The role of crime and punishment in today's society is one that is marred by debate, opinion, and policy shifts correlative of public opinion. It was not always the case that criminal proceedings were deemed unfair in the United States. In fact, the whole reason behind the institution of the judiciary system was to ensure that fair practices were utilized in the deprivation of rights as a form of punishment for the accused. In the last twenty years, however, it seems that this once fair and impartial system has lost its impartiality.
Going further, it seems that this system has lost the power that it had originally been vested with. Looking at the current rates of imprisonment in the state of California, one is left to wonder, what the next twenty years will bring. Using an analysis of history, contemporary debate, and ethnography, this paper hopes to address the problem of mass imprisonment in California. Specifically, this paper will examine the history and practice of mass imprisonment and its implications for the prisoner, the prisoner's family and the community from which he came.
Introduction
Legal theorists, academics, politicians, policy advocates and the general public have debated crime and punishment for centuries. As far back as the 18th century practice of the state's use of the scaffold as a means of punishment has resulted in polarities on both sides. Even now, in the face of mass imprisonment of historical proportions, penal proportionality is of considerable dispute.
Was the harm inflicted on the victim and society equal to or lesser than the harm the state inflicts on the convicted wrongdoer? Is the state's goal to only punish or is it also to reform and rehabilitate as well? Are the end results of specific punishments justifications for the means of punishment? Is society better off by the criminals being effectually exiled by the state? These are but four questions the penal policy debate has raised; however, this paper argues there are more questions to be asked when determining punishment. More specifically, this paper seeks to address both penal policy and the use of incarceration as punishment in the state of California.
Utilizing a tripartite approach, this paper will examine the prison institution; key policy shifts relational to punitory practices; the results of these policy shifts; the implications of these policy shifts and institutional practices on prisoners, their families and the communities from which they came; and finally, possible practical penal reforms.
The Birth of the Prison
The power to punish and the state's justifications for punishment have continued to be a point of contention in penal debate. It may be argued that penal reform has historically followed on the heels of policy and political shifts. Going back as far as the 18th century, legal and policy scholars can map the rise of the prison institution and the political shift that sparked a reform movement which established the institution that now forms the basis of this paper. It is only through a look at the past can scholars, advocates, and legislatures truly address and ameliorate the challenges we face with respect to mass imprisonment in the present.
From a State of Nature to a Civilized Society
Prior to the mid-seventeenth century, the power to punish was firmly rooted in two places: first, the people, and then, the sovereign. Seventeenth century English philosopher, Thomas Hobbes, was the first to posit on the existence of the “state of nature” in his Leviathan (1651). In this state of nature, he wrote, all men are so equal in “faculties of body, and in mind… [that] the difference between man, and man, is not so considerable” (Perry I 3). According to Hobbes, as there existed no fundamental difference between men in this state of nature, it was the responsibility of each individual to secure the blessings of liberty for himself. As such, “during the time men live without a common Power to keep them all in awe, they are in that condition which is called Warre of every Warre; and such a warre, as is of every man, against every man” (Perry I 4).
More simply put, as there were no observable laws in existence (except those which existed in each individual's conscience, and only of varying degrees of similarity) the pursuit of self-interest caused people to encroach on each other's “natural” rights. Further, peace was compromised because in this state of nature, man has the “natural” right to utilize any means necessary to preserve his own liberty or safety. Hobbes's answer to this state of nature that compromised every individual's safety and security lay in a “social contract.” It was in this instance that punishment lay in the hands of the people.
Writing nearly, 250 years later, Emile Durkheim, considered by many to be the father of sociology, reiterated Hobbes' idea by saying “primitive peoples punish for the sake of punishing, causing the guilty person to suffer solely for the sake of suffering and without any advantage for themselves from the suffering they inflict upon him” (24). It is for this reason, that the social contract was instituted. In order that punishment is inflicted in an organized manner, the use of arbitrary infliction of pain for the sake of retribution is abolished and the power to punish is vested in one entity within an organized society, the social contract was formulated. “Laws are the conditions, under which men, naturally independent, united themselves in society.” (6). Sacrificing a certain part of individualism and autonomy, men deposited the power to punish into the hands of a single sovereign power. In this agreement among the people in a civilized society to relinquish some of their liberties in the interests of protection and peace, organized punishment was born. “Society punishes not because the punishment itself affords it some satisfaction, but in order that the fear of punishment may give pause to those who are evilly inclined.” (25)
