BOOK REPLIES/REVIEWS (2014): J. Simon’s (2014) Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America

9 September 2014

Summary (TLDR Version)

Evidence demonstrates that “mass imprisonment must end. It endangers human dignity. It is a violation of human rights and international law. It is unconstitutional. It does not protect public safety [but exposes it to greater danger]” (172, emphasis added).

Framing/Background for Replies

If you’ve read this section previously, you can skip it. It describes the aspiration of these “replies”.

Two years ago in 2012, I set myself the task to read at least ten pages per day; last year, I did so. Continuing from then, I now have the task to read fifteen pages per day,[1] and I’ve added that I will write a book reaction (or reply) for each one that I finish (or give up on, if I stop). I plan also to devise a way to randomly select books to read (given certain constraints) from the public library; this, to avoid the tendency only to read books that pique my already existing interests.

These replies will not be Amazon-type reviews, with synopses, background research done on the author or the book itself, unless that strikes me as necessary or if the book inspired me to do so when I read it. Rather, these replies amount to assessments of the ways I found the book helpful somehow. More precisely—and this describes what I mean by a reply, as opposed to a reaction (review) or a response—I try to focus in these pieces on what I could not have said (or would not have known what to say) except that the intersection of this text and my consciousness brought it about.

Consequently, I will sometimes say stupid stuff, poorly informed stuff, &c. Some in the world expect everyone to possess omniscience and won’t bother to engage in a human dialogue toward divining how to make the world a better place. To the extent that each reply I offer provides an I found this helpful in this book, then it becomes up to us (you, me, us) to correct, refine, trash and start over, or do something else we see as potentially helpful as part of attempting to make our world a better place. If you won’t bother to take up your end of that bargain, that signals of course part of the problem that needs a solution.

A Reply To: J. Simon’s (2014)[2] Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America

Mass incarceration, at least for now, is dead this author declares. By this, he means that the Supreme Court has declared the design principle of deliberate overcrowding (in the California prison system) with a systematic lack of constitutionally minimal medical care (and mental health care) cannot continue.

This does not mean that the total number of inmates must come down—they could be outsourced to Mexico, diverted to home monitoring, or county facilities (criminal or for chemical dependency, &c)—but it does mean that the principle of deliberately callous warehousing (in overcrowded conditions) constitutes an Eighth Amendment violation.

Simon has worked on this issue a long time as a policy analyst, and his book remains morally cantered, very adroitly handling masses of facts, and even (in places) offering theoretical perspectives as part of his analysis of the matter. To give an adequate summary of the whole thing, I feel I should have taken notes, but I didn’t. Take it as simply a strong recommendation to read it on my part.

A main outcome from the book for me hinges on the hopefulness it inspires and the victory it represents. Incarcerated people form one of the most vulnerable classes of people (in any State), and to have their voiceless voice heard and upheld (at very long last) even at the level of the Supreme Court shows that sometimes, even in something as overwhelmingly enormous as the carceral system in the United States, the bad guys don’t get to win, no matter how much money they have.

The Supreme Court decision hinged on the outcome of three previous suits. The first protested the cruel and unusual punishment of radical isolation (in so-called supermax prisons)—a lawsuit that, if memory serves, did not prevail on that point per se even as the judges found that supermax containment for mentally ill prisoners did constitute cruel and unusual punishment. The second widened the net and called into question the systematic lack of appropriate medical care and medical care facilities for inmates. In this case, the judge found conditions so egregious in California that he established a third-party receivership to oversee implementation of a constitutionally adequate medical care system. California proved so incapable of meeting this order that another suit came forward, but this happened after the federal Prison Litigation Reform of 1996, signed by the cryptoconservative Clinton.

That legislation, which aimed at essentially declaring all prisoner lawsuits frivolous, set a very high bar for whether or not prisoner complaints could even get filed. As a result, when the next California prison lawsuit came forward, it had to clear the hurdle of this Reform, which had the unintended consequence of necessarily redirecting the courts attention from the specific problematic aspects the prison system for individuals and instead put the focus on the actual structural characteristics of the prison system itself. Specifically, the plaintiffs sought a reduction in the prison population and so decades of prison practice designed to maximize warehousing while providing a minimum of care got thrown into sharp relief.

An example of this designed overcrowding: prisons were built with sewage systems at double their (theoretically) expected capacity. As the judgment wrote:

Thus, although we agree with Dr. Thomas that a custody-dominated culture is a barrier to delivering constitutionally adequate care, we also agree with Dr. Bear that “[if]f you try to change the culture, you can’t. You can’t change the culture until you reduce the population and can make the institution safe.” … Consequently, it is crowding and not culture that is the primary cause of the unconstitutional system of health care delivery in California’s prisons.

Simon goes on to note:

The state of California had planned its prisons to be overcrowded, designing infrastructure for water and sewage to operate at 190 percent of capacity while providing for medical and mental health care not even at a normal occupancy level. Under mass incarceration, overcrowding has become a normal feature of imprisonment nationwide; more than half of the states had prison populations well in excess of design capacity in 2010. Although none has created a humanitarian crisis as large and shocking as California, the threat of torturelike conditions for prisoners with chronic illness is all too real in most states. This system and its resulting damages must be recognized for what it was (and perhaps still is): the greatest domestic human rights violation committed by a state government outside the South under slavery and segregation (122).

In the end, a three-judge panel declared that California had to reduce its prison population by some 46,000 inmates, now. California appealed, and the Supreme Court upheld the lower court’s order.

In quietly affirming the lower court’s evidence-based assessment that prison was not a necessary or sufficient condition of public safety, the Brown majority broke with the posture of extreme deference toward imprisonment choices and unleashed a potential sea change in penal policy (152–3).

As Justice Kennedy put it:

Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, including certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada … Washington’s former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any “deleterious effect on crime.” … In light of this evidence, the three-judge court concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits” of a reduction in overcrowding (153).

Don’t miss that: mass incarceration makes the public less safe.

Simon’s last chapter, “The New Common Sense” breaks down in detail the manifold ways that the “tough on crime” rhetoric that played a major role in establishing mass incarceration has started to give way to alternatives. I’d like to simply retype the whole chapter, but in lieu of that, the headers from the index paint a good general picture of what this new consensus consists of: compassionate parole laws; criminological research about criminal risk-decline; declining crime rates; human rights law and dignity as a constitutional value; mechanisms to encourage good behaviour in prison; moves away from megaprisons and supermax; new approaches to health care/mental health care; new approaches to serious felony offenders; new treatment of people with serious mental illness; nonviolent nonserious crimes and gradations of punishment; optimism about crime prevention; optimism about those released from prison; principle of parsimony in the use of prison; revival of rehabilitative models; and shorter/rescaled sentences (205).

One of the roots in the Supreme Court decision (if not also behind many of the changes noted above) involve the proclamation in it that “dignity animates the Eighth Amendment” (165), i.e., the prohibition on cruel and unusual punishment. One does not engage in cruel and unusual punishment because it stands contrary to human dignity.

Dignity has in recent decades become the conceptual engine of an emerging body of human rights law that in some regions, particularly Europe, has become a major influence on punishment and prisons. The United States, for historical reasons, had seemed largely indifferent to dignity, viewing it as adding little to existing constitutional values (165).

The Supreme Court’s declaration that “dignity animates the Eighth Amendment” then “is the most striking example thus far, and Brown’s notion of dignity is particularly salient to punishment because it arises in a case that essentially placed mass incarceration on trial” (165).

Like Noah’s children, we stand just after the high-water mark of an epic flood of imprisonment, a flood that drowned whole communities and harmed and disabled millions over the course of decades. As the waters recede, those with power will quickly define the wreckage left behind in society as beyond the scope of reasonable reform. Already the safe line for politicians appears to be in favour of “evidence-based alternatives” [to incarceration] meant to save money will keeping crime low. While surely this is better than reckless imprisonment, it does little to reduce the senseless fear of crime or reduce the stigma heaped on the formerly incarcerated. Mass imprisonment must end. It endangers human dignity. It is a violation of human rights and international law. It is unconstitutional. It does not protect public safety [but exposes it to greater danger]. The human dignity of prisoners, exposed by the shocking and degrading conditions in California’s prisons, provides our best guide going forward as we reimagine criminal justice institutions that can protect safety, provide justice for victims, and respect the decency of a civilized society (171–2).


[1] More precisely, I will continue to read my usual ten pages but I will also read five pages per day of Burton’s (1620) Anatomy of Melancholy, a gigantic book that at five pages per day I will finish reading near the end of December 2014. I have wanted to read this book for a while, but various features of it make getting through it a challenge. UPDATE: I’ve dropped this project for reasons given here.

[2] Simon, J. (2014). Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America: The New Press, pp. i–ix, 1–209.

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