Has Prison Itself Become Cruel and Unusual Punishment?

The Founding Fathers reacted to a number of British horribles when they declared their independence from England in 1776, but the main human rights sections of the Constitution – the cherished Bill of Rights (the ten amendments) – were not added until 1791. Debates over these amendments have occupied courts across the land ever since, with many interpretative cases winding up before the United States Supreme Court.

“Strict constructionists” have argued that the document is a fixed an immutable set of rules that need to be applied as originally drafted. “Activist” justices have long argued that the Constitution is a living and breathing document that must be read in the moral and social context of an evolving society. How else, they argue, can a 239-year-old democracy apply underlying principles from an era of sailing ships, horse-drawn carriages and flintlock muskets so as to have relevancy in a world of superhighways, automobiles, jets and missiles, automatic rifles, computers and nuclear weapons?

Oddly, even strict constructionists seem to be willing to stretch the plain meaning of those amendments when the notion strikes them, such as the recent concurring opinion of Associate Justice Antonin Scalia in Citizens United who found that corporations were “people” within the meaning of the First Amendment, noting that unions and businesses have “the freedom to speak in association with other individuals, including association in the corporate form.” Scalia pretty much ignored the word “people” and told us that the First Amendment in this case only looked at “speech.” So back to that Eighth Amendment.

I’ve presented a number of blogs with strong statistical evidence, numbers that really have not been refuted by much of anybody, that make it painfully obvious that our massive prison system not only does not work, it causes many more social problems than it solves. I’ve discussed the psychological destructive power of years of continued isolation in solitary confinement, both as a “jail within a jail” as well as the standard of incarceration in our infamous SuperMax facilities. I’ve ripped into the legally-enforced mantle of a closed system, prisons shrouded in mystery, cloaked in secrecy under the false premise of “prison security,” such that most Americans really know little more about our system of justice than what is shown on general-access prison shows.

While many Americans believe that prison abuse falls within the slogan “who cares; they get what they deserve,” the reality is that certain races and classes of people – unable to afford a viable path to prove their innocence and slammed by a bail system that they could never afford – are in prison for the wrong reason… or for crimes linked more to untreated mental illness or drug use, where some alternative form of rehabilitation or care is vastly more appropriate. Or for relatively minor crimes. I have already blogged about their fate in the employment world when released, one more factor that amplifies the recidivism rates accordingly.

So the question arises as to whether the Eighth Amendment (which, among other proscriptions bans cruel and unusual punishment) can be interpreted under current social conditions or whether we must ignore the world around us and apply only the social realities present in 1791 (were there massive, well-armed racial/ethnic gangs dominating jails in 1791?)? And if we accept elevated healthcare and social standards that apply generally in contemporary society as relevant to Constitutional interpretation, exactly what does that mean for Eighth Amendment standards as applied to our prison system? We’ve seen courts find “cruel and unusual punishment” merely in overcrowded circumstances, but are there more obvious violations?

Is a prison sentence, incarceration away from family, friends and an open lifestyle with freedom of movement, the punishment that society has demanded? Or does society also require that incarcerated prisoners also face extreme risks of beatings, stabbings, extortion and horrific living conditions as part of that punishment, regardless of the nature of the criminal act? Solitary confinement is another variable noted above. At what point does incarceration under these conditions move from “appropriate” to “cruel and unusual”? And if the questioning eyes of the press only discover the horribles from an occasional leak that even prison authorities are unable to contain, how is society served when these angry individuals are returned to the world, as most are, with hatred and revenge on their minds?

We have all followed the recent escape of two exceptionally dangerous killer-criminals from the upstate New York Clinton Correctional Facility. We watched as one was shot and killed and the other captured, with clear evidence of collusion with prison guards enabling the prison break. But what we are now learning, due to a flood of reports that prison officials were unable to stop, is how, during the massive manhunt, the prisoners in the honor unit that housed the escapees were interrogated.

“Night had fallen at the Clinton Correctional Facility in far northern New York when the prison guards came for Patrick Alexander. They handcuffed him and took him into a broom closet for questioning. Then, Mr. Alexander said in an interview last week, the beatings began.

“As the three guards, who wore no name badges, punched him and slammed his head against the wall, he said they shouted questions: ‘Where are they going? What did you hear? How much are they paying you to keep your mouth shut?’ One of the guards put a plastic bag over his head, Mr. Alexander said, and threatened to waterboard him.

“For days after the June prison break, corrections officers carried out what seemed like a campaign of retribution against dozens of Clinton inmates, particularly those on the honor block, an investigation by The New York Times found. In letters reviewed by The Times, as well as prison interviews, inmates described a strikingly similar catalog of abuses, including being beaten while handcuffed, choked and slammed against cell bars and walls.” New York Times, August 11^th.  No prisoners have so far been implicated in the above-noted escape.

When it was clear that the abuse was “out of the bag,” the NY corrections department stated: “Any findings of misconduct or abuse against inmates will be punished to the full extent of the law.” Those prison guards actually believed that no one would ever find out about their conduct… because for the most part, no one ever does. As much as we may think such reactions are rare, anyone who has spent any time with open access to our prisons knows otherwise.

The epidemic of “beat up squads” of correctional officers seems to be standard in too many prisons across the land. New York seems to have more than its share. FishKill Correctional Facility inmate, Samuel Haskell (bipolar and serving time for a drug offense), got into a confrontation with his correctional supervisors back in April. “[He] was thrown to the floor and was handcuffed. As many as 20 officers — including members of a group known around the prison as the Beat Up Squad — repeatedly kicked and punched Mr. Harrell, who is black, with some of them shouting racial slurs, according to more than a dozen inmate witnesses. ‘Like he was a trampoline, they were jumping on him,’ said Edwin Pearson, an inmate who watched from a nearby bathroom.

“Mr. Harrell was then thrown or dragged down a staircase, according to the inmates’ accounts. One inmate reported seeing him lying on the landing, ‘bent in an impossible position.’… ‘His eyes were open,’ the inmate wrote, ‘but they weren’t looking at anything.’… The manner of death: Homicide.

“No officers have been disciplined in connection with the death, officials said. A classification of homicide is a medical term that indicates the death occurred at the hands of other people, but it does not necessarily mean a crime was committed… Inmate witnesses at Fishkill say they are the ones who have been punished. Several described being put into solitary confinement and threatened with violence after speaking with Mr. Harrell’s family, their lawyers and with news reporters.” New York Times, August 18^th. That’s the American system of justice? Feel good about that?

We are paying really major tax dollars to train those incarcerated into greater layers of “criminal expertise,” we deny most the ability (with a prison record) ever to get a real job with hope and a future, keep folks in prison far longer than most of the developed world for comparable offenses, and we instill in them an anger and an attitude that truly does threaten the general society when they are released. Recidivism is vastly more probable than rehabilitation. Are we getting what we want? We sure are paying for this system, through the nose.

I’m Peter Dekom, and exactly what does our criminal justice system say about our American human rights values, and does this failed structure simply reinforce a global perception of the great American hypocrisy?