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Exclusion	
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Carceral	
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Sharon	
  Dolovich*	
  

I. EXCLUSION	
  AND	
  CONTROL	
  AS	
  A	
  PENAL	
  INSTITUTION	
  
Over the course of the 1990s, two policy innovations emerged
that were quickly and widely adopted by criminal justice systems around
the United States. The first was life in prison without the possibility of
parole (LWOP),1 a criminal penalty first introduced as an alternative to
execution in capital cases2 but quickly taken up by legislators nationwide
and applied to a broad range of crimes.3 The second was supermax
* Professor of Law, UCLA School of Law. This essay grew out of remarks delivered at
Imprisoned: The 13th Annual Liman Colloquium, held at Yale Law School in 2010. I
thank Judith Resnik for the invitation to participate in that event and for feedback on an
earlier draft of this essay; Asli Bali, David Dolinko, Blake Emerson, Heidi Li Feldman,
Jody Freeman, Jordan Woods, Noah Zatz, and especially Sasha Natapoff for helpful
comments; Marc Mauer for help in puzzling out the sentencing data; and Scott Dewey,
Rebecca Johns, Max Kamer, and June Kim for their excellent research assistance.
1
See MARC MAUER, RYAN S. KING & MALCOLM C. YOUNG, THE SENTENCING
PROJECT, THE MEANING OF “LIFE”: LONG PRISON SENTENCES IN CONTEXT 11 (2004)
(“During the 1990s the growth of persons serving life without parole [was] precipitous,
an increase of 170 percent, between 1992 and 2003. Overall, one of every six lifers in
1992 was serving a sentence of life without parole. By 2003, that proportion had
increased to one in four.”).
2
The first life-without-parole statutes “were promoted by prosecutors and enacted by
law-and-order legislators who were fearful of facing a punishment scheme without a
capital option” after the Supreme Court struck down the death penalty as
unconstitutional in Furman v. Georgia, 408 U.S. 238 (1972). Note, A Matter of Life and
Death: The Effect of Life-Without-Parole Statutes on Capital Punishment, 119 HARV. L.
REV. 1838, 1841 (2006). After the Court upheld newly written death penalty statutes in
Gregg v. Georgia, 428 U.S. 153 (1976), effectively restoring the “capital option,” LWOP
sentences were pushed heavily by death penalty opponents in death-eligible cases “as a
way of reducing the number of death sentences.” Note, supra, at 1841.
3
Ashley Nellis, Throwing Away the Key: The Expansion of Life Without Parole Sentences in
the United States, 23 FED. SENT’G REP. 27, 27-28 (2010) (“[D]epending on state law,
LWOP can be used for a variety of offenses. In at least 37 states, LWOP is available for
nonhomicide convictions, including convictions for kidnapping, burglary, robbery,
carjacking, and battery. . . . [In some] states—such as Alabama, California, Florida,

Electronic copy available at: http://ssrn.com/abstract=2171862

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confinement,4 in which prisoners are locked in small cells for twentythree to twenty-four hours a day with little or no human contact or
sensory stimulation.5 This ultra-restrictive custodial form originated out
of a desperate attempt by officials in one federal penitentiary to regain
control of an out-of-control facility6 and rapidly became the preferred
strategy across the country for housing those people judged too difficult
or dangerous to remain in a prison’s general population.7
Much has been written about each of these policies individually.
Yet to consider them only in isolation risks missing what they together
reveal about the structure of the broader penal system in which they
arose. In one sense, LWOP and supermax simply enact the practical
mechanics of incarceration: the exclusion from the shared public space of
those deemed a threat to public order and security, and the exercise of
Georgia, Louisiana, South Carolina, Virginia, and Washington—LWOP is mandatory
upon conviction of serious habitual offender laws . . . . In 2010, a 22-year-old defendant
convicted of robbing a sandwich shop received an LWOP sentence under [Florida’s
Prison Release Reoffender Law] as a result of his having been released from prison for a
previous drug conviction.”).
4
See MORRIS L. THIGPEN & SUSAN M. HUNTER, NATIONAL INSTITUTE OF
CORRECTIONS INFORMATION CENTER, SPECIAL ISSUES IN CORRECTIONS, SUPERMAX
HOUSING: A SURVEY OF CURRENT PRACTICE 3-6 (1997) (reporting that fifteen
supermax facilities or units were opened from 1989 through 1993, that five more were
opened from 1994 through 1996, and that five additional facilities or units were online
to open by 1999).
5
See LORNA A. RHODES, TOTAL CONFINEMENT: MADNESS AND REASON IN THE
MAXIMUM SECURITY PRISON 23 (2004); Mikel-Meredith Weidman, The Culture of
Judicial Deference and the Problem of Supermax Prisons, 51 UCLA L. REV. 1505, 1528
(2004).
6
The facility in question was the United States Penitentiary at Marion, Illinois (USP
Marion), at which, “[b]etween February 1980 and June 1983, there were 14 escape
attempts, 10 group disturbances, 54 serious assaults on inmates and 28 on staff: eight
prisoners died at the hands of their fellow prisoners. After a summer of escalating
violence against inmates and staff, punctuated by lockdowns, shakedowns and
suspended activities, two prison officers were killed in separate incidents. . . . Shortly
afterwards, a state of emergency was declared and USP Marion was placed on permanent
lockdown status.” Roy D. King, The Rise and Rise of Supermax: An American Solution in
Search of a Problem, 1 PUNISHMENT & SOC’Y 163, 167-70 (1999).
7
Id. at 176 (explaining that in terms of “operational policies” for their new high-security
facilities, “many states looked to Marion as a model”); see also Stephen C. Richards, USP
Marion: The First Federal Supermax, 88 PRISON J. 6, 8-18 (2008).

Electronic copy available at: http://ssrn.com/abstract=2171862

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state control to keep those marked out for such exclusion separate and
apart from society for the duration of their sentences. But LWOP and
supermax are exclusion and control nonpareil, and the rapid and
enthusiastic embrace of both policies across the country reveals the
centrality of these imperatives to contemporary American penality. Every
polity that incarcerates as punishment must remove and restrain those
who are sentenced to prison. But in the United States, exclusion and
control has emerged8 over the past several decades as the animating
mission of the carceral project, so that today, the primary function of the
American penal system is to exclude and control those people officially
labeled as criminals.9
This account contrasts sharply with the more familiar ways of
construing the penal system—i.e., as the means to achieve retribution or
to ensure public safety by deterring or otherwise preventing the
commission of crime. Yet a closer look at the way the system actually
operates makes clear the poor fit between these more conventional
explanations and the realities of American penal practice.10 What one
finds instead is a system both inhumane and self-defeating, in which the
most disadvantaged and marginalized citizens are targeted for exclusion
under harsh conditions certain only to exacerbate whatever incapacities
and antisocial tendencies already consigned them to social
marginalization even prior to their incarceration. In this way, the system
makes it extremely hard for former prisoners—even those whose crimes
were relatively minor—to build healthy and productive lives on the
outside. It thus virtually guarantees that many people who have been in
custody will have repeated recourse to criminal conduct. Rather than
taking steps to address the disabilities and social disadvantages known to
be predictors of crime, the American penal system instead imposes longer
and longer periods of exile.
8

In this article, “exclusion and control” represents a single concept: the animating
imperative of the American carceral system. It thus takes the singular form of the verb.
9
See Alexandra Natapoff, Misdemeanors, 85 S. CAL. L. REV. (forthcoming 2012) (on file
with the author) (mapping the process—the “guilt production”—by which this labeling
occurs).
10
See infra Part II; see also Sharon Dolovich, Creating the Permanent Prisoner, in LIFE
WITHOUT PAROLE: AMERICA’S NEW DEATH PENALTY? (Charles J. Ogletree, Jr. &
Austin Sarat eds., forthcoming 2012).

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This way of responding to antisocial conduct has a further selfdefeating effect: it ensures that the prisons themselves will eventually
suffer a crisis of control. It is simply not possible to concentrate in closed
institutions those people found to pose the greatest public safety threat, to
provide them with no productive pursuits or help in developing prosocial skills, and to expect anything other than chronic disorder. How is a
system designed to answer the violation of society’s behavioral norms
with exclusion and control to respond to disorder within the institutions
already containing those deemed too dangerous or disruptive to remain
free? The answer, of course, is supermax. Built to house the most
uncontrollable people in prison, supermax emerges as simply a further
iteration of the same imperative of exclusion and control that drives the
carceral system in general. And here too, a familiar pattern emerges: those
people targeted for exclusion and control are subjected to conditions
certain only to (re)produce whatever incapacities or antisocial tendencies
justified their incarceration in the first place, thus legitimizing the
extension of their social exclusion.
Heightened disorder, both in society in general and inside the
prison itself, is the predictable effect of a system designed primarily to
exclude and control. Yet despite its evident failings, the American
commitment to this penal strategy persists.11 What explains this steadfast
allegiance? Although there are no doubt many contributing factors, the
answer lies at least in part in the compelling discursive terms on which
current penal practices are justified. In the twenty-first-century United
States, exclusion and control is more than just a functional mechanism
for responding to crime. It is a full-fledged social institution with its own
supporting narrative, the success of which has been to ground and secure
an abiding public faith in the rightness—and righteousness—of
prevailing penality.
The work of anthropologist Mary Douglas on the nature and
11

To be sure, there are signs that enthusiasm for existing practices is abating, with states
across the country seeking ways to shrink their prison populations and reduce
recidivism. But for the most part, this shift appears to be a function of state budgetary
woes in a period of severe economic recession rather than a principled rejection of
exclusion and control as a penal strategy. I take up the implications of this apparent
change of heart and the prospects it implies for meaningful penal reform at the end of
this essay. See infra Conclusion.

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functioning of social institutions is instructive here.12 Douglas notes that,
without more, merely “instrumental or provisional practical
arrangement[s]” cannot become fixed and stable institutions, since these
arrangements may be easily disturbed by any individual who chooses to
act alone.13 For an institution to take hold and succeed, “it needs a
parallel cognitive convention to sustain it,” a way of justifying its
existence that “fit[s] with the nature of the universe” as understood by
those acting within it.14 In any particular case, the cognitive
convention—i.e., the ideology—that legitimizes a given institution need
not be logically unassailable or even rational. It need only seem to “fit”
with widespread perceptions of the natural order. Once this fit is
established, once collective acceptance of the “naturalness and
reasonableness” of the institution’s motivating ideas takes hold, the
institution itself starts to frame public perceptions, to shape the way
external phenomena are perceived15 in ways that reinforce belief not only
in the logic and necessity of institutional practices but also in their moral
propriety.16
As will be seen in what follows, exclusion and control can be
readily understood as an institution in Douglas’s sense. As such, it has
been remarkably successful; the rapidity with which the extreme strategies
of LWOP and supermax have come to be regarded as necessary and
appropriate penal options, and indeed, the sheer size and reach of the
American carceral system in general, indicate the extent to which the
logic of exclusion and control has come to dominate popular perceptions
of the proper state response to perceived criminal deviance and disorder.17
12

See generally MARY DOUGLAS, HOW INSTITUTIONS THINK (1986).
“We want conventions about pedestrian crossings to exist, but we will violate them
ourselves if we can do so with impunity. Enough impatient pedestrians to create a
critical mass will march across and hold up the cars in defiance of traffic lights.” Id. at
46.
14
Id.
15
As Douglas puts it, a successful institution “causes [its members] to forget experiences
incompatible with its righteous image, and it brings to their minds events which sustain
the view of nature that is complementary to itself. It provides the categories of their
thought, sets the terms for self-knowledge, and fixes identities.” Id. at 112.
16
See id. at 92 (“Institutions systematically direct individual memory and channel our
perceptions into forms compatible with the relations they authorize.”).
17
This dominance signals the deep hold of a successful institution. As Douglas explains,
13

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In some cases, exclusion and control may be an appropriate public policy
tool. But four decades of the American experiment with mass
incarceration have demonstrated that exclusion and control is more often
than not an inadvisable policy response. What is needed is a widespread
commitment to pursuing alternative approaches. This commitment,
however, will not arise unless the hold exclusion and control currently has
over popular and political thinking about crime and punishment can be
broken.
Douglas suggests that the “necessary first step” to achieving
“intellectual independence” from institutional thinking is “to discover
how the institutional grip is laid upon our mind.”18 To that end, this
essay maps the contours of exclusion and control—the institution that
has defined the American carceral enterprise since the mid-1970s—
exploring how it operates, the ideological discourse that justifies it, and
the resulting normative framework that has successfully made a set of
practices that might otherwise seem both inhumane and self-defeating
appear instead perennially necessary and appropriate. The sustaining
successful institutions are able to frame whatever social problems arise in terms that
validate their defining arrangements. See id. As a consequence, every problem seems to
have the same solution. Thus, “[i]f the institution is one that depends on participation,
it will reply to our frantic question [of what is to be done]: ‘More participation!’ If it is
one that depends on authority, it will only reply, ‘More authority!’” Id.; see also id.
(“Institutions have the pathetic megalomania of the computer whose whole vision of the
world is its own program.”); Sharon Dolovich, How Privatization Thinks: The Case of
Prisons, in GOVERNMENT BY CONTRACT: OUTSOURCING AND AMERICAN
DEMOCRACY 128 (Jody Freeman & Martha Minow eds., 2009) (arguing that
privatization currently operates as just such an institution in the realm of public
governance). The present essay argues that, over the past several decades, exclusion and
control has emerged as the dominant institution in the American penal context, with the
consequence that each time perceived threats to the social order have appeared, the
prescription has been the same: “exclude and control!” Indeed, as I have argued
elsewhere, the reach of the American carceral project extends well beyond the criminal
justice context, to define the state’s routine response to social deviance and disorder
more generally. As a consequence, even in the absence of any criminal conviction,
members of a range of groups have been targeted for exclusion and control. These
groups include pretrial detainees, the mentally ill, undocumented immigrants, asylum
seekers, juvenile offenders, previously convicted sex offenders, and those labeled “enemy
combatants” in the “war on terror.” For further discussion on this point, see Sharon
Dolovich, Incarceration American-Style, 3 HARV. L. & POL’Y REV. 237, 238-39 (2009).
18
DOUGLAS, supra note 12, at 92.

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discourse of this penal system is a radically individualist one that locates
the causes of crime exclusively in the free and conscious choice of the
offenders themselves.19 However severe the resulting punishment, the
penal subject is regarded as having brought it on himself through his own
willfully criminal behavior. Society is thus absolved of any responsibility
for either the crime itself (since it is the product of individual choice) or
the punishment (because it is demanded by the individual’s own criminal
conduct). From this perspective, it becomes easy to construe criminal
actors as incorrigible evildoers, since why else would they persist in their
criminal conduct? This easy transition from seeing criminals as conscious
and active choosers of criminal activity to regarding them as evil
incorrigibles makes vivid the moral economy underpinning this
institution, on which the people judged as criminals come to be regarded
as less than human and thus eligible for treatment that might otherwise
seem illegitimate.
Appreciating the “cognitive conventions” by which current penal
practices are rendered at once logical and legitimate proves to shed light
on the otherwise puzzling rapid emergence of LWOP and supermax, as
well as on a number of other equally mystifying features of the American
penal landscape, including why sentences are so often grossly
disproportionate to the offense; why, given the multiple complex causes
of crime,20 the state persists in responding to criminal conduct by locking
up the actors; why prison conditions are so harsh; why recidivism is so
high; why extremely long sentences are so frequently imposed even for
relatively non-serious crimes; and even why the people we incarcerate are
disproportionately African-American. Without claiming to provide
comprehensive answers to these vexing questions, this essay does offer a
framework that helps to explain these striking aspects of the American
carceral system. This framework takes as its starting point the practical
demands incarceration imposes on the state itself: the exclusion and
control of the people sentenced to prison. But as will be shown, in the
American context, efforts to make sense of this way of responding to
antisocial behavior quickly lead beyond practicalities to a moral economy
19

See infra Part IV.
See, e.g., Nkechi Taifa & Catherine Beane, Integrative Solutions to Interrelated Issues: A
Multidisciplinary Look Behind the Cycle of Incarceration, 3 HARV. L. & POL’Y REV. 283
(2009).
20

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on which the incarcerated lose not only their liberty but also their full
moral status as fellow human beings and fellow citizens. What happens to
them is thus no longer a matter for public concern. As a consequence of
this collective indifference, penal practices that may otherwise seem
counterproductive, unnecessarily harsh, and even cruel become
comprehensible and even inevitable.
The remainder of this essay proceeds as follows: Part II sketches
the structure of the American carceral system, exposing both its
dependence on the logic of exclusion and control and the moral economy
that drives it. Part III explores the self-defeating nature of current carceral
practices—the way the combination of prison conditions and postcarceral burdens ensures that many people who have done time will
return to society more prone to criminal activity than previously. Part IV
considers the question of how such an evidently self-defeating system has
been able to sustain itself, and locates the answer in the radically
individualist ideology, pervasive in the criminal context, that construes all
criminal conduct as exclusively the product of the offender’s free will.
Part V illustrates the way this individualist discourse constructs criminal
offenders as not just unrepentant evildoers but also sub-human—a
process referred to as “making monsters”—and examines the work this
normative reframing does to vindicate the penal strategy of exclusion and
control and justify the arguably inhumane treatment of prisoners. Part VI
explores the way that perceiving criminal offenders as moral monsters
makes it difficult to distinguish the relatively few individuals who are
genuinely congenitally violent and dangerous from the vast majority who
are not; through this ideological (re)construction, all people who persist
in committing crimes, even nonviolent offenders, can come to seem
appropriate targets for extended and even permanent exclusion. Part VII
considers the racial implications of exclusion and control, in particular
the way the cultural construction of African Americans as “incorrigible”
may explain why members of this group are overrepresented as targets of
the American carceral system. Part VIII shifts the focus to the prison
itself, where the self-defeating logic of exclusion and control has
reappeared behind bars in the form of the supermax prison. Finally, the
Conclusion considers how the destructive and self-defeating dynamic of
exclusion and control may be disrupted. It argues that a political strategy
emphasizing the financial costs of incarceration is bound to fail unless it
also generates an ideological reorientation towards recognizing the people

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the state incarcerates as fellow human beings and fellow citizens, entitled
to respect and consideration as such.
II. SOCIETY’S	
  CARCERAL	
  BARGAIN	
  
The logic of exclusion and control is first and foremost the logic
of imprisonment. When people are sent to prison, the burden thereby
imposed on those individuals is obvious. What tends to go unnoticed is
that each custodial penalty also imposes a corresponding burden on the
state—that of assuming responsibility for targeted individuals for the
duration of their sentence. This official responsibility, the concomitant of
every decision to incarcerate, can be understood as the state’s carceral
burden.21
This burden has a weighty normative dimension, in the
obligation it represents for the state to meet the basic human needs of the
people it incarcerates.22 But more important for present purposes is the
immediate practical aspect of the state’s carceral burden: as to each person
ordered incarcerated, it becomes the state’s responsibility to orchestrate
their removal from the shared public space and engineer their continued
absence from society for the specified period.
The first of these two steps—removal—is the more dramatic,
offering the striking visual of the prison-bound offender removed from
the courtroom in chains. This moment represents the public
announcement of extended social exclusion. But the second step—the
administrative task of guaranteeing that person’s continued absence from
society—is what makes incarceration possible. Sentenced offenders are,
after all, human beings, who may be expected to resist their exile and
escape back into the free world unless they are prevented from doing so.
Hence the familiar components of the carceral enterprise: bars, locks,
razor wire, electronic perimeter fences, etc. It is in these practical
components of carceral restraint that social exclusion and state control
become necessarily fused. There can be no carceral project, no physical
banishment from society, without the simultaneous, unremitting control
21

See Sharon Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, 84
N.Y.U. L. REV. 881, 921-22 (2009) (introducing the idea of the state’s carceral burden).
22
I have explored the normative dimensions of the state’s carceral burden at some length
elsewhere. See id. at 911-23; see also id. at 935-72 (considering the doctrinal implications
of the state’s carceral burden in the Eighth Amendment prison conditions context).

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of the excluded by the state.
This was not always so. The seventeenth-century English practice
of transportation, whereby convicted offenders were placed on ships
bound for the colonies, allowed for banishment without forcing the state
to have to guarantee offenders’ absence from society on a constant basis.23
In the modern era, there are no new worlds to which social outcasts may
be sent and forgotten. Today, the only realistic form of effective
banishment is internal exile, unceasingly maintained—hour by hour, day
by day, week by week—by the relentless exercise of state control.
Imprisonment is a method of criminal punishment employed the
world over. But nowhere else has the possibility of consigning citizens to
long-term state custody captured the political imagination to the extent it
has in the United States.24 In American society, it is taken for granted
that social exclusion enforced by the state is the appropriate response to
the commission of antisocial acts. Yet judged from a policy perspective, it
is not obvious why this should be. Precisely because social exclusion
entails ongoing state control of the excluded, this penal strategy is
extremely expensive, consuming resources that could otherwise be spent
23

See A. ROGER EKIRCH, BOUND FOR AMERICA: THE TRANSPORTATION OF BRITISH
CONVICTS TO THE COLONIES, 1718-1775, at 3 (1987) (“As soon as [transported
convicts] were safely consigned to merchants, authorities assumed no responsibility for
their welfare. Parliament enacted laws to prevent their early return home but took no
steps to regulate their treatment either at sea or in the colonies.”).
24
See Adam Liptak, Inmate Count in U.S. Dwarfs Other Nations’, N.Y. TIMES, Apr. 23,
2008, at A1 (“The United States has less than 5 percent of the world’s population. But it
has almost a quarter of the world’s prisoners.”); see also THE SENTENCING PROJECT,
FACTS ABOUT PRISONS AND PRISONERS (2008), available at http://www.ala.org/ala/
aboutala/offices/olos/prison_facts.pdf (“The 2007 United States’ rate of incarceration of
762 inmates per 100,000 population is the highest reported rate in the world.”). At
year’s end 2008, there were 1,320,145 people in custody in state prisons, 198,414
people in federal prisons, and another 785,556 people in local jails, for a total of
2,304,115. See WILLIAM J. SABOL, HEATHER C. WEST & MATTHEW COOPER, BUREAU
OF JUSTICE STATISTICS, PRISONERS IN 2008 (2009 (revised 2010)), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/p08.pdf. And this number does not even
count the many other populations—juvenile offenders, previously convicted sex
offenders, undocumented immigrants, asylum seekers, legal immigrants with prior
felony convictions, detainees in the “war on terror,” etc.—who are incarcerated in
detention centers that often closely resemble American prisons. See Dolovich,
Incarceration American-Style, supra note 17, at 238-39; see also supra note 17.

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on more socially productive enterprises.25 It also takes a profound toll on
children, families, and communities when individuals are removed from
society as punishment. Children are deprived of their parents,26 often
winding up in foster care, where they “are significantly more likely to be
abused and neglected . . . [than] are their peers in the general
population.”27 Families lose wage earners, increasing the likelihood that
family members left on the outside will fall into or remain in poverty,28
and communities lose potentially contributing participants. And for all
25

In 2005, total state expenditures on corrections reached close to $43 billion. See PEW
CENTER ON THE STATES, PUBLIC SAFETY PERFORMANCE PROJECT – STATISTICS AND
FACTS: STATE CORRECTIONS SPENDING, available at http://pewcenteronthestates.org/
uploadedFiles/Statistics%20and%20Facts.pdf. In 2007, the combined expenditure on
corrections by the states, local governments, and the federal system exceeded $67 billion.
See TRACY KYCKELHAHN, BUREAU OF JUSTICE STATISTICS, JUSTICE EXPENDITURES
AND EMPLOYMENT EXTRACTS 2007 (NCJ 231540, 2010), available at
http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2315. The Pew Center reports that
“[i]n 1987, the states collectively spent $10.6 billion of their general funds—their
primary pool of discretionary tax dollars—on corrections. [In 2007], they spent more
than $44 billion, a 315 percent jump, data from the National Association of State
Budget Officers show. Adjusted to 2007 dollars, the increase was 127 percent. Over the
same period, adjusted spending on higher education rose just 21 percent.” PEW CENTER
ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008, at 4 (2008),
http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_21-1_FORWEB.pdf (citing data from the National Association of State Budget Officers
State Expenses Report FY 2006).
26
See NELL BERNSTEIN, ALL ALONE IN THE WORLD: CHILDREN OF THE
INCARCERATED (2005); Dolovich, Incarceration American-Style, supra note 17, at 247 &
nn.67-75.
27
BERNSTEIN, supra note 26, at 145. To compound the problem, foster care “itself is
one of the best predictors there is that a child will wind up behind bars.” Id. at 147.
28
As Bruce Western has observed, “[a]bsent fathers in prison and jail and low marriage
rates among ex-convicts ultimately increase the number of female-headed households.
The risks accompanying these households are well-known. About half of all femaleheaded families live below the poverty line, [and] their children face high risks of school
failure, teen pregnancy, poor health and delinquency.” For this reason, Western
concludes that “[t]he follow-on costs of incarceration for American families would . . .
seem to be substantial.” BRUCE WESTERN, PUNISHMENT AND INEQUALITY IN AMERICA
157-58 (2006); see also LAURA T. FISHMAN, WOMEN AT THE WALL: A STUDY OF
PRISONERS’ WIVES DOING TIME ON THE OUTSIDE 274-75 (1990) (“Wives’ accounts
showed that imprisonment inadvertently kept most wives at the edge of subsistence
while legitimating the male flight from economic support of their wives and children.”).

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this, it is not even clear that punishing crime with social exclusion serves
the aim of public safety, whether by rehabilitating offenders or deterring
crime. Indeed, given the affirmatively harmful and arguably criminogenic
conditions of many American prisons and jails, a strong case can be made
that incarcerating convicted offenders as punishment is more likely to
compromise public safety than to enhance it.29
If incarceration does not even promote public safety, how are we
to explain the state’s virtually automatic recourse to social exclusion as
punishment? Initially, the answer may seem to lie in the retributivist
notion of just deserts: convicted offenders should be banished from
society, notwithstanding the heavy costs associated with this penalty and
the social toll it arguably takes, simply because they deserve it. But if this
notion serves to justify the exercise of the state’s power to punish those
who violate its criminal laws—in my view an open question30—it is at
best incomplete as an explanation for why state punishment so readily
takes the form it does. Given the frequent lack of correlation between the
severity of the crime and either the length of sentence31 or the experience
of prison,32 it seems hard to argue that incarceration is motivated by a
29

See Dolovich, Incarceration American-Style, supra note 17, at 240-41 (arguing that
“American-style incarceration, through the conditions it inflicts, produces the very
conduct society claims to abhor and thus guarantees a steady supply of offenders whose
incarceration the public will continue to demand”).
30
See Sharon Dolovich, Legitimate Punishment in Liberal Democracy, 7 BUFF. CRIM. L.
REV. 307, 310 (2004) (“Any theory of state punishment in a liberal democracy must
grapple with the problem of political legitimacy.”); Jeffrie Murphy, Retributivism, Moral
Education, and the Liberal State, 4 CRIM. JUST. ETHICS 3, 3 (1985) (noting that, even
assuming that retribution is a morally compelling justification for punishment, this
approach still leaves unanswered the deep question of whether it is “the legitimate
business of the state” to pursue the retributivist aim of punishing the people who deserve
it).
31
See, e.g., Graham v. Florida, 130 S. Ct. 2011 (2010) (reviewing a sentence of LWOP
for a juvenile defendant found by the judge to have participated in a carjacking while on
probation); Lockyer v. Andrade, 538 U.S. 63 (2003) (upholding a fifty-year mandatory
minimum prison term for a defendant convicted of stealing $154 worth of video
cassettes from two Kmart stores); Ewing v. California, 538 U.S. 11 (2003) (upholding a
twenty-five-year mandatory minimum prison term for a defendant convicted of stealing
three golf clubs worth $399 each); Harmelin v. Michigan, 501 U.S. 957 (1991)
(upholding an LWOP sentence for a defendant convicted of possession of 672 grams of
cocaine); see also infra note 117.
32
See Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, supra note 21, at

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commitment to imposing morally proportionate punishment.33 Indeed, if
the aim were proportionate punishment, one would not expect to find
“any single mode of punishment—incarceration or any other—to be
applied to the large range of different offenses.”34 And even assuming
some correlation between the blameworthiness of the offender and the
severity of the prison term, this would still not explain why the
punishment of choice is exile and not some other penalty.
To understand what motivates the American impulse to respond
to all but the most minor infractions with prison, we must look to
another theory of punishment that has taken center stage in recent years:
the theory of incapacitation, according to which “offenders are
imprisoned . . . to restrain them physically from offending again while
they are confined.”35 On this theory, criminal offenders are not moral
agents expected to pay penance for their crimes. In fact, what they have
done in the past is largely irrelevant. The concern is with possible future
dangerousness—with what they may do if allowed to remain free. Viewed
from this perspective, to punish with social exclusion makes perfect sense.
Incarceration may be expensive and create serious negative externalities
919 (explaining that harmful prison conditions are borne equally by all residents of a
given facility, regardless of their offense of conviction, and that specific harms
experienced by individual prisoners are in practice inflicted randomly, with no
connection to the victim’s original crime).
33
See MICHAEL TONRY, THINKING ABOUT CRIME 141-43 (2004). Indeed, the
frequently disproportionately harsh character of many criminal sentences when
compared with the offense of conviction belies any claim that the imprisonment of
convicted offenders in the United States is driven by a meaningful commitment to just
deserts. See Robert S. Gerstein, Capital Punishment—“Cruel and Unusual”?: A
Retributivist Response, 85 ETHICS 75, 77 (1974) (explaining that if, as retributivists
argue, “the purpose of punishment is to restore the balance of advantages necessary to a
just community, then punishment must be proportioned to the offense: any unduly
severe punishment would unbalance things in the other direction”); see also id.
(describing retribution as “a limit on the severity of punishment”); Robert A. Pugsley,
Retributivism: A Just Basis for Criminal Sentences, 7 HOFSTRA L. REV. 379, 400 (1979)
(explaining that Kantian retributivism aims to “make the kind and degree of
punishment approximate as closely as possible the offender’s culpability and the harm
resulting from the offense”).
34
Email from David Dolinko, Professor of Law, UCLA Sch. of Law, to author (May 6,
2011) (on file with author).
35
FRANKLIN E. ZIMRING & GORDON HAWKINS, INCAPACITATION: PENAL
CONFINEMENT AND THE RESTRAINT OF CRIME 3 (1995).

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for society as a whole. It may neither deter nor rehabilitate. It may
frequently yield disproportionate punishments. But if nothing else, it
does keep the incarcerated from committing new crimes for the duration
of their sentences.
Or does it? Incapacitation is based on the theory that
incarceration keeps people from reoffending while they are locked up. Yet
every day, in prisons and jails around the country, incarcerated people
commit innumerable crimes. Among other things, they steal, rape,36
assault,37 kill,38 extort money or other goods,39 sell and use illegal drugs,40
and exchange sex for money or some other consideration.41 This state of
affairs is hardly a secret. Nor should it come as a surprise. To the
36

See Hearing Before the New York UPR Human Rights Consultation Criminal Justice
Panel (testimony of Cynthia Totten, Just Det. Int’l, Sexual Abuse Behind Bars: A
Human Rights Crisis in New York Detention Facilities) (Feb. 26, 2010), available at
http://www.justdetention.org/pdf/UPRSubmission.pdf (“According to the best available
research, 20 percent of inmates in men’s prisons are sexually abused at some point
during their incarceration. The rate for women’s facilities varies dramatically from one
prison to another, with one in four inmates being victimized at the worst institutions.”).
37
Santiago v. Goord, 783 N.Y.S.2d 154, 155 (App. Div. 2004) (affirming that
petitioner, a prison inmate, was guilty of “arranging for another inmate to assault a third
inmate[, an assault] for which petitioner paid several bags of heroin”); NBCI Inmate
Assaulted, Taken to Shock Trauma, CUMBERLAND TIMES-NEWS (MD), June 20, 2011
(reporting transfer of prison inmate to hospital after an assault by other inmates left him
needing surgery); Kan. Inmate Beaten for Suspected Honey Bun Theft, WICHITA EAGLE,
June 21, 2011.
38
State v. Robb, 723 N.E.2d 1019, 1028 (Ohio 2000) (appeal of defendant, a prison
inmate found guilty of killing two people, one inmate and one correctional officer, who
had both been taken hostage); Stuart Pfeifer, Inmate’s Death Is Ruled a Homicide, L.A.
TIMES, Dec. 12, 2006, at B1 (reporting the fatal beating of a prisoner in the L.A.
County Jail—the fourth slaying that year of a prisoner in the jail).
39
See Sharon Dolovich, Strategic Segregation in the Modern Prison, 48 AM. CRIM. L. REV.
1, 51 n.258 (2011).
40
See Wayne Gillespie, A Multilevel Model of Drug Abuse Inside Prison, 85 PRISON J.
223, 225 (2005) (explaining that although “the exact percentage of drug using inmates
remains uncertain and may even vary from prison to prison,” available research suggests
that “the proportion of prisoners who use drugs during confinement appears to range
from one fifth to upwards of two thirds of the total inmate population”).
41
See Dolovich, Two Models of the Prison: Accidental Humanity and Hypermasculinity in
the L.A. County Jail, 102 J. CRIM. L. & CRIMINOLOGY (forthcoming 2012) (noting the
exchange of sex for items purchased from the facility’s canteen that occurs in the L.A.
County Jail).

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contrary, it seems reasonable to expect that, absent concerted efforts to
maintain safe and humane conditions of confinement, a strategy of
keeping convicted criminal offenders locked up together in close quarters
for long periods with few available socially productive activities is a sure
way to guarantee that criminal conduct will continue unabated.
In truth, the commission of crime in prison poses no real problem
for the claim that incarceration incapacitates. Even to suggest it seems like
game playing. In American society, it is well understood that the intended
beneficiaries of the restraints of incarceration are the people who remain
free. The fact of crime in prison—even brutal crime—poses no challenge
to the logic of this view, because the protection of those excluded by
imprisonment is not the point. According to Zimring and Hawkins, by
the mid-1990s, incapacitation had become “the principal justification for
imprisonment in American criminal justice.”42 It seems fair to say that
the version of incapacitation that has been so widely embraced is this
partialist one, on which the needs and interests of the people subjected to
state punishment quite simply do not count.
To see things in this light is to begin to recognize the implicit
bifurcation at the heart of American penality, between those “innocents”
who are deemed worthy of the state’s protection and those “incorrigibles”
who, having been targeted for state punishment, may be victimized with
impunity.43 This implicit division is reinforced by and in turn reinforces a
structural feature of imprisonment: when someone is sent to prison, freeworld citizens are able, entitled, and even invited to proceed as if that
person no longer exists. Incarceration works to reassure society’s remaining
members that the incarcerated person is no longer someone who will
42

ZIMRING & HAWKINS, supra note 35, at 3; see also id. at 4 (explaining that
“incapacitation rose to prominence by process of elimination as a scholarly and public
debate about other functions of imprisonment undermined faith in prison rehabilitation
as an effective process and deterrence as a basis for making fine-tuned allocations of
imprisonment resources”).
43
In this way, prisons operate as what Giorgio Agamben calls “states of exception,” in
which the protection of law and other constraints on state power have been withdrawn.
In such a state, occupants are reduced to “bare life,” and may be killed without being
either sacrificed (because, not being people of value, their deaths demand no ritual) or
murdered (because their deaths are regarded as having no legal significance). See
GIORGIO AGAMBEN, HOMO SACER: SOVEREIGN POWER AND BARE LIFE 6-8, 17-19,
105 (1998).

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cause them any trouble or someone as to whom they need ever spare
another thought. In fact, from the perspective of society in general,
incarceration simply is removal. Except in cases involving the most minor
infractions, the people found guilty of criminal offenses just . . .
disappear.
One could imagine other policy responses to antisocial conduct
that would be far more burdensome for civil society. Lawbreakers might
be regarded not (or not only) as malefactors needing punishment but
instead (or also) as people in need of social support and intervention, or
even as people whom society has perhaps failed in some way and as to
whom the collective should therefore seek to make amends. Instead, a
system based exclusively on the imperatives of social exclusion and state
control simply removes offending individuals from the shared public
space, thereby freeing the typical citizen from having to think at all about
the people the state has incarcerated. And, it bears emphasizing, citizens
enjoy this appealing benefit only because the state has built, financed, and
continuously operates a vast shadow system of carceral institutions
designed to keep prisoners out of sight.
This arrangement may be understood as society’s carceral
bargain.44 On the terms of this bargain, society as a whole is able to single
out certain individuals for removal from the shared public space and need
not think about them again until they are released. But this collective act
of forgetting is possible only on condition that the state is ready and able
to honor its carceral burden to keep those individuals totally separate and
apart from society for the duration of their sentences.45 Of course, those
44

See Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, supra note 21, at
922 (introducing the idea of society’s carceral bargain).
45
It may seem odd to label as a “bargain” what I have here framed as an arrangement
between the state and society. The term “bargain” typically refers to an agreement
between two distinct parties, and the state and society may seem more properly
understood as a single entity—the polity. But it is not unfamiliar to imagine even a
single individual actor making a bargain with herself, notwithstanding that she alone
would bear the burdens and reap the benefits of the deal. And here, the framing is even
less paradoxical, since the scope and complexity of any modern polity means that
innumerable somewhat autonomous institutions are always operating simultaneously. In
the present instance, it is no great leap to imagine the state and civil society as distinct
components, with the former implementing and maintaining particular burdensome
arrangements (here, the incarceration of designated individuals) for the benefit of the

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who choose to notice the people society has thereby excluded are free to
do so. The point is that they need not do so unless they choose.
This simple feature of a penal system that responds to antisocial
conduct with exclusion and control makes plain the normative judgment
motivating the division noted above, that between worthy citizens and
seemingly unworthy prisoners. That is, depending on how it is
implemented, a carceral response may exclude its subjects from society
not only physically but also morally. To mark someone out as an
appropriate object for erasure from the public consciousness is to signal
that person’s removal from the category of moral subjects to whom
respect and consideration are owed just by virtue of their shared
humanity. As a consequence of society’s carceral bargain, those the state
incarcerates come to be collectively regarded as not just non-citizens but
also “nonhumans,”46 who exist beyond the shared public space in both a
physical sense and a normative one.47
III. THE	
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In theory, there need not be anything permanent about the social
exclusion incarceration represents. A society that responds to criminal acts
by banishing the actor could also be a society in which the people so
excluded would be reintegrated as full members upon the completion of
their sentences. Indeed, there is a notion one often hears in the context of
latter.
46
See, e.g., Furman v. Georgia, 408 U.S. 238, 272-73 (1972) (Brennan, J., concurring)
(explaining that the “barbaric punishments condemned by history” are those that “treat
members of the human race as nonhumans, as objects to be toyed with and discarded,”
and that as such they are “inconsistent with the fundamental premise of the [Eighth
Amendment prohibition on cruel and unusual punishment] that even the vilest criminal
remains a human being possessed of common human dignity”).
47
This is not to say that civil society ignores its prisoners. To the contrary, there often
seems to be something close to a cultural obsession with prisons and prisoners. But the
public gaze contains no recognition of the shared humanity or the equal moral status of
the people in prison. Instead, through a systemic process of dehumanization, prisoners
become what William Connolly calls “paradigmatic substitutes,” receptacles for all
society’s anger, frustration and vitriol. WILLIAM E. CONNOLLY, THE ETHOS OF
PLURALIZATION 42 (1995). As I argue in Parts V and VI, prisoners thus come to be seen
not as people, but as something less—as animals, as mere repositories of evil. See infra
Part V; infra Part VI.

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criminal justice, that those who have served their time have “paid their
debt to society.” That notion implies precisely this sort of temporary
exclusion: that people may commit crimes and be punished, but the
experience of punishment in effect wipes the slate clean, after which it is
as if the crime (and the punishment) never occurred. In this way, the
same people who once stood judged by the state as criminals would rejoin
society as full and equal citizens upon completion of their sentences.
Where, however, exclusion from the body politic is moral as well
as physical, meaningful post-release reintegration is likely to be extremely
difficult, if not impossible. In part, the problem lies in the psychological
effects of characterizing some subset of the population as nonhuman,
even temporarily; once someone is excluded from the universe of people
one is supposed to care about, it can be difficult, without some dramatic
change on one side or the other, to restore that person in one’s own mind
to equal moral status with oneself. But there are also significant material
obstacles to restoring formerly incarcerated people to society’s moral
circle, obstacles ultimately traceable to the collective denial of the shared
humanity of the people the state imprisons—and which combine to
ensure that no reintegration of former prisoners, whether normative or
practical, need ever take place.
If society is to realize the ideal implied in seeing time served as
debt canceled, people would need to return from prison capable of
rejoining society in a pro-social way. Unfortunately, in the American
context, the opposite is more often the case. In part, the problem arises
from the profile of the population most likely to be incarcerated. In the
United States, those who wind up in prison are disproportionately likely
to be suffering from drug addiction,48 severe mental illness49 and/or
48

See CHRISTOPHER J. MUMOLA & JENNIFER C. KARBERG, BUREAU OF JUSTICE
STATISTICS, SPECIAL REPORT: DRUG USE AND DEPENDENCE, STATE AND FEDERAL
PRISONERS 2004, at 6 (2006) (revised Jan. 19, 2007), available at http://bjs.ojp.usdoj.
gov/content/pub/pdf/dudsfp04.pdf; JENNIFER C. KARBERG & DORIS J. JAMES, BUREAU
OF JUSTICE STATISTICS, SPECIAL REPORT: SUBSTANCE DEPENDENCE, ABUSE, AND
TREATMENT OF JAIL INMATES 2002, at 1-2 (2005), available at http://bjs.ojp.usdoj.
gov/content/pub/pdf/sdatji02.pdf.
49
See Terry A. Kupers, What to Do with the Survivors? Coping with the Long-Term Effects
of Isolated Confinement, 35 CRIM. JUST. & BEHAV. 1005, 1008 (2008) (citing LAUREN
E. GLAZE & DORIS J. JAMES, BUREAU OF JUSTICE STATISTICS, MENTAL HEALTH
PROBLEMS OF PRISON AND JAIL INMATES (2006), available at http://bjs.ojp.usdoj

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learning disabilities;50 to be indigent, unskilled, and/or poorly educated;51
and/or to have been subjected to serious abuse or neglect as children.52
Thus even prior to their imprisonment, many people in custody already
faced serious obstacles to making a positive contribution to their families
and communities.
Of course, one could imagine a penal system designed to address
these disadvantages so as to increase the chances of successful reentry. In
the American carceral system, however, not only are people in prison not
helped to overcome the disabilities they may have brought with them into
custody, but the conditions to which they are subjected can themselves
cause serious psychological and emotional damage. Many incarcerated
people are thus certain on release to be even more unfit for law-abiding
and productive lives than they were when they went in.53 Among other
destructive dynamics, conditions in many American prisons—men’s
prisons in particular—are marked by chronic overcrowding, the
widespread use of punitive isolation, an ever-present threat of physical
violence, and a culture of hypermasculinity in which aggression is
rewarded and any shows of emotion or sensitivity to others are invitations
.gov/content/pub/pdf/mhppji.pdf).
50
See LAURA M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS, MEDICAL PROBLEMS
OF PRISONERS 2 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mpp.pdf.
(reporting that “[l]earning was the most commonly reported impairment among state
and federal inmates (twenty-three percent and thirteen percent respectively)”); LAURA
M. MARUSCHAK, BUREAU OF JUSTICE STATISTICS, MEDICAL PROBLEMS OF JAIL
INMATES 1 (2006) (reporting that an “estimated 227,200 jail inmates reported having
impaired functioning, most commonly a learning impairment (twenty-two percent),
such as dyslexia or attention deficit disorder, or having been enrolled in special
education classes”).
51
See JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER
REENTRY 4 (2003) (“Fully one-third of all prisoners were unemployed at their most
recent arrest, and just 60 percent of inmates have a GED or high school diploma
(compared to eighty-five percent of the U.S. adult population).”).
52
See CAROLINE WOLF HARLOW, BUREAU OF JUSTICE STATISTICS, PRIOR ABUSE
REPORTED BY INMATES AND PROBATIONERS 1 (1999), available at http://bjs.ojp.usdoj.
gov/content/pub/pdf/parip.pdf (reporting that, in a national inmate survey, “[b]etween
6% and 14% of male offenders and between 23% and 37% of female offenders reported
they had been physically or sexually abused before age 18”).
53
The argument in the remainder of this paragraph and the one following is adapted
from Dolovich, Incarceration American-Style, supra note 17, at 245-52.

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to victimization of all kinds.54 Under these circumstances, it should be no
surprise that people who have done time often respond to the
considerable challenges of reentry with anger, aggression, and even
violence. Even people who are able to avoid the worst effects of these
dynamics while incarcerated are likely to flounder on the outside after
years of living in a constant state of tension and watchfulness under
conditions in which initiative-taking and self-direction are rarely
encouraged and often punished.55
As Terry Kupers bluntly puts it, the experience of incarceration
can “destroy[] a prisoner’s ability to cope in the free world.”56 Far from
leaving prison able to assume the responsibilities of membership in a
shared social space, many people instead leave American prisons “broken,
with no skills, and [with] a very high risk of recidivism.”57 This is the
reproductive logic of the American prison: more often than not, it
undermines any pro-social capacities people might have brought with
them to prison while simultaneously subjecting those in custody to a set
of damaging and degrading conditions likely to generate the sorts of
antisocial behaviors that justified their incarceration in the first place.58
54

For further discussion on the role of the hypermasculinity imperative in constituting
dangerous and destructive dynamics in prison, see Dolovich, Strategic Segregation in the
Modern Prison, supra note 39, at 11-19.
55
As prison psychologist Craig Haney explains, “[t]he process of institutionalization in
correctional settings may surround inmates so thoroughly with external limits, immerse
them so deeply in a network of rules and regulations, and accustom them so completely
to such highly visible systems of constraint that internal controls atrophy or, in the case
of especially young inmates, fail to develop altogether. Thus, institutionalization or
prisonization renders some people so dependent on external constraints that they
gradually lose the capacity to rely on internal organization and self-imposed personal
limits to guide their actions and restrain their conduct. . . . Parents who return from
periods of incarceration still dependent on institutional structures and routines cannot
be expected to effectively organize the lives of their children or exercise the initiative and
autonomous decision making that parenting requires.” CRAIG HANEY, THE
PSYCHOLOGICAL IMPACT OF INCARCERATION: IMPLICATIONS FOR POST-PRISON
ADJUSTMENT 81, 79-87 generally (2002) (paragraph structure modified).
56
Terry Kupers, Prison and the Decimation of Pro-Social Life Skills, in THE TRAUMA OF
PSYCHOLOGICAL TORTURE 127, 129 (Almerindo E. Ojeda ed., 2008).
57
Id.
58
I develop this argument in more detail in Dolovich, Incarceration American-Style,
supra note 17, at 245-52.

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It is not difficult to see the connection between the conditions of
confinement in American prisons and the moral economy at the core of
society’s carceral bargain. A society that regards its prisoners as outside the
circle of humanity, unworthy of equal consideration and respect, is a
society that will be indifferent to the conditions of confinement to which
the incarcerated are subjected. But the story does not end here, because
the time-limited character of most prison terms means that many of the
people who had been hidden out of sight will one day come home.59 And
when that happens, even the most well-adjusted among them will face
serious obstacles to successful reentry. Many will find themselves without
the support of friends or loved ones who over the years may have died or
become estranged or just moved on.60 Employers may be reluctant to hire
them.61 People newly released from prison are also likely to have little or
59

Since 2000, an average of 650,000 people have been released annually from American
prisons. See WILLIAM J. SABOL & HEATHER COUTURE, U.S. BUREAU OF JUSTICE
STATISTICS, PRISON INMATES AT MIDYEAR 2007 at 4, tbl. 4 (2007) (revised 2008),
available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pim07.pdf. And this does not even
include the estimated 12 million people who pass through American jails every year.
TODD S. MINTON, BUREAU OF JUSTICE STATISTICS, JAIL INMATES AT MIDYEAR 2009 –
STATISTICAL TABLES 2 (2010), available at http://bjs.ojp.usdoj.gov/content/
pub/pdf/jim09st.pdf (reporting that “[l]ocal jails admitted an estimated 12.8 million
persons during the 12 months ending June 30, 2009, or about 17 times the size of the
inmate population (767,620) at midyear”). Even assuming a high number of repeat
players in the system, the number of people who have at some point been incarcerated in
the United States over the past four decades is staggering. See THOMAS P. BONCZAR,
BUREAU OF JUSTICE STATISTICS, PREVALENCE OF IMPRISONMENT IN THE U.S.
POPULATION, 1974-2001, at 1 (2003), available at http://bjs.ojp.usdoj.gov/
content/pub/pdf/piusp01.pdf (“At yearend 2001 there were 1,319,000 adults confined
in State or Federal prison and an estimated 4,299,000 living former prisoners. A total of
5,618,000 U.S. adult residents, or about 1 in every 37 U.S. adults, had ever served time
in prison.”).
60
This is especially likely to be the case with older inmates. See GOODWILL INDUS.
INT’L, INC., ROAD TO REINTEGRATION: ENSURING SUCCESSFUL COMMUNITY REENTRY FOR PEOPLE WHO ARE FORMER OFFENDERS 4-5, 9 (2009), available at
http://www.goodwill.org/wp-content/uploads/2011/01/Road_to_ReIntegration_Exec_
Summary.pdf; Help For Older Ex-Prisoners, CHR. SCI. MONITOR, Jan. 14, 2002,
available at http://www.csmonitor.com/2002/0114/p10s2-comv.html.
61
See DEVAH PAGER, MARKED: RACE, CRIME, AND FINDING WORK IN AN ERA OF
MASS INCARCERATION 24 (2007); Becky Pettit & Christopher J. Lyons, Status and the
Stigma of Incarceration: The Labor-Market Effects of Incarceration, By Race, Class, and
Criminal Involvement, in BARRIERS TO REENTRY? THE LABOR MARKET FOR RELEASED

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no money on which to rely while trying to set themselves up with the
components of a post-carceral life.62 After living for long periods—
sometimes for years—making few decisions and taking little if any
responsibility for the provision of personal needs like food, laundry, etc.,
they may feel themselves at sea and unable to manage the endless details
of daily life on the outside.63 To make matters worse, they may yet be
wrestling with the temptations of substance abuse after years without
effective drug treatment.64 In other words, for many if not most people,
PRISONERS IN POST-INDUSTRIAL AMERICA 203, 203-05 (Shawn Bushway, Michael A.
Stoll, & David F. Weiman eds., 2007) (“Employers express a reluctance to hire inmates,
and ex-inmates face earning penalties of between 10 to 30 percent.”) (citations omitted).
62
See NANCY LA VIGNE ET AL., URBAN INST. JUST. POL’Y CTR., RELEASE PLANNING
FOR SUCCESSFUL REENTRY: A GUIDE FOR CORRECTIONS, SERVICE PROVIDERS, AND
COMMUNITY GROUPS 10-11 (2008) (explaining the financial implications of
incarceration for individuals relying on state assistance, and other reasons why former
prisoners tend to face financial difficulty on release).
63
See supra note 55.
64
According to the National Institute on Drug Abuse, “[t]he connection between drug
abuse and crime is well known—one-half to two-thirds of inmates in jails and State and
Federal prisons meet standard diagnostic criteria (DSM-IV) for alcohol/drug
dependence or abuse. Yet only seven percent to seventeen percent of these prisoners
receive treatment in jail or prison, so that most of the over 650,000 inmates released
back into the community each year have not received needed treatment services.”
NATIONAL INSTITUTE ON DRUG ABUSE, TREATING OFFENDERS WITH DRUG
PROBLEMS:
INTEGRATING
PUBLIC
HEALTH
AND
PUBLIC
SAFETY,
http://www.nida.nih.gov/tib/drugs_crime.html (last visited June 20, 2011). More
specifically, a 2005 study found that “[o]verall, only 24% of inmates report receiving
any type of drug treatment since admission (including non-clinical interventions such as
self-help groups or drug education programs), down from one-third of inmates in the
1991 survey [and] . . . only 10% of state inmates report receiving any clinically- or
medically-based drug treatment since admission (i.e. excluding drug education or 12step programs).” Steven Belenko & Jordan Peugh, Estimating Drug Treatment Needs
Among State Prison Inmates, 77 DRUG & ALCOHOL DEPENDENCE 269, 276 (2005),
available at http://www.sciencedirect.com/science/article/pii/S0376871604002522. The
Federal Bureau of Prisons (BOP) is obligated under statute to provide drug treatment to
all eligible inmates. See 18 U.S.C.A. § 3621(e) (West 2006). According to BOP reports,
the system comes close to meeting that target: in 2008, eighty percent of “eligible
inmates” (defined as someone determined by the BOP to have a substance abuse
problem and who is “willing to participate in a residential substance abuse treatment
program,” 18 U.S.C.A. § 3621(e)(5)(B) (West 2006), received some form of “residential
drug abuse treatment.” FEDERAL BUREAU OF PRISONS, ANNUAL REPORT ON
SUBSTANCE ABUSE TREATMENT PROGRAMS, FISCAL YEAR 2008 – REPORT TO THE

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successful reentry is sure to be extremely hard.
Here again is a moment for political imagining. One could, for
example, imagine a society in which the fact that many formerly
incarcerated people seem unable to build healthy and productive lives and
thus to avoid reoffending would provoke a searching public dialogue with
the aim of identifying and rethinking the social policies to which this
unfortunate situation might be traced. But in the American context, far
from working to alleviate the burdens of reentry, the state instead
exacerbates them.65 As a consequence, people newly released from prison
CONGRESS 10 (2009), available at http://www.bop.gov/inmate_programs/docs/
annual_report_fy_2008.pdf. It is, however, unclear how much of this treatment includes
drug education programs, 12-step programs and other non-clinical interventions, and
how much includes what has been called “intensive clinical services,” which are more
effective at treating addiction. Faye S. Taxman et al., Drug Treatment Services for Adult
Offenders: The State of the State, 32 J. SUBST. ABUSE TREAT. 239, 251 (2007), available
at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2266078/.
65
True, in 2007, President George W. Bush signed into law the Second Chance Act,
Pub. L. No. 110-199, 122 Stat. 657 (2008) (codified in scattered sections of 18 and 42
U.S.C.), which “provides for community and faith-based organizations to deliver
mentoring and transitional services to individuals returning to their communities from
jails and prisons” and was also intended to “help connect individuals released from jails
and prisons to mental health and substance abuse treatment, expand job training and
placement services, and facilitate transitional housing and case management services.”
REENTRY POLICY COUNCIL, RECAP OF THE SECOND CHANCE ACT OF 2007 (2008),
available at http://reentrypolicy.org/announcements/recap_of_sca. To date, Congress
has appropriated over $200 million for Second Chance Act programs. REENTRY POLICY
COUNCIL, SECOND CHANCE ACT APPROPRIATIONS UPDATE, available at
http://reentrypolicy.org/government_affairs/second_chance_act. Certainly, this law is
welcome both for its investment in prisoner reentry programs and “as a symbolic
political gesture.” Chris Suellentrop, The Right Has a Jailhouse Conversion, N.Y. TIMES
MAG.,
Dec.
24,
2006,
available
at
http://www.nytimes.com/2006/
12/24/magazine/24GOP.t.html. As I suggest below, this symbolism alone may
contribute to building the discursive foundation for meaningful penal reform. See infra
Conclusion. But the law itself is still very limited, even as to its effects on “the tangled
web of sanctions and preclusions currently mandated under federal law for formerly
incarcerated persons and ex-offenders,” including limits on access to cash assistance and
food stamps for people with drug convictions and restrictions on access to public
housing for anyone with a felony record. See Jessica S. Henry, The Second Chance Act of
2007, CRIM. L. BULL., May-June 2009, at 416. And given how much is spent annually
on incarceration across the country, $200 million is a drop in the bucket. See supra note
25.

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face not only the psychological, material, and structural obstacles noted
above, but also a host of state-imposed disabilities—including, among
other impediments, “bans on entry into public housing, restrictions on
public-sector employment, limits on access to federal loans for higher
education, and restrictions on the receipt of public assistance”66—that
make it even harder for them to successfully reintegrate.67
Former prisoners thus routinely face a complex web of mutually
reinforcing incapacities. For this reason, it can be extremely difficult for
66

PAGER, supra note 61, at 24; see also MARC MAUER & MEDA CHESNEY-LIND,
Introduction, in INVISIBLE PUNISHMENT 1, at 4-5 (“‘[A]s a result of his conviction [, a
formerly incarcerated person] may be ineligible for many federally-funded health and
welfare benefits, food stamps, public housing, and federal education assistance. His
driver’s license may be automatically suspended, and he may no longer qualify for
certain employment and professional licenses. . . .’”) (quoting AMERICAN BAR
ASSOCIATION TASK FORCE ON COLLATERAL SANCTIONS, PROPOSED STANDARDS ON
COLLATERAL SANCTIONS AND ADMINISTRATIVE DISQUALIFICATION OF CONVICTED
PERSONS (2002)); Dolovich, Incarceration American-Style, supra note 17, at 246 n.65.
67
It is hard to overstate the breadth of the legal disabilities placed on people with felony
convictions. The American Bar Association Criminal Justice Section recently embarked
on a project to catalogue all state and federal statutes and regulations that impose legal
consequences on people with felony convictions. See Janet Levine, Collateral
Consequences Project, Temple Univ., http://isrweb.isr.temple.edu/projects/accproject/.
As of November 2010, the project had catalogued over 38,000 such provisions, and
project advisors estimate that the final number could reach or exceed 50,000. See
Gabriel Chin, Citizenship and Community, panel presentation, Symposium: The
Constitution in 2020: The Future of Criminal Justice (Florida State University College of
Law, Tallahassee, Fla., Oct. 8, 2010). Many of these restrictions will likely prove
unobjectionable, particularly those that carefully tailor the restriction to the nature of
the crime. To take an example at random: in Missouri, the board of trustees
administering the state employees’ retirement system is directed by statute to cease
paying benefits “to any beneficiary of an administrative law judge or legal advisor who is
charged with the intentional killing of the administrative law judge or legal advisor
without legal excuse or justification. A beneficiary who is convicted of such charges shall
no longer be entitled to receive benefits.” R.S. Mo. § 287.835 (West 2010). It is hard to
argue with the validity of such a policy. But in many other instances, the restrictions are
far broader and seemingly gratuitous. For example, under federal law, anyone convicted
of drug possession or drug trafficking may permanently lose access to all “federal
benefits.” See Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences of
a Drug Conviction, 6 IOWA J. GENDER RACE & JUST. 255, 259 (1999) (citing 21 U.S.C.
§ 862(a)(1)(A) (2006)). As Chin notes, this blanket exclusion potentially applies to over
750 federal benefits, “including 162 by the Department of Education alone.” See id. at
259-60.

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many people in this position to free themselves from what Nell Bernstein
calls the “turning gears” of the criminal justice system.68 Under these
conditions, it is wholly predictable that many people will find it too hard
to adjust to life in the free world and will eventually find themselves back
behind bars.69 Even those who are able to stay out of prison will likely
struggle to stay afloat, the components of a stable and healthy life far out
of reach.70 As a consequence, formerly incarcerated people may expect to
spend much of their lives moving between the wholesale social exclusion
of prison life and the liminal state of social marginality to which society’s
outcasts are consigned.
In this way, the taint of incarceration comes to last even beyond
the incarceration itself. Far from being welcomed back to society as moral
and political equals, newly released offenders are expected to remain in
the free world only temporarily. In the eyes of society, they come to be
seen as perpetual potential inmates, who pose a constant threat to the social
order and who therefore need ongoing surveillance and probable
reincarceration. What at first appeared as a system of only temporary
exclusion and control thereby emerges as something very different: a
process whereby some people come to be permanently excluded from
mainstream civil and political society and marked out for unceasing state
control—whether the partial control achieved through probation, parole
or other forms of monitoring,71 or the wholesale control of
68

BERNSTEIN, supra note 26, at 217.
Indeed, given the apparently endless public enthusiasm for adding to the burdens of
reentry, it can at times seem that this failure is almost the point; it is as if, having once
marked out these individuals for incarceration, society as a whole is determined to trap
them in a cycle of wrongdoing and reincarceration, thus vindicating the judgment as to
their unfitness for society implied by their initial imprisonment.
70
As Western and Pettit have succinctly put it, former prisoners have collectively
become “a group of social outcasts,” whose “[s]ocial and economic disadvantage,
crystallizing in penal confinement, is sustained over the life course.” Bruce Western &
Becky Pettit, Incarceration and Social Inequality, DAEDALUS, Summer 2010, at 8. This
group has “little access to the social mobility available to the mainstream.” Id.
71
In some cases, exposure to official surveillance is justified by the potential for
criminality and need not even require a prior conviction. See, e.g., Wyman v. James, 400
U.S. 309 (1971) (upholding the power of welfare caseworkers to conduct warrantless
searches of the homes of families on social assistance); Sanchez v. County of San Diego,
464 F.3d 916, 920-23 (9th Cir. 2000) (extending Wyman to warrantless searches by law
enforcement seeking evidence of criminal fraud) (cases discussed in Priscilla Ocen, The
69

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imprisonment.72
IV. THE	
  OBFUSCATORY	
  FUNCTION	
  OF	
  RADICAL	
  INDIVIDUALISM	
  
To repeat: given the multiple layers of mutually reinforcing
burdens under which the people who have done time typically labor upon
release—the disadvantages they brought with them into custody, the
destructive effects of the prison experience, and the myriad structural and
other obstacles to successful reentry—it is entirely predictable that many
people in this position will at some point commit new crimes. Indeed,
considered collectively, the penal practices just canvassed seem almost
designed to produce chronic disorder on the part of those caught by the
system, thereby undermining rather than promoting the likelihood that
former prisoners will be successfully reintegrated.
Yet the collective commitment to prevailing practices abides.
What explains the staying power of such a self-defeating penal strategy?
Here we come to one of Douglas’s key insights: institutional
arrangements, if they are to persist, require a sustaining “cognitive
convention,” a collective understanding that makes the institution’s
practical imperatives seem natural, reasonable, and wholly appropriate.73
Judged by this standard, the ideological discourse that shapes public
perceptions of criminal acts and the people who commit them has been a
remarkable success.74 According to its dominant narrative, crime is purely
a product of the individual choice and free will of the actor. Flowing from
this understanding is a particular view of imprisonment: people in prison
are behind bars solely as a consequence of their own culpable acts freely
New Racially Restrictive Covenant: Race, Welfare and the Policing of Black Women in
Subsidized Housing 19-20 (unpublished draft on file with the author)).
72
See Dolovich, Creating the Permanent Prisoner, supra note 10, at 99-100 (arguing that
“the American carceral system, although perhaps rhetorically motivated by more familiar
penological purposes . . . is in practice designed to mark certain undesirables as social
deviants and consign them to lives beyond the boundaries of mainstream society”).
73
See DOUGLAS, supra note 12, at 46; see also id. at 112 (“Any institution that is going
to keep its shape needs to gain legitimacy by distinctive grounding in nature and in
reason.”).
74
See id. at 92 (explaining that “the most effective such institution-sustaining ideologies
will shape individual perceptions in ways that fix processes that are inherently dynamic .
. . hide their influence, and . . . raise our emotions to a standardized pitch on
standardized issues”).

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undertaken.75 This radically individualist account, which emerged in its
starkest form during the Reagan era,76 stands in clear contrast to the
rehabilitative model that defined American penality—at least
rhetorically—until the mid-1970s. More will be said below concerning
this contrast.77 For now, it bears noting that from this perspective, there
is no space even to recognize, much less to take account of, the
reproductive logic of the carceral system. If someone commits a crime, it
is simply because they have “chosen to be bad.”78 As for repeat offenders,
their inevitable failure to escape what Loïc Wacquant has called “a selfperpetuating cycle of social and legal marginality”79 becomes instead
proof of their stubborn unwillingness to seize the opportunity offered by
their release to take a different path. This construction helps to explain
why the commission of crime by former prisoners so often prompts
demands for longer and longer periods of banishment.80 Viewed through
this lens, what one sees are people so apparently contemptuous of
society’s behavioral norms that even the prior public condemnation of
their own previous wrongful acts could not move them to mend their
ways.
75

Dolovich, Incarceration American-Style, supra note 17, at 241-43 for further discussion
on this point.
76
See, e.g., GIL TROY, MORNING IN AMERICA: HOW RONALD REAGAN INVENTED THE
1980S 120 (2005) (“While every decade in the twentieth century upped the consumerist
ante, the 1980s marked a giant step toward an almost reckless, autonomous
individualism . . . . With little institutional, ideological, or moral traction, ‘matters of
personal preference’ predominated.”); James A. Morone, Nativism, Hollow Corporations,
and Managed Competition: Why the Clinton Health Care Reform Failed, 20 J. HEALTH
POL. POL’Y & L. 391, 397 (1995) (“Even before the 1994 election, Americans operated
in the political shadow of Ronald Reagan. . . . The rhetoric of aggressive individualism,
racial suspicion, and economic greed ran through American political culture.”).
77
See infra Part V.
78
RHODES, TOTAL CONFINEMENT, supra note 5, at 61.
79
Loïc Wacquant, The New “Peculiar Institution”: On the Prison as Surrogate Ghetto, 4
THEORETICAL CRIMINOLOGY 377, 384 (2000).
80
See JFA INSTITUTE, UNLOCKING AMERICA: WHY AND HOW TO REDUCE AMERICA'S
PRISON POPULATION 13 (2007) (describing the adoption of mandatory sentencing,
“truth in sentencing,” and “three strikes” laws, “all of which extend prison sentences” for
repeat offenders, as arising from the belief that “anyone with two or three convictions
for a relatively wide range of offenses is a dangerous habitual criminal” who should be
kept “in prison for an extremely long time”).

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This sense of repeat offenders as people who have somehow failed
to learn the moral lessons punishment is supposed to teach—or to
appreciate the seriousness of purpose behind a relatively light sentence for
a first- or second-time offender—raises the possibility that the imposition
of escalating sentences for subsequent convictions81 may only represent
society’s desperate effort to get obstinate malefactors to pay attention. But
this particular reading, although perhaps capturing some of the public’s
evident exasperation with repeat offenders,82 mistakenly presumes a
collectivity genuinely seeking to reintegrate those who have gone astray.
As the above discussion suggests, however, notwithstanding the timelimited nature of most custodial sentences, the American carceral system
instead seems designed to trap already marginalized citizens in a
permanent cycle of reoffending and reincarceration. It is as if “those
people,” having once been brought under state control, should have to
remain there for good, freeing the rest of us from ever having to deal with
them again.
The discourse of personal choice and individual agency that
dominates public and political thinking about crime and punishment
justifies and thereby sustains the project of perpetual marginalization and
exclusion.83 Indeed, a closer look at this discourse reveals the multiple
ways it not only supports this project but is key to its success. First, the
notion that people are incarcerated as a consequence of their own freely
chosen acts shrouds the possibility that their antisocial conduct may have
been produced at least to some extent by forces not realistically within
their own control. It thus obscures the way political choices—including
choices as to how society responds to crime—may in part be to blame for
the seeming inability of some individuals to break free of the carceral
system.84
81

See, e.g., CAL. PENAL CODE § 667(e)(2)(A) (West 2011) (imposing a twenty-five-year
mandatory minimum for any felony committed by someone with two previous
convictions for offenses designated “serious or violent”).
82
See infra text accompanying note 228.
83
The emerging political support for “reentry” suggests a possible point of challenge to
this project. I discuss this possibility below at text accompanying notes 250-53.
84
To acknowledge that forces beyond the control of the actor may play a role in his
criminality is not to deny any individual responsibility for criminal conduct. The point
is simply that the causes of crime are necessarily more complex than can be recognized
within the justificatory discourse of free will and personal choice. Our inability in any

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Second, and perhaps even more central to the logic of exclusion
and control, this radically individualist way of framing the issue drives the
notion that criminal offenders, especially repeat criminal offenders, are
unrepentant evildoers determined to cause harm to others. Neatly
denying the possible contingency of crime, this framing justifies the
exclusionary project as the only viable social response: if incorrigible
offenders are stubbornly persisting in their choice to be bad, then society
has no realistic alternative but to remove them from the shared public
space and place them where the threat they pose can be contained.
Third and finally, this view of criminal conduct as necessarily the
product of individual choice fits perfectly into the reconfiguration of the
incarcerated as outside the set of people to whom equal consideration and
respect are necessarily due. Indeed, from within the free choice narrative,
it is easy to see both how and why offenders—with their apparent refusal
to exercise any restraint or show any regard for others—come to seem
scarcely human. How else are law-abiding citizens to regard someone who
willfully persists in violating society’s laws, thereby inflicting harm on
innocent citizens, other than as “a breed apart,”85 as “a different species of
threatening, violent individuals for whom we can have no sympathy and
for whom there is no effective help”?86 Far from frustration at the
apparent inability of criminal offenders to successfully reintegrate, the
insistence on a carceral response with which American society has
habitually come to greet the commission of crime seems more to reflect a
demand finally to be free of the threat of chronic social disorder and
danger posed by people regarded as barely even human and who,
whatever species they are, seem congenitally unwilling or unable to play
by society’s rules.

given case to fully understand all the forces at play—whether those within a person’s
control or those beyond it—when someone commits a crime should at least prompt
some humility on the part of those who define the penalties, and some restraint as to the
harshness of those penalties.
85
KELSEY KAUFFMANN, PRISON OFFICERS AND THEIR WORLD 231 (1988).
86
DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN
CONTEMPORARY SOCIETY 136 (2001).

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V. MAKING	
   MONSTERS:	
   THE	
   REQUISITE	
   MORAL	
   PSYCHOLOGY	
   OF	
  
EXCLUDED	
  CRIMINAL	
  OFFENDERS	
  
This last narrative move—from criminal offenders as moral
outcasts to criminal offenders as a different species altogether—enables
the final consolidation of the institutional arrangements underpinning
society’s carceral bargain. Prior to this point, these arrangements may
have seemed vulnerable to challenge not only as self-defeating over the
long term but also as inhumane towards the people sent to prison. Even
in a polity prone to locate the causes of crime solely in the free will of the
actor, people may balk at the cruel treatment of incarcerated offenders.
Yet once it is understood that criminals are a “different breed”
altogether,87 the almost cavalier attitude as to the fate of the people
thereby banished from society becomes not merely defensible but
perfectly appropriate, and the mechanisms of exclusion and control are
revealed as obviously necessary. How else are we to deal with these
dangerous monsters? This neat trick of rhetorical framing, by which
criminal offenders become not just nonhuman but something inherently
scarier and more threatening, is what finally clinches the success of the
exclusionary enterprise.88
A closer examination of this perceptual shift from criminal
offenders as unworthy to criminal offenders as dangerous monsters89
87

Craig Haney, Demonizing the “Enemy”: The Role of “Science” in Declaring the “War on
Prisoners,” 9 CONN. PUB. INT. L.J. 185, 223 (2010) (quoting SAMUEL YOCHELSON &
STANTON E. SAMENOW, THE CRIMINAL PERSONALITY: THE CHANGE PROCESS 5
(1977)) (internal quotation marks omitted).
88
Cf. MARTHA GRACE DUNCAN, ROMANTIC OUTLAWS, BELOVED PRISONS: THE
UNCONSCIOUS MEANINGS OF CRIME AND PUNISHMENT 119-87 (1996) (exploring the
pervasiveness of the metaphor equating criminals with “filth” and collecting citations to
judicial opinions in which defendants or witnesses are referred to as “filth,” “dirt,”
“scum,” or “slime”).
89
The construction of criminal offenders as moral monsters has been to a significant
extent media driven. As Ray Surette has observed, “[t]he repeated message in the
entertainment media is that crime is perpetrated by predatory individuals who are
basically different from the rest of us and that criminality stems from individual
problems. In the media, crime is behavior criminals choose freely, and media criminals
are not bound or restrained in any way by normal social rules and values. Over the
course of this century . . . [m]edia criminals have become more animalistic, irrational
and predatory (a process paralleled by media crime fighters), and their crimes more
violent, senseless and sensational, while their victims have become more random,

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reveals the delicate ideological dance that is required to vindicate the
exclusionary project. To justify responding to crime with exclusion, it is
essential to foreclose the uncomfortable possibility that any factors besides
the personal choice of the offender might have contributed to the
commission of a crime—at least any factors originating in society more
generally. Otherwise, banishing the offender would be an insufficient
response for a polity genuinely committed to preventing crime (because
removing that person would not fully address the root causes of crime),
not to mention potentially unfair to the offenders themselves (because
they may not be entirely or even mostly to blame).
To this extent, the notion of criminal violations as purely the
product of an actor’s free will is all that is required to justify a carceral
response. Still, a challenge remains: demonstrating that people who
commit crimes by choice necessarily pose the sort of ongoing threat of
danger and disorder for which there is no protection but extended social
excision.90 Depending on the circumstances, a perfectly rational person
helpless, and innocent. . . . The news media have mirrored the entertainment media in
the pursuit of predator criminality. . . . [T]oday crime news is composed largely of
violent personal street crimes [like] murder, rape and assault while more common
offenses such as burglary, theft, and fraud are notably underplayed. The vast majority of
crime coverage pertains to violent or sensational crime. . . . [S]ince most crime news is of
violent interpersonal crime, it follows that the blank image [of the criminal] is filled by
the public with a faceless predator criminal.” Ray Surette, Predator Criminals as Media
Icons, in MEDIA, PROCESS, AND THE SOCIAL CONSTRUCTION OF CRIME: STUDIES IN
NEWSMAKING 132, 134-35 (Gregg Barak ed., 1994); see also id. at 132 (“Predator
criminals are modern icons of the mass media.”).
90
Reference to a “violent and dangerous criminal” generally calls to mind someone who
is male—and also black, although this racial coding is typically only implicit. See Kelly
Welch, Black Criminal Stereotypes and Racial Profiling, 23 J. CONTEMP. CRIM. JUST.
276, 276 (2007) (“In American society, a prevalent representation of crime is that it is
overwhelmingly committed by young Black men. Subsequently, the familiarity many
Americans have with the image of a young Black male as a violent and menacing street
thug is fueled and perpetuated by typifications everywhere.”); Jon Hurwitz & Mark
Peffley, Public Perceptions of Race and Crime: The Role of Racial Stereotypes, 41 AM. J.
POL. SCI. 375, 376, 378-79 (1997) (“[N]ot only are African-Americans more likely than
whites to be portrayed as criminal suspects in news stories about violent crime, but they
are also more likely to be depicted as physically threatening. . . . Experimental studies
from social psychology . . . show consistently that the same behaviors acted out by black
and white targets are interpreted very differently by white subjects, with the black target
often seen as more guilty and more aggressive than the white.”) (internal citations

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might be motivated to break the law for any number of reasons—to
achieve a calculated revenge, perhaps, or because of material want. But to
motivate the deep and abiding fear of crime and criminal alike that
justifies extended incarceration, the danger of reoffending must be great,
and the threatened violations must be serious. Otherwise, some other less
drastic penal strategy—and perhaps even a non-custodial one—might
equally serve.
It is therefore not enough that the offender be conceived as an
active chooser of crime, as is assumed by the stripped-down, radically
individualist theory of criminal offending. If he is a wholly rational actor,
in control of his choices, he must also be understood to be driven to
crime by a depraved preference for doing harm. In short, he must be
thought of as inherently evil, almost compulsively—yet still
deliberately—criminal. Only in this way can it be plausibly claimed that
incarceration is both necessary and sufficient to control the ongoing and
fearsome threat this population poses to society at large. And in the final
coup de grâce, once criminal offenders are understood to be driven by
either rank evil or (almost) compulsive violence, it becomes difficult, if
not impossible, to regard them as human. To properly fit this description,
a person would have to be a monster.
Notice what is required of criminal offenders on this account:
they must not only choose to commit crimes but must be positively
driven to do so by forces contained solely within themselves. Offenders must
be both deliberately and compulsively criminal, simultaneously unwilling
and unable to forgo the commission of crimes. And they must be these
things as a consequence of their own essential, internal character. To be
sure, this is an awkward normative posture. But the logic of exclusion and
control demands that the targets of incarceration occupy this narrow
psychological berth. Only in this way can it be possible simultaneously to
(1) justify incarceration (because the offender, having chosen to offend,
deserves it); (2) absolve society of any responsibility for the causes of
crime (because they originate entirely within individual wrongdoers
themselves); and (3) instill in ordinary citizens an abiding fear that they
could be victimized at any time by twisted (nonhuman) actors who are
driven by a compulsive preference for causing harm to others. At this
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point, “evil” is just shorthand for describing the dangerous predators who
are thought to be out there, ready at any time to terrorize the rest of us.
And “monster” is as good a way as any to conceive of someone so
obviously deranged. Such beings may look human, but their persistent
criminal conduct betrays them. Their exclusion and ongoing control
becomes necessary precisely because of the inherent danger they
represent.
The point here is not that all those who commit crimes are in fact
monsters with the sort of twisted moral psychology just outlined. It is
rather that the imperatives of exclusion and control that shape the
American penal system must presume them to be so as an ideological
matter, if not a factual one. In this way, prisoners in this system come to
be perceived as like Giorgio Agamben’s figure of the “wolfman” or
“werewolf,” a “monstrous hybrid of human and animal” which, although
bearing the outward appearance of a man, is widely recognized as not
human at all, but as subhuman.91 As such, these “monstrous hybrids”
may be killed without ceremony or, at the very least, banned from the
community without a second thought.92 Exclusion of these monsters
becomes precisely what must be done to protect those who are regarded
as fully human and thus as full citizens. Consider, moreover, what this
perspective suggests about the appropriate conditions of confinement for
convicted offenders: if the werewolf is successfully trapped, he may
perhaps be kept alive, but no efforts need be expended to ensure his wellbeing or to help him flourish despite his constraints. He is nonhuman, an
animal, and thus merits no such consideration.93
This understanding of the criminal offender contrasts starkly with
the conception that informed American penality for much of the
twentieth century—that of “flawed but fixable” individuals capable of

91

AGAMBEN, supra note 43, at 105.
See id. at 104-05.
93
This conception is consistent with Jonathan Simon’s characterization of “total
incapacitation” as a means to guard society from the “contamination” thought to
emanate from convicted offenders. See Jonathan Simon, Dignity and Risk: The Long
Road from Graham v. Florida to Abolition of LWOP, in LIFE WITHOUT PAROLE:
AMERICA’S NEW DEATH PENALTY? (Charles J. Ogletree, Jr. & Austin Sarat eds.,
forthcoming 2012).
92

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reform.94 This latter notion fit naturally within a rehabilitative model,
which saw it as “the state’s responsibility . . . to provide the expertise and
resources needed to remediate [an individual’s] flaws.”95 Although the
depth of the commitment to this penological approach varied across
states,96 the recognition of individual offenders as people, “with all the
psychological and sociological complexity inherent in being human,”
informed penal policy until the 1970s, even in jurisdictions with shallow
rehabilitative commitments.97 Although the system still locked people up,
the overall incarceration rate in the mid-1970s hovered around 113 per
100,000 (as compared with 743 per 100,000 in 2009),98 parole was
routinely granted,99 and it was not unusual for people with criminal
records to put their pasts behind them and reenter mainstream society.
94

MONA LYNCH, SUNBELT JUSTICE: ARIZONA AND THE TRANSFORMATION OF
AMERICAN PUNISHMENT 9 (2010).
95
Id.
96
Id. at 50.
97
Mona Lynch, The Contemporary Penal Subject(s), in AFTER THE WAR ON CRIME:
RACE, DEMOCRACY AND A NEW RECONSTRUCTION 89, 90 (Mary Louise Frampton,
Ian Haney Lopez & Jonathan Simon eds., 2008). For example, as Mona Lynch
convincingly shows, in Arizona, a highly punitive state with at best a thin commitment
to rehabilitation even in the heyday of this model elsewhere in the U.S., it was still the
case that “the basic humanity of the prisoner was generally perceived to be intact,” and it
was still “generally accepted that he or she was both capable of being returned to the
broader community and in most cases deserved to have that opportunity upon
reformation.” LYNCH, supra note 94, at 125-26.
98
See MARGARET WERNER CAHALAN, U.S. DEPARTMENT OF JUSTICE, HISTORICAL
CORRECTIONS STATISTICS IN THE UNITED STATES, 1850 — 1984, at 35 (1975 data),
available at http://www.ncjrs.gov/pdffiles1/pr/102529.pdf; LAUREN E. GLAZE, U.S.
BUREAU OF JUSTICE STATISTICS, BULLETIN: CORRECTIONAL POPULATIONS IN THE
UNITED STATES, 2009, at 7 (2009 data), available at http://bjs.ojp.usdoj.
gov/content/pub/pdf/cpus09.pdf.
99
See, e.g., CAL. PENAL CODE § 3041(a) (West 2011) (providing that “[o]ne year prior
to the inmate’s minimum eligible parole release date a panel of two or more
commissioners or deputy commissioners shall . . . meet with the inmate and shall
normally set a parole release date”). This statute is still formally on the books, but the
granting of parole in California has long since ceased to be a matter of course. Over the
past decade, the California Parole Board has denied ninety-eight percent of the parole
petitions that have come before it. For further discussion of the gradual disappearance of
parole over the past several decades, see Dolovich, Creating the Permanent Prisoner, supra
note 10, at Part IV.

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Prior to the 1970s, moreover, LWOP was virtually nonexistent.100
Since that time, the “conceptualization[] of the criminal/penal
subject”—i.e., the way those individuals marked out for criminal
punishment are “imagined by policy makers, court personnel, penal
administrators and others who are in the business of state punishment”—
has shifted away from regarding convicted offenders as capable of change
and thus potentially law-abiding, and towards seeing members of this
group as “cold, calculating, free-willed actors who choose [. . .] evil in
killing and harming others.”101 At the same time, penal systems
nationwide have moved decisively away from even the pretense of
rehabilitative aspirations and toward an explicit commitment to exclusion
and control—and penal practices have changed accordingly.102
As Craig Haney has shown, this construction of criminals as
inherently, pathologically deviant received a “scientific” imprimatur in
the mid-1970s, when psychiatrist Samuel Yochelson and psychologist
Stanton Samenow claimed to have penetrated “‘inside the criminal
mind.’”103 In their work, “Yochelson and Samenow asserted that the basic
thought patterns of criminals (and, by implication, the structure of their
brains) were fundamentally different from those of the rest of us.”104 As
they saw it, “[c]rime resides within the person and is ‘caused’ by the way
he thinks . . . . Criminals think differently from responsible people.”105
Indeed, in the view of Yochelson and Samenow, “the criminal mind was
so fundamentally different from that of normal people that it was
100

See Marie Gottschalk, The Worst of the Worst? Life Sentences and Penal Reform, in LIFE
WITHOUT PAROLE: AMERICA’S NEW DEATH PENALTY? 9 (Charles J. Ogletree, Jr. &
Austin Sarat eds., forthcoming 2012).
101
Lynch, The Contemporary Penal Subject(s), supra note 97, at 89, 91, 96. As Lynch
puts it, “in contrast to previous conceptions, where various defects and impediments
were seen as the root cause of criminality, the rationality and free will of the
contemporary serious criminal is now seen as contributing to his perceived threat and
inherent evilness. He chooses to wreak criminal havoc for pleasure, greed, or other
selfish and immoral purposes, so he deserves no help or intervention to facilitate lawabiding behavior.” Id. at 96.
102
See CAL. PENAL CODE § 1170(a)(1) (West 2011) (“The Legislature finds and declares
that the purpose of imprisonment for crime is punishment.”).
103
Haney, Demonizing the ‘Enemy’, supra note 87, at 219 (quoting STANTON E.
SAMENOW, INSIDE THE CRIMINAL MIND (1984)).
104
Id. at 220.
105
Id. at 220-21 (quoting SAMENOW, supra note 103, at xiv).

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appropriate to describe lawbreakers as literally ‘a different breed.’”106 On
this basis, moreover, these authors made the striking claim that, as Haney
puts it, “all criminals—from car thieves to murderers—thought exactly
alike: ‘[W]ithout exception, one criminal is like another with respect to
(these) mental processes.’”107
In the mid-1980s, this deracinated and putatively scientific
account was taken up and further legitimated by Harvard sociologist
James Q. Wilson, who argued that the function of the penal system was
not to reform offenders but “to isolate and . . . punish” them.108 Whereas
the rehabilitative approach emphasized the social inputs of individual
criminal behavior, Wilson (echoing Yochelson and Samenow) argued that
the problem was the individuals themselves. As Wilson put it, “[w]icked
people exist. Nothing avails except to set them apart from innocent
people.”109 As he framed the issue, in terms consistent with the Reagan
era’s stern individualism,110 if criminal offenders do bad things, it is
because of who they are and what they therefore choose to do, and no
interventions, however well-meaning, can change them. And if individual
actors choose to do wrong, not only is there no help for them, but the
rest of us need have no sympathy for them, since, by their own criminal
choices, they reveal themselves, like Agamben’s “wolfman,” as beyond the
required scope of moral consideration.111
This approach strips any sense of human complexity from
explanatory accounts of criminal behavior. It also presumes a uniformity
of character among all those who break the law. People who commit
106

Id. at 223 (quoting YOCHELSON & SAMENOW, supra note 87, at 5).
Id. at 221 (quoting SAMUEL YOCHELSON & STANTON E. SAMENOW, THE CRIMINAL
PERSONALITY: A PROFILE FOR CHANGE 316 (1976) (Haney’s emphasis omitted)).
108
JAMES Q. WILSON, THINKING ABOUT CRIME 193 (1985), quoted in JOAN
PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY 64
(2003); see Haney, Demonizing the ‘Enemy’: The Role of Science in Declaring the ‘War on
Prisoners’, supra note 87, at 219 (noting that the work of James Q. Wilson, as well as
that of Yochelson and Samenow, together seemed to provide “strong empirical support”
for a biological theory of criminality, helping “not only to solidify the move to abandon
prison rehabilitation programs but also to provide indirect support for substituting
increasingly harsh and more painful prison policies”).
109
WILSON, THINKING ABOUT CRIME, supra note 108, at 193.
110
See supra note 76.
111
See supra text accompanying notes 91-93.
107

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crimes are no longer viewed as “flawed but fixable” individuals112 shaped
by adverse life experiences and their own complex psychologies.113
Indeed, apart from the inherent tendencies that drive them unerringly to
criminality, they are barely held to have salient personal characteristics at
all. This stripped-down conception of criminal offenders, moreover,
points directly and inexorably toward a strategy of exclusion and control.
Once one adopts the Wilsonian theory of crime as purely the product of
compulsive individual wickedness, the Wilsonian prescription—setting
“the wicked” apart from “innocent people”—comes to seem both natural
and appropriate.
VI. FEARING	
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   PREEMPTIVE	
   EXCLUSION	
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PENAL	
  STRATEGY	
  
To the foregoing, one might respond that criminals, who have
proved their deviance by their own behavior, should be permanently
exiled. And certainly, in cases where freedom from state custody would
bring a plausible risk of serious violence, the state may have no choice but
to keep that person separate and apart from society until he no longer
poses a threat. But even in such cases, conditions of confinement could be
humane and designed to promote personal development to the greatest
possible extent. Moreover, the possibility that some people may be too
violent or dangerous to live freely in society does not mean that all those
people the state incarcerates necessarily pose this level of threat. Indeed,
in the American context, incarceration is not at all contingent on a
plausible risk of serious violence. Were this strategy reserved only for
those too violent or dangerous to remain safely in society, there would be
no mandatory sentences, no abolition of discretionary parole, no
LWOP—all practices applied regardless of an individual’s
particularities—and no public or political resistance to releasing anyone
found not to pose a significant risk to any person’s physical security or
bodily integrity. The only relevant issue for those in custody would be
their ability to live safely in society with others.114 Nor would there be
112

LYNCH, supra note 94, at 9.
Lynch, The Contemporary Penal Subject(s), supra note 97, at 90.
114
For further discussion of these policies and their contribution to the exclusionary
project, see Dolovich, Creating the Permanent Prisoner, supra note 10.
113

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any public or political objection to reserving incarceration only for those
convicted offenders who are found to pose such a risk going forward. But
in the United States, this is not the case. To the contrary, at least half the
people behind bars in the United States are doing time for nonviolent
offenses,115 and extremely long sentences and even LWOP sentences116
are routinely imposed for a wide range of crimes, including nonviolent
and other relatively less culpable offenses.117
115

See DORIS J. JAMES, BUREAU OF JUSTICE STATISTICS, PROFILE OF JAIL INMATES,
2002, at 3 (2004), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/pji02.pdf
(reporting numbers indicating that 74.6 percent of jail detainees are in custody for
nonviolent offenses); PRISONERS UNDER THE JURISDICTION OF THE FEDERAL BUREAU
OF PRISONS, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS ONLINE,
http://www.albany.edu/sourcebook/pdf/t600232009.pdf; FEDERAL BUREAU OF
PRISONS, QUICK FACTS ABOUT THE BUREAU OF PRISONS (2011), available at
http://www.bop.gov/news/quick.jsp#4 (reporting numbers indicating that 97.1 percent
of BOP prisoners were convicted of nonviolent offenses); ESTIMATED NUMBER AND
PERCENT DISTRIBUTION OF PRISONERS UNDER JURISDICTION OF STATE
CORRECTIONAL AUTHORITIES, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS
ONLINE, http://www.albany.edu/sourcebook/pdf/t600012008.pdf; HEATHER C. WEST,
WILLIAM J. SABO & SARAH J. GREENMAN, BUREAU OF JUSTICE STATISTICS, PRISONERS
IN 2009, at 7, tbl. 7 (2010), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/
p09.pdf (reporting numbers indicating that 47.6 percent of state prisoners are in custody
for nonviolent offenses).
116
In the current climate, there is often little practical difference between parole-eligible
life sentences and LWOP sentences, since the politicization of parole decisions has made
review boards and governors extremely reticent about granting parole. See Dolovich,
Creating the Permanent Prisoner, supra note 10, at Part IV; infra note 159.
117
See supra note 3. For example, as of December 2010, of the 8,727 people serving
twenty-five-year mandatory minimums for a third strike in California, more than half
were convicted of property crimes (2,527), drug crimes (1,350) or other nonviolent
crimes, including weapons possession (480) and driving under the influence (53).
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, OFFENDER
INFORMATION SERVICES BRANCH ESTIMATES AND STATISTICAL ANALYSIS SECTION
DATA ANALYSIS UNIT, SECOND AND THIRD STRIKERS IN THE ADULT INSTITUTIONAL
POPULATION tbl. 1 (2010), available at http://www.cdcr.ca.gov/Reports_Research/
Offender_Information_Services_Branch/Quarterly/Strike1/STRIKE1d1012.pdf.
Moreover, as of 2004, some 2,000 people (about thirty-nine percent of all federal
lifers) were serving life terms for drug offenses in the federal system. A further 3,000
people were doing life for drug offenses in state prison, see MAUER ET AL., supra note 1,
at 10-11, 13, 19, and an estimated 5,000 additional lifers nationwide were convicted of
property crimes. Id. at 19. Behind these statistics, there are thousands of real people who
have been targeted for extended and frequently permanent exclusion for relatively minor

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offenses. To cite just a few: Vincent Carnell Hudson was convicted in Mississippi of
possession of less than 0.10 grams of cocaine and sentenced to LWOP under that state’s
habitual offender statute. See Hudson v. State, 31 So.3d 1 (Miss. Ct. App. 2009)
(identifying Hudson’s prior convictions as “(1) felony shoplifting, (2) possession of
heroin, (3) aggravated assault on a law enforcement officer, (4) armed robbery, and (5)
felony driving under the influence”). Sylvester Mead was convicted in Louisiana of
“public intimidation” after making “a drunken threat to a police officer,” and was
sentenced as a habitual offender to LWOP. See State v. Mead, 288 So.3d 470, 472 (2d
Cir. 2008) (identifying Mead’s previous convictions as aggravated battery and simple
burglary) (cited in Jessica Henry, Death in Prison Sentences: Overutilized and
Underscrutinized, in LIFE WITHOUT PAROLE: AMERICA’S NEW DEATH PENALTY? 66
(Charles J. Ogletree, Jr. & Austin Sarat eds., forthcoming 2012)). Onrae Williams was
convicted in South Carolina of distributing less than a half a gram of cocaine and
sentenced to LWOP as a habitual offender. Sholam Weiss was convicted of fraud and
money laundering and sentenced to 845 years in federal prison; his co-defendant, Keith
Pound, got 740 years. See Henry, Death in Prison Sentences, supra at 71. George
Martorano, a first offender, was convicted of conspiracy and marijuana distribution, and
got life in federal prison. See id. Clarence Aaron, charged in federal court with various
drug conspiracy offenses for having arranged a meeting between a drug dealer and a
prospective customer, received three life sentences. See id. And perhaps most famously,
Ronald Harmelin, a first-time offender, was convicted in Michigan for possession of 672
grams of cocaine and sentenced to LWOP—a penalty eventually upheld by the United
States Supreme Court. See Harmelin v. Michigan, 501 U.S. 957 (1991); see also Ewing
v. California, 538 U.S. 11 (2003) (twenty-five years for stealing golf clubs worth
$1200); Lockyer v. Andrade, 538 U.S. 63 (2003) (fifty years for stealing $154 worth of
video cassettes); Rummel v. Estelle, 445 U.S. 263 (1982) (life in prison for obtaining
$120 by false pretenses); Hutto v. Davis, 454 U.S. 370 (1981) (forty years in prison for
possession and distribution of nine ounces of marijuana); Henry, Death in Prison
Sentences, supra at 71 (cataloguing many individual cases of extremely long sentences—
what she calls “death in prison” sentences—for nonviolent and other relatively
nonserious crimes); FAMILIES AGAINST MANDATORY MINIMUMS, PROFILES OF
INJUSTICE, available at http://famm.org/ProfilesofInjustice.aspx (cataloguing many cases
of people receiving lengthy sentences for nonviolent and other relatively nonserious
crimes).
Certainly, many people receiving life sentences were convicted of violent crimes.
According to a 2004 Sentencing Project report, almost sixty-nine percent of those
serving life sentences were convicted of homicide and a further 21.2 percent were
convicted of other violent crimes. See MAUER ET AL., supra note 1, at 13. Not all
homicides, however, are equally culpable. For example, among those serving life for
homicide are 800-2,000 women convicted of killing their batterers, see id. at 14 (noting
that “some scholars view these estimates as conservative”), nearly two-thirds of whom
killed their partner in the midst of an abusive incident. Id. The sixty-nine percent of
people doing life for homicide also includes people convicted of felony murder, in which

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That the strategy of exclusion and control is so broadly applied
may at first seem puzzling. Are not the real criminals, and thus the
appropriate penal targets, those who are extremely violent and dangerous?
Certainly, when Americans “think of locking up criminals, they usually
have an image in mind of a violent offender—a murderer or a rapist.”118
It is thus unsurprising that when sociologist Esther Madriz asked women
their perception of criminals, what emerged was an image “of criminals as
animalistic, as savages or monsters[, as] insane or ‘unbalanced.’”119 As
any deaths that occur in the course of committing another felony may be charged as
murder against all participants—even against people who did not themselves commit or
even intend the killing, and even when the death was accidental. Id. at 18. As for the
twenty-one percent of life sentences handed out for “other violent crimes,” it is worth
noting that even within the category of violent crime, “the actual physical violence is
often overstated.” PRISON POLICY INTIATIVE, THE FACTS ABOUT CRIME (2004),
available at http://www.prisonpolicy.org/articles/factsaboutcrime.pdf. As the National
Criminal Justice Commission explained, “the vast majority of violent crimes are assaults
where one person hits or slaps another or makes a verbal threat. Only about 8% of the
victims of violent crime nationally went to a hospital emergency room” [and] “[m]ost
were released immediately the same day.” Moreover, “[o]f all the victims of violent
crime nationally, slightly over 1% require a hospital stay of one day or more.” REAL
WAR ON CRIME: THE REPORT OF THE NATIONAL CRIMINAL JUSTICE COMMISSION
11-12 (Stephen R. Donziger ed., 1996); see also DORIS J. JAMES, BUREAU OF JUSTICE
STATISTICS, PROFILE OF JAIL INMATES 2002, at 3 tbl. 3 (2004), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/pji02.pdf. (defining “violent crime” to include
murder, negligent manslaughter, kidnapping, rape, other sexual assault, robbery, assault
and “other violent,” a category including blackmail, extortion, hit-and-run driving with
bodily injury, child abuse, and criminal endangerment); WEST, SABOL, & GREENMAN,
supra note 115, at 32 (defining the category of “violent crime” to include murder, nonnegligent manslaughter; negligent manslaughter, rape, other sexual assault; robbery;
assault; and “other violent”). Although it is impossible to tell what fraction of that 21.2
percent of life sentences for non-homicide offenses classified as violent were of a
relatively less culpable nature, it is important to recognize that some of them may well
have been. The point here is not that the state may not legitimately punish the people
who commit such crimes. It is simply to underscore the fact that in the American
carceral system, extended imprisonment is not reserved for the most serious violent
offenses.
118
REAL WAR ON CRIME, supra note 117, at 9. As the Commission went on to observe,
however, “the vast majority of people filling our expensive new prisons are nonviolent
property and drug offenders.” Id.
119
Esther I. Madriz, Images of Criminals and Victims: A Study on Women’s Fear and
Social Control, 11 GENDER & SOC’Y 342, 346 (1997). Yet, as Madriz noted, “[t]his
image contrasts with the reality of crime. From the criminal statistics, we know that

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Madriz reports, participants “on several occasions used similar words to
describe criminals: monsters, crazy, insane, mad, maniac, nuts, cracked,
bizarre, weird[,] . . . out of control.” Many subjects further described
criminals as “people who lack any human compassion [or] human
sentiments.”120
This scary image, however, can in no way be thought to represent
the norm among people with criminal records.121 No doubt there are
people in state custody too violent and dangerous to be released—the
Charles Mansons, the Jeffrey Dahmers, the perpetrators of the awful
Connecticut home invasion in 2007.122 Such people—the apparently
genuine moral monsters—seem by their very existence to attest to the fact
of evil and the urgency and validity of an exclusionary response. But it is
hard to credit the notion that such people are anything but exceptions. At
present, there are more than 2.3 million people in custody in state and
federal prisons and jails in the United States,123 and another five to seven
million people on probation or parole. Every year, between 650,000 and
700,000 people are released from prison, and ten to twelve million churn
through the nation’s jails.124 Even granting the likelihood of many repeat
players, this is an enormous number of people. Unless the moral
mass murders . . . are an extremely rare occurrence. When these events occur, however,
the media bombard and saturate readers and viewers with reports about the incident, recreating images of atavistic criminals,” creating a “moral panic” that politicians turn to
their advantage. Id. (internal citations omitted).
120
Id. at 346-47. As for crime victims, they were conceived by respondents as
“completely helpless and at the mercy of these ‘mentally disturbed’ persons.” Id. at 346.
Moreover, Madriz found that “regardless of the race and socioeconomic background of
the women, the images of criminals [were] strongly racialized, with Black and Latino
men being uppermost in the fears of most women.” Id. at 345; see also infra Part VII.
121
As Lynch put it, since the mid-1980s, when today’s harshly punitive penal culture
began to emerge nationwide, “[t]he imagined prototypical offender in popular, political,
and even justice policy circles [has] tended to be the scariest (although statistically rarest)
type of criminal, who need not be understood or corrected but who must at any cost be
contained and disempowered.” Lynch, The Contemporary Penal Subject(s), supra note 97,
at 94.
122
See Stephen Singer, William Petit Testifies in Connecticut Home Invasion, Murder
Trial, HUFFINGTON POST, (Sept. 14, 2010, 10:11 PM), http://www.huffingtonpost.
com/2010/09/14/william-petit-testifies-i_n_716330.html.
123
See infra note 151.
124
See supra note 59.

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disposition of the dangerous violent predator is epidemic in American
society—a possibility arguably disproved both by common sense and by
the relatively few serial murders, rapes, and other extremely violent
actions compared with the sheer number of convicted offenders125—some
other explanation is needed for the vast scope of the carceral system.
As it turns out, the answer to this puzzle is already at hand. The
ideological construction of criminal offenders as monsters contains
everything necessary to understand both the scale of the exclusionary
enterprise and its seeming readiness to impose extended banishment even
on people whose conduct or record suggests no tangible evidence of a
violent threat. At the heart of this construction is a notion of criminality
as congenital, as both deliberate and compulsive, and as inevitably scary
and dangerous. The assessment of the threat posed by a given individual
is based not on the particulars of his or her character or life experience or
even on the nature of the crime(s), but on an assertion, based on the fact
of persistent illegal conduct, of what he or she must inherently be. No
longer do we seek to learn about the causes of criminality by trying to
understand individual offenders “with all of the[ir] psychological and
sociological complexity.”126 In the contemporary American penal system,
it is assumed that everything there is to know about a given offender can
be found in the mere fact of his criminal history.
This, in short, is Yochelson and Samenow’s “criminal mind”
meets Wilson’s “wicked people.” The resulting syllogism appears to look
like this: if you commit crimes, you must have a criminal mind, making
you of “a different breed” and necessarily wicked. And if you are wicked,
you are, by definition, an appropriate target for social exclusion and state
control. On this logic, no individualized proof of a violent disposition is
required. A criminal propensity is a criminal propensity, and nothing an
individual offender might say or do (or not say or not do) can change the
fact of his own pathologies. In fact, with criminals being who they are—
wily, untrustworthy, erratic—the wisest course would seem to be to
maintain a skeptical response to any claims of their having been
rehabilitated or otherwise misunderstood.
125

This is not to minimize the suffering of those who are victims of serious violent
crimes, but simply to note that the numbers of such crimes are inconsistent with the
notion that violent predators are ubiquitous.
126
Lynch, The Contemporary Penal Subject(s), supra note 97, at 90.

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This ideological framing helps to explain why the carceral state
targets for repeated or extended exclusion and control even people who
have not committed serious or violent crimes, and why it maintains in
custody even people who arguably pose little risk of recidivism.127 From
this perspective, what might seem like overinclusivity and thus unfair and
gratuitous punishment is in fact sensible and judicious preemptive
action128 taken against people who, by their own criminal conduct, have
already sufficiently demonstrated the inherent danger they pose. If their
crimes have as yet been nonviolent or otherwise relatively nonserious, it is
of no account, since—again, from this perspective—the fact of their
criminality shows it to be only a matter of time before they commit
serious violent offenses.
To see this expansive and teleological view of criminality in
practice, one need look no further than the few Supreme Court cases that
have considered Eighth Amendment claims of unconstitutionally
disproportionate prison sentences. A dominant theme in these cases is the
defendants’ inveterate criminality and the legitimacy of a severe penal
response aimed at protecting society from the danger they pose. In
Rummel v. Estelle, the Court upheld a life sentence for a third offense
under a Texas habitual offender statute that, according to the Court,
allows the state “to segregate [a] person from the rest of society for an
extended period” based “on the propensities he has demonstrated”
through his repeated criminal conduct.129 As the Court put it, “[h]aving
twice imprisoned him for felonies, Texas was entitled to place upon
Rummel the onus of one who is simply unable to bring his conduct
within the social norms prescribed by the criminal law.”130 In Solem v.
Helm, the Court struck down an LWOP sentence for a seventh felony
conviction imposed under South Dakota’s “recidivist statute,” over the
dissent of four Justices who opined that “[s]urely, seven felony

127

See Dolovich, Creating the Permanent Prisoner, supra note 10 (tracing the
disappearance of meaningful parole consideration even for those who can demonstrate
their fitness for release).
128
See DOUGLAS, supra note 12, at 112 (explaining that successful institutions “gain
legitimacy by distinctive grounding in nature and in reason”).
129
Rummel v. Estelle, 445 U.S. 263, 284 (1980).
130
Id.

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convictions warrant the conclusion that [Helm] is incorrigible.”131 With
this view, the Solem dissent echoed the trial judge, who at sentencing
asserted that Helm had “certainly proven” himself “an habitual criminal .
. . beyond rehabilitation,” and that “the only prudent thing to do [was] to
lock [him] up for the rest of [his] natural life” so that no “further victims
of [his] crimes” will “be coming back before the Courts.”132 And in
Ewing v. California, the Court upheld a twenty-five-year mandatory
minimum sentence imposed under California’s three-strikes law,
affirming the state’s interest “‘in dealing in a harsher manner with those
who by repeated criminal acts have shown that they are simply incapable
of conforming to the norms of society as established by its criminal
law.’”133
Certainly, many considerations drove the outcomes of these cases
and the resulting legal standards, under which none but a vanishingly
small number of Eighth Amendment disproportionality claims have any
hope of success. But the concern here is not with the Court’s legal
analysis or the constitutional implications of this line of cases. It is instead
with the image of criminality that comes through in the above-quoted
language and the penological theory this image betrays. In these cases, the
subjects of punishment are “habitual offenders” with “a propensity” for
crime. They are “incorrigible,” “beyond rehabilitation,” and “simply
incapable of conforming” to society’s behavioral norms. This being so,
how could anyone doubt the appropriateness of extended prison terms for
these malefactors?
Judging from these descriptions, and from their accompanying
affirmation of sentences effectively consigning the defendants to die in
prison, one might well imagine the actors in question to be among the
“worst of the worst,” people who have proved themselves too violent or
dangerous to remain free. Yet the reality is something else entirely.
Rummel’s crime was obtaining $120 by false pretenses—he had
“accepted payment in return for his promise to repair an air conditioner”
that “was never repaired”134—and his two previous offenses (fraudulent
use of a credit card and passing a bad check) cost his victims a total of
131

Solem v. Helm, 463 U.S. 277, 317 (1983) (Burger, C.J., dissenting).
Id. at 282-83 (majority opinion) (quoting trial judge).
133
Ewing v. California, 538 U.S. 11, 29 (2002) (quoting Rummel, 445 U.S. at 276).
134
Rummel, 445 U.S. at 286 (Powell, J., dissenting).
132

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$108.36.135 As Justice Powell noted in his dissent, none of Rummel’s
offenses “involved injury to one’s person, threat of injury to one’s person,
violence, the threat of violence, or the use of a weapon.”136 Helm’s
offense of conviction was that of “uttering a ‘no account’ check for
$100.”137 His six priors included three counts of third-degree burglary
and one count each of obtaining money under false pretenses, grand
larceny, and “third-offense driving while intoxicated.”138 As for Ewing, he
was convicted of stealing three golf clubs “priced at $399 apiece,” which
he had spirited out of a golf course pro shop concealed in his pants leg.
He was arrested in the parking lot after “[a] shop employee, whose
suspicions were aroused when he observed Ewing limp out of the [store],
telephoned the police.”139
True, among Ewing’s prior convictions was a robbery/burglary in
which Ewing “accosted a victim in the mailroom of [an] apartment
complex,” claimed to have a gun, and pulled a knife.140 But the point
here is not that these three men did no wrong, nor that they deserved no
punishment.141 It is that, taken in context, none of them—Ewing
included—can fairly be thought to pose the kind of danger that would
justify anything close to permanent exclusion. Indeed, taking into
account Ewing’s full criminal history,142 one sees not a dangerous
135

Id.
Id. at 295.
137
Solem, 463 U.S. at 281.
138
Id. at 279-80.
139
Ewing, 538 U.S. at 18.
140
Id. at 19.
141
It bears noting, however, that by the time Ewing stole the three golf clubs (the crime
that earned him the sentence appealed to the Supreme Court), he had already served his
sentence for the robbery/burglary described in the text.
142
As Justice O’Connor recounted, “[i]n 1984, at the age of 22, [Ewing] pleaded guilty
to theft. The court sentenced him to six months in jail (suspended), three years’
probation, and a $300 fine. In 1988, he was convicted of felony grand theft auto and
sentenced to one year in jail and three years’ probation. After Ewing completed
probation, however, the sentencing court reduced the crime to a misdemeanor,
permitted Ewing to withdraw his guilty plea, and dismissed the case. In 1990, he was
convicted of petty theft with a prior and sentenced to 60 days in the county jail and
three years’ probation. In 1992, Ewing was convicted of battery and sentenced to 30
days in the county jail and two years’ summary probation. One month later, he was
convicted of theft and sentenced to 10 days in the county jail and 12 months’ probation.
136

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predator but a smalltime petty thief and public nuisance with a drug
problem, whose repeated encounters with the criminal justice system
likely only exacerbated both his addiction and his seeming inability to
obey the law.143
Ewing’s case is instructive here. Given his steady pattern of
offending and the apparently escalating seriousness of his crimes,144
In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the
county jail and one year’s summary probation. In February 1993, he was convicted of
possessing drug paraphernalia and sentenced to six months in the county jail and three
years’ probation. In July 1993, he was convicted of appropriating lost property and
sentenced to 10 days in the county jail and two years’ summary probation. In September
1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced
to 30 days in the county jail and one year's probation.
In October and November 1993, Ewing committed three burglaries and one robbery
at a Long Beach, California, apartment complex over a 5-week period. He awakened one
of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette
recorder from the television in that room. When she screamed, Ewing ran out the front
door. On another occasion, Ewing accosted a victim in the mailroom of the apartment
complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet.
When the victim resisted, Ewing produced a knife and forced the victim back to the
apartment itself. While Ewing rifled through the bedroom, the victim fled the
apartment screaming for help. Ewing absconded with the victim’s money and credit
cards.
On December 9, 1993, Ewing was arrested on the premises of the apartment complex
for trespassing and lying to a police officer. The knife used in the robbery and a glass
cocaine pipe were later found in the back seat of the patrol car used to transport Ewing
to the police station. A jury convicted Ewing of first-degree robbery and three counts of
residential burglary. Sentenced to nine years and eight months in prison, Ewing was
paroled in 1999.
Only 10 months later, Ewing stole the golf clubs at issue in this case.” Ewing, 538
U.S. at 18-19.
143
To use an analogy from HBO’s television show The Wire, Ewing is not Chris or
Snoop (Marlo Stanfield’s hitmen) who kill readily and without hesitation or conscience
when ordered to do so, or even Omar, the shotgun-toting drug thief who exclusively and
self-consciously targets only dealers. To judge from his criminal history, Ewing seems
most like Bubbles, the drug addict always on the lookout for an opportunity to make
some quick cash, who scrapes and steals his way from one high to the next. HBO: The
Wire: Homepage, HBO, http://www.hbo.com/the-wire/index.html (last visited June 13,
2011).
144
Although the theft of the golf clubs—which served as his third strike—certainly
complicates any effort to frame Ewing as an increasingly violent individual, at least on
the basis of his criminal record.

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Ewing’s twenty-five-year mandatory sentence may seem a wise and
wholly appropriate way to deal with someone so plainly and
uncontrollably maladapted. But once we exchange the individualist lens
for one recognizing the role social and institutional factors can play in
constraining the options, exacerbating the antisocial tendencies, and
thereby promoting the criminality of targeted offenders, Ewing’s
trajectory comes to seem less a function of any innate wickedness or
congenital proneness to lawbreaking than the combined effect of
addiction, limited options, and the state’s relentlessly (if initially
constrained) penal response to his illegal behavior. From this perspective,
one starts to see the way American society makes its own monsters, not
only ideologically (“a breed apart”145) but also to some extent literally.
That is, the penal practices that comprise the state’s response to
criminality seem designed only to increase the likelihood of disorderly,
erratic, and possibly dangerous behavior by the people marked for
punishment. With such a system in place, the state’s increasing resort to a
penal strategy of exclusion and control is both predictable and inevitable.
The appeal of the individualist framework is not hard to fathom.
If the causes of crime are wholly internal, exclusively the product of an
individual’s inherent disposition, crime prevention becomes a simple
matter: get rid of the criminals. Even granting the more complex account,
one which recognizes the role played by social institutions in fostering or
exacerbating criminal impulses, exclusion and control still retains an
undeniable appeal, at least at first. It is hard work to deal with complex
social dynamics; to fix deeply dysfunctional public institutions; to remedy
maladaptive tendencies; and to help broken people overcome the
corrosive effects of drug addiction, mental illness, and the trauma of
childhood physical abuse and neglect, among other pathologies. Success is
sure to be elusive. Backsliding is certain.146 Meanwhile, law-abiding
citizens remain fearful of escalating violence and grow tired of “[t]he daily
145

See supra Part IV.
The elusive nature of success in rehabilitating offenders no doubt fed the rapid
embrace of the suggestion that “nothing works,” made by Robert Martinson in his wellknown 1974 essay making this claim as to prison rehabilitative programming. See
Jerome Miller, Criminology: Is Rehabilitation a Waste of Time? WASH. POST, Apr. 23,
1989 (discussing Robert Martinson, What Works? Questions and Answers About Prison
Reform, 35 PUB. INT. 22, 22-54 (1974)).
146

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tribulation of minor crime and disorder.”147 Judged against the difficulty
of tackling the myriad causes of crime—not to mention the unsatisfying
absence of opportunities a structuralist approach would afford for
righteous indignation or the wholesale moral condemnation of criminal
offenders—a regime of straight-up exclusion and control offers an
attractive simplicity. And, at least initially, it holds the promise of
freedom from crime, since in a regime of exclusion and control, convicted
offenders conveniently disappear behind the prison walls. For a system
that has already traveled far down this road, the prospect of pulling back
from a strategy of exclusion and control can be unnerving.148
In short, if the people who wind up in prison are already those
least capable of abiding by society’s behavioral norms, if prison conditions
are likely only to exacerbate the antisocial tendencies of the people inside,
and if the obstacles to reentry are so difficult to overcome, it becomes easy
147

GARLAND, supra note 86, at 164 (noting that concern with “[t]he daily tribulation of
minor crime and disorder easily slides into a concern with ‘crime as such’ which in turn
connotes violent predatory crime”).
148
This point may be stated even more boldly. That is, even granting the social
determinants of crime, and the fact that many of the people who break the law have
been primed to do so by the “slums and ghettos, bad schools and dysfunctional
families,” in which they have lived and developed and possibly come to lack the moral
resources and personal and economic capital that might have helped them take a more
socially adaptive path, the fact remains that they are who they are. Plainly, society lacks
the political will to address the destructive effects of the various social institutions in
which the most disadvantaged citizens find themselves. Email from Heidi Li Feldman,
Professor of Law, Georgetown Univ. Law Ctr., to author (June 6, 2011) (on file with
the author). And, some might argue, if, as a consequence, it falls to the criminal justice
system to identify and remove those who, having been subjected to these conditions,
prove unable to live law-abiding lives, that may be unfortunate, but maybe this is just
how it needs to be. Again, this way of framing the issue will have an undoubted appeal
for some observers. Before this framing is embraced too readily, however, two points
bear noting. First, the corrosive effects of the penal system itself, canvassed above in Part
III, indicate that the state’s response to crime may exacerbate whatever incapacities a
given person might bring with them into custody, thus increasing the likelihood of
further antisocial conduct down the line. This point suggests that the penal system is
more than simply a response to the failings of other social and political institutions, but
in fact operates to produce the results this objection decries. Second, the harsh and even
inhumane character of conditions in many prisons and jails suggests that the driver of
current penal practice is something other than a much regretted sense that the only way
to keep society safe is to lock away any potentially disruptive people.

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to see the appeal of maintaining the current approach, which at least
promises to ensure that those unfortunates trapped in the system are kept
far away from the innocent citizens who pose no such threat. There is,
however, a fatal flaw in this quiescent posture. As Ewing’s criminal
history suggests, the benefits of exclusion and control, however alluring,
can only be short-term, since an exclusively penal response will frequently
lead to repeated, and possibly more serious, criminal conduct. In Ewing,
Justice O’Connor affirmed that states are entitled to incapacitate those
found to be “incapable of conforming to the norms of society as
established by its criminal law.”149 But what if this incapacity were only
exacerbated by the state’s relentless insistence on responding to all
criminality, however minor, with exclusion and control? Even if, as in
Ewing’s case, initial sentences were brief, the exclusive reliance on a
carceral response arguably made further criminality on Ewing’s part all
but certain.
At a minimum, it seems clear that a system that responds to crime
with conditions certain to (re)produce antisocial behavior will find itself
relying more and more heavily on a carceral response. And sure enough,
one finds over the past few decades in the United States an increased
reliance on incarceration in general and LWOP sentences in particular.150
Evidence of the increased use of incarceration in general may be found in
the sheer number of people being consigned to prison. Between 1970 and
2008, the total population of American prisons and jails went from
approximately 360,000 to 2.3 million.151 Moreover, as Todd Clear and
149

Ewing v. California, 538 U.S. 11, 29 (2003).
See ASHLEY NELLIS & RYAN S. KING, SENTENCING PROJECT, NO EXIT: THE
EXPANDING USE OF LIFE SENTENCES IN AMERICA 5 (2009) (noting that the “frequency
with which [life and LWOP sentences] have been used has increased dramatically during
the last 20 years as sentencing statutes, prosecutorial practices, and parole policies have
evolved in a more punitive direction”).
151
See THEODORE L. DORPAT, CRIMES OF PUNISHMENT: AMERICA’S CULTURE OF
VIOLENCE 55 (2007) (“In 1970, there were about 200,000 Americans in prison.”);
BUREAU OF JUSTICE STATISTICS, U.S. DEPARTMENT OF JUSTICE, REPORT TO THE
NATION ON CRIME AND JUSTICE 104 (2d ed., 1988) (reporting that the number of jail
inmates reached 160,863 in 1970); PEW CENTER ON THE STATES, ONE IN 100, supra
note 25, at 5 (“With 1,596,127 in state or federal prison custody, and another 723,131
in local jails, the total adult inmate count at the beginning of 2008 stood at
2,319,258.”).
150

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James Austin observe, since the mid-1990s, a mix of legislative policies
“that enhanced penalties for felonies greatly increased the average length
of prison terms, which led to expanding prison populations even as crime
rates dropped,” creating a “growing backdrop of people serving long
sentences.”152 As for LWOP, in 1992, there were 12,453 people serving
this sentence nationwide.153 By 2003, there were over 33,000, and by
2008, over 41,000.154 Every state except Alaska has made LWOP an
available penalty,155 and as of 2009, at least six states and the federal
system have eliminated parole eligibility entirely for those receiving life
sentences, making LWOP the norm in these jurisdictions.156 Between
2003 and 2008, the number of LWOP sentences imposed grew at a rate
“nearly four times [that] of the parole-eligible life sentenced
population.”157 Moreover, although some 100,000 people serving life
sentences formally retain the possibility of parole, the steady
disappearance of meaningful parole consideration over the past few
decades158 has effectively transformed all life sentences into LWOP

152

Todd R. Clear & James Austin, Reducing Mass Imprisonment: Implications of the Iron
Law of Prison Populations, 3 HARV. L. & POL’Y REV. 307, 312 (2009) (“[O]ver the last
thirty-six years, the United States has built a policy designed to grow prisons.”). A recent
report by leading penologists found that, between 1993 and 2002, the average length of
time served in prison increased from 21 months to 30 months—and even this finding
“underestimate[s] the average length of current prison sentences because [the 2002 data]
do not include time served by prisoners sentenced under recent punitive laws (such as
‘three strikes and you're out’) who have not yet been released.” JFA INSTITUTE,
UNLOCKING AMERICA, supra note 80, at 3 (listing as authors James Austin, Todd Clear,
John Irwin, Barbara Owen and others); see also Marc Mauer, Causes and Consequences of
Prison Growth, 3 PUNISHMENT & SOC’Y 12 (2001) (“Despite the fact that crime rates []
declined for much of the 1990s, prison populations have continued their seemingly
inexorable climb.”).
153
See MARC MAUER, RYAN S. KING & MALCOLM C. YOUNG, THE SENTENCING
PROJECT, THE MEANING OF “LIFE”: LONG PRISON SENTENCES IN CONTEXT 11 fig. 3
(2004).
154
See NELLIS & KING, supra note 150, at 9-10 & fig. 2.
155
See id. at 6 tbl. 1.
156
Id.
157
Id. at 3.
158
Id. at 6 (“[Parole] eligibility does not equate to release and, owing to the reticence of
review boards and governors, it has become increasingly difficult for persons serving a
life sentence to be released on parole.”).

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sentences,159 thereby expanding the reach of permanent exclusion.160
159

California is a case in point. In California, life sentences typically take the form of
some minimum number of years (typically seven, fifteen, or twenty-five) to life.
Prisoners do not become parole-eligible until they have served the minimum. But once
they serve that time, the governing regulations direct the Board of Parole Hearings (the
Board) to consider parole eligibility. Required by law to take into account a wide range
of circumstances, including the crime itself, the individual’s criminal and “social”
history, and his or her behavior while incarcerated, see 15 CAL. CODE OF REGULATIONS
(CCR) § 2281(c)(1), (c)(3), (d)(2), (d)(9) (2008); 15 CCR § 2402(c)(1), (c)(3), (d)(2),
(d)(9) (2008). The Board is to consider whether the prisoner “pose[s] an unreasonable
risk of danger to society.” See 15 CCR § 2281(a) (2008); 15 CCR § 2402(a) (2008). If
not, a parole date is to be set. See CAL. PENAL CODE § 3041(a) (West 2011) (“One year
prior to the inmate’s minimum eligible parole release date a panel of two or more
commissioners or deputy commissioners should . . . meet with the inmate and should
normally set a parole release date.”). Given the population at issue, it would not be
surprising if many people who came before the Board were found ineligible for parole at
their earliest possible release date. Still, assuming meaningful review, one might expect
the Board to see some appreciable number of people, especially by the third or fourth
time around, who could be released with minimal public safety risk. Yet, for the past
decade, the Board has denied 98 percent of the petitions it hears. See Keith Wattley,
Presentation at UCLA School of Law: Introduction to Life Sentences in California
(November 10, 2010); see also Jennifer Chaussee, For Paroled Lifers, Release Dates May
Come Only with the Courts, CAPITOL WKLY., Jan. 13, 2011 (reporting that, according to
one survey of 300 lifers in custody, only two had been granted release dates by the state
parole board, while a further six had had their parole denials overturned in the courts).
From this, one might conclude that lifers in California are especially dangerous. In fact,
the evidence suggests that the Board’s practice of routinely denying petitions is a
product not of meaningful review of the merits of each case, but rather of a
determination not to grant parole except in the rarest of cases. This sort of resistance is
not unique to California. Across the country, parole boards and governors have grown
increasingly reticent to release even those people with strong cases that they would pose
a minimal risk to public safety. As a result, “it has become increasingly difficult for
persons serving a life sentence to be released on parole.” NELLIS & KING, supra note
150, at 6.
160
These features of an expanded penal system—increasingly lengthy sentences, an
increase in the prison population, the expanded use of LWOP, and the disappearance of
meaningful parole for lifers—represent only the most obvious strategies for a penal
system increasingly reliant on an exclusionary response to crime. In addition, a wide
range of penal practices, from the increased use of mandatory minimums and other
determinate (and increasingly harsh) sentencing schemes, to the burdensome legal
disabilities imposed on formerly incarcerated people post release, to the frequently
dangerous and inhumane character of prison conditions themselves can also be regarded
as components of an exclusionary strategy. Their profligate use indicates a state

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Measured against the penal system as a whole, LWOP remains of
necessity a relatively rare sentence.161 Still, this particular penalty has a
powerful appeal for a system seemingly incapable of otherwise tackling
the causes of antisocial conduct and social disorder. Those with LWOP
sentences will spend the rest of their natural lives behind bars. LWOP is
thus social exclusion at its most extreme, allowing the permanent removal
from the shared social space of those deemed most socially undesirable.
Viewed from the perspective of civil society, this is a brilliant strategy. If
someone scares you or makes you uncomfortable, if they seem broken or
unstable or chronically unable to conform to society’s behavioral norms,
you could confront your discomfort and acknowledge the structural forces
and political choices that combine to keep this person on society’s
margins.162 With this recognition, you could embark on a difficult and
possibly fruitless effort to increase his prospects for a meaningful life
while at the same time trying to keep him from engaging in socially
harmful behavior. Or you could just convince yourself that he must be a
monster, wave your hand, and make him go away. Notice that when the
choice is framed at this point in the process, the appeal of the
exclusionary strategy is undeniable. As with any successful institution, this
is the genius of exclusion and control.163 Having followed this path for so
many years, and having as a society come to feel entitled to freedom from
the risk of disorder posed by marginalized people whose needs and
interests are no longer regarded as matters of collective concern, we may
have reached a moment when the pursuit of any other approach, even if
theoretically possible, seems inconceivable.164

seemingly determined whenever possible to permanently banish those people once
marked out as prisoners and, when permanent banishment is not possible, at least to
maintain the isolation and social marginalization of members of this group from the
broader society. See Dolovich, Creating the Permanent Prisoner, supra note 10.
161
As of 2008, there were slightly more than 41,000 people serving LWOP sentences,
approximately 1.7 percent of the total incarcerated population. See NELLIS & KING,
supra note 150, at 1, 3.
162
See, e.g., Taifa & Beane, supra note 20.
163
See DOUGLAS, supra note 12, at 92, 112.
164
See id.

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VII. INCORRIGIBILITY,	
  EXCLUSION,	
  AND	
  RACE	
  
Exclusion and control is not costless. To the contrary, it is
expensive and labor-intensive and has serious unintended consequences
for society as a whole.165 But whatever the costs to society in general, this
strategy takes its greatest toll on the incarcerated. This allocation of
burdens may explain why there has been relatively little social resistance
to mass incarceration and its effects. The people who suffer most from
harsh penal policies are the most politically disenfranchised166 and socially
marginalized of society’s members. Members of this group are, as already
noted, disproportionately likely to be mentally ill, drug-addicted,
undereducated, unskilled, and/or indigent.167 Put plainly, these are
people mainstream society just does not care that much about. Once one
factors in the dramatic overrepresentation in the American prison
population of people of color, African Americans in particular,168 what
may have at first seemed merely like ill-conceived policy starts to look like
something more insidious.169
Recall the moral economy of society’s carceral bargain. Those
marked out for exclusion and control are thereby transformed into penal
subjects to whom the citizens who retain their political status and
freedom of movement need no longer give another thought. In this way,
prisoners lose not only their liberty but also their full moral status and
thus their claim to the equal respect and consideration necessarily due to
165

For discussion, see Dolovich, Incarceration American-Style, supra note 17, at 239-40,
247; see also supra Part II.
166
In most cases, people with felony convictions cannot serve in the military, and in
many states, people with felony convictions also cannot vote or serve on juries. See Chin,
Race, the War on Drugs, supra note 67, at 261.
167
See supra Part III.
168
See Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, supra note 21, at
976-77 (explaining that “although African Americans make up no more than 13 percent
of the American population, at least 40 percent of the people behind bars in the United
States are African-American,” and that “Latinos too are overrepresented, making up 20
percent of the incarcerated population although they are no more than 14.8 percent of
the population in general”).
169
See Wacquant, supra note 79, at 384 (arguing that the “black ghetto” and the prison
together “constitute a single carceral continuum which entraps a redundant population of
younger black men (and increasingly women) who circulate in closed circuit between its
two poles in a self-perpetuating cycle of social and legal marginality with devastating
personal and social consequences”).

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fellow human beings and fellow citizens. They come to be regarded as
nonhumans,170 perpetual potential inmates,171 “a breed apart,”172 and
even monsters.173 This status helps explain a feature of the exclusionary
regime that might otherwise seem puzzling: how it is that, in order to
protect some people from the relatively unserious harms arising from the
“daily tribulation of minor crime and disorder” committed by the likes of
Rummel and Helm, we are willing to consign the Rummels and Helms
to the indignity and hopelessness of a life lived in the custody of the
modern penal state. It might be one thing to subject to the harms of
imprisonment those people who pose a real threat of serious physical
violence to others.174 But to inflict this experience, for years and in some
cases permanently, on someone whose conduct is merely a nuisance
would seem extremely hard to justify—unless that nuisance were created
by someone whose pain and suffering did not morally signify. Once the
targets of exclusion and control are viewed as outside society’s moral
circle, any penal harms they experience no longer count. The only entries
in the ledger become the benefits that accrue to society from removing a
possible source of disorder. From this perspective, incarceration starts to
seem all upside, the penological equivalent of lancing a boil.
In today’s carceral regime, in other words, to be a prisoner is to
occupy a morally degraded state, in which any harm you suffer counts for
nothing.175 This brings us back to the question of race. As Wacquant has
argued, the history of race relations in America, from slavery to Jim Crow
to the northern ghetto, has been one of racial segregation officially and
violently enforced.176 In each iteration, African Americans were ascribed a
170

See supra Part IV.
See supra Part III.
172
See supra Part IV.
173
See supra Parts V-VI.
174
Although even then, acknowledgement of shared humanity might still move us to
aim for minimally decent conditions of confinement.
175
Recall Agamben’s “wolfman,” as to whom the fact of his confinement is all that
matters. Because he is not human, because he is a monster, it is morally irrelevant if he is
confined in harsh and even cruel conditions. See AGAMBEN, supra note 43; supra Part V.
176
See, e.g., Loïc Wacquant, Class, Race, and Hyperincarceration in Revanchist America,
DAEDALUS, Summer 2010, at 74-89; Loïc Wacquant, Deadly Symbiosis: When Ghetto
and Prison Meet and Mesh, 3 PUNISHMENT & SOC’Y 95 (2001); Loïc Wacquant, From
Slavery to Mass Incarceration: Rethinking the Race Question in the U.S., 13 NEW LEFT
171

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degraded moral status,177 of which, in today’s era of mass incarceration,
“criminal” or “inmate” may simply be the latest version.178 Certainly, the
drivers of exclusion and control are complex, and not reducible to any
one variable, be it race or otherwise. Yet it surely bears noting that, as
segregation based exclusively on race has become constitutionally
impermissible, the carceral system—which allows for both the physical
removal and moral degradation of targeted individuals—has dramatically
expanded and disproportionately targeted people of color.179
It would be a mistake to dismiss this juxtaposition as mere
coincidence. To the contrary, the official ascription of congenital
criminality and incorrigibility that motivates the present exclusionary
regime has a palpable racial dimension, which helps to explain the penal
system’s disproportionate targeting of people of color, African Americans
in particular.180 As has been seen, the move from a rehabilitative ideal to a
system driven to exclude and control brought with it an accompanying
shift in the conceptualization of the penal subject.181 The targets of state
punishment were once viewed as “flawed but fixable” and thus capable of
reform, but this view has since been supplanted by a deracinated
conception of offenders as inherently wicked, driven to criminality by
REV. 41 (2002).
177
As Ann Arnett Ferguson explains, “[i]mages of Africans as savage, animalistic,
subhuman without history or culture—the diametric opposite of that of Europeans—
rationalized and perpetuated a system of slavery. After slavery was abolished, images of
people of African descent as hypersexual, shiftless, lazy, and of inferior intellect,
legitimated a system that continued to deny rights of citizenship to blacks on the basis of
race difference.” ANN ARNETT FERGUSON, BAD BOYS: PUBLIC SCHOOLS IN THE
MAKING OF BLACK MASCULINITY 79 (2001).
178
See Jennifer Eberhardt et al., Seeing Black: Race, Crime and Visual Processing, 87 J.
PERSONALITY & SOC. PSYCHOL. 876, 889 (2004) (reporting the results of studies in
which “Black faces” were found to look “more criminal to police officers; the more
[stereotypically] Black, the more criminal”).
179
For more on the overrepresentation of African Americans in the criminal justice
system, see DAVID COLE, NO EQUAL JUSTICE: RACE AND CLASS IN THE AMERICAN
CRIMINAL JUSTICE SYSTEM (2000); MARC MAUER, RACE TO INCARCERATE 129-70 (2d
ed. 2006); MICHAEL TONRY, MALIGN NEGLECT: RACE, CRIME AND PUNISHMENT IN
AMERICA (1995); Developments in the Law—Race and the Criminal Process, 101 HARV.
L. REV. 1472, 1475-641 (1988); see also supra note 169.
180
See supra note 168.
181
See supra Part IV.

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their own depraved preference for wrongdoing.182 On this contemporary
view, any sense that the people who commit crimes are complex human
beings with the full range of human emotions, impulses, and aspirations
has fallen away. Once people have been stripped of their humanity, it
becomes easier to see them solely as a threat to be contained and an
appropriate target for state control.183 American society has long been
inclined to perceive African Americans through a lens of race that
obscures individual complexity and ascribes character defects and moral
failings generally to members of this group.184 In such a context, it is
predictable that African Americans would be more likely than whites to
be judged incorrigible and more readily found to pose a criminal threat185
regardless of their actions.186
The work of Ann Arnett Ferguson illustrates the way race can
inform official ascriptions of incorrigibility—and how these ascriptions
can become manifest in decisions to exclude and control.187 Ferguson
studied the disciplinary process at an unnamed American middle school,
where a disproportionate number of African-American boys were winding
up in detention. What she found was not that the African-American boys
were behaving worse than the white boys, but that the teachers’
182

See supra Part IV.
See AGAMBEN, supra note 43, at 8-10, 104-05; GIORGIO AGAMBEN, THE STATE OF
EXCEPTION (2005); Lynch, The Contemporary Penal Subject(s), supra note 97; Mona
Lynch, Selling ‘Securityware’: Transformations in Prison Commodities Advertising, 194999, 4 PUNISHMENT & SOC’Y 305 (2002).
184
See FERGUSON, supra note 177, at 79.
185
Evidence from social psychology attests to the greater readiness of research subjects—
college students and police officers alike—to associate African Americans with
criminality. See Eberhardt et al., supra note 178; Hurwitz & Peffley, supra note 90, at
376-77 (“Experimental studies from social psychology . . . show consistently that the
same behaviors acted out by black and white targets are interpreted very differently by
white subjects, with the black target often seen as more guilty and more aggressive than
the white.”) (internal citations omitted). Indeed, the direct stereotypical association of
“Black Americans as violent and criminal has been documented by social psychologists
for almost 60 years.” Eberhardt et al., supra note 178, at 876; see also supra note 90.
186
This is not to suggest that African Americans do not engage in criminal conduct, but
only that there are reasons to expect that African Americans are more likely to be
perceived as a threat even when their conduct is no different than that of people of other
races.
187
See FERGUSON, supra note 177.
183

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perceptions of the misconduct, the way they made sense of the behavior
they saw, differed markedly depending on the race of the boy. Generally
speaking, Ferguson observes, boys enjoy a greater dispensation to
misbehave than do girls. As she puts it, “[b]oys will be boys: they are
mischievous, they get into trouble . . . . Boys are naughty by nature.”188
As a result, Ferguson notes, “rule breaking on the part of boys is looked at
as something-they-can’t-help, a natural expression of masculinity in a
civilizing process.”189 Yet she found that this dispensation did not seem to
extend to African-American boys. Instead, “the school read[] their
expression and display of masculine naughtiness as a sign of an inherent,
vicious, insubordinate nature that as a threat to order must be
controlled.”190 Though only school children, when the African-American
boys Ferguson observed acted out, their conduct was taken as evidence of
their inherent badness: “their behavior is incorrigible, irremediable.”191 It
was, moreover, already seen through the lens of the penal system, so that
“[i]n the case of African American boys, misbehavior is likely to be
interpreted as symptomatic of ominous criminal proclivities.”192 And
perhaps unsurprisingly, having been excluded from the dispensation to be
“naughty,” these boys received “harsher, more punitive responses to
[their] rule-breaking behavior.”193
Although Ferguson’s study was limited in scope, her conclusions
suggest the ease with which authority figures can regard African
Americans as “incorrigible, irremediable.” Her work also exposes the way
the threat of “predation” that African Americans are thought to pose can
be officially attributed exclusively to “their own maladaptive and
inappropriate behavior,” thereby obscuring the social, economic, and
even ideological context that might inform such behavior.194 As Ferguson
herself recognizes, the assumption of African-American “incorrigibility”
she unearthed in her research has direct correlates in the public discourse
on crime. Considering the way the media “demoniz[es] . . . very young
188

Id. at 85 (original emphasis deleted).
Id.
190
Id. at 86.
191
Id. at 90.
192
See FERGUSON, supra note 177, at 89.
193
Id. at 90.
194
Id. at 82.
189

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black boys who are charged with committing serious crimes,” Ferguson
notes that in such cases, “there is rarely the collective soul-searching for
answers to the question of how ‘kids like this’ could have committed
these acts that occurs when white kids are involved.” Instead, “the answer
to the question seems to be inherent in the disposition of the kids
themselves.”195
Ferguson’s findings, in short, expose the racial motivations that
can inform official ascriptions of incorrigibility. If this dynamic extends
beyond the public school system to the broader penal context, one would
expect African Americans to be disproportionately represented among the
nation’s prisoners, and especially among those singled out for life
sentences or for the permanent exclusion of LWOP. And indeed,
available data clearly indicate a marked disproportion of African
Americans receiving these sentences. Overall, African Americans
constitute approximately thirteen percent of the American population.
Yet, as of 2009, members of this group made up 37.5 percent of all
prisoners nationwide.196 Moreover, as of that same year, 48.3 percent of
all lifers, 56.4 percent of those serving LWOP, and 56.1 percent of those
who received LWOP as a juvenile (JLWOP) were African-American.197
In fourteen jurisdictions, including the federal system, the proportion of
African-American lifers exceeded sixty percent.198 And in fourteen of the
thirty-seven states with people serving JLWOP, the proportion of African
Americans serving that sentence exceeded sixty-five percent.199
Not only, therefore, are African Americans overrepresented
among those in custody, but their representation increases with each
heightening of penal severity. In other words, the more complete the
exclusion a penalty represents and the more extreme the social rejection it
195

Id.
See NELLIS & KING, supra note 150, at 11.
197
See id. at 11-14, 17, 20-23.
198
See id. at 11-13 & tbl. 3. The other jurisdictions with over sixty percent AfricanAmerican lifers are Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland,
Michigan, Mississippi, New Jersey, North Carolina, Pennsylvania, South Carolina, and
Virginia. See id.
199
See id. at 20-21 & tbl. 8. These jurisdictions include Alabama (75/89), Arkansas
(38/57), Delaware (13/19), Illinois (74/103), Louisiana (97/133), Maryland (15/19),
Minnesota (1/1), Missouri (24/35), North Carolina (17/26), Pennsylvania (231/345),
Rhode Island (1/1), South Carolina (11/14), Texas (2/3), and Virginia (21/28).
196

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signifies, the greater the odds that a person subject to it will be African
American. Again, many factors may explain the disproportionate
representation of people of color in these populations. Nevertheless, there
is a notable interplay between the animating construction of the penal
subject in a regime of exclusion and control and the way African
Americans are frequently perceived in American society more generally.
To put it plainly, in a penal system that imagines criminality as both
congenital and ineluctable, those people whose humanity is most readily
denied and who are regarded as inherently dangerous just by virtue of
their skin color are more likely to be perceived as criminals and thus as
appropriate subjects for exclusion and control. Given America’s history of
race relations, the possibility that racial animus drives our collective
eagerness to exclude those judged incorrigibly criminal poses a serious
challenge to the legitimacy of the prevailing penal regime.
VIII. THE	
   PATTERN	
   CONTINUES:	
   EXCLUSION	
   AND	
   CONTROL	
   ON	
   THE	
  
INSIDE	
  
By the terms of society’s carceral bargain, the state assumes
custodial responsibility for the people marked out for social exclusion.
This bargain allows for the removal from the shared public space of those
people feared to pose the greatest threat to the social order and leaves the
public free to disregard them for the duration of their sentence. And by
locating the causes of crime solely and squarely within individual
offenders, the reigning narrative protects civil society from having to
confront the fact that the necessity for containing a seemingly
uncontrollable population may stem from conditions to which the
socially marginalized have been systematically subjected both inside and
outside the prison. This narrative further enables the collective delusion
that the very people who have been judged to pose the greatest threat to
the social order require the least social investment and the least public
concern. This point bears emphasizing: incarceration enables the fiction of
a problem solved.
But the people we incarcerate do not just disappear. They simply
relocate to one of the many carceral institutions designed to keep them
separate and apart from society. Here is yet another moment for political
imagining. In theory, there is no reason why these institutions should not
be safe, orderly, and humane. Although residents may be forbidden to
return to society, they could still be given opportunities for self-

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development and personal growth, to set and achieve goals, and to build
friendships and forge meaningful relationships with people both inside
and outside the prison. They could still, in other words, be able to do all
that human beings can do to make meaningful lives, save engaging in free
movement outside the prison walls. True, being human beings, the
people who have been banished in this way are likely to respond to their
confinement with anger, frustration, and resentment. But it is not
inconceivable that a society committed to maintaining maximally
humane prison conditions could find ways to help the people inside to
make the most of their situation.
Yet even to embark on such an approach would require
recognition of the humanity of the people in prison and of the fact that,
like everyone else, they have needs and interests, the ability to change and
grow, and the desire for meaning, not to mention the capacity to fear
violence and suffer abuse. A society that automatically regards convicted
criminal offenders as not just nonhuman but as moral monsters will by
definition be unable to recognize the shared humanity of the people the
state incarcerates, and thus will be unwilling to make the investment
necessary to ensure that prison conditions are as humane as possible.
At present, conditions in many American prisons resemble those
one might expect to find in a polity that lacks the capacity or inclination
to empathize with the people it incarcerates. Far from being a site of
meaningful experience or even socially productive activity, the American
prison has become little more than what Jonathan Simon aptly describes
as “a space of pure custody, a human warehouse or even a kind of social
waste management facility,” where detainees are “concentrated [simply]
for purposes of protecting the wider community.”200 Holding more and
more people for longer and longer periods, the current carceral regime has
left many people behind bars with no incentive to behave well. At the
same time, the people being singled out for incarceration are more and
200

JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME
TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR 142
(2007). As Simon explains, “[t]he waste management prison promises no transformation
of the prisoner through penitence, discipline, intimidation, or therapy. Instead, it
promises to promote security in the community simply by creating a space physically
separated from the community in which to hold people whose propensity for crime
makes them appear an intolerable risk for society.” Id. at 142-43.

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more broken, whether from the many risk factors of social
marginalization—drug addiction, mental illness, poverty, etc.—or from a
prior incarceration, or both. The combined effect of these trends is a
prison population less and less able or willing to accede quietly to the
institutional restrictions to which they are subjected or to behave in ways
conducive to a safe and orderly prison. Under these circumstances,
breakdown is inevitable.
It is a tribute to the success of the exclusionary project that the
daily manifestations of this breakdown are not generally visible or
apparent to society at large. But those who are familiar with the internal
workings of carceral facilities can readily see the signs. In many American
carceral facilities, people who are seriously mentally ill are undermedicated, over-medicated, or not treated at all.201 Power over the prison
population is frequently an ongoing negotiation between prison officials
and the most powerful prisoners—often gang leaders who, among other
things, may control a lucrative black market within the prison and use
violence against their enemies with impunity.202 There is a perennial
threat of riots, whether orchestrated by gangs or other groups of powerful
prisoners for their own political or economic reasons203 or sparked by
201

See Kupers, What to Do with the Survivors?, supra note 49, at 1008 (explaining that
although the Bureau of Justice Statistics estimates that fifty-six percent of state prisoners
have “mental illness serious enough to require mental health treatment,” there are
“insufficient mental health services in our prisons to adequately treat even 10% to 12%
of [the current prisoner population]”).
202
Tuft v. Chaney, No. H-06-2529, 2010 WL 420003, at *10 (S.D. Tex. Jan. 29,
2010) (explaining that the “black-market prison trade in tobacco is often controlled by
prison gangs who . . . pay corrupt correctional officers to smuggle contraband into
prison units or to look the other way when inmates smuggle in contraband [and often]
enforce the settlement of tobacco-related debts . . . with violence”); JOSEPH HALLINAN,
GOING UP THE RIVER: TRAVELS IN A PRISON NATION 92-100 (2001); John M. Broder,
Trial Begins for Members of Aryan Prison Gang, N.Y. TIMES, Mar. 15, 2006, at A18
(“‘The members of the Aryan Brotherhood are particularly violent, disciplined, fearless,
and committed to controlling and dominating the prison population through
intimidation and murder.’”) (quoting Michael W. Emmick, Assistant U.S. Attorney for
the Central District of California).
203
See, e.g., Guillermo Contreras, Robert Crowe & Sara Ines Calderon, Gang Riot at
Three Rivers Prison Leaves Inmate Dead, CHRON.COM (Mar. 28, 2008, 5:30 AM),
http://www.chron.com/disp/story.mpl/metropolitan/5657825.html (reporting on a riot
at a federal prison in which “[o]ne prisoner was killed and 22 injured,” which “appeared

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genuine grievances over the lack of adequate services (food, medical,
psychiatric, etc.) or other harmful effects of chronic overcrowding.204 Cell
extractions performed by correctional officers suited up for combat are
common,205 as is the use of force in general.206
The overall effect of these and other corrosive components of
contemporary American prison life is a set of institutions the daily
functioning of which is marked by relentless volatility punctuated by
regular bursts of extreme disorder and serious violence.207 Prison
to stem from ongoing tensions between rival prison gangs. . . . U.S.-born inmates of
Mexican descent who call themselves Chicanos and inmates who are Mexican nationals,
known as Paisas in the federal system,” possibly in “retaliation for assaults or tensions in
the federal system between the Texas Mexican Mafia and the Paisas”); Solomon Moore,
Hundreds Hurt in California Prison Riot, N.Y. TIMES, Aug. 9, 2009, at A9 (reporting on
a riot at a “large California prison . . . injuring 250 prisoners and hospitalizing 55,”
which “broke down along racial lines, with black prison gangs fighting Latino gangs in
hand-to-hand combat”).
204
See, e.g., Update: Fires Out at Reeves County Detention Center, NEWS WEST 9.COM,
(Feb. 5, 2009), http://www.kwes.com/global/story.asp?s=9794955 (reporting on a riot
at a local jail, started by detainees reported to be “demanding better healthcare,” the
second time since December of the previous year when detainees in the facility rioted
“for better healthcare and treatment”); Indiana Prison Riot: Addition of Arizona Prisoners
May Have Created Unacceptable Overcrowding Issues, ASSOCIATED CONTENT, (Apr. 24,
2007), http://www.associatedcontent.com/article/224952/indiana_prison_riot_addition
_of_arizona.html (reporting on a riot at an Indiana prison reported to have arisen over
“overcrowding issues includ[ing] prisoners without beds and not enough bathrooms”).
205
See, e.g., Human Rights Coalition, Prisoners Beaten, Shackled and Starved in SCI
Dallas
Prison,
PHILA.
INDEP.
MEDIA
CENTER,
(May
9,
2010),
http://www.phillyimc.org/en/prisoners-beaten-shackled-and-starved-sci-dallas-prison
(reporting on events in a Dallas prison during which, over three days, officers performed
seven “‘cell extractions’ (attacks by teams of guards wearing riot gear and armed with
pepperspray, night sticks and electroshock weapons)”); Lydia Mulvany, Inside the County
Jail, GATEHOUSE NEWS SERVICE, (May 2, 2008), http://www.wickedlocal.com/
plymouth/news/x828500079 (explaining in detail the process of cell extractions).
206
See John R. Hepburn, Marie L. Griffin & Thomas V. Shade, The Use of Force in
Correctional Institutions, in PRISON AND JAIL ADMINISTRATION: PRACTICE AND
THEORY 379, 379-85 (Peter M. Carlson & Judith Simon Garrett eds., 1999).
207
See JOHN J. GIBBONS & NICHOLAS DE B. KATZENBACH, VERA INSTITUTE OF
JUSTICE, CONFRONTING CONFINEMENT: A REPORT OF THE COMMISSION ON SAFETY
AND ABUSE IN AMERICA’S PRISONS 6, 11-12 (2006), available at http://www.veradc.org/
pdfs/Confronting_Confinement.pdf; James Zogby, The Crisis in America’s Prisons,
MEDIA MONITORS NETWORK, (July 12, 2004), http://usa.mediamonitors.net/
Headlines/The-Crisis-in-America-s-Prisons.

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populations, in short, are becoming harder to manage, which is the
predictable effect of who we incarcerate, for how long, and under what
conditions. As a result, in many institutions, there is what can best be
described as a crisis of custodial control. And if the potential harm to
prisoners from such conditions counts for little politically, the risk of
harm to custody staff and other civilians working inside the facility is a
serious cause for public concern, as are the implications of such disorder
for the carceral project more generally.
This situation raises a dilemma for the carceral state. In civil
society, the response to people whose behavior is thought to be dangerous
or unruly or to pose a threat to the social order is to exclude them from
the shared public space. They are banished from society and placed under
ongoing state control. But prisoners who are violent or disorderly, who act
out or otherwise misbehave, have already been banished. When a crisis of
control occurs in the prison, how then is the state to respond?
In a different system, it might be possible to imagine a different
response. But the American carceral system is itself the product of an
entrenched understanding as to how to deal with those who, for whatever
reason, do not conform their behavior to the demands of the law. This is
a system built on the twin imperatives of exclusion and control, and there
is no reason to expect the institutional response to the threat of disorder
to be any different just because the context in which the threat arises is
one populated by those who have already been exiled from the broader
society. Indeed, the legitimacy of the system demands fealty to this
approach and a belief in its wisdom and success. Segregation of the
seemingly recalcitrant appears to have worked once. Why would it not
work again? This response may be costly, but it has an appealing
simplicity. Dealing with the root causes of violence and social disorder is
difficult. It is easier to isolate the people who pose a threat and to restrict
their scope of action. True, this approach may wind up exacerbating the
problem. But so long as the agents of disorder can be further contained,
the prevailing pattern need not be disrupted.
Enter supermax, “prisons within prisons.”208 Although the details
208

Lorna Rhodes, Dreaming of Psychiatric Citizenship: A Case Study of Supermax
Confinement, in A READER IN MEDICAL ANTHROPOLOGY: THEORETICAL
TRAJECTORIES, EMERGENT REALITIES 181, 184 (Byron J. Good et al. eds., 2010).

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of design and form vary among institutions, the basic idea of supermax
borrows from the conditions of punitive isolation, under which prisoners
who act out in the general population are often temporarily confined.
The “essential features” of this type of confinement are “isolation, intense
surveillance and elaborate precautions against assault and escape whenever
prisoners are out of their cells.”209 In practice, this translates into targeted
individuals being locked down—often for years—in small single cells
(typically resembling concrete boxes) for twenty-one to twenty-four hours
a day, with little or no human contact, minimal sensory stimulation, and
“removal—cuffed, tethered, and under escort—only for brief showers or
solitary exercise.”210
Whatever else might be said about the inhumane and selfdefeating conditions of supermax,211 it does succeed brilliantly at its
intended purpose: containing the potentially disruptive forces that create
a risk of violence or disorder in the prison’s general population. Indeed, it
is arguable that supermax is critical to the success of the entire carceral
enterprise. The appeal of society’s carceral bargain is the freedom it grants
citizens from having to reckon with either the existence of the people in
prison or the socially destructive effects of their own carceral choices.
Genuine disorder in the prison would threaten this freedom by forcing
the reality of the polity’s vast carceral system onto the public
consciousness, whether through mass riots, escapes, or other
manifestations of the state’s loss of control. Supermax gives prison
officials the ability to banish certain especially disorderly prisoners even
from the limited and constrained society of the prison’s general
population. In this way, this new penal strategy neatly contains any
possible threat to the successful fulfillment of the state’s carceral
burden—success on which society’s carceral bargain depends.
The nature of supermax confinement reveals the logic of
exclusion and control in its starkest form. Its conditions are justified by
the need to break down the resistance of those people in the prison who
refuse to comply with the terms of their confinement, and who instead
209

Lorna Rhodes, Changing the Subject: Conversation in Supermax, 20 CULTURAL
ANTHROPOLOGY 388, 406-07 n.6 (2005).
210
Rhodes, supra note 208, at 184.
211
For more on this point, see Dolovich, Incarceration American-Style, supra note 17, at
242-43.

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“choose” to be disruptive and difficult.212 As anthropologist Lorna
Rhodes demonstrates in her study of the Washington State prison
system’s “control units,” the reigning discourse is that of autonomous
choice, on which prisoners are understood to be in supermax because
they have “chosen to be bad.” The official message to residents is that
they can earn their way back to the relative freedom of the general
population units by “choosing to be good.” And when they are not
good—when they engage instead in “disruptive activity,” like yelling,
banging on their cell doors, or throwing feces, blood or urine—they alone
are considered “accountable” for the extra time added to their supermax
terms as punishment.213
As we have seen, however, the line between free choice and
structural compulsion is not so easily drawn. The people slated for
supermax, having been culled from the prison’s general population, are
already disproportionately likely to be grappling with incapacities like
drug addiction, mental illness, and learning disabilities. Ill-equipped to
navigate difficult personal challenges, they were then confronted with the
damaging effects of prison life. Yet finding—surprise!—that some people
in this position are incapable of conducting themselves in an orderly way
while in prison, the state responds by removing them to even more
restrictive conditions, with almost no positive human interaction or
sensory stimulation.214 Given this combination of relentlessly destructive
forces, it seems nothing short of bizarre to regard all those housed in
supermax as willful agents of their own behavioral choices.
Once, however, the move to supermax is understood as simply a
further iteration of the imperative of exclusion and control that drives the
carceral system more generally, it becomes possible to recognize this
discourse of free will and individual agency as crucial to the whole
212

See RHODES, TOTAL CONFINEMENT, supra note 5, at 61. As a Massachusetts “prison
media booklet” explains, it is “the sincere hope of the [Department of Corrections] that
inmates will conform their conduct to a minimum level of good behavior and leave the
[supermax units] at less than full occupancy; however, that choice will be up to the
inmates.” Id.
213
See id. at 66-67.
214
On the seriously damaging mental health effects of supermax conditions, see Craig
Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49
CRIME & DELINQUENCY 124 (2003); Kupers, What to Do with the Survivors?, supra
note 49, at 1005.

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enterprise. It is not enough that those marked out for supermax
confinement are unable to control their conduct. To vindicate this penal
response—which might otherwise be open to condemnation as deeply
inhumane and also self-defeating, since only likely to exacerbate the very
causes of disorder that motivated this further exclusion—it is necessary
not only that the people transferred to supermax be wholly responsible
for their conduct, but also that they are compelled to violence and
disorder by their own depraved preferences. They must, in short, be
dangerous monsters who pose a serious ongoing threat that cannot be
contained in any other way.215 And once someone has been marked out
as inherently, almost compulsively violent,216 it becomes irrelevant that
the conditions of his confinement might themselves be harmful,
destructive, or otherwise cruel. Having been revealed as by nature a
monster, he is no longer—if he ever was—someone whose possible
suffering is of any concern.
Supermax thereby enables the state’s own carceral bargain. Those
people who are so broken and incapacitated that they cannot contain
their tendencies to disruption and disorder are marked out for further
removal, freeing prison officials from having to contend with—or fear—
their presence in the prison’s general population or even from having to
think about them again until they are released from supermax
confinement. This is a considerable benefit, one that can only be enjoyed
215

Again, as with criminal offenders in general, this construction is facilitated by the fact
that some number of people in supermax—most notably, some of the most powerful
gang members—are both extremely dangerous and seemingly in control of their actions.
See Michael Montgomery, All Things Considered: Nuestra Familia, A California Prison
Gang (NPR radio broadcast Mar. 7, 2005). At the same time, as with the construction
of criminals in general as monsters, the point is not that all supermax residents actually
fit this description, but that as an ideological matter, they must be held to do so. In fact,
since the widespread adoption of supermax units and facilities, states have routinely held
a number of individuals in supermax conditions who do not fit the image of the out-ofcontrol monster. In some cases, classification to supermax appears to have been driven
by the need to fill the beds or to justify to the public the massive financial outlay
required to build the facility. See HALLINAN, supra note 202, at 204-05 (reporting that
Virginia, having trouble filling its supermax beds, classified to supermax prisoners who
qualified for medium-security facilities).
216
The qualifier “almost” is necessary to maintain the fiction that residents of supermax
who act out are making the choice to do so. For this to be possible, they must be taken
to retain some control over their own violent actions.

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so long as the state commits itself to keeping those people totally separate
and apart from the general population. The radical individualism of the
dominant justificatory narrative helps those officials who benefit from
supermax confinement to frame this strategy as the only appropriate
response to recalcitrant prisoners who cannot seem to learn their lesson
and/or who are so inherently dangerous and disorderly that they will
insist on “acting out” despite the cost.
Among those marked out for supermax confinement are likely to
be the most disturbed and out-of-control people behind bars. By
disappearing them into facilities designed for absolute control, the state is
able to contain any threat they would otherwise pose to the order and
security of the prison. At the same time, as before, there will be many
people swept up into supermax who are not the most dangerous, but
whose disorderly—or, as is likely in the prison environment, simply
disobedient—conduct led state officials to flag them preemptively for the
increased control supermax provides. Here is the supermax version of the
Yochelson-Samenow/Wilsonian syllogism: if the triggering conduct does
not at first seem to warrant supermax confinement, it is nonetheless
revealing of an inherently “wicked” and disorderly nature, necessitating
the extreme control supermax represents. Whatever the actual extent of
the danger they pose, those individuals singled out for supermax
confinement have been judged by prison officials to be inherently deviant
“incorrigibles” who are unable to conform to the behavioral norms of the
prison’s general population, and thus on whom even more extreme
methods of exclusion and control must be imposed. In this way, as with
the carceral system in general, supermax fuels the collective delusion that,
with the removal of those people found to pose the greatest threat to the
social order, the problem they represent has been resolved. But just as
before, the problem has not been resolved. It has simply been displaced
by a strategy that is certain only to exacerbate whatever incapacities were
driving that disorder in the first place.
Thus supermax too has a reproductive logic, producing inmates
whose anger, volatility, and general inability to function successfully in a
social milieu, whether inside or outside the prison, makes them very likely
to engage in antisocial behavior as bad as or worse than that which
justified their imprisonment in the first place. And as with the prison
system in general, the dynamic of exclusion and control in the supermax
context will eventually generate the need for increasingly longer periods

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in solitary confinement.
In a 2008 article, psychiatrist Terry Kupers describes a process
whereby state prisons without sufficient resources to adequately treat the
mentally ill people in their custody respond to the inevitable disorderly
conduct of those prisoners by transferring them to supermax, thereby
subjecting them to conditions that guarantee their continued “acting out”
and thus the extension of their time in punitive isolation.217 Kupers refers
to this process—by which the very people who are most incapacitated
and most in need of outside intervention and assistance are instead buried
in supermax—as “hiding the evidence.”218
The foregoing suggests that the pattern Kupers describes, chilling
as it is, is only emblematic of the general impulse to exclude and
control,219 repeated over and over again by a system designed to
externalize the effects of its own penal choices. It is not only that the
penal institution of exclusion and control secures its own reproduction in
a way that is ultimately self-defeating and denies the humanity of those it
excludes. Even more disturbing is what the pattern reveals about the
political bargain American society is prepared to make at the expense of
the people it incarcerates. It begins to seem as if, in order to avoid having
217

See Kupers, What to Do with the Survivors?, supra note 49, at 1008-10; see also
Dolovich, Incarceration American-Style, supra note 17, at n.44.
218
Kupers, What to Do with the Survivors?, supra note 49, at 1013. For example, a
mentally ill man named Anthony Gay was serving a seven-year sentence in Illinois for
violating his probation when he was transferred to the state’s supermax facility. While in
supermax, Gay engaged in repeated acts of self-mutiliation, “slicing his arms, legs, penis
and testicles with bits of metal or glass hundreds of times.” Amy Fettig, 97 Years in
Prison for a Mentally Ill Man Who Threw Feces, ACLU (Sept. 30, 2011, 12:43 PM),
http://www.aclu.org/blog/prisoners-rights/97-years-prison-mentally-ill-man-who-threwfeces. Gay was removed from supermax for a short time, but subsequently returned to
solitary confinement, at which point his self-mutilation escalated. See id. Rather than
removing Gay from isolation, prison officials chose instead to pursue criminal assault
charges against him for “throwing”—that is, “throwing feces, urine, and possibly juice
through [the] food slot [of his cell door] at correctional officers.” Id. The prosecution
was successful, and Gay received a 97-year sentence, see id., which, unless his appeal is
successful, he will no doubt spend in solitary confinement, without adequate mental
health treatment.
219
This impulse has arguably come to define not only the American response to crime,
but the preferred response to all perceived threats to the social order. See Dolovich,
Incarceration American-Style, supra note 17, at 258-59.

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to confront the multiple complex causes of the insecurity and instability
endemic to contemporary American life,220 we are prepared to single out
those members of society who are already the least capable of navigating
the demands of modern existence and to subject them to conditions that
make it even harder for them to survive, much less to build stable and
healthy lives. In this way, criminal offenders have become the scapegoats
of American society.221 This reproductive logic creates the very people
society most fears, and then blames them for whatever disorderly conduct
in which they subsequently engage. And it does so in a way that almost
guarantees them lives of degradation and abuse, whether inside or outside
the prison. That this self-reinforcing pattern is justified by the conduct
and consequent perceived incorrigibility of the targets themselves is
perhaps its most ingenious feature. For the reasons canvassed above,222
moreover, it would be unsurprising if those most frequently singled out as
incorrigible and thus consequently subjected to the heightened control of
life in supermax were disproportionately African-American. And although
efforts to unearth data regarding the racial profile of the people held in
supermax confinement were unfortunately unavailing,223 anecdotal
evidence suggests that African Americans as well as Latinos are indeed
overrepresented both in supermax and in segregation units more

220

See GARLAND, supra note 86.
As Connolly argues, “[c]riminals provide paradigmatic substitutes,” toward which
citizens may channel their desire for revenge against whatever they perceive has done
them wrong—“against entire groups who pose a threat to [their] security[, o]r against
constituencies whose way of being threatens the security of [their] identity,” or even
“against the world for not providing the clear and closed concepts of responsibility,
identity, merit, and punishment [they] thought for sure it would come equipped with.”
CONNOLLY, supra note 47, at 42. “After all,” Connolly notes, “[criminals] are guilty of
something and the state has already decided they must suffer.” As he goes on to observe,
“the pleasures of revenge involve making the target suffer, realizing that you are the agent
of this suffering, and knowing that you have sufficient cover to avoid reprisal or official
detection.” Id. at 42-43.
222
See supra Part VII.
223
Although the Federal Bureau of Justice Statistics—the gold standard for data on the
American penal system—does collect information regarding the racial make-up of
carceral facilities, the form in which the numbers are reported does not allow for a
break-down of custody levels by race. Interview with Tracy Snell, Statistician, Bureau of
Justice Statistics (Mar. 15, 2011).
221

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generally.224
IX. CONCLUSION:	
   DISLODGING	
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   HOLD	
   OF	
   EXCLUSION	
   AND	
  
CONTROL	
  
The American carceral system is designed to exclude and control.
Given this institutional logic, it is predictable that society—wishing
finally to be rid of those social undesirables it had once been allowed to
forget, only to have them reappear more unruly than ever—will demand
increasingly lengthy sentences for criminal offenders. It is also inevitable
that a system that locks its most damaged and uncontrollable citizens out
of sight, rather than addressing the causes of their disorderly conduct, will
confront a crisis of control in its prisons. Hence the swift and enthusiastic
embrace of both LWOP, which ensures permanent exclusion, and
supermax, which controls the most out-of-control people in prison
through social isolation and physical confinement. Certainly, not
everyone is in prison for life, nor is everyone in prison housed in
supermax. But these penal options, despite their relatively recent vintage,
have already come to seem indispensable to the management of the
American carceral system. Their rapid and widespread acceptance reflects
the extent to which a system built on the twin imperatives of exclusion
and control has been pushed to extremes by society’s inability to imagine
any other way of dealing with the many causes of social disorder.
More than three decades into the American experiment with
exclusion and control, two tendencies that have long been developing are
now plainly manifest. The first is the absence of any concerted strategies
or other evidence of a genuine collective commitment to the successful
reintegration of former prisoners.225 The second is the readiness on the
part of mainstream society to brand some subset of the population—
disproportionately poor African Americans and other people of color226—
as irredeemably antisocial, and to abandon them to permanent
marginalization and perpetual state control. Together, these two features
of the American carceral system virtually guarantee the persistence of
224

See Terry Kupers, Personal Communication, Mar. 12, 2011 (on file with the author)
(reporting that, in his experience, “segregation units and supermax . . . are
disproportionately black and Latino”).
225
See supra note 65 (discussing the Second Chance Act of 2007 and its limitations).
226
See supra note 168.

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serious social disorder. Yet this persistence, rather than motivating a
reorientation in strategy, seems instead only to strengthen the collective
commitment to exclusion and control.
At times, it is violent emotions—fear, hatred, anger227—that seem
to drive this self-defeating system. From this perspective, the combination
of LWOP and supermax starts to look something like a manifestation of
the collective will to destroy those marginalized citizens who are most
hated and feared, yet who, given constitutional limits on capital
punishment, cannot be affirmatively executed. Certainly, considering the
heinousness of some violent crimes, this annihilationist impulse is
sometimes understandable. But given the eagerness with which the
machinery of exclusion and control is regularly deployed against socially
marginal people whose crimes were less grievous, it is hard to resist the
impression that many of those targeted by these policies or caught up in
the spirit they represent are instead being punished for having stubbornly
refused to make themselves disappear, thereby forcing society to do it for
them.
At other times, the emotions propelling a harsh penal response
appear more tepid, to the point that in some cases—in particular those
involving persistent nonviolent offenders—it almost seems as though the
motivating impulse is irritation or impatience at again being bothered by
someone the state has presumably already identified as a source of
disorder. This sense of exasperation and righteous indignation is
effectively captured in sentencing schemes premised on the notion of
“three strikes and you’re out.” The implication of this phrase is not that
targeted offenders are too violent or dangerous to be allowed to live freely
in society, but that there are only so many chances society is prepared to
extend before it washes its hands of you permanently.228 Here the
227

See supra note 221.
This intuition is consistent with the account of this phenomenon provided by David
Garland in his magisterial book, THE CULTURE OF CONTROL, supra note 86. Garland
describes the way that certain categories of crime have become an expected and
seemingly permanent part of the lived reality of mainstream American society in late
modernity. This reality has forced people to change habits to try to prevent themselves
from being victimized. “Citizens [have become] crime conscious, attuned to the crime
problem, and many exhibit high levels of fear and anxiety.” Many of these crimes cannot
be prevented and the state makes no claim to be able to do so. As a consequence, “crime
represents for daily life” a “cumulative nuisance” that brings with it “a measure of
228

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impetus for exclusion and control seems neither hatred nor glee at the
suffering of the target but indifference to his experience, just so long as he
can be made to disappear.
As different as these responses may seem, they share a common
core: the determination to excise from the shared public space those
people identified as socially undesirable. To effect this excision becomes
the state’s carceral burden, which requires the relentless exercise of state
control over the exiled. Hence the emergence of exclusion and control,
the foundational imperatives of the modern-day carceral enterprise. As
has been seen, there is an undoubted appeal to this regime: it promises an
easy fix to the threat of violence and disorder posed by society’s most
maladapted members. Who would not want to snap one’s fingers and
make the source of one’s greatest fears disappear? Yet in truth, there is no
such easy fix. The risks of instability and disorder posed by the people
most likely to wind up in prison do not disappear. To the contrary, a
carceral response only exacerbates them. For this reason, it is inevitable
that many formerly incarcerated individuals will continue to violate the
criminal law. The political challenge for a society wishing to check this
dynamic is to cultivate the capacity to make appropriate judgments as to
when a given person represents a genuine danger and when a carceral
response is instead simply the most expeditious way to cleanse society of
an undesirable presence.229
But first, the problem itself must be recognized. And this cleareyed recognition of the counterproductive nature of an exclusionary
response is impeded by society’s carceral bargain, the arrangement by
which the state commits to removing certain marked individuals and
keeping them separate and apart from the public space, thereby allowing
society’s remaining citizens the luxury of not having to think about them
again until they are released. This bargain has both practical and
normative dimensions. As a practical matter, the incarcerated person
vanishes, leaving society free to ignore the endemic social ills that may
irritation, frustration and aggravation.” And people who are irritated and impatient at
the fact of crime “bec[o]me less willing to countenance sympathy for the offender, more
impatient with criminal justice policies that were experienced as failing and more
viscerally identified with the victim.” Id. at 164.
229
See KATHERINE BECKETT & STEVE HERBERT, BANISHED: THE NEW SOCIAL
CONTROL IN URBAN AMERICA 21-22 (2010).

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have contributed to the offense of conviction or whatever threat the
defendant was taken to pose. As a normative matter, the incarcerated
person is transformed into someone without moral or political standing,
someone outside the circle of humanity, to whom few if any obligations
are owed. Society’s carceral bargain thereby becomes doubly appealing:
intractable social and political problems vanish and the moral world
shrinks, thereby making life easier, more comfortable, and less
demanding for the people who remain.
Again, however, society’s carceral bargain does not actually make
these problems disappear; it instead only compounds them. In the short
term, further escalation of the carceral response offers a possible fix. But
as has become increasingly clear, this strategy is ultimately unsustainable.
The state can only build so many prisons before the foolhardy nature of
the scheme becomes evident. Indeed, the current state of the California
prison system offers proof—if proof were needed—that the carceral
apparatus has outer limits. Since the mid-1970s, the number of state
prisons in California has gone from twelve to thirty-three, and by the new
millennium the overcrowding and violence in those thirty-three
institutions had grown so extreme that, in 2006, Governor
Schwarzenegger was driven to declare a “Prison Overcrowding State of
Emergency.”230 Meanwhile, in 2009, a three-judge panel of the Ninth
Circuit found that severe overcrowding in California’s prisons was the
“primary cause”231 of the dangerously inadequate and unconstitutional
medical and mental health care provided to prisoners throughout the
California prison system.232 The order the panel subsequently issued,
requiring California to reduce the population of its prisons to 137.5
percent of capacity, was upheld by the United States Supreme Court in
2011.233 Given the extreme nature of the remedy, the tight restrictions
230

Governor Arnold Schwarzenegger, Prison Overcrowding State of Emergency
Proclamation, OFFICE OF GOVERNOR EDMUND G. BROWN JR. (Oct. 4, 2006),
http://gov.ca.gov/news.php?id=4278.
231
18 U.S.C. § 3626(a)(3)(E)(i) (2006).
232
See Coleman v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P., No. C01-1351
TEH, 2009 WL 2430820, at *1-23 and generally (E.D. Cal. Aug. 4, 2009).
233
See Brown v. Plata, 131 S. Ct. 1910, 1923 (2011). It might be thought that the
Court’s ruling in Plata, which required California to reduce the population of its prisons
to 137.5 percent capacity, indicates a shift away from exclusion and control toward a
more inclusive penal approach. But this reading of the case would be too quick. For one

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the Prison Litigation Reform Act imposes on federal courts when they
consider requests for injunctive relief related to prison conditions,234 and
the limited scope of the constitutional protections for prisoners endorsed
by even the most progressive Justices on the Roberts Court, the outcome
of Plata was surprising, to say the least. That the Plata Court upheld the
panel’s order indicates just how dire the situation in the California
prisons had become. Over the past three decades, prisons across the
country have become increasingly overcrowded, violent, and unsafe for
prisoners and correctional officers alike, and American society is no closer
to addressing the challenges posed (and faced) by those we repeatedly
incarcerate: drug addiction, mental illness, illiteracy, learning disabilities,
the trauma of childhood abuse and neglect, and so on.235
The question then becomes: how can the ongoing dynamic of
exclusion and control be disrupted? As may by now be evident, effecting
this disruption will require exposing the illusory nature of society’s
carceral bargain. It must be clearly seen that, despite the physical
disappearance of incarcerated individuals, despite the high walls and
barbed wire and the distance that often exists between the people in
prison and the communities where they grew up and/or committed their
crimes, the people the state sends to prison continue to exist. What’s
more, notwithstanding the outsized salience of LWOP and supermax and
the psychological comfort they may provide, the time-limited nature of
most custodial terms means that the vast majority of the people we send
thing, Plata requires only a reduction in overcrowding, which means that if California
proves able to create capacity in other ways besides the release of prisoners—e.g.,
building more prisons, transferring people to prisons out of state, requiring county jails
to hold more state prisoners, etc.—so long as the prisons remained at or below 137.5
percent capacity, the state would still be in compliance. And state officials have clearly
indicated that their strong preference would be to comply without having to release
anyone currently in prison before the expiration of their sentences. Furthermore, as
explained below, changes in practice alone—especially changes perceived to have been
forced on the states by the courts—will not bring about a shift away from exclusion and
control. For such a shift to occur, changes in practice would need to be accompanied by
an ideological reorientation. Until exclusion and control comes to be seen as inhumane
and illegitimate, lasting penal reform may be elusive.
234
Prison Litigation Reform Act of 1996, Pub. L. No. 104-134, §§ 801-810, 110 Stat.
1321-66 (codified in scattered sections of 11, 18, 28, and 42 U.S.C.).
235
See Terry A. Kupers, How to Create Madness in Prison, in HUMANE PRISONS 47
(David Jones ed., 2006).

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to prison will eventually come home. Bringing widely into view these two
simple but incontrovertible facts and emphasizing their implications is an
essential component of any effort to bring about change.
There is, however, a structural problem with any political strategy
that emphasizes the practical drawbacks of exclusion and control. As
noted, the harms caused by this penal regime fall most heavily on the
incarcerated themselves. This population is already drawn from the most
politically and economically disenfranchised, people sure to become even
more marginalized after serving time. And the unfortunate and even
shameful reality is that the harms suffered by members of this group
count for little in the American political process. The same, moreover,
may be said of the harms done to the families and communities of
currently and formerly incarcerated individuals. Most notably, children of
the incarcerated suffer myriad harms when their parents are imprisoned,
including psychological trauma at the disappearance of their mothers and
fathers, the loss of daily emotional support, an increased risk of poverty,
and the threat of abuse and neglect in foster homes and other temporary
lodgings.236 Even when parents are released, they face a raft of challenging
stressors that can take a toll on their children and other family
members.237 These stressors, among them the after-effects of the traumas
of the carceral experience, only exacerbate the likelihood that their
children will grow up to follow in their parents’ footsteps. Yet although
these malign effects of the American carceral system are welldocumented,238 the evidence from the past several decades indicates little
political will for protecting the people in this position—even the
children—from the harms of the carceral system.239 This political
236

See Dolovich, Incarceration American-Style, supra note 17, at 247 (cataloguing the
harms suffered by the children of incarcerated parents); see also BERNSTEIN, supra note
26; DONALD BRAMAN, DOING TIME ON THE OUTSIDE: INCARCERATION AND FAMILY
LIFE IN URBAN AMERICA (2004).
237
See, e.g., JENNIFER GONNERMAN, LIFE ON THE OUTSIDE: THE PRISON ODYSSEY OF
ELAINE BARTLETT (2004).
238
See, e.g., TODD CLEAR, IMPRISONING COMMUNITIES: HOW MASS INCARCERATION
MAKES DISADVANTAGED NEIGHBORHOODS WORSE (2009).
239
Given the constitutional prohibition on cruel and unusual punishment, it might
seem that the judiciary would at least have a role to play in constraining the state’s
power to impose excessive prison sentences or to subject people in custody to inhumane
conditions of confinement. But prevailing Supreme Court doctrine concerning both the

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disposition seems to suggest that if a political strategy emphasizing the
costs of the penal system is to generate public demand for reform, the
focus must be on the burdens this system creates for society more
broadly.
In this regard, the most obvious starting point is the economic
cost of the state’s carceral burden. As already noted, incarceration is
extremely expensive,240 expending funds that could better be put to more
socially productive uses, especially in a time of budget shortfalls. For this
reason, some observers regarded the fiscal crisis into which many states
were plunged in the wake of the 2008 collapse of the subprime mortgage
market as offering the potential for promoting meaningful penal
reform.241 Such optimism has not proved groundless. Since 2009, in their
scramble to fund essential services, many state legislators have sought cuts
in corrections: closing facilities, easing up on the grounds for parole
revocation, and even reducing the number of people being sent to
prison.242 Yet straightened state coffers alone will not be enough to herald
length of prison sentences imposed and the prison conditions in which those sentences
are served makes it abundantly clear that there is no judicial will to push against the tide
of penal excess that has shaped the American carceral system over the past few decades.
Even assuming a judicial inclination toward meaningful Eighth Amendment
enforcement, the individualized nature of the majority of prisoners’ constitutional
claims—in part an artifact of the relative rarity of counsel available and willing to bring
suit on behalf of classes of prisoners—means that any moderating pressure imposed by
the courts could necessarily be only piecemeal. Thus, although one could argue that the
Eighth Amendment at present is considerably underenforced, see Dolovich, Cruelty,
Prison Conditions, and the Eighth Amendment, supra note 21 (making this case), when
the aim is a wholesale reorientation of the penal system, it may be necessary to look
beyond the judiciary for the possibility of meaningful change.
240
See supra note 25.
241
See, e.g., Michael Santos, Economic Crisis Opens Possibilities for Penal Reform, PRISON
NEWS BLOG, (Mar. 4, 2009), http://prisonnewsblog.com/2009/03/economic-crisis
opens-possibilities-for-prison-reform/; JUSTICE POLICY INSTITUTE, PRUNING PRISONS:
HOW CUTTING CORRECTIONS CAN SAVE MONEY AND PROTECT PUBLIC SAFETY
(2009), http://www.justicepolicy.org/images/upload/09_05_REP_PruningPrisons_AC_
PS.pdf; Richard Faussett, Conservatives Latch Onto Prison Reform, L.A. TIMES, Jan. 28,
2011, available at http://articles.latimes.com/2011/jan/28/nation/la-na-conservative
crime-20110129.
242
See, e.g., Editorial, Are Prisons Too Costly for States?, DENVER POST, Feb. 9, 2009
(12:30 AM), available at http://www.denverpost.com/opinion/ci_11659204 (“Growing
prison populations and dire budget shortfalls have forced states to consider criminal

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real reform. Certainly, given the extreme overcrowding in many penal
facilities243 and the hundreds of thousands of people currently doing time
for nonviolent offenses,244 any efforts to reduce the number of people in
prison would be welcome. However, for reductions in the prison
population to be sustained over the long term, they must be
complemented by the provision of effective drug treatment programs,
educational and vocational training for those in custody, and assistance
for former prisoners seeking to assemble the components of a stable life
on the outside (home, job, drug treatment, family reunification, etc.).
Otherwise, it is just as likely that many of the people granted early release
will eventually reoffend. And when that happens, so long as the mindset
of exclusion and control remains undisturbed, their subsequent offenses
will be traced, not to the state’s shortsightedness in releasing people from
prison in a worse position than when they went in, but to a willful and
deliberate refusal on the part of former prisoners to obey the law—a
refusal that may only seem all the more galling because undertaken
despite the state’s beneficence in granting early release. Even assuming the
present fiscal crisis were to generate a contraction in the carceral
apparatus, unless there is a fundamental shift in society’s commitments
away from exclusion and control as a matter of principle, this contraction
would only last until the economy revives.
These same limitations, moreover, are arguably presented by a
strategy focusing on another obvious social harm caused by mass
incarceration: the increased spread of infectious diseases. Over the past
justice policy changes that until recently might have been considered political suicide.
Those changes, which are being enacted or debated in states across the country, are
designed to reduce prison and jail populations through sentencing changes, recidivism
reduction programs and early release modifications.”); Michael Rothfeld, State Senate
OKs Cuts in Prison Spending, L.A. TIMES, Aug. 21, 2009, at A6; Patrick McGreevey,
State Cutting Inmate Rolls, L.A. TIMES, Jan. 26, 2010, at A8; Monica Davey, Safety Is an
Issue As Budget Cuts Free Prisoners, N.Y. TIMES, Mar. 5, 2010, at A1.
243
See Dolovich, Cruelty, Prison Conditions, and the Eighth Amendment, supra note 21, at
887 (explaining that “American prisons today are often chronically overcrowded, which
means that people routinely live jammed into dormitories or doubled up in tiny cells
designed for a single person”).
244
See JOHN IRWIN, VINCENT SCHIRALDI & JASON ZIEDENBERG, JUSTICE POLICY
INSTITUTE, AMERICA’S ONE MILLION NONVIOLENT PRISONERS (1999), available at
http://www.justicepolicy.org/uploads/justicepolicy/documents/one_million.pdf.

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decades, prisons have become incubators for a range of serious health
hazards, including HIV, tuberculosis, hepatitis C and staph.245 People
exposed to these infections in prison will invariably spread them to people
on the outside once they are released. This concern has led to increasing
calls for effective public health strategies to reduce the spread of infections
in prison.246 But again, the potential for this problem to prompt
meaningful prison reform is limited. For one thing, the people most at
risk of infection from newly released prisoners are the sexual partners and
family members of the infected person. And as has been seen, penal
harms exported beyond the prison do not tend to count politically if they
are contained within already marginalized communities. Moreover, as
with possible reforms precipitated by the need for economic
retrenchment in the face of budget shortfalls, once the underlying
problem—in this case a need for effective public health strategies—is
resolved, any broader public concern with disease-fostering prison
conditions is likely to disappear.
It is therefore not enough to emphasize the practical costs of a
carceral strategy. If there is to be meaningful reform, a fundamental
normative reorientation toward the people the state incarcerates is
necessary. Admittedly, it is easier and perhaps more appealing to regard
convicted offenders as moral monsters. Especially if their crimes are
heinous, moral consideration may understandably seem to be more than
the perpetrator deserves. But acknowledging an offender’s status as a
human being is not the same as excusing his crimes. To the contrary, it
could be argued that respect for wrongdoers as moral beings demands
infliction of an appropriate punishment.247 Nor would acknowledging
the moral status of criminal offenders preclude the use of imprisonment
245

See, e.g., Jessica R. MacNeil, Mark N. Lobato & Marisa Moore, An Unanswered
Health Disparity: Tuberculosis Among Correctional Inmates, 1993 Through 2003, 95 AM.
J. PUB. HEALTH 1800, 1802 (2005) (finding that tuberculosis rates among prisoners
were substantially higher than among the population in general); Brent Staples, Treat the
Epidemic Behind Bars Before It Hits the Streets, N.Y. TIMES, June 22, 2004, at A18
(describing widespread incidence of HIV, hepatitis, tuberculosis, and staph in U.S.
prisons); Silja J.A. Talvi, Deadly Staph Infection ‘Superbug’ Has a Dangerous Foothold in
U.S. Jails, ALTERNET, (Dec. 4, 2007), http://www.alternet.org/story/69576 (describing
drug-resistant strain of staphylococcus in prisons and jails around the country).
246
See sources cited supra note 245.
247
See generally Herbert Morris, Persons and Punishment, 52 MONIST 475, 501 (1968).

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as punishment (although it would demand a commitment to ensuring
that conditions of confinement be at least minimally decent and
humane). At its core, what this acknowledgement would require is that
society abandon its collective disposition to ignore, dismiss, and otherwise
assume away the existence of the people we incarcerate, and instead
affirm their shared humanity.
Considering the present bleak reality of the American penal
system, such a shift may seem impossible. However, there are some bright
spots on the current carceral landscape, which suggest that such a change
may yet be brought about. Over the past decade, a surprising coalition of
conservative and progressive organizations and legislators has coalesced
around two penological issues: prison rape and reentry.248 This coalition
was essential to the passage of two important pieces of federal legislation,
the Prison Rape Elimination Act of 2003 (PREA)249 and the Second
Chance Act of 2007 (SCA).250 Neither of these laws is without flaws, and
arguably neither goes far enough to remedy the problem at issue.251 Still,
the ideas motivating these pieces of legislation have the potential to seed a
shift in the public perception of people in custody. In terms of PREA, the
political push to prevent prison rape252 has both exposed and condemned
248

See Pat Nolan & Marguerite Telford, Indifferent No More: People of Faith Mobilize To
End Prison Rape, 32 J. LEGIS. 129, 129 (2006) (describing the “unique coalition of civil
rights groups and religious organizations that pressed prison rape onto Congress’
agenda”).
249
Prison Rape Elimination Act of 2003, 42 U.S.C. §§ 15601-15609 (2006).
250
Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008) (codified in
scattered sections of 18 and 42 U.S.C.).
251
Most notably, PREA, which directed the Attorney General to adopt standards
designed to detect, prevent and respond to prison rape, specifically forbids the
establishment of any standards that “would impose substantial additional costs . . . on
prison authorities.” 42 U.S.C. § 15607(a)(3) (2006). And the funding thus far
appropriated for reentry programs pursuant to SCA has been far less than is needed to
create meaningful possibilities for successful reintegration. See Henry, supra note 65
(suggesting that the practical effects of the Second Chance Act have thus far been
limited); see also supra note 65.
252
This push is ongoing. In February 2011, the Department of Justice issued a Notice of
Proposed Rulemaking for the National Standards to Prevent, Detect, and Respond to
Prison Rape. See National Standards to Prevent, Detect, and Respond to Prison Rape,
76 Fed. Reg. 6248, 6281 (proposed Feb. 3, 2011) (to be codified at 28 C.F.R. pt. 115)
(Att’y Gen. regulations proposed pursuant to PREA) (§ 115.42 (c)). The comment

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the suffering of people in prison—thereby affirming them as people,
whose violation demands a concerted political response. As to the SCA,
the commitment to reentry acknowledges that people who have broken
the law, like all human beings, have made mistakes and, in most cases,
deserve the opportunity—a “second chance”—to redeem themselves.
Taken together, these normative conceptions pose a direct challenge to
the dehumanized, essentialized, and unforgiving conception of the penal
subject presently animating the American system of exclusion and
control.
Of the two, it is the ideas driving the reentry movement that
appear to have gained more political traction. And certainly, the
possibility of a meaningful public commitment to prisoner reentry is a
welcome one. It is, however, important that advocates in this arena not
lose sight of the PREA piece of the picture, which underscores the moral
obligation society has to the people it incarcerates while they are in
custody. Although reentry is crucial, an exclusive focus on the moment of
return risks reinforcing the notion that society need not concern itself
with the people in prison until the point when they are preparing for
release. It is precisely this mindset that has fueled the destructive, selfdefeating, and frequently cruel practices that define the present-day
American carceral system.253 What is needed instead is a combined push
to recast in terms of our shared humanity not just our image of the
people who are returning from prison, but also our image of the people
who remain behind bars.
In sum, if the hold the institution of exclusion and control
currently has over the American carceral system is to be dislodged, society
needs to acknowledge and affirm that, despite their physical relocation
outside the boundaries of the shared public space, the people sentenced to
prison remain part of the moral and political community. Once this
recognition is achieved, many of the practices endemic to the current
system—from LWOP and supermax on down—will come to be regarded
not as necessary and appropriate components of a legitimate penal
system, but as, in all but the most extreme cases, the deeply misguided
and arguably cruel practices of a regime scarcely recognizable as a system
period closed in April 2011, and final standards are expected in 2012.
253
See, e.g., Kupers, Prison and the Decimation of Pro-Social Life Skills, supra note 56.

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of justice.
Liberal democracies certainly have the right to punish criminal
offenders, and they even have the right, in some cases, to subject
offenders to extended social exclusion and state control. But this
authority does not justify subjecting any and all lawbreakers to this
treatment. What seems currently to be missing from the American system
of exclusion and control is an awareness of the state’s obligation to
constrain and limit the exercise of its own carceral power. The challenge
facing those who seek meaningful penal reform is to frame a theory of
legitimate punishment that simultaneously acknowledges the public’s
legitimate anger toward violent offenders, its fear of serious crime, and
the shared humanity of the people with criminal records.254 Only in this
way will it be possible simultaneously to satisfy society’s understandable
desire to condemn those who have committed horrible crimes, to ensure
society’s protection from those people too violent and dangerous to
remain free, and yet to ensure appropriate limits on the penal harms the
state inflicts in the name of criminal punishment.

254

See Furman v. Georgia, 408 U.S. 238, 272-73 (1972) (Brennan, J., concurring)
(affirming that “even the vilest criminal remains a human being possessed of common
human dignity”).