Faculty profile: Law professor Jonathan Simon on 'Othering' through Mass Incarceration

Sara Grossman

Communications and Media Specialist
Faculty Profile

jonathan simon headshotJonathan Simon is a professor at the Berkeley Law School and a member of the Haas Institute's Diversity and Democracy research cluster. His scholarship focuses on the role of crime and criminal justice in governing modern societies. He recently published a book, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, which offers a critique of mass incarceration in California and explores current efforts to challenge this system. Prof. Simon blogs at prawfsblawg and governingthroughcrime, and tweets @jonathansimon59

Much of your scholarship has focused on crime and punishment in the United States. How did you become interested in this topic?

The lightbulb came on when I found myself sitting in the Alameda County jail after getting arrested for failing to heed a lawful order to disperse arising out of a civil disobedience protest at the Lawrence Livermore National Laboratory in 1981. We believed President Reagan was preparing for a nuclear war with the Soviet Union and that the UC-managed labs were playing a role in developing the “first strike” weapons necessary to make that palatable to Reagan. It turns out we may have been wrong (about Reagan’s plans at any rate), but while in jail, and despite being housed in an unused dormitory building on the jail campus and away from much direct contact with other inmates, two things struck and horrified me. First, the jail population I saw, except for the mostly white protesters, were almost all African American and Latino. It was one of the most non-White place I had ever been. Second, when we were marched in to get our breakfasts my eyes were drawn to a sign perched directly above the slot in the metal wall from out of which our trays were popping. “INMATES ARE TO REMAIN SILENT DURING FEEDING.” People ate, or maybe dined. Animals got fed, and often for an unpleasant reason.  

Nuclear war still loomed in my mind as the greatest threat facing my generation, and I continued to protest it, but there was little I could contribute to fighting it intellectually. I had begun reading Michel Foucault’s work on punishment, Discipline & Punish: The Birth of the Prison, following the lead of my major undergraduate mentor, Berkeley Prof. Hubert L. Dreyfus. What I saw in Santa Rita (as the jail was known, we came to call it “UC Santa Rita) had little directly to do with Foucault’s famous analysis of the penitentiary as a factory of human souls, indeed quite the opposite. But Foucault’s questions about incarceration: what mechanisms of power operated within them, how did they align with the prevailing structures of advantage society at large, what kind of subjectivity did these forms of power invest, quickly captured my imagination.

My interest in state violence and police began even earlier. When I was around nine, my mother took me to a large anti-war protest in Chicago’s Grant Park in the midst of the tumultuous 1968 Democratic National Convention. Violence erupted right at the start of the rally, when Chicago police officers surged through the crowd to prevent a demonstrator from lowering the US flag to half-mast in respect of those dying in Vietnam. When they got to him, they pulled him off the flagpole and used their truncheons to beat his head into a bloody mess. I was horrified and my mother quickly led me away. A year later the police murdered Fred Hampton, the chairperson of Chicago’s Black Panther Party, and a charismatic articulate leader and lovely human being who was respected by progressives of all races across the city. Hampton died in bed, and the evidence of murder was so compelling that the State’s Attorney who led the raid was ultimately tried (although predictably acquitted).

As the 1960s turned to the quite different 1970s, I went back to the business of becoming an adolescent, but a sense that police power was not something I could trust stayed with me.

Your most recent book, Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, was published last year to great acclaim. Why did you begin looking into mass incarceration as part of your research on criminal justice and law?

In a sense I had been studying mass incarceration since my dissertation for Berkeley Law’s Jurisprudence and Social Policy program in 1989.  It began as a study of California’s parole division. Parole was once the core of California’s internationally-known rehabilitative correctional philosophy of the 1960s, but by the 1980s when I was doing “ride-alongs” with parole agents in Oakland, San Francisco, Richmond, and Los Angeles, it had begun to transform itself into an engine of incarceration (accounting for about 50% of prison admissions during much of the era of mass incarceration). In my first book, Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990 (1993) I set that finding into a historical and sociological analysis of parole as a form of class based social control. My conclusion was that a correctional system that once aimed at disciplining the poor into the docile and useful bodies needed by the factory system, had become a permanent low cost way to manage a largely African American and Latino underclass that had been excluded from labor and other normative systems in society. Like most big changes, lots of other people began to realize something dramatic was going on at around the same time, but Poor Discipline was one of the first books to argue that the American penal system was entering uncharted terrain. From then on, despite several efforts to turn to other topics, mass incarceration (as it came to be called by the end of the 1990s) became my central focus.  

What motivated me to write this most recent book was a sense that my earlier work, and that of many others, had rightly emphasized the scale of mass incarceration and its racial disproportionality, but had missed how inhumane prisons had become by the first decade of the 21st century. After all, you could have mass imprisonment in a system committed to humane treatment and rehabilitation, especially if you were willing to spend the money (imagine what West German prisons might have been like in the 1950s had we and they decided to punish Hitler’s hundreds of thousands of accomplices). It might still be costly and useless, but it might not be inhumane and fundamentally incompatible with human dignity.  

What changed was the knowledge context produced by litigation, specifically two mega lawsuits in California, Coleman v. Wilson (originally decided 1995), which involved lack of adequate mental health care in California prisons, and Plata v. Davis (originally decided in 2002), which involved medical care, had placed California’s entire prison system under federal court supervision. In 2005, our great jurist, Judge Thelton Henderson in the Plata case put the entire prison medical system into a receivership; finding that a prisoner was dying on average every week of unmet medical need. These decisions and the regular reports of the monitors were putting a spotlight on the nature of imprisonment, the way people were being treated. In 2009 the two cases were joined by a special three-judge court considering whether a population cap was necessary to remedy the underlying constitutional violations.  The court held a 14-day hearing on the causes and consequences of prison overcrowding that in my view had finally put mass incarceration itself on trial.  

It struck me that this qualitative dimension of mass incarceration had to be brought together with the quantitative analysis if we were to fully fathom the evil of this system.  The book had a simple aim, the make sure that history would benefit from the tremendous work that these prisoners, lawyers, and judges did in bringing California’s monstrous prison health crisis before the bar of the 8th Amendment’s prohibition of “cruel and unusual punishment.” These cases in my view were more than legal decisions, they formed a public sociology of mass incarceration that might be read even a century from now by people who wanted to know what mass incarceration really meant at the human level, just as we struggle to comprehend what slavery really meant beyond the abstraction of “unfreedom.”

What are some of the conclusions that you reached about mass incarceration in this country? What are some implications of this phenomenon for the health of our larger society?

My most important conclusion is this: if prisons are not self-consciously working to preserve the human dignity of their prisoners, then they are some steps down the road to degrading treatment and heading toward torture. In short, it turns out there is no halfway between prisons that protect human dignity and prisons that torture people. Beginning in the late 1970s California (and much of the rest of country) reimagined prisons as simple boxes that could hold dangerous people and keep the rest of us safe: a human warehouse. We decided that if we could keep enough of the dangerous people locked up, we could have safety even if we did not rehabilitate anyone. Its an extreme version of the traditional penal rationale of incapacitation, but stretched to a totalitarian logic. The problem is as one of my mentors, Franklin Zimring (along with Gordon Hawkins) had shown in their crucial 1997 book Incapacitation, there is no stopping point. If we are more secure with ever more prisoners, when are we are we secure enough? In the 1980s and 1990s many, even critics of mass incarceration, assumed that you could just warehouse people in prisons without violating their fundamental rights. Prisons were supposed to be places that kept “dangerous men secure in human conditions,” in the words of a 1994 Supreme Court decision, Farmer v. Brennan, but that turned out to be a grand illusion. Once you start mass incarcerating you don’t know anymore who is really dangerous. And if you build prisons only concerned with security they will quickly become overcrowded, insecure, and inhumane.

That is why I argue in my book that Brown v Plata, which upheld the huge prison population reduction order against California can be properly read as condemning mass incarceration itself as unconstitutional. It is true that the decision, narrowly read, applies only to California’s appalling conditions created by overcrowding and the accumulation of prisoners with mental health and medical needs. But that is exactly where the logic of mass incarceration leads. Today nearly half the states are operating overcrowded prisons (indeed the federal prisons are now almost as overcrowded as California’s were before Brown).

Could you offer a brief explanation for how we ended up with the highest incarceration rate in the world? Also, do you see this trend reversing anytime soon?

Much of the answer lies in the 1970s when California and the whole country were experiencing a second decade of rising violent crime. As I described in my 2007 book, Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear, crime soon became an increasingly politicized issue and politicians of both parties competed to see who could demonstrate greater zeal against crime. Real policies to reduce crime, like ending chronic unemployment in high crime neighborhoods or even creating effective forms of community policing, are expensive, take years to realize their potential, and do not allow much symbolic demonstration of fortitude.  Building and filling prisons can develop much faster and soon emerged as the go to policy. At first the idea that increasing the prison population might be part of the answer to high crime rates was not ridiculous. The US had a historically low prison population in the 1970s and sentences were quite short (time served of about 10 years for murder in California). Some criminologists called for modest increases in both sentences and overall imprisonment rates (although many maintained that prisons were ineffective and that better solutions were to be found). But once politicians took on the prison mantra there was nothing to stop it from continuing. If America was safer with a 5% or 25% rise in prison populations, why not make it 100%, 200%, or ultimately 400%?  Early on in this spiral the actual crime reduction effect of more imprisonment probably reached close to zero, but the political logic was too strong.

At the Haas Institute’s Othering & Belonging conference in April you spoke on a panel, “Othering through Immigration and Incarceration.” Could you speak a bit about how immigration and incarceration can serve to “other”?

The shift in immigration policy toward harsh and punitive ways of dealing with non-citizens in the US without official permission began in the 1990s about halfway into the era of mass incarceration. Objectively speaking, crime and unlawful immigration have very little to do with each other, but symbolically the two become easy to conflate. For politicians looking to expand the war on crime, especially in an era of falling crime rates, “illegal immigrants” became a natural target. The fact that many of them were Mexicans, and thus easy to demonize within the US system of racial “othering”, made it even more natural. The two systems, mass immigration and mass deportation, share a lot in common. They both hold up exclusion and segregation as methods that can keep the US safer from crime. They both require the creation of self-perpetuating public and private bureaucracies and service industries that help to promote growth and oppose reform. They both create a relentless and dehumanizing enforcement logic that ends up harming not just the individuals caught up in exclusion, but families and whole communities.

Do you have any advice or insights as to how the United States can work towards a fairer and more inclusive society, especially with regards to the systems you discussed earlier? Are you optimistic about things changing for the better?

Yes, again I think Brown v. Plata (2011) holds some of the keys to making progress. The case, in effect, produced a rapid and large shift in policy (although localized to California for now); creating a nearly 40 percent drop in the state’s prison population over a three year period (and causing the national imprisonment rate to drop for the first time in nearly 40 years). And despite the logic of incapacitation, despite Justice Alito’s warning in his dissent that violence would follow such a large diversion of felons, careful criminological study shows no rise in violent crime and only a modest increase in automobile burglaries. In short, Brown v. Platademonstrated that we do not need mass incarceration to be safe and therefore its high human and fiscal costs are unnecessary and outrageous.  What we need now is to repeat that experiment in every state in the country and in the federal system. I am publishing an article this fall arguing for mass amnesties of prisoners across the country and in the federal system to clear overcrowding and end mass incarceration, rather than waiting for courts to act (which should be the most cautious and slow branch of government). President Obama’s announcement this past spring of a deferred action on tens of thousands of undocumented residents is a similar step (although only a beginning) against mass deportation (sadly it is now tangled up in court).  

Brown v. Plata also offered another important reason for optimism. In his opinion for the Court, Justice Kennedy revived and strengthened human rights language that goes back to Chief Justice Warren’s 1958 plurality opinion in Trop v. Dulles. Kennedy wrote: “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment” (emphasis added). The concept of dignity is the lynchpin of modern human rights law, and the source of a broad and detailed set of human rights norms governing not only prisons but forms of civil detention like immigration detention. Just as importantly, it is an idea that is rising generally in our culture in issues as diverse as same sex marriage and end-of-life care. If we take Justice Kennedy’s words to heart and make dignity the core focus of our criminal justice system (by the way it is just as important to the core meanings of the 4th, 5th, and 6th amendments), then no mass incarceration, no Fergusons, no more mandatory deportations.

Finally, I’m optimistic because of generational change.  Mass incarceration and mass deportation were both rooted in the social experiences of the 1970s with rising crime, an incomplete civil rights revolution, and pessimism about government. For people of my generation, Baby-boomers, these experiences and sentiments continue to shape our thinking, including about public policy. But the so-called Millennial generation, people born after the mid-1980s, are rising to adulthood at a time when crime is historically low and new ideas about how government can reduce violence and improve lives are becoming more robust everyday. This generation has none of the baked-in sense of crisis about crime and social order that my generation had. That does not mean change will happen all by itself, but if this generation pushes, change will happen.