‘Cruel & Unusual’ Prisons

‘Cruel & Unusual’ Prisons

Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, talks to Liliana Segura about the Supreme Court ruling on overcrowding in California prisons.


On May 23 the Supreme Court handed down a 5–4 decision ordering California to release tens of thousands of inmates from its overcrowded prisons on the grounds that their living conditions—including lethally inadequate healthcare—were so intolerable as to be “cruel and unusual punishment.” For years, California has stored its prisoners like so many cans of soup, stacked in cells or bunk beds in squalid conditions that breed violence and disease. A 2008 NPR report on massive overcrowding at San Quentin State Prison found 360 men caged in what was once a gymnasium: “Most of these men spend twenty-four hours a day, seven days a week in the gym,” NPR reported, describing it as “a giant game of survivor.” The day before the Court ruling, four prisoners were seriously injured at San Quentin when a riot broke out in a dining hall.

States’ prison numbers have dipped in recent years, but with nearly 2.4 million Americans behind bars, mass incarceration remains a national crisis. Michelle Alexander, an associate professor of law at Ohio State University and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, points out, “If our nation were to return to the rates of incarceration we had in the 1970s, we would have to release four out of five people behind bars.” Alexander, former director of the ACLU’s Racial Justice Project, in California, spoke with Nation associate editor Liliana Segura on the phone about the Court ruling and what it means.

Liliana Segura: In the ruling, Justice Anthony Kennedy mentioned the “lack of political will in favor of reform.” Will politics always stall even incremental changes?

Michelle Alexander: I think this opinion illustrates how broken our politics have become. Here we are in California, a state that has been careening toward bankruptcy, and yet there is enormous resistance to releasing nonviolent, relatively minor offenders—people who, I think it’s important to emphasize, might not have been doing time at all if they had been arrested thirty years ago. We now sentence people to prison for years for types of offenses that once received just probation or days in jail. So these people we’re so afraid of returning to our communities, they might well not have been serving time at all had they been arrested a few decades ago, before the “war on drugs” and “get tough” movement really kicked off.

And if there’s any reason to be concerned about potential crime when [these prisoners] return, it’s largely due to the legal barriers that exist to effective re-entry into communities. People return home from prison and face legal discrimination in virtually all areas of social and economic and political life. They are legally discriminated against in employment, barred from public housing and denied other public benefits.

How significant is this decision, and what are the implications beyond California?

I think it is a very significant decision, although, as others have observed, there’s not likely to be a lot of copycat litigation, because the conditions in California were so extreme. I think it’s important to note, though, that the ruling suggests that if California just built more prisons, then the Eighth Amendment would not be violated here. Once states can afford again to lock people up en masse, there’s nothing in this decision that precludes mass incarceration. What it precludes is such severe overcrowding that it literally threatens the lives of the inmates who are housed there.

The Supreme Court has stood quietly by in the era of mass incarceration. And in fact, to the extent that it has raised its voice at all, it has only been to facilitate the “war on drugs.” The Court has eviscerated Fourth Amendment protections against unreasonable searches and seizures, giving the police license to sweep communities, to conduct “stop and frisk” operations. The Court has made it nearly impossible to prove race discrimination in the criminal justice system. Only now that states are faced with such severe economic crises that they are unable to build enough prisons to house inmates without risking their lives does the Court step in and say, Well, if you can’t afford to build more prisons, then you’re going to have to start releasing some people.

I think what’s clear here is that it’s going to take a grassroots movement to force politicians to respond rationally to problems related to crime and mass incarceration. This economic crisis does create an important window for advocacy.

How do we convince people that this should be an issue to organize around?

There must be major public education to dispel the myths that sustain the system. The myth that the [prison] explosion has been driven by crime rates: it’s not true. The myth that the “war on drugs” has been aimed at rooting out violent offenders and drug kingpins: not true. The myth that poor folks of color are more likely to use and sell illegal drugs than white folks: not true. There really has to be an effort in schools and churches and mosques and community centers to engage in the kind of consciousness-raising that will open up a political space in which movement-building work can be possible.

The other work that has to be developed is a strategy for how to move beyond this piecemeal policy reform work that has been done over the past thirty years to work that is more transformative, so that we’re not just tinkering with the system but instead are galvanizing a movement. I believe it’s possible.

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