Legal Brutality: Prisons and Punishment, the American Way

[J]ails were the true records of a county's, a community's history.

William Faulkner, Intruder in the Dust

Prisons occupy a central place in the American cultural and political landscape. In an attempt to understand the development of the US penal system, which represents the world's highest incarceration rate (Parini B8) and has earned condemnations from the UN Commission on Human Rights and the Committee Against Torture (Dayan 74), numerous scholars have turned their attention to the influence of prisons and punishment on the American nation and its literary imagination. This essay features four recent books that adopt such a perspective. In The Story of Cruel and Unusual (2007), Colin Dayan examines the legal justifications for a long legacy of unjust practices, from slavery to the torture of detainees at Abu Ghraib. In The Prison and the American Imagination (2009), Caleb Smith analyzes a broad range of literary texts that explore "the dehumanization that shadows the ideal of humanity" on which penal practices rest (22). Peter Caster's Prisons, Race, and Masculinity in Twentieth-Century US Literature and Film (2008) addresses the effects of popular representations of crime and punishment that appeared in novels, films, and performances between 1931 and 1999. Finally, in Exiled Voices, Portals of Discovery: Prose, Poetry, and Drama by Thirteen Imprisoned Writers (2008), Susan Nagelsen features incarcerated authors' insights about their experiences prior to and during incarceration. Read together, these texts challenge dominant conceptions of crime and punishment and illuminate how captivity shapes American thought about freedom. The books' lacunae also point to the ongoing need within prison studies for rigorously interdisciplinary scholarship that attends simultaneously to issues of race, gender, sexuality, and class.

1. A History of the Present

Through their respective engagements with legal history and literary history, Colin Dayan and Caleb Smith illustrate that current US penal practices represent a continuation of—not a departure from—the legal and philosophical principles on which the US penal system was founded. In The Story of Cruel and Unusual, Dayan argues that the Eighth Amendment to the US Constitution—"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"— underlies a legacy of legal brutality. Suggesting that "the existence of slavery" dictated the coupling of the words "cruel and unusual" (88), Dayan explains that by explicitly prohibiting the most egregious methods of punishment, such as cutting off slaves' hands or ears, antebellum lawmakers implicitly justified the routine forms of abuse, mutilation, and homicide to which slaves were subject (12). According to Dayan, contemporary Eighth Amendment decisions follow a similar logic: "Under cover of 'legitimacy' and 'reasonableness, using terms like 'decency' and 'basic human needs,' the courts have sustained a brutalization that might not leave physical marks but that recreates the civil, legal, and political incapacitation of slavery" (45–46).

In Dayan's view, the evisceration of the Eighth Amendment over the last 30 years has paved the way for the torture of detainees at Abu Ghraib and Guantánamo Bay (5). Just as US penal authorities can only be held liable for prisoners' suffering if they manifest an explicit intention to harm prisoners, the "torture memos" stipulate that interrogators can only be held liable for maiming or killing a detainee if they "expressly intended to achieve the forbidden act" (qtd. in Dayan 60). Furthermore, domestic prisoners, "security detainees," and "illegal enemy combatants" are all treated as mere "bodies. Few are granted minds. The unspoken assumption is that prisoners are not persons. Or at best, they are a different kind of person: so dehumanized that the Eighth Amendment no longer applies" (90). In US prisons, for example, deprivations that cause psychological harm—such as prolonged isolation—are...