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88 Chapter 6 Penal Harm Stigma, Threat, and Retribution A harm that enjoys widespread if not universal support in modern societies is that which the state imposes on persons it deems criminals, or penal harm (Clear 1994). The U.S. penal harm project stands out internationally. Our nation’s incarceration rate is the highest in the world (ICPS 2012). More than 2.2 million Americans—disproportionately blacks and Hispanics—were incarcerated in 2011 (Glaze and Parks 2012). More than 1 in 100 adults are behind bars, although that statistic obscures even more striking race specifics: 1 in 9 black men ages twenty to thirty-four and 1 in 36 Hispanic men are serving time (New York Times 2008). Whereas the imprisonment rate declined from 2009 to 2011 (Carson and Sabol 2012; Guerino, Harrison, and Sabol 2011) following steep increases in the 1980s and 1990s ( Justice Policy Institute 2000), the length of the average prison stay has risen 36 percent over 1990 levels (Pew Center 2012). The foregoing numbers say nothing about the torture of solitary confinement made routine in the supermax facilities that now operate in forty-four states (AFSC 2012). As journalist Adam Gopnik (2012) observes: “The scale and the brutality of our prisons are the moral scandal of American life.” The United States is the only Western nation that uses the death penalty. A total of 1,296 persons have been executed since the death penalty was reinstated nationwide in 1976 (DPIC 2012a). Besides incarceration and execution, we socially and politically marginalize convicts long after they have served their sentence. Persons with a past felony conviction encounter deep discrimination in employment, housing, education , public benefits, and political participation. The harmful effects of discriminatory practices cause harm to convicts as well as their families and their communities. This chapter asks, why do we inflict—and support—penal harm? My answer is based on examples with U.S. particulars. I hope that the United States will serve as a strong case with which to forge a general theory. In addition, I hope to shed light (though more definitive word awaits comparison with other nations) on the U.S. exceptionalism reflected in the data. Why do we punish with such abandon? I argue that a story of penal harm fuels it and that the especially contradictory American version of the story fuels a whole lot of it. Note, though, that my basic argument applies just as well to the minimalist approach that some, myself included, would take to punishing serious offenders. My purpose is to explain harm generally, and not just harm that many think of as excessive or preventable. I draw on two main sources of data, qualitative interviews and court cases. Thirty individuals in Tennessee were asked to discuss their attitudes concerning a variety of harmful practices, including incarceration and execution. These interviews have been described in earlier chapters. Twelve, or 40 percent, opposed the death penalty, higher than observed in national surveys (for 2011), which put death penalty opposition in the range of 27 to 31 percent (DPIC 2012b).1 Despite such views, no one we interviewed opposed imprisonment. That is, everyone supported penal harm under some circumstances. We also analyzed U.S. Supreme Court cases evaluating the merits and limits of penal harm. Using the database CQ Supreme Court Yearbook, a research team collected information on all cases heard from the Penal Harm 89 2000–2001 term to the most recent available term, 2010–2011, that addressed criminal law and procedure—a total of 308 cases. We examined each of these and selected twelve cases in which the Supreme Court justices debated the warrant of doing harm by way of criminal justice (see table 6.1). Other cases did not offer such philosophical debates. Nine of the twelve court cases attended to the validity of the death penalty; the three others concerned imprisonment or prison conditions. All but two cases (Smith v. Texas and Begay v. United States) grappled with the U.S. Constitution’s Eighth Amendment prohibiting “cruel and unusual punishment.”2 Contrasting Characters The Eighth Amendment anchors the story that casts the state’s harm as altogether different from both revenge and the criminal’s harm. Linguist Livia Polanyi discerned elements of “the American story,” including the logic that “causing pain is wrong and wrongdoing should be punished by pain” (1985, 136). Although that may serve as a fundamental logic in U.S. society, it is highly selective. Not all pain caused by humans is...


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