Liberalism on trial.

Platt, Tony

CONGRATULATIONS TO JONATHAN SIMON ON AN EXCELLENT CROSSOVER BOOK THAT draws upon his expertise in law and criminology, and hopefully will reach a broad audience. Simon's voice is refreshingly direct and uncompromising: "It is important to recognize," he writes, "that California is to incarceration what Mississippi was to segregation.... Mass imprisonment must end. It endangers human dignity" (Simon 2014, 17, 172).

Mass Incarceration on Trial echoes the indignant anger of Jessica Mitford's popular muckraking book, Kind and Usual Punishment: The Prison Business (1973) and complements Michel le Alexander's The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2010). Mass Incarceration on Trial helpfully encourages activists to look for allies wherever we can find them. The judges who are heroes to Jonathan Simon may be a tiny minority, but they remind us that the judiciary is not monolithic, that every functionary is not, as Ralph Miliband put it in 1969, a "servant of the state," characterized only by a "disposition to share the zeal of repressive authority" (Miliband 1969, 143).

Many of us here today in Berkeley's Law School appreciate the significance of the federal cases discussed in Mass Incarceration on Trial: Madrid v. Gomez (1995, filed in 1991), in which Judge Thelton Henderson ruled that the treatment of mentally ill prisoners in California's Security Housing Units constituted cruel and unusual punishment; Coleman v. Wilson (1995), in which Judge Lawrence Karlton ordered major reforms of prison mental health service--according to Simon, "undoubtedly the largest and most complex court order concerning mental health in history" (Simon 2014, 74); Plata v. Davis and Brown v. Plata (2011), in which the US Supreme Court eventually upheld Judge Henderson's ruling that California's prisons were, in Simon's words, "an organized system of inhumanity" (ibid., 106), requiring a reduction of the prison population by 40,000 to alleviate chronic overcrowding.

But, unlike the widespread publicity and political mobilization following Brown v. Board of Education, for example, most people, including those that Simon refers to as "enlightened elites," are unfamiliar with these prison-related cases and their "potential to change society" (ibid., 155). It is a particular strength of this book that Simon is able to channel the essence of several complicated cases and communicate not only their innovative legal strategies, but also their vision of a decent society. In this respect, I would include among Simon's intellectual predecessors Gunnar Myrdal, whose post-World War II vision of American race relations, An American Dilemma, stressed "the moralistic optimism of America," as well as its obligation to live up to its professed ideals (Myrdal 1944, 1021).

I am also reminded in Jonathan's work of another law professor who used his expertise to reach a broader audience. In his 1964 book, The Borderland of Criminal Justice, Francis Allen asked: "What may we properly demand of a system of criminal justice?" And like Jonathan Simon, he too was deeply concerned that:

the history of recent years has demonstrated all too clearly that the criminal law and its sanctions are capable of use as instruments for the destruction of basic political values.... The malevolent use of state power has become rather the rule than the exception (Allen 1964, 4, 66).

But there is one big difference between Francis Allen and Jonathan Simon. Allen was writing at a high point of American liberalism, the late 1950s and 1960s, whereas Simon writes during its nadir. His cal I for sensible policies, social scientific rationality, civic mindedness, human dignity, and the best of the American progressive tradition in criminal justice has few allies in today's political, judicial, and academic neoliberal climate. This book is not simply a critique of "mass imprisonment." It is also a call to resuscitate social democratic liberalism.

I share a great deal of common intellectual and political ground with Jonathan Simon. That does not mean we agree about everything. Here are three points of contention that address historiography, race, and the future.

(1) I think that Mass Incarceration on Trial tends to sentimentalize the good old days to make the case that "mass imprisonment" was a decisive break with the past. "In the 1970s," Simon (2014, 5) writes, "although sometimes based on an antiquated physical infrastructure, the penal regime had a variety of incentives to promote the well-being of individual prisoners, especially their mental health. Wealthier states provided generally good and sometimes excellent medical care to prisoners (although troubling experiments went on as well)."

In my view, Simon overstates the importance of the penal regime's pre-1980s benevolence and understates those "troubling experiments." By noting that during the era of mass incarceration "rehabilitation was out of fashion" (ibid., 5), Simon makes the assumption that it once was in fashion. He writes, "a major goal of modern corrections--attending to the psychology and psychopathology of prisoners, central to the whole enterprise since at least World War I--had been abandoned" by the 1990s (ibid., 75). Contrary to Simon, I think that the rhetoric of "rehabilitation" was short-lived and never matched in practice in most prisons.

Surprisingly, Michel Foucault, who had a significant influence on Simon's intellectual development, shows up only in a footnote. Surely Foucault (as well as Erving Goffman and Georg Rusche) would remind us that "the great carceral continuum of disciplinary networks" includes medical, psychological, and educational institutions, as well as the prison; and that the rhetoric of benevolent do-gooding invariably is accompanied by and constitutive of practices of coercion and repression. As Francis Allen (1959, 229) observed as early as 1959, "the rehabilitative ideal has been debased in practice and the consequences resulting from this debasement are serious and, at times, dangerous.... The rehabilitative ideal has often led to severity of penal measures."

Even Simon has his doubts about the heyday of the rehabilitative ideal and hedges his bets. "California became a global leader in all aspects of the movement, both the enlightened (therapeutic communities) and the despicable (involuntary eugenic sterilization)," he writes (Simon 2014, 76). And elsewhere he notes that "even where medical care was at its best, as in the advanced progressive states such as California, prison medicine was closely tied to the punitive control function ..." (ibid., 105).

In Mass Incarceration on Trial, Simon rarely touches on the prison system's pre-rehab history. When he does, there is some wishful thinking:

In the late 19th and early 20th centuries, the project of prisons drew even closer to that of the asylum, as psychiatrists and psychologists became influential in prisons and prison reformers characterized most criminal offenders as psychological deviants in need of rehabilitative treatment, (ibid., 77)

In reality, until the early twentieth century California's "advanced progressive" prison system was as brutally coercive as the South's convict labor system, with prisoners forced to do backbreaking work: producing jute bags for the wheat industry, building roads to transport lumber from the northwest, and digging the Folsom Dam that powered electrical energy. And after productive labor in California prisons was terminated early in the twentieth century, it was replaced by backbreaking, non-productive labor.

(2) Early in the book, Jonathan Simon states that "the inhumanity in our prisons is a legacy of slavery's comprehensive practices of degradation and punishment, which has left its mark on American penology from the plantation prisons of Jim Crow to the warehouses of mass incarceration" (ibid., 10). This is an argument that Simon bases on Michelle Alexander's analysis in The New Jim Crow (2010). The racialized nature of prisons is not, in my view, only a legacy of the past. It is also reproduced, strengthened, and transformed overtime. For example, in the mid-1850s, Mexicans comprised almost 16 percent of San Quentin's prisoners, a percentage that was over six times higher than their proportion of the state's population. By the mid-1880s, almost one in five prisoners were Chinese. And by 1950, prisoners of color in California constituted 30 percent of the prison population (compared with 6 percent in the 1930s), about four times their proportion of the state population. Moreover, California's racialized prisons are not so much rooted in black slavery as in the Indian reservation, the war against Mexico, and the Chinese ghetto.

Race as an important determinant of carceral policies is minimized later in the book. "Racism" does not appear in the index (a much softer "racial disproportionality" is substituted). Simon is very persuasive in making the case that mass imprisonment objectifies and reifies prisoners, denying them a "recognizable human existence" (ibid., 71). Yet the book does not bring to life the prisoners, families, and communities, or the activists fighting on their behalf who are profoundly victimized by mass imprisonment. They are certainly presented as objects of sympathy, but objects nevertheless. The Latinos/Mexican Americans/Chicanos who are the most victimized by "racial disproportionality" in California's prisons today never appear in either the text or index.

Simon argues that the "racialization of the prison population" since the 1980s has made it "easier to keep the inhumanity of prisons invisible to the majority of Americans" (ibid., 10). I think the opposite is true: the visibility of the color of prisoners via a cultural discourse of demonization makes it easier for people to accept the need for the containment of people represented as dangerously uncivilized.

I also disagree with Jonathan Simon's historiography in terms of his account of how prisoners' activism in the 1970s allegedly invited the neoconservative reaction of the 1980s. I think that his history of this movement starts too late, ignoring the history of prison activism in the 1960s, and also exaggerates the "extraordinary violence" associated with prison revolts (ibid., pp. 25-27). For the most part, in my view, the prisoners' movement was extraordinarily nonviolent in the face of unrelenting state repression.

(3) Mass Incarceration on Trial was written more than a year ago. It has a cautiously hopeful tone, a sense that progressive court decisions could trigger a change in the prevailing political and cultural common sense about crime and justice. Yet, Simon's realistic pessimism lurks in the shadows. Changes in mental health services advocated almost 25 years ago are, in his words, the reform that "has never happened" (ibid., 94). In the book, he announces the end of "mass imprisonment," yet California's prison population increased in 2013, and the state's political system, led by Jerry Brown, is stubbornly resistant to serious change. In the book, Simon is hopeful about "realignment" policies that shift state penal resources to local government, evidence of a "new common sense" (ibid., 160). Yet, the growth of local jail populations suggests that mass imprisonment is spreading, not ending. In the book, Simon is hopeful that "many states are investing heavily in reentry strategies" for the formerly incarcerated (ibid., 165). With hyper-segregation firmly established in public education and housing, chronic unemployment in already impoverished communities, and ongoing cuts in public welfare and public health, I cannot imagine meaningful reform in the prison system until carceral issues are incorporated into a broader agenda for social justice and economic equality.

REFERENCES

Alexander, Michelle 2010 The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.

Allen, Francis A. 1959 "Criminal Justice, Legal Values and the Rehabilitative Ideal." Journal of Criminal Law and Criminology 50(3): 226-32.

1964 The Borderland of Criminal Justice: Essays in Law and Criminology. Chicago: University of Chicago Press.

Foucault, Michel 1977 Discipline and Punish: The Birth of the Prison. New York: Pantheon.

Miliband, Ralph 1969 The State in Capitalist Society. New York: Basic Books.

Mitford, Jessica 1973 Kind and Usual Punishment: The Prison Business. New York: Alfred A. Knopf.

Myrdal, Gunnar 1944 An American Dilemma: The Negro Problem and Modern Democracy. New York: Harper and Brothers.

Simon, Jonathan 2014 Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America. New York: The New Press.

Tony Platt *

* TONY PLATT (email: amplatt27@gmail.com), a founding member of Social Justice, is distinguished affiliated scholar at the Center for the Study of Law & Society, University of California, Berkeley. These comments were made on September 17, 2014, during a symposium on Mass Incarceration on Trial at UC Berkeley Law.