Troy Davis was executed by the state of Georgia Wednesday night. The story of Troy Davis — a man executed under flimsy, recanted eyewitness testimony while there existed enough doubt to make the state think twice about taking a person’s life — is often a stand-in for what is wrong with the criminal justice system. But the alternative to his execution — that Troy Davis would have likely spent his life under incarceration without parole on flimsy, recanted eyewitness testimony — shouldn’t be the goal either. The larger problem is the way the prison system has morphed into one that perpetuates the permanent exclusion of prisoners from society.
Of the 2.3 million people currently behind bars in the United States, only 41,000 — a mere 1.7% — are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole… I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry… If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.
Having a system that pushes people towards permanent exclusion from society is even worse given that we incarcerate a higher share of our population than any other country. Drawing both on the empirical literature on prisons as well as the political philosophy of Giorgio Agamben and his notion of homo saer, Dolovich paints a picture in which the penal system has moved from a system of deterrence and just deserts to one of permanent exclusion. This is obvious with the sentence of life without parole, which is around 1.7 percent of the total incarcerated population and growing. But Dolovich walks through three new mutually-reinforcing trends in the penal state that push against the possibility of reintegration for all convicts.
(From a Mother Jones slideshow.)
The first is the lived experiences of prisons themselves. Severe overcrowding, inadequate medical care, infection rates for HIV, Hepatitis C, tuberculosis, and staph far higher than on the outside world, the degradation of the custodial experience, the high costs of keeping social ties intact, punitive long-term isolation, and the ever-present threat of violence all characterize our current prison system. These are conditions designed to keep a subject “broken, with no skills, and a very high risk of recidivism” which “destroy[s a] prisoners’ ability to cope in the free world.”
As Dolovich notes, it is “also not difficult to recognize in these conditions a particular normative view of the people subject to them. Plainly put, these are not conditions that would be imposed on those widely regarded as fellow citizens and fellow human beings. They are instead the conditions of Agamben’s ‘state of exception,’ in which bare biological life is all that is left.”
The second is the wave of aggressive sentencing standards alongside a collapse in the granting of parole. During the past 20 years, many states have adopted laws (“truth-in-sentencing,” “three strikes”) designed to impose fixed terms of increased length for crimes. This is well correlated with the rise of Republican governors who had a system of laws designed by ALEC ready to go upon taking over. The flip side of this is the decreasing use of parole for prisoners. Dolovich notes that the California Board “has denied 98% of the petitions it hears.” The laws have morphed to put people in prison longer and keep them there, thus increasing exposure to the dehumanizing aspects discussed above.
The third are the challenges upon leaving the system that put people right back into the system. This isn’t just the bias of people examining an ex-con; there are a massive amount of legal hurdles that keep ex-cons outside the full public sphere. People who leave prison have “[b]ans on entry into public housing, restrictions on public-sector employment, limits on access to federal loans for higher education, and restrictions on the receipt of public assistance… The American Bar Association Criminal Justice Section recently embarked on a project to catalogue all state and federal statutes and regulations that impose legal consequences on the fact of a felony conviction. As of May 2011, the project had catalogued over 38,000 such provisions, and project advisors estimate that the final number could reach or exceed 50,000.”
These three all together create a new kind of subject, someone who exists permanently on the outside of our civilization, never meant or able to reintegrate back into our full social space. As people begin to figure out how to undo the unjust system we’ve created, this is one area to focus.