American Criminal Justice, Made in Texas (Part 2)

07-10-2012

In my last blog (June 20, 2012), I highlighted a few scholars’ recent efforts to situate current patterns of African American imprisonment within this country’s longer history of racial conflict and subjugation. More specifically, I focused on some of the central claims in Robert Perkinson’s book Texas Tough (2010), which offers a sharp account of the historical connections between racial hierarchy and mass imprisonment in the Lone Star State and the larger American South. In its broadest outlines, Perkinson’s book contends that incarceration in Texas has, from its very outset, been closely bound up with chattel slavery and its legacies.

This entanglement is perhaps most evident in the state’s long-standing commitment to forced inmate labor, much of which took place—as late as the 1970s—on state-run prison farms that bore a striking resemblance to antebellum plantations. It is also discernible in the late nineteenth- and early twentieth-century practice of “convict leasing,” which allowed private entrepreneurs to purchase the right to use inmate labor power from the state prison system.

Despite regulations that required the humane treatment of prisoners, convict leasing generated widespread neglect and abuse, and in the early twentieth century it drew the ire not only of many African Americans, but also of white labor leaders, radical farm organizers, and progressive middle-class reformers. This last group launched a concerted campaign to move the state prison system away from punitive revenue-bearing production and toward newer, ostensibly more benevolent forms of rehabilitation. In the second decade of the twentieth century, modernizers in the prison administration implemented a variety of reform measures, including better food and medical care, religious services and reading classes, ten-hour workdays, and even nominal compensation for prison workers (ten cents per diem). In Perkinson’s account, however, these efforts were undermined by vocal opposition from prison personnel and, perhaps counter-intuitively, a surge in inmate dissent and rebellion. This uptick in prisoner discontent in particular prompted administrators and lawmakers to reassert penal authority, and the prison system basically reverted to its former pattern of plantation agriculture and severe discipline.

To be sure, progressive reform campaigns reemerged in Texas in the late 1920s, the 1940s, and the 1950s. They commonly looked for inspiration to similar initiatives in New York (which represented the cutting edge of inmate participation in prison management) and California (which led the way in inmate counseling and the professionalization of prison staff). But they also responded to homegrown scandals, including a spate of self-mutilations among Texas prisoners in the 1940s. In a desperate effort to avoid and/or protest harsh work conditions, unsanitary housing, and guard mistreatment, hundreds of inmates chopped off digits or limbs, injected gasoline into their arms and legs, or severed their Achilles tendons. As Perkinson notes, similar tactics were common in the era of slavery and convict leasing, and prisoners’ recourse to such deliberate violence against the self ultimately drew a more sustained response from the state government than previous reform efforts.

[caption id="attachment_6478" align="alignnone" width="345" caption="Texas Prison Board, 1930's"][/caption]

Nevertheless, when a new system of prison management coalesced in the 1950s, it continued to emphasize “work and force” (Perkinson, p. 228) as the central pillars of incarceration, even as it embraced certain forms of rehabilitative programming like church services, formal schooling, vocational training, and after-work programs. This emerging style became known as the “control model,” and it garnered significant praise for Texas in the national press and in professional organizations like the American Correctional Association. As eventually became clear, however, the “control” that this model promoted ultimately rested on a culture of routine repression among prison guards as well as systemic reliance on convict enforcers, or “building tenders.” Since the late nineteenth century, building tenders in Texas prisons had dispensed disciplinary violence against fellow inmates with impunity, and they had enjoyed a variety of unsanctioned privileges, including the prerogative to engage in consensual and non-consensual sex with other prisoners.

In the face of such endemic brutality, a small number of convict activists began to draw on the 1871 Civil Rights Act to sue the state of Texas for violations of their constitutional rights. One of the most prominent activists, David Ruíz, filed a petition in June 1972 that offered a harrowing chronicle of his treatment at the hands of prison staff and building tenders, and a small team of lawyers and judges transformed it into a class action lawsuit, Ruiz v. Estelle, on behalf of the state’s entire inmate population. The presiding district judge ruled in 1980 that the Texas penal system had subjected prisoners to cruel and unusual punishment and deprived them of due process of law on a massive scale, and he ordered the state government to undertake sweeping changes. The Ruiz decision effectively ended Texas’s regime of plantation-style prison farming, and it represented the most comprehensive reform order that a federal court had issued to a state penal system up to that point. Drawing on the momentum created by the lawsuit, prison modernizers in the early 1980s lobbied for the redistribution of the state’s inmate population into smaller, less isolated facilities with understated security and extensive links to outside communities.

These reform efforts were (yet again) outweighed, however, by rising crimes rates, the ascendance of the New Right, and a concomitant turn toward “law-and-order” politics on both the state and national level. Texas’s prisoner population increased dramatically as both Republican and Democratic lawmakers passed stiffer sentencing guidelines and curtailed inmates’ eligibility for parole. These trends spurred a massive prison construction boom, but with the collapse of the control model following the Ruiz decision, the new facilities were increasingly structured less like plantations and more like warehouses that emphasized “confinement, separation, and complete architectural control” (Perkinson, p. 315). As violence against both prisoners and guards increased once more, Texas prisons resorted to extended “administrative segregation” (i.e., solitary confinement) and “super segregation” cell blocks in their efforts to contain not just disruptive inmates, but relatively compliant ones as well.

This recent punitive turn in criminal justice has not been restricted to Texas: rates of incarceration and prison construction have increased sharply in most states over the past three decades, as has the proportion of African American and Latino inmates. Meanwhile, the federal government—particularly under former Texas governor George W. Bush—has displayed a striking commitment to expanded law enforcement, extended sentencing, and more frequent recourse to capital punishment. In Perkinson’s analysis, then, the historical arc of American imprisonment has not bent toward the rehabilitative goals championed most forcefully in northern states like New York. Rather, “the northern prison became more southern rather than the other way around…. If northern prisons once gestured toward freedom and southern penal farms toward bondage, the whole Union is in alignment now, pointing back toward the eternal bifurcations of slavery” (Perkinson, pp. 362-363).

This provocative argument raises serious questions about America’s commitment to the granting of ostensibly inalienable rights to all its citizens, and it suggests that race continues to shape how we approach the protection and violation of human dignity. To be sure, there are moments when Perkinson’s claims overstep the limits of his evidence. I am not convinced that the recent proliferation of prisons in Texas and other parts of the South and wider U.S. can be read as a reaction to the end of Jim Crow and the successes of the civil rights movement. I also doubt that the second Bush administration’s conduct in Guantanamo, Afghanistan, and Iraq can be traced to the practices of southern slavery and imprisonment as neatly as he suggests. Nevertheless, the heart of Perkinson’s argument skillfully outlines disturbing historical linkages between slavery and incarceration without equating these two forms of domination. In the process, he implies that we may need to rethink the relationship that prisoners, especially prisoners of color, have maintained with American citizenship in both the past and present.

On some occasions, incarcerated people have not merely constituted a recognized exception to juridical norms, which nevertheless enjoys “some kind of human equality,” as Hannah Arendt described criminals in The Origins of Totalitarianism (p. 286). Rather, they have formed a social category whose claim to “retain [their] rights over [their] bodies” (p. 444) has been substantially limited by their exposure to forced labor, sexual degradation, and violence that often has not been subject to public scrutiny and political accountability. This point does not imply that prisoners’ experiences can therefore be conflated with those of slaves, stateless persons, or concentration camp inmates, to name only a few of the dominated groups that concerned Arendt in the Origins. But it does suggest that prisoners’ enjoyment of constitutional and human rights cannot be taken for granted, as she seems to presume. It is still an exaggeration, I think, to say that prison inmates live “outside the pale of the law” (p. 277) in Arendt’s understanding of that phrase. But I would also insist that, in all too many instances, they have resided closer to its margins than we may care to admit.

-Jeff Jurgens