Making Sense of the U. S. Prison Industry
by Justin E. H. Smith
(Originally published in the Radical Philosophy Review, 2004)
New books discussed in this essay:
Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories Press, 2003).
Mark Dow, American Gulag: Inside U. S. Immigration Prisons (Berkeley: University of California Press, 2004).
David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001).
Tara Herivel and Paul Wright (eds.), Prison Nation: The Warehousing of America’s Poor (New York and London: Routledge, 2003).
Joy James (ed.), States of Confinement: Policing, Detention, and Prisons (New York: Palgrave, 2002).
Loïc Wacquant, Deadly Symbiosis (Themes for the 21st Century) (Polity Press, 2004).
Loïc Wacquant, Les Prisons de la misère (Paris: Éditions Raisons d’agir, 1999).
I.
As a child flips through the pages of an illustrated book intended to introduce her to the characters and institutions that make up a community, she meets the doctor at the hospital, the teacher at the school, the reporter in the news room. She learns that there are many different vocations, and many different kinds of building in which people pursue these. The grocer works in the grocery store, the cheesemonger in the cheese store, the chef in the restaurant.
But an American adult in the 21st century will quickly get the sense that such a book is setting the child up for disappointment. For a verisimilar portrait of any community today would show not artisans and tradesmen and specialty shops, but interchangeable, survival-wage workers in box stores that see minimally to all the needs once provided for by the various trades, and now under one enormous roof.
Even in their insipid nostalgia, though, there are some features of the idyllic and idealised community of a by-gone era that the instructional picture books cautiously skip over. There is, for example, no butcher shop, and there is no gaol. These, curiously, are also the quaint institutions of the early modern town that were not subsequently incorporated into the box stores with easy freeway access. They were, instead, pushed a bit further out of the city, and made rather less accessible to highway commuters, marked out by rather less perspicuous signage, blotted from what little was left of the community’s sense of itself. Until the 19th century, calves and lambs were bled in the street in front of the butcher’s shop, or at his stall in the market place; and of course there were stockades and other mechanisms for the public humiliation of prisoners. One might ask why, in the shifting of town centres from town centres to strip malls at highway off-ramps, did they not shift the butcheries and the stockades there as well? Why were these pushed even further out, out of towns and out of minds?
From an architectural point of view the factory slaughterhouses and factory prisons are clearly the product of the same civilisation that sprouted Wal-Mart: they are outsized hangars, military in mood, indifferent and massive, clearly intended for high-capacity operation. The only difference is in the size of the signs announcing the different institutions’ different purposes. The box stores off the highway may not be quaint enough to make it into any illustrated children’s books, but they are still eligible for inclusion in reality. Industrial slaughterhouses and industrial prisons, in contrast, lacking big colourful signs and public parking, are as if non-existent in the modern landscape.
This is an essay about prisons, but I believe the fates of each of these institutions in the 20th century are, to a certain extent, parallel to one another and thus mutually revealing. For in each case we see a gradual disappearance from public view of functions that, while always brutal, were once at least acknowledged. With this gradual disappearance, we have been able to convince ourselves that we have surpassed our 19th-century ancestors in humanity and gentleness, when in fact just the opposite is the case. As Noëlie Vialles writes in Animal to Edible (Cambridge University Press, 1994), an ethnographic study of the slaughterhouses of southern France:
While [the relocation of slaughtering to the town limits] certainly had to do with a town-planning policy concerned about public hygiene, exiling theabattoir was also, through that very policy, an expression of the profound shift in sensibilities with regard to such realities as death (human or animal), suffering, violence, waste and disease, ‘miasmas’, and finally animals themselves, which were increasingly coming to be seen as ‘lesser brethren’ (19).
Vialles notes that private slaughtering by butchers in their central shops was prohibited in France under Napoleon, and that this brought about an effective “dissociation of slaughtering and butchering.” The butcher does not have blood on his hands, he simply deals with a commodity that, by the time it reaches his shop, has been thoroughly de-animalised. The blood-stained hands now belong to the abattoir labourer, an unseen, abstract figure beyond the city limits, who certainly will never make it into any illustrated children’s book about our town, its buildings and people.
Along these same lines, it might be suggested that since the 19th century we have witnessed a similar dissociation of two very different aspects of our system of punishment. On the one hand, there is punishment’s public face, the courthouse, where a presumedly rational process is played out and justice is served. This process takes place in well-marked and accessible buildings; increasingly, it also takes place on television. This is the part the public wants to see, thus the ‘reality programmes’ on Court TV and the virtually indistinguishable courtroom dramas on the major networks.
On the other hand, there is the part not suitable for public viewing or primetime dramatisation-- the part that occurs after the gripping drama of deliberation and rendering of the verdict has already been played out, and there is no longer any compelling reason to stay invested in the characters. The judges and lawyers go on to play in other dramas, the members of the jury return to their homes to resume watching television, while the convict is destined to live out the repercussions of the public chapter of his brush with justice, but now hidden away beyond the limits of the polis, and thus, in a literal sense, depoliticised: removed from the concern of the community, ejected into a black hole.
While the industrial slaughterhouse ensures that we need only be exposed to meat after it has been de-animalised and transformed into a commodity, the industrial prison ensures that we need not be exposed to the ultimate product of the justice of the courtroom, namely, to the human being who has been dehumanised and warehoused as a commodity. In both cases, what we are sheltered from is an unbearable transformation, a transformation that many of us are happy to permit to go on on a massive scale even if we would not authorise it for any particular case. The slaughterhouse worker and the prison guard alike are charged with the task of transforming a morally relevant creature into a morally irrelevant thing. And both are thereby stained in a similar way-- how many tough-on-crime carnivores would want either of them over to dinner with the family? For however streamlined this process is, however thick the rule-books are that see to the maintenance of strict hygiene standards and rigid adherence to procedure, the great majority of us still sense that something abhorrent is going on.
II.
It is a commendable thing to turn this sense into words. If there is one feature that most unites the various books under review here, it is the authors’ awareness that the depth of the problem of prisons is in great part a consequence of the public’s acceptance of them as a normal, if practically invisible, feature of the landscape. Loïc Wacquant, for example, argues against what he calls the “sociodicy” (after Leibniz’s neologistic “theodicy” or vindication of God) of the prison, whereby a society seeks to vindicate itself against accusations that it is inexcusably unjust with the plea: but it could not be otherwise.
There is an obvious reason why people think the transformation of animals into meat is unavoidable-- they like to eat it, and often imagine they must do so for biological reasons. And this is where the comparison between the two institutions seems to reach its limit, for there is no similarly clear --let alone biological or “natural”-- reason to believe that a society, even a complicated one like ours, could not exist without a prison industry.
In The Culture of Control: Crime and Social Order in Contemporary Society, David Garland argues that at the same time that incarceration rates began to skyrocket in the U.S. in the early 1970s –when prisons began to turn into an industrial complex as an echo of what had happened with the U. S. military some decades earlier— there was a general shift in the public perception of the need for imprisonment, from a commitment to the idea of correction (still vestigial in the official names of most states’ prison departments) to the simple desire for retribution. The first, and in some sense most natural, answer to the sociodicy question is that we need prisons in order to punish people who have done bad things.
Garland holds that the popularity of this bit of elementary sociodicy over the past 35 years can only be understood by looking at broader societal changes in the latter half of the 20th century, rather than trying to trace the new form of the prison back to developments in the fields of criminology and penology. Interestingly, at just the time that the shift from correctionalism to punitive sentencing occurred, criminology was at its most radical, with prominent theorists in the field questioning the reality of the category of deviance altogether.
The shift in broad public opinion that did not occur in narrow academic criminology was from concern for the criminal to concern for the victim. It was assumed that recognition of victims' rights required a simultaneous diminution of concern for criminals’ rights. This position was clearly expressed by Joseph Lieberman on the 2000 campaign trail: “The liberal, criminal rights-oriented theories I took with me from law school ran smack into the reality of violent crime and street crime in my New Haven neighborhood. I knew people who were victims of violent crime and muggings; my house was broken into twice. Fear of crime was constricting freedom and stifling growth. So I began to propose tougher criminal laws, including the death penalty, and to focus more on victims’ rights and expedited criminal procedures.”
What one might find particularly odd about the retributivist, take-back-New-Haven position defended by Lieberman (he’s moved on, I note en passant, 18 months into the Iraq war and two months after Bush’s reelection, to denouncing violent video games) is not that it reverts back to an ends-blind vengefulness the Western world had gradually been overcoming since the Enlightenment. No, it was remarkable that we ever thought to strive to overcome this approach to transgressors in the first place. What is odd about the current situation is that true poetic or Hammurabic revenge remains, at least for the moment, out of the question, and the closest thing to retribution for, say, violent assault, allowed by law is to force the assailant to sit in a small room for a long time. Even if we may plausibly believe in revenge, the default setting of justice throughout the vastly greater part of human history, we may wonder what strange sort of cosmos would be set back in order through the simple incarceration of a violent criminal.
The retributivists are constrained, at present, to work within the limits of a criminal justice system that emerged as a result of the humanistic, correctionalist ideology prevalent in Western society prior to the triumph of retributivism. And what we are left with, after thirty or so years of victim's rights, Megan’s Law, and other such efflorescences of tough-on-crime populism, is an utterly senseless state of affairs, satisfactory to no one, in which politicians win votes by piling petty criminals on top of one another, for no other reason than to satisfy popular demand, in institutions that continue to be called “correctional”, but that in fact have no idea what their true purpose is, vacillating between the residual utopian good intentions of a by-gone era and the sense that their purpose is to be tough, even as the law prohibits outright corporal punishment and other violations of human rights.
III.
A second, slightly less naïve attempt at a sociodicy of the prison industry would have it that, whatever the ends envisioned for a prisoner after incarceration, the important thing is that the prisoner be removed from society and thus prevented from harming others. The more criminals there are locked up, the fewer opportunities there are for them to be committing crimes. But this view imagines that there is some fixed quantity of criminals, like sheep on a farm, and that they might be rounded up like sheep. But this view –so clean and simple it could almost gain prisons inclusion in the illustrated children’s books we started out with— would fail miserably to account for the fact that there are other societies that have relatively low incarceration rates and relatively low crime rates. One could, presumably, insist that these are just the farms with fewer sheep, but this would lead us to ask how we in the U.S. ended up with so many. And with this question we are forced to confront the brute and statistically undeniable fact that those being rounded up by the prison industry are disproportionately the descendants of slaves.
This fact registered, though, we are in a somewhat better position than our first and second sociodicists to answer the question: why the prison industry? What is it for? Our third stab at an answer will take seriously –rather than as a mere epithet— the description of it as an ‘industry’. It is, namely, the industry that gradually evolved out of the nominal abolition of slavery in the plantation industry. This answer to the sociodicy question at least has the virtue of being honest. The first and second, while nearly picture-book ready, are perpetually threatened by an inference their proponents dare not make: if people are in prison because they are bad and deserve to be there, then, statistically speaking, black people are more likely to be bad than white people. Surely this can’t be right, most would protest. But sound syllogisms force themselves on us willy-nilly. If we don’t like them, the best we can do is to reconsider their premisses. And this is the point at which it is useful to scrap the conception of imprisonment as a consequence of the moral valence, ‘bad’, of the prisoners, and focus on history and economics.
In her new book, Are Prisons Obsolete?, a compact and crystal-clear statement of the case that they indeed are, Angela Davis argues that "[p]articularly in the United States, race has always played a central role in constructing presumptions of criminality. After the abolition of slavery, former slave states passed new legislation revising the Slave Codes in order to regulate the behavior of free blacks in new ways similar to those that existed during slavery" (28).
This is of course an old story. In The Condition of the Working Class in England, Friedrich Engels reports similarly that with the Industrial Revolution, new laws were passed against vagrancy in England that effectively coerced the lower classes into city centres and into the factories. What’s remarkable is how consistently superficial progress, with respect to rights and freedom for the poor, carries with it new strategies –complete with new vocabularies that make these strategies appear to be in keeping with the progressive spirit of the times—for keeping the poor exactly where they were.
The endurance of old institutions in new guises is something Loïc Wacquant understands very well. He argues forcefully in his books, Prisons of Poverty and Deadly Symbiosis that the emergence of a system of mass incarceration in the past 30 years, in which more than half of the prisoners are African-American even though these make up only 12% of the population, can be seen as the unforeseen outcome of the confluence of three independent factors. First, there were transformations in the system of social-welfare, most importantly the rise of workfare, which Wacquant identifies as a novel form of forced labor. Secondly, there were changes in the labour market, stemming, most importantly, from massive deregulation. Finally, there were changes in the penal field and in the broader culture, which brought it about that the criminal justice system lost its autonomy from the general political culture of the U.S., and in particular from advantage-seeking politicians and media.
The disastrous mixture of these three factors was aggravated by the simultaneous “collapse of the ghetto,” an institution which had dominated as the primary mechanism of ethnoracial domination from the early 20th century, and collapsed in part as a result of the protest movement of the mid-1960s, as well as of the simultaneous shift from an urban industrial economy to a suburban service-based one. During that large chapter of the 20th century, black ghettos were locked in a position of economic and social marginality, while, to the extent possible, thriving as communities replete with churches, some control of media, business associations, etc.
From the late 1960s, Wacquant believes, the ghetto was transformed as it came to share more of the responsibility for “extract[ing] black labour while keeping black bodies at a safe distance” with the rapidly growing prison system. The prison was introduced into the landscape of the ghetto when the ghetto ceased to function effectively as what Richard Sennett calls an “urban condom” toward the end of the 1960s. And today, Wacquant believes, what we have is effectively one single institution, an amalgam of the prison and the ghetto, in which entire black families spend entire lives, women shuttling back and forth to visit incarcerated men, men periodically being released back into a ghetto without job prospects, meeting with another pretext for their arrest, and returning soon enough to the prison proper, where they will be made to work, often for well under a dollar per hour.
On the most pessimistic reading of this account of late-20th-century racial politics, one could suppose that it was precisely as a consequence of blacks having gained the freedom to leave the ghetto, as a result of the civil rights struggle, that something more coercively segregative had to move in to take its place. This is a rather bitter pill, as it makes the most laudable and progressive aspirations appear doomed in the face of a system built on rigid structural inequality, capable of adapting with new mechanisms for self-preservation whenever it comes under serious threat. But one would have to strain, it seems to me, to explain how the incarceration of African-Americans could have increased so much more rapidly in the past 35 years than that of other Americans, if the “tough on crime” rhetoric of the post-corrective era weren’t at least to some extent an epiphenomenon of a new social policy in the U.S. fundamentally concerned with perpetuating the racial inequality that is coeval with the settlement of the new world.
From a strictly economic point of view, the prison-ghetto amalgam is indeed better at extracting labour than the ghetto alone is. It is so effective, in fact, that over the past thirty years a number of shrewd business leaders have sought to get in on the profits. As some of the fine pieces collected in Tara Herivel and Paul Wright’s Prison Nation: The Warehousing of America’s Poor argue –and Gordon Lafer’s “The Politics of Prison Labor” does so particularly well— prisons provide business owners with just the sort of conditions the labor movement had been seeking since the 19th century to ameliorate: wages lower than would be paid to workers in the developing world and no chance of collective bargaining. The comparison between prisons and Wal-Mart can evidently be extended beyond architectural considerations. As Lafer writes,
In Ohio… a Honda supplier paid auto workers $2/hour for the same work that the UAW had fought for decades to win $20-30/hour for. And in Oregon, private companies can “lease” prisoners for $3/day. However, the attractions of prison labor extend far beyond wage rates. Prisoners don’t merely make less than anyone else; they are also statutorily exempted from virtually every form of labor protection enacted during the past hundred years (121f.).
Lest anyone presume that this treatment may be justified on the grounds that it is job training for the enhancement of employability upon release, and thus part of the “correctional” mission of the prison, Lafer sharply notes that companies look for prisoners who already have the skills required, and in any case the sort of tasks prisoners tend to perform for contractors are not the sort they’ll be able to do if ever released back into free America: other than in prisons, these tasks are now performed almost entirely in sweatshops in the developing world. With respect to labour standards and wages, then, prisons may be seen either as vestiges of the 19th century in 21st century America, or as islands of the third world in the heart of the first.
And it gets worse. Increasingly, private companies do not just contract with state-run prisons, but indeed run the prisons themselves. With the U.S. government as fanatically devoted as it is to subjecting every aspect of social life to free-market competition, it has gone so far as to give up its monopoly on violence and coercion, a monopoly traditionally very jealously guarded by sovereign states. As Herivel and Wright explain, private prisons began to reappear in the U.S. in 1984, fifty years after they had been abolished due to rampant brutality and corruption. By 2001, around 5% of all prisoners in the U. S. were imprisoned by private companies. Paul Wright comments: "Whether private versus public prisons are “better” is largely immaterial and irrelevant. It is like comparing rotten oranges to rotten apples from the prisoner’s perspective. But, at least in public prisons, when prisoners are raped due to inadequate staffing… or prisoners are held past their release dates, no one can say prison officials [allowed this to happen] to enhance the company’s bottom line" (137).
While it’s hard to say what the purpose of state-run prisons is, the purpose of a private prison, like the purpose of any private company, can only ever be one thing: to maximise profits. This is just what companies do. Traditionally, it has been thought, even by the most socialism-averse Americans, that there are some tasks that must be administered by the state since, due to their moral weightiness, the effects of allowing profit-seekers to take control of them could easily turn disastrous. These tasks have included, among others, war and punishment. In Western Europe they have generally included health care and education as well. Of course, in turning these tasks over to private contractors, the U.S. government is not ceding control altogether, or losing interest. It presumes that the private companies it entrusts with these tasks will reflect its own interests, but will do so at no cost to the government itself.
In education, it is perhaps merely disappointing that we lack a system of public schools that might inculcate true civic virtues, and instead are increasingly left with two very unsatisfying options. On the one hand, there public schools that really do nothing but detain the children of poorer families, simulating prisons in the same way that a high-priced school might on occasion, say, simulate the U.N. General Assembly. Just how much like prisons urban public schools have become is vividly portrayed by Brady Thomas Heiner and Ariana Mangual in their essay in Joy James’ volume on “The Repressive Social Function of Schools in Racialized Communities.” On the other hand, for the more fortunate, there are private schools that, qua private, are capable of inculcating only a shared acceptance of the free market— our civic religion’s one enduring dogma. In punishment and war, though, privatisation necessarily leads to barbarism, since it acknowledges a right to dominate, to hurt, others as a part of the ordinary course of business transaction, without any need for this domination to be perceived as backed up by the legitimacy of a sovereign state. The most vivid recent example of this barbarism are the private contractors implicated in the abuses at Abu Ghraib. While it is certainly bad enough for soldiers to be involved in torture, it is that much worse when those involved are members of private security firms whose actions cannot ultimately be traced to the U.S. government since they are not, strictly speaking, representatives of this government. As in Iraq, so too in the U.S. prison system.
IV.
It is indeed hard to discuss the U.S. prison industry in isolation from global events. An interesting and very recent development is the emergence of institutions for the warehousing, not of the descendants of American slaves, but of foreigners, of ‘illegal aliens’. Mark Dow, in American Gulag: Inside U. S. Immigration Prisons, as well as a number of the essays in States of Confinement: Policing Detentions, and Prisons, edited by Joy James, provide clear analyses of these parallel institutions, and how they have been emboldened as a consequence of September 11.
As Mark Dow explains in his very thorough and penetrating book, the INS was transferred by Franklin Roosevelt during the war from the Deparment of Labor to the Department of Justice. Dow cites an INS-produced report explaining that, in a time of war, transferring the control of immigration to an enforcement agency seemed a logical step. The next transfer, of course, would occur in 2003, when it became a part of the Department of Homeland Security. It seems that today few even bother to question the appropriateness of treating asylum seekers effectively as prisoners of war. On the presumption that border security needs to be tight in order to prevent future terrorist attacks (nevermind that the September 11 attackers got into the U.S. through perfectly legal means), Americans are willing to allow entire families –men, women, and children, fleeing torture in countries that are not at all on hostile terms with the U.S.— all to be treated as potentially the next Mohammed Atta. The system itself seems to strengthen the odds that at least a few of them may find his legacy appealing.
Unlike the regular prison system that exists parallel to that of immigration detention centers, the latter are able to function with much less concern for respect of prisoners’ rights and for due process, since, being by definition non-citizens, the inmates are not perceived to have any rights beyond those guaranteed by the Geneva Convention. With the new precedent set at Guantanamo for disdain of international treaties, moreover, even this minimal guarantee that one will be treated with dignity and as a human being is fast disappearing. Inmates in I.N.S. detention centers may be detained for indefinite lengths of time, without bond and without counsel. As a result of the declaration of a “war on drugs” in the 1980s, and even more so after September 11, as Dow explains there has been a growing “bureaucratic imperative” to apprehend “criminal aliens.” Often, these aliens are held not in I.N.S. detention centers but in other facilities that make up part of the regular prison system. Dow notes that the federal government paid one county in Pennsylvania $45 per day to detain asylum seekers in its jail, even though doing so cost them less than $25. One commissioner in a nearby county reported that he was hoping for a similar windfall: “If no immigrants are secured,” he told the Harrisburg Patriot, “some layoffs may be inevitable.”
Dow gives frightening examples of how, after September 11, the private detention industry sought to get in on the action. He mentions a representative of the Houston Based Cornell Companies, who announced that “[i]t can only be good… with the focus on people that are illegal and also from Middle Eastern descent… The federal business is the best business for us… and the events of September 11 [are] increasing that level of business” (10).
It seems that in trying to survey all the different aspects of the U.S. prison industry treated by the various authors discussed here, we are perpetually brought back around to a couple of enduring themes: the stacking of the deck against groups that have historically served as the inspiration for upper class America’s xenophobia—both the descendants of slaves and, now, would-be immigrants as well; the deadly symbiosis, to borrow Wacquant’s phrase, between retributivist ideology and the possibility of profiteering. The side of incarceration on which Dow focusses is important, because it reveals the very sensitive connection between the treatment of prisoners in the “Homeland”, on the one hand, and on the other the way this treatment may be read as an inward manifestation of the same exceptionalist, Sonderweg ideology that on the global stage has led to the travesty of the occupation of Iraq. To modify an insight of Dostoevsky’s, it would seem not just that a nation’s character can be discerned in the way it treats its prisoners, but a nation’s foreign policy as well (and vice versa).
V.
Of course, to be a prisoner is more than to do borderline-slave labour by day and sit in a little room by night. It is to lead a life filled with perils. Significant among these is the struggle for domination, by means of both sexual and non-sexual violence, between prisoners, a struggle that is generally monitored and regulated, if not directly abetted, by the guards.
Rape is widespread, and consequently so is AIDS, and appearances suggest that the system of domination that emerges out of this is at least tolerated, if not abetted, by the guards. As one Indiana prisoner –sentenced for drunk driving— who’d been raped repeatedly told Human Rights Watch in 2000: "I was given a conduct report. I explained to the hearing officer what the issue was. He told me that off the record, He suggests I find a man I would/could willingly have sex with to prevent these things from happening. I’ve requested protective custody only to be denied. It is not available here. He also said there was no where to run to, and it would be best for me to accept things."
Joanne Mariner, in her article “Deliberate Indifference” in the Herivel and Wright volume, explains that “Rape plagues U. S. prisons because of a lack of attention or concern by prison authorities or politicians.” This is, she argues, largely a result of legislation that has been developed to protect prison staff: “[T]he legal rules that the courts have developed relating to prisoner-on-prisoner sexual abuse create perverse incentives for authorities to ignore the problem. Under the ‘deliberate indifference’ standard… the prisoner must prove to the court that the defendant-prison staff had actual knowledge of a substantial risk to him, and that they disregarded that risk” (234).
It is not hard to see why the plaintiff in such a case does not have much of a chance. For one thing, he is a convicted criminal. For another, he is, the court may easily imagine, a submissive, and thus rather out of his element in agressively pressing charges. While of course there may be some individually sympathetic ears in the court, we may easily imagine that, however difficult it has been for women to overcome the tendency to blame the victim in rape trials, it has been at least as hard in the case of homosexual rape, and all the more so in the case of the homosexual rape of prisoners, whose very status as bearers of rights that might in principle be violated seems to be in doubt. What happens to the prisoner behind bars, it may still be too easy to conclude –no matter how hard we nobly strive to legislate against such a conclusion— is just a consequence of who he is. There is nothing to be done about it.
VI.
We will do well here to return to Vialles’ account of the reasons for the removal of the slaughterhouse to the periphery of the city. Among these was the fear of ‘miasma’. In classical Greek, this word had been used both to refer to contaminated air –a concept central to the Hippocratic account of plagues—as well as to pollution in the anthropological sense—the taint that results from active contact with some prohibited substance or person. Miasma, in the Greek context, comes from association with or involvement in some event, not from considerations of intention, which considerations serve of course, at least superficially, as the basis of our own criminal justice system’s conception of guilt and innocence. As the moral philosopher Bernard Williams notes of the Greeks in Shame and Necessity (University of California Press, 1993),
Miasma was incurred just as much by unintentional as by intentional killing. It was conceived of, simply, as an effect of killing a human being, and what modern philosophy calls the extensionality of the causal relation implies that if there are any such effects, then an event that is a killing of a human being will have the effect whether it is intended as a killing or not. Miasma is a supernatural effect: and the fact that it was seen in these blankly causal terms may make us say that it is a particular kind of supernatural effect, one that belongs with magic rather than merely with religion (59f.).
Williams considers some perplexing cases, such as the subject of the Second Tetralogy, ascribed to Antiphon, who while practicing the javelin in the gymnasium is unfortunate enough to strike a runner who has strayed into his path. Is the javelin-thrower guilty? It is said that Pericles and Protagoras spent an entire day debating the matter. Williams tells us that, whether the thrower is guilty or not, he is by Greek standards inexorably trapped in the miasma his unfortunate throw has produced.
What Williams --along with Pericles and Protagoras, for that matter-- does not consider are all those who find themselves in a position similar to that of the thrower long before they’ve had a chance to throw anything at all, long before their arms are even capable of throwing, those who are, as it were, born into miasma. In the American context, this would still include the vast majority of male descendants of slaves. Occasions arise for their arrest and prosecution, of course, occasions inclined but not necessitated by the simple fact of their birth. But the miasma was already there; a descendant of slaves is always already a criminal waiting to be matched with a crime by the criminal justice system. And this is why his fate at the hands of this system is different than mine would be if I were, on a whim, to try out shoplifting and get caught. This also explains the disproportionately black face of death row.
And it explains why, in thinking about imprisonment in America, we must drop altogether our moral-philosophical (and moralistic) effort to match up fates with actions and their consequences. For birth is not an action, and it it is birth, into some particular social group or other, into some particular neighbourhood, that determines, so much more than any particular decision to hurl a javelin or slip a security-tagged compact disc beneath our coat, how we will be treated by the justice system. It is unchosen identity, not chosen action, that determines whether we will be the sort of human being deemed suitable for transformation, on the pretext of some crime or other, into a warehoused body, out of sight and out of mind of those so blessed by the fates as to be born otherwise.
