion considers how the destructive and self-defeating dynamic of exclusion and control may be disrupted. It argues that a political strategy emphasizing the financial costs of incarceration is bound to fail unless it also generates an ideological reorientation towards recognizing the people the state incarcerates as fellow human beings and fellow citizens, entitled to respect and consideration as such.
Date of Authorship for this Version
criminal justice, American penal system, exclusion and control
Dolovich, Sharon, "Exclusion and Control in the Carceral State" (2012). New York University Public Law and Legal Theory Working Papers. 362.