This article aims to explain how certain philosophies can be used to develop a better understanding of the prevailing norm within the criminal justice system—the extensive, historically unprecedented use of mass incarceration. This article begins by offering some relevant historical and political context. It then discusses the philosophy of Jeremy Bentham, Michel Foucault’s theory of the disciplinary society, and Angela Davis’s perspective on this pressing social issue.
What is Mass Incarceration?
What is mass incarceration? Mass incarceration is a long-term trend in many Western countries, but most dramatically in the United States, towards accelerated rates of imprisonment. It has led these countries to imprison a percentage of the population that is unprecedented in the history of liberal democracy.
Indeed, the United States imprisons more of its population per capita than any authoritarian state today. This trend began during the 1970s, and there are various social and political factors that are generally offered as partial explanations. The increased urgency with which drug crimes (including non-violent drug crimes) began to be prosecuted is part of the story. The related racial bias of Western justice systems is another. However, a large part of mass incarceration can be explained only by analyzing the system itself.
As with any social institution, mass incarceration is self-sustaining, but it is self-sustaining in a particularly direct and straightforward way. The conditions in prisons and the challenges facing prisoners upon release mean that rates of re-incarceration (recidivism) are extremely high. It is worth starting this article by dealing with the reasonable challenge: why use philosophy to try to understand this phenomenon?
Philosophy and Mass Incarceration
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Why should we turn to philosophy when seeking an understanding of mass incarceration? The relevance of legal studies, legal history, and political and social science isn’t difficult to understand. But shouldn’t our efforts to understand social institutions and political problems be empirical, fact-driven, and observational? And isn’t philosophy all about speculation, abstract thinking, and theorizing?
There are various answers one could give to this. We turn to philosophy to understand social institutions (and legal institutions in particular) for various reasons. For one thing, the legal system is a product of decisions that are often informed by jurisprudential philosophies of a kind. Understanding the rationale behind a certain judicial system will often mean turning to a certain area of philosophy. Similarly, we might expect a theory of an institution to say something about whether that institution is good or bad, or what it might mean for it to be improved. That means we might want to undertake an ethical analysis, another distinctly philosophical task.
Philosophy also helps us combine insights from various disciplines and offer a holistic perspective on certain social practices. In other words, it can put different disciplines in conversation with one another. The role philosophy has in the construction of social theory will depend on our conception of what it is we want from a social theory.
1. Jeremy Bentham
In many Western countries, imprisonment is the most severe form of punishment that can be imposed. All that can be done with the most dangerous or despicable is to imprison them forever. It is difficult to recall that many advocates of wider imprisonment considered themselves to be advocates of compassionate reform. However, the extensive use of corporal and capital punishment prior to the latter half of the 20th century (and well into it in certain places) has to be kept in mind here.
Jeremy Bentham was one philosopher whose conception of imprisonment represents this reformist tendency. Bentham’s stance on modern-day mass incarceration is mute; mass incarceration as we know it is a phenomenon of the late 20th and 21st centuries, and Bentham was a philosopher of the late 18th century. Regardless, Bentham’s juridical philosophy offers us a conception of imprisonment not as mere punishment but as a kind of precise regulatory environment, the basic structure of which should be extended to institutions beyond the prison.
The most distinctive conceptual contribution Bentham makes to the philosophy of imprisonment comes by way of the Panopticon, which he describes thus:
“The Building circular—an iron cage, glazed—a glass lantern about the size of Ranelagh—The Prisoners in their Cells, occupying the Circumference—The Officers, the Centre. By Blinds, and other contrivances, the Inspectors concealed from the observation of the Prisoners: hence the sentiment of a sort of invisible omnipresence.—The whole circuit reviewable with little, or, if necessary, without any, change of place.”
The idea that institutions should be built on total surveillance (or on the possibility of total surveillance) is profoundly wedded to the modern-day justification behind mass incarceration. An intractable part of that system is the idea that even after imprisonment, a complicated web of parole and probationary systems should keep a close eye on the former prisoner. It is highly relevant that Bentham thought the Panopticon model could be extended beyond prisons, to schools, hospitals, factories, and so on.
2. Michel Foucault
The Panopticon was never adopted on a wide scale as a model for prison architects. Yet it remains the source of constant discussion and debate among philosophers with an interest in criminal law and punishment. That is largely down to the work of Michel Foucault, a French historian, philosopher, and social theorist whose work Discipline and Punishment is inarguably the best-read and most influential account of the practice of imprisonment written in the 20th century.
Foucault developed the idea of the Panopticon as a model for a kind of society that emerged during the 19th century and developed into its fullest form during the 20th century. These are ‘disciplinary societies. What is a disciplinary society? Foucault famously describes such societies in contrast to what came before: societies of sovereign power, in which the sovereign or the state took it as their right to wield deadly force. Kings have always had the power to put their enemies to the sword.
What is distinctive about disciplinary societies is the fact that it is life, rather than death, that is being administered. The development of reformist judicial philosophies—like that of Jeremy Bentham—should not, in Foucault’s view, be seen as a welcome, humanistic development (or at least not necessarily). Rather, as the Panopticon model makes perfectly clear, the reformist impulse in criminal justice expresses a need for ever wider state control.
Foucault was writing just as mass incarceration really began to get going in the United States, and certainly before the rise in incarceration rates across much of Western Europe. Yet his work offers a clear, plausible explanation for the ethos, the ‘secret thoughts,’ that underlie mass incarceration as a practice. There is an important difference between suggesting that there are sublimated, underlying motivations for a policy and suggesting that those in positions of power have a nefarious hidden agenda. It is quite possible that in politics, as in life, what people really want and the forces which structure their worldview are not obvious to those very people.
3. Angela Davis
Angela Davis is the last philosopher we turn to, and the only philosopher whose work is recent enough to concern mass incarceration directly. Davis’ work is characterized by the brilliant exploitation of a privileged historical perspective that we, in the 21st century, share. That perspective is due to the knowledge that there can be no illusions about some endless progression towards more and more humane systems of criminal justice.
Whereas there was a time in the 1950s and 1960s when one could quite plausibly have claimed that imprisonment as a practice would, within the space of a lifetime, become extremely rare or simply become extinct (certainly many judges and lawyers of the time said as much), by the start of the 21st century it had become clear that things could always get worse as well as better.
Davis’ awareness of the very contingency of progress contributes to a clear-eyed, forensic account of mass incarceration, unencumbered by the kind of fatal optimism which is characteristic of many ‘moderate’ philosophers of punishment working today.
One of the distinctive conceptual contributions Davis makes to the theorization of mass incarceration is a focus on the economic interests that have led to the construction of ever more prisons, the employment of ever more guards, the subcontracting of ever more suppliers, and so on. Davis’ analysis of the political purpose of mass incarceration and the interaction between electoral success and cruelty toward prisoners is also a precious contribution to our understanding of the issue.
Although it is certainly the most contestable aspect of her work, Davis’ treatment of the possibilities beyond mass incarceration represents one of the most interesting attempts to think beyond the current situation. Her development of the concept of forgiveness in the context of criminal justice has been of particular importance to those advocating for prisoners’ rights today. It is impossible for an article of this kind to offer anything but an overview of what mass incarceration means and what it is to theorize it in a meaningful, helpful way.