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Read This Book: April 2018

Posted by on Friday, April 20, 2018 in Read This Book.

Rows of prison cells, prison interior.

Each month, we ask a member of the Vanderbilt Divinity School faculty or administration to recommend a book they are currently reading. Our March recommendation is offered by Graham Reside, Executive Director of the Cal Turner Program in Moral Leadership for the Professions, and Assistant Professor at Vanderbilt University Divinity School. Graham recommendsI, “Inferno: The Anatomy of American Punishment” by Robert A Ferguson (Harvard University Press, 2014).

One of the ironies of the America experience is that while the national myth focuses on the themes of freedom and liberty, the nation stands as the global leader in incarceration. Today, the United States incarcerates over 2.3 million of its citizens. And in the land of the free, another five  million people are under state supervision, either on probation or parole. This means that one out of 35 adults are under state supervision of one sort or another.  At 326 million, the United States represents only five percent of the world’s population. Yet its 2.3 million prisoners represent 25% of the world’s prisoners.  Our rate of incarceration is extraordinary: five times that of Canada, seven times that of France, and 14 times that of Japan. No other nation compares to the United States when it comes to either the rate of incarceration nor the length of sentencing.

The costs of this penchant for incarceration are profound. In fiscal terms, the United States spends $80 billion annually on incarceration. Today, one of every nine government employees works in corrections. Beyond the immediate financial burdens, there are dramatic costs borne by the incarcerated themselves – they are often disenfranchised, they suffer violence and indignities while incarcerated, and upon release find themselves social pariahs, often unable to find meaningful employment, access to public services and too often alienated from their communities and families.  The families of the incarcerated suffer as well. Prisons disrupt relationships.  Children go without parents, spouses go without partners, parents despair the losses of their sons and daughters, and bear the guilt and shame of incarceration as much as those who are incarcerated. Finally, communities suffer the loss of their young men especially. And since poor communities of color are especially susceptible to arrest and confinement, the communities with the least resources for managing these losses are the ones that bear them most profoundly.  Incarceration is a highly disruptive social fact.

And because of both the high rate and high costs of incarceration in the United States, as well as the lengthy prison sentences – almost 10 percent of inmates are serving life sentences – prison life is often characterized by overcrowding, squalor, misery and violence.  For example, gang violence is rife.  1 out of 20 prisoners report being raped.  It is estimated that 50,000 are subjected to solitary confinement, which has many deleterious effects upon the mind and body, and many suffer from poor health outcomes.

These facts underlie Columbia Law Professor, Robert Ferguson’s book, Inferno: The Anatomy of American Punishment. In this imaginative and insightful study, Ferguson explores the American way of punishment through philosophical reflection, literary analysis, and legal criticism.  The book describes carefully what it means to be imprisoned in the United States. Using literary and first-person accounts, Ferguson offers a thick description of prison life. He goes further, however, asking the question, “how did we get here?”

Borrowing from Dante’s Divine Comedy, Ferguson turns to the metaphor of Dante’ Inferno to describe where here is. Recall, the Divine Comedy is composed of three parts, the Inferno, Purgatorio, and Paradisio. For Ferguson, prison in the United States is akin to Dante’s inferno. It is a place of hopelessness, violence and despair.  It is hell, guarded by devils.  Ferguson marshals abundant evidence to support this claim. He is not against punishment, per se. Indeed, no society can exist without some response to violence and violation. Yet, Ferguson despairs that the system in the United States has become so draconian and punitive that it is serving little positive purpose. Indeed, prison is criminogenic, as the recidivism rate (67%) indicates. Prisons make those who pass through them more likely to commit crime, not less. Prisons are where we send so many of our young men and women, and yet what goes on in prisons remains hidden from us. Ferguson writes: “the suffering of the convicted is carefully arranged to place out of sight.”

So, for 2.3 million of our fellow Americans, here is hell.

Ferguson makes important observations to explain the path that got us here. One is organizational. The division of roles and authority in our justice system means that there is a perverse incentive structure at work. As Ferguson reminds us, legislators are the ones who make the laws that determine the criminal code and sentencing guidelines. Yet, legislators are the furthest removed from the realities of the situation. The offender is almost always an abstraction to them, and the realities of their confinement are virtually unknown to them. Yet the political rewards of being “tough are crime” are significant. At the other end are the corrections officers, who are trained not as social workers but as confiners. They seek to impose order in a bureaucratic institution that is often overcrowded and understaffed. The incarcerated can be bored, suffer from poor psychological health, and prone to violence. The correctional officers are seduced to view their charges as animals to be controlled rather than human beings to be helped. Meanwhile, the police patrol communities and see the effects of crime on victims, and they too tend to see the criminal as an antagonist first. Once arrested, the prosecutor strives for conviction because their value is measured in wins and losses, and not to the degree they bring justice to bear. Finally, the judges – who almost all come from the prosecutorial side – are constrained in applying their practical wisdom through mandatory sentencing laws. They are also inclined to become callous to the effects of sentences due to the nearly inevitable dehumanization that takes effect due to the sheer churn and volume of people through their courtrooms. Certainly, those who violate the law should take responsibility for their actions, but they do not forfeit their humanity because they have committed a crime. Yet, the system is currently set up to veil their humanity from sight. This is true for victims, too, who overwhelmingly report feeling invisible within a criminal justice system that neglects their needs and desires. Ferguson notes that juries are often the best chance for humanization of the process, but 90 percent of cases are pled out, and less that 5 percent of criminal cases ever get to a jury. As a consequence of the organization of the criminal justice system, Ferguson notes, “everyone in the process of punishing has the courage of someone else’s convictions to fall back on.” No one but the prisoner bears any responsibility for the sentence imposed. No wonder our prisons are overcrowded and our prisoners over-charged and over-incarcerated.

Beyond this organizational impetus for punishment, however, Ferguson also notes the cultural dimensions of the American way of punishment. Here, Ferguson notes that the myth of American individualism has had consequences for how we think about the criminal. In this national narrative, America is the land of opportunity, where anybody who is willing to work hard can get ahead. In this context, those who fail have no one to blame but themselves. And those who would cheat and steal should be handled harshly. Here, punishment is not merely a mechanism to deter or incapacitate. It is also a means to express our outrage. Of course, this notion of a level playing field and a land of equal opportunity that only requires hard work for success is belied by the structural conditions of inequality and the constraints of racism that exist in our nation. The fact that 90 percent of people caught up in the criminal justice system are poor makes a mockery of this mythic construal of the criminal as merely a moral reprobate.  It is the poor and dispossessed who fill our prisons, not the willfully wicked.

A second cultural dimension of the American way of punishment is the racialized divisions in our nation that make it easier to see the criminal as “other than us.” Mexicans, we are told, are “rapists and murderers.” Black youth are “thugs and superpredators.” For Ferguson, there is no true understanding of the punitive impulse inscribed in our polity without an appreciation of the deep divisions along racial and class lines that render some outsiders to us. The “Other” deserves hell. But when the one who commits a crime is our son or our daughter, our mother or father, our neighbor or friend, it changes the way we think about punishment in a fundamental way. In another important book on the topic of criminal justice in the United States, Just Mercy, Bryan Stevenson emphasizes the importance of “getting proximate with others,” to overcome the over-incarceration in the United States. When others, including those who offend, are strangers to us, we find it harder to extend empathy towards them. Or put in the negative, those we do not know we are quicker to hurt. Those we know, we are willing to correct. The Gospel of Matthew instructs us to visit the poor, the sick, and those in prison.  In the language of Stevenson, the gospel encourages us to get proximate to others so that we might recognize God in them. This impetus for proximity is also at work in Ferguson’s book as well.  oward the end of the book, he asks us to turn from the Inferno toward Purgatorio as the imaginative locale for punishment.  Purgatorio, you will remember, is the place that sinners go after death, to prepare them, through suffering, for Paradise. They are not ready for God’s holy presence, but they are not banished to hell. Ferguson is not opposed to painful punishment.   Indeed, it is hard to imagine punishment without pain. But for him, as for Dante, punishment should serve a positive function. And so he recommends prisons as places of purgatory rather than places of hell. Purgatory is hard, but it need not be lonely. It is painful, but not hopeless.  And it is not the locale for the stranger who has hurt us, but for the friend who has caused harm. Ferguson distinguishes purgatorial suffering from the Inferno:

Punishment through pain … works differently in purgatory. It prevents sin, or unlawfulness, from taking place by breaking the habit of it. The goal is correction; pain is the by-product that makes it possible…. The damned struggle alone in hell except when they are fighting or hurting one another. Nothing like that ever occurs in purgatory. Instead of screams of pain, we now have welcoming embraces. The setting is noticeably like regular society in its casual conviviality…. The souls in purgatory have sinned through misdirected love, basically selfishness. The antidote, correct love, manifests itself through kindness and mutuality.

In other words, in purgatory, the offender suffers, but this time with a purpose. And note, too, that in the tradition of purgatory, loved ones – family and friends – continue to love and pray for those in limbo. It is a space set aside, but it is not a space outside of society. There is both punishment as corrective and mutuality and kindness.

Ferguson does not claim to be a religious thinker in this book. Yet, his study of punishment in America leads him to religious categories of redemptive suffering and conviviality. Like St. Matthew, Dante, and Bryan Stevenson, Ferguson calls us to get close to those we would punish.  We must know not only what we are doing, but to whom.  Without Proximity and Mercy, punishment can only lead to hell.

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