An Introduction: Penal Democracy

Good Society Symposium on “Democratic Theory and Mass Incarceration”

The United States is the “world champion” in incarceration, to borrow Nils Christie’s words, and United Kingdom jurisdictions, though some distance behind, are persistently among the European countries with the highest per capita rates of imprisonment.¹ Yet Anglo-American political theory has hardly registered mass incarceration and has done little to analyze any incongruity with core democratic commitments. This disconnection is puzzling, first, because of the powerful lines of argument present within progressive, liberal, and conservative traditions alike which draw limits to state coercion and demand strict scrutiny over threats to individual rights, human development, and civic dignity posed by institutionalized exclusion and stigmatization. It is puzzling, second, because of the available links to robust and sophisticated theoretical discussions within criminology by David Garland, Jonathan Simon, Ian Loader and Richard Sparks, just to name a few scholars, on the state, citizen action, and the efficacy of punishment; this thriving discourse has found a congenial home in journals such as Punishment & Society and Theoretical Criminology. It is puzzling, third, because of the common ground occupied by restorative justice advocates and political theorists concerned with deliberative democratic institutional design.

This symposium of the Good Society seeks to catalyze an engaged, multi-disciplinary discussion among philosophers, political theorists, and theoretically inclined criminologists on how contemporary democratic theory might help us think beyond mass incarceration. Rather than viewing punishment as a natural reaction to crime, and imprisonment as a sensible outgrowth of this reaction, we will frame these as institutions with deep implications for contemporary civic identity, which present unmet demands for public oversight and reflective democratic influence. What conceptual resources can be marshaled to support de-carceration and alternatives to prison? How might democratic theory strengthen recent efforts in restorative justice and other reform movements? How can the normative complexity of criminal justice be grappled with by lay citizens rather than left as a matter for professionals or officials—from street-level policing decisions, to adjudication, to prison and probation policy? How, in short, might modern publics forge a creative alternative to an unreflective commitment to mass incarceration? In reflecting on these questions, the authors investigate the invisibility of the prison in the discourse of mainstream political theory, offer normative theoretical guideposts for thinking about incarceration, critically examine the methods and uses of public opinion regarding punishment, and suggest ways of rebuilding crime control institutions to enhance rather than thwart citizen capabilities.

Bernard Harcourt launches our discussion with an important challenge. At a time often referred to as a renaissance in democratic theory, the field has been eerily silent on punishment. While indicating a number of plausible explanations, Harcourt’s article provokes further inquiry into this quietism. One problem is social geography: the fact that prisons are out of sight, out of mind, and highly ambiguous to many Americans, as Rebecca Thorpe’s contribution reveals. The rapid growth of prisons since the 1970s, especially in rural America, has provided jobs and revenues in economically straitened communities. Not only is this kind of public investment an economic dead-end, however, as prison areas are rarely locales of further growth or development, it represents the short-sighted triumph of penal policy over more constructive approaches to rebuilding the poor, urban, and racially segregated neighborhoods disproportionately filling rural prison cells.

It is hard to gainsay the late William Stuntz’s quip, “American criminal law’s historical development has borne no relation to any plausible normative theory—unless ‘more’ counts as a normative theory”.² From a relatively lenient status quo, at least in the North, the US moved, beginning in the mid-1970s, to the current dubious honor of leading the world in incarceration.³ In addition, in the span of just one generation prominent normative justifications have shifted from rehabilitation, to “just deserts” retribution, to, more recently, something closer to deterrence and incapacitation, and now even more recently to the as yet to be determined “smart on crime” objective. Seeking a gravitational principle that can shed light on the core question of just how much punishment is enough, Richard Dagger calls...