The Prison Caveat

There are many who consider “convicted criminals” to be so inherently worthless to society that they have no concern for what becomes of them in prison. It bears noting that the tune changes if they or their loved one ends up in the slammer, but that’s a truism. Nothing matters until it touches your life.

There is, however, one caveat that anyone with any humanity must consider when thinking about how prisoners are treated. They are entitled to survive the punishment. This caveat stems from two sources. First, prisoners have been sentenced to a term of imprisonment, not death. While they may be held to serve that sentence, they must not be held to serve a greater sentence.

Second, the doctrinal purposes of imprisonment lose their legitimacy if prisoners do not survive due to systemic failure.  A sentence of imprisonment cannot be justified if its outcome fails to reach the minimum state of survival. Risk of death at the hands of laughing screws is not an option.

At the WaPost, Radley Balko provides a litany of failures of the prison system to meet its minimum duty of survival.

The News & Observer has the wrenching details of a man killed by the North Carolina prison system.

Michael Anthony Kerr spent the last five days of his life handcuffed in a prison cell, unresponsive, off his mental health medicine, and lying in his feces and urine. An hour or two before the former Army sergeant died, officials at Alexander Correctional Institution put him into a wheelchair and drove him 2-1/2 hours east to a prison hospital in Raleigh.

When Kerr, 53, arrived at Central Prison, his body was cold.

Somewhere between Taylorsville and Raleigh, as the prison vehicle passed emergency rooms at eight hospitals, Kerr died of dehydration.

“They treated him like a dog,” said Brenda Liles, his sister.

Most dogs are treated far better.

Kerr’s story is actually worse than this excerpt, but you can read it at Radley’s place, so it need not be repeated here.  And it’s just one of many.  This is offered by way of example, not proof, of systemic failure.

It’s no doubt a difficult task to run a prison. We ask prison officials to keep guards and inmates safe and to keep dangerous people away from society, and to do it all in a way that’s humane. That last component is perhaps the most difficult to retain. It’s certainly the easiest of the three to compromise. But it’s also critically important. You can tell a lot about a society’s values by how well it treats its incarcerated.

The theme that runs through the examples offered by Radley is that prisoners are deemed subhuman, unworthy of the treatment that a person would ordinarily show any other person they meet.  Dehumanizing prisoners is often a matter of protecting the sensibilities of prison guards, as some perceive their job to be herding up humans, corralling them like cattle and showing them no greater mercy than one would show a steer in need of branding. If they were people, how could any other human treat them as they believe they must.

Granted, not every prison guard feels this way, behaves with a level of inhumanity toward his charges that allows them to lie in their own urine and feces, in isolation, until they die.  But if prisons are to exist at all, then it’s unacceptable for any prison guard to feel this way, to allow this to happen.

There is no margin of error inherent in a sentence of imprisonment that makes it acceptable to lose one person to flagrant and cavalier abuse.  No judge would have the legal authority to sentence a defendant to prison with the understanding that he might serve ten years, or die in a shower with his skin scalded off his body.

But then, look at our values. Americans not only accept violence and sexual assault in our prisons, but also a large part of the population considers it a given — it’s just another part of a convict’s punishment. We’re not just comfortable with prison rape, we often find it humorous (even SpongeBob once made a prison rape joke), or we revel in the thought of inflicting it on people we abhor, members of groups we consider the enemy, or stand-ins for groups of people we find distasteful. (It’s a common sentiment to wish prison rape upon political opponents, particularly those who have been accused or convicted of crimes.)

That outsiders to the system find gallows humor in the harm done prisoners is unsurprising.  We have a tradition of needing someone, some group, that is so unworthy of caring that we can dump on them to make us feel better about our condition.

Prisoners have long been the perfect group for this, as they had little to commend them, no beloved advocacy group behind them and, in our typical simplistic approach to rationalization, brought it on themselves.  This is changing, though. Now, it’s just male prisoners that everyone is allowed to hate.

The fact of prison rape, beatings, and death is nothing new.  The ineffectiveness of orders from federal judges directing wardens, commissioners, departments, not to allow prisoners in their care to die brutal deaths at the hands of their jailers is manifest.  No official walks into a press conference to announce that one of their people laughed while beating some mentally-ill, isolated prisoner and, well, big deal, who really cares what happened to this subhuman anyway.

Radley makes the point that if we, the nice folks who make up the bulk of society, don’t start giving a damn about the sadistic and inhumane treatment of prisoners, how can we expect prison officials to care either.  Much as I agree with him completely, I pursue an additional direction:

Judge, your authority to impose a term of imprisonment on a human being under law comes with a caveat that he must, must, upon completion of his sentence, survive the hands of his keepers. If you cannot assure that he will walk out of prison alive, save natural causes, then the legitimacy of your sentence fails, and your imposition of imprisonment is ultra vires.

The ironic part of this is that this shouldn’t be a strain upon the system at all. It’s just not hard to treat prisoners humanely. It’s just not hard not to kill them in prison. And yet, they can’t seem to manage it.

10 thoughts on “The Prison Caveat

  1. John Barleycorn

    Have a drink!

    You have and do continue to flirt with the mash I see.

    Good to see another one of your “brothers” joining the future swarming of the honey bees the decades have brought unnecessarily lengthy depravation to.

    The fields of justice were never designed to imprison a myriad of currently lengthy scoldings delivered like a plague.

    Queen Bees yet to be born and swarm deserves the Bee Gees no?

    [Ed. Note: No opera. No Bee Gees. I have standards here.]

    1. John Barleycorn

      That was the teddy bears remixing ‘staying alive’. They will never make the opera nor will the bee gees! Relax it ain’t you going to prison unless you sup-up your six wheeler.

      Your kids will never invite you to the underground raves if you keep up this current editorial policy.

        1. John Barleycorn

          And Parliament Tickets? George cant get enough it seems. More on that latter. AND FUCK FRANK’S KIDS!

          I got $50 Dylan goes with Everything is Broken or Things Have Changed somewhere in the second set and I will give you three to one if he does a second encore with under $500.

          If you want to pick and choose from the tour you get penalized with even money but if you take the bet and predict a second encore he may do you get one hundred to one if he hasn’t preformed it live in the last six months.

          This window pays.

          I like Bob but I really miss the “Garrys”. Although if Jello would have taken the time to learn how to pay the guitar…

          Anyway, Bob, Garry & George, David, even Jello; and of course all the rest. No such things as a short list “back in the day”.

          Make sure you accept the tickets when your son is sending you. You might even recognize a few sounds that the lovers and cynics can’t let go of.

          “IT” is still out there unfortunately.

          Please excuse me but for some inexplicable reason I am reading a New Yorker article which is destabilizing my bowls and irritating my current harmonious relationship with di-5-methoxy-2-[(4-methoxy-3,5-dimethyl-2-pyridinyl)methyl) sulfinyl]-1H-benzimidazole magnesium.

          I can’t keep up. I surrender.

  2. Fubar

    Judge, your authority to impose a term of imprisonment on a human being under law comes with a caveat that he must, must, upon completion of his sentence, survive the hands of his keepers. If you cannot assure that he will walk out of prison alive, save natural causes, then the legitimacy of your sentence fails, and your imposition of imprisonment is ultra vires.

    Good luck with that new legal theory.
    They’ve heard it before, and grown weary.
    Judges sentence all day
    In a regular way.
    That’s dreary. And now you want leery.

  3. Jim Majkowski

    A wise man made the point in a single sentence:

    The degree of civilization in a society can be judged by entering its prisons.
    Fyodor Dostoevsky.

  4. Peter Gerdes

    This can’t be true.

    Consider a culture that dolls out the punishment “You are put on the national no-lollipop registry. No one will ever sell you a lollipop again.” No one will *ever* survive that punishment because, by definition, it afflicts one for the entire remaining lifetime.

    Or consider a punishment of banishment to Alaska for life. Most people from the lower 48 find alaska unpleasant enough to avoid moving there even when economically advantageous to do so but it’s hardly a drastic punishment. Maybe there is a slightly higher risk of death per year in Alaska. Do people live out their sentence in this scheme?

    Hell, if some crimes deserve a death sentence surely it would be ok to sentence those same people to die if the coin flip lands heads if this gives greater deterrent benefit. What about this sentence? What if we could determine, with perfect certainty, when someone would die within 5 minutes. Could we sentence someone to die 5 minutes before their time? What about an hour? A year?


    The point is that there is no bright lines. Different sentences could reasonably range (in a fully continuous fashion) in having punishments that inflect anything from certain death to a minor increase in mortality per year.

    What you are worried about is a valid issue. Namely, that we subject our prisoners to more punishment than we ourselves think is humane but you get the rule wrong.

    The rule should be that, as a society, we can’t allow any *implicit* consequence of imprisonment that we wouldn’t allow as an *explicit* consequence of imprisonment. The reason that prison rape is so grotesque is that we allow it yet we would not be comfortable sentencing those same people to a lottery where 10% of them would be auctioned off to be raped by the winners (something like this wouldn’t actually be a bad punishment for rapists).

    1. SHG Post author

      Prison isn’t a metaphor. It’s a place with walls, razor ribbon and guards. At the end of their term of imprisonment, prisoners walk out. It’s not a hard concept and involves no lollipops.

  5. Pingback: Prisons, Off The Hook | Simple Justice

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