by Peter Moskos
Throughout human history, people have devised truly ingenious and absolutely horrifying ways to punish. Today it’s nearly impossible to think of a never-tried form of torture: Amputation, boiling, branding, burning, crucifixion, drowning, freezing, impaling, quartering alive, squeezing, stretching, and suffocating are just starters. In Thailand, for instance, criminals once were squeezed inside a wicker ball, known as the elephant ball, which had nails pointing inward. Then—and here’s where they get points for inventiveness—elephants would kick the ball-encased person down a field. But even societies that gleefully hurt others rarely if ever placed a human being in a cell for punishment. Consequently, that we accept prisons as normal is a historical oddity. But it’s doubtful that rulers who skinned people alive would think a prison cell was too harsh; it’s more likely they just thought it made no sense to pay good money to confine a person in a cell, especially when various forms of corporal punishment were faster and cheaper.
Although the harshness of our modern prison system may not bother the inventor of the elephant ball, the sadism inherent in long-term imprisonment, especially solitary confinement, should give pause to all who have the slightest bit of human empathy. Is anything worse than being entombed alive? Edgar Allan Poe may as well have been commenting on the morality of the prison system when he wrote, “To be buried while alive is, beyond question, the most terrific of these extremes which has ever fallen to the lot of mere mortality.” From this, seeing life in prison as the burial of the human soul is but a small metaphorical step. At the same time that Poe was writing, an early Sing Sing warden told inmates, “You are to be literally buried from the world.” Charles Dickens called the prison cell a “stone coffin.”
Prison is an insidious marriage of entombment and torture. Not only are inmates immured in prison, they are also subjected to never-ending physical and mental agony. Consider one California inmate’s account of prison life:I live in a bathroom with another man, rarely see my loved ones, I’m surrounded by killers and thieves. . . . .
There’s no one you can really talk to in here, no one you can trust to not take advantage of a perceived weakness at least. It’s hard to be on point all the time, wear your mask and check your armor for cracks. I’ve been doing this level four, max security shit for over five years now, but haven’t been home, haven’t been able to hold my daughter, haven’t been able to just be, for about eight years now.
The conditions in overcrowded modern prisons can be, in the starkest terms, as hellish as their early American prototypes. Bunk beds stacked within arm’s reach of each other fill cells and communal sleeping rooms. Although guards may act like they’re in charge, because of the sheer numbers, prisons are, in effect, run by prisoners. And without legal forms of settling disputes and conducting transactions, violence and criminality become the norm. One prisoner succinctly summed up the prisoner-survival attitude: “If I gotta survive in this environment, I gotta be bad ass.”
The risks of physical and sexual violence in prison, though sometimes overstated, are real enough: Approximately one in twenty prison inmates say they’ve been sexually assaulted by other inmates or staff in the past year. Because there’s no permitted sexual outlet (even masturbation is against the rules), there’s a lot of sexual aggression. And yet we still joke about prison rape. An online article, presumably written by a correctional officer, describes the realities of prison rape:Although it can occur, it is not as prevalent as it was in past years. Technology, increased staff members, and better construction tactics have improved surveillance over the years.
When an inmate is forcibly raped by a group of men, usually another uninvolved inmate will offer the raped inmate protection from gang rapes, but it carries a price. The inmate must now have sex with the protector. As bad as this sounds, it is better than being raped. The inmate has the option of “checking off,” that is asking prison staff for protection. This too carries a price. Prison officials often ask the inmate to identify, and testify against his attackers. At this point, the inmate is labeled a “snitch,” and his life is in further danger.
In what is perhaps the most graphic depiction of prison sex to reach the American public, comedian Chris Rock popularized an account of life behind bars that was so over the top it became known as the “Tossed Salad Man.” The original (decidedly noncomedic) version appeared in an HBO documentary in which one large and charismatic gay prisoner described his modus operandi in all-too-clear terms: “First of all, if he’s a newcomer, I want him to suck my ass with jelly. That’s the slang word, tossing salad. It means sucking my ass, right? With jelly or without jelly. Some people prefer syrup. I prefer the guy to use jelly.” According to the prisoner, the nominally straight man can at least pretend he’s licking a woman. The prisoner then attempts to reassure the viewer: “It’s clean. The person is decent.” Chris Rock declared the Tossed Salad Man a greater deterrent to crime than the death penalty. And yet although most of us would never wish this sort of experience on another human being, by allowing the prison system to continue unchecked, we effectively do just that.
Without gang protection or a long-term committment to solitary confinement, the danger of sexual assault is ever-present. Take this account from another inmate:My biggest fear of being in this place isn’t, you know, getting out alive is something, too, but you don’t have to do anything to become a victim. And there’s no one man strong enough to come against a group of five or six. And if somebody gets a wild idea in their mind, that they want to do something obscene or what have it to you, there’s nothing I can do if they catch me in the wrong spot and the wrong time.
Faced with this predicament, some prisoners submit to semiconsensual sexual acts. Still others simply make do with whatever options are available.
The perpetual threat of violence, sexual or otherwise, is interspersed with long periods of monotony. This account comes from an online prisoner message board:At the end of the day it’s the fucking boredom. I’m surprised prisons aren’t worse than what they are. You ever see what happens when you just give nothing to do to high schoolers or middle schoolers? It won’t last long, they’ll come up with something to do which will likely hurt someone or break something. Now imagine if those kids are grown men there for violent offenses. Now imagine if there was some kind of society built around this concept. BAM! Prison.
In response to boredom and fear, many prisoners turn to drugs and alcohol to pass the time. Drugs, smuggled in by guards and visitors alike, are readily available in prison (the inability to keep even prisons free of drugs is perhaps the best illustration of the futility of the war on drugs). One prison dealer estimated that 75 percent of prisoners get high. He put it this way:If it wasn’t for drugs in this prison, you’d have a lotta more violence going around. Ain’t nothin’ in here. Ain’t nothing in here. So when you got anger and frustration and prison and time, that’s going to breed violence. So now when you got a little something that is going to sedate the violence? They should be lucky guys like me is inside the penitentiary.
If you’re stuck in prison, why wouldn’t you take drugs? What else are you going to do?
Prisoners seek out the standard recreational drugs, particularly marijuana, alcohol, and heroin, as well as legal prescribed pharmaceuticals, which have the added benefit of being free when administered by medical staff. In prison, drugs get marked up anywhere from five to forty times their street value, with the price generally rising with increased distance from a big city. Payment happens in cash (which is also illegally smuggled into prisons), commissary accounts, and any material possession, as well as through nonincarcerated friends. “I mean,” says one drug dealer, “how would you pay if you owed me money and you were in prison, and you were scared for your life? You’d pay the best way you knew how. You would call your people: ‘Get me some money down here.’ You’d find family from somewhere to get you some money down here.” But if you can’t pay? “You’d become my”—this is how the drug dealer puts it—“something like
a jail slave. Every time you get paid, it would go to me. Until I feel as though the debt is paid.” Compared to this, flogging looks better and better. Undoubtedly flogging is no dream, but at least it won’t put you in deeper debt.
To outsiders, prison is a black box, a mystery of hellish proportions. To inmates, it’s still hellish, but much less of a mystery. Prison is like spending years in a torture chamber, but with a higher risk of catching a communicable disease. If we really wanted to punish people with something worse than flogging, we could sentence drug offenders to join gangs and fear for their lives; we could punish child abusers to torture followed by death; we could force straight men to have semiconsensual prisongay sex. But we don’t because we’re better than that. Or at least we like to think so. All these things already happen, but we just sweep them under the rug and look the other way.
The numbers that describe the criminal justice system in America are not encouraging—but you didn’t really think they would be, did you? In the nation’s largest seventy-five counties, fifty-eight thousand defendants are charged with felonies each year, half of whom have multiple prior convictions. Of the accused, four in ten are charged with drug crimes, three in ten with property crimes, two in ten with violent crimes, and one in ten with a public order offense. Forty percent of suspects are kept in jail awaiting adjudication, while the rest pay bail or are released on their own recognizance (of those released, about a third get into more trouble before their case comes up).
Poor people, innocent and guilty alike, and even low-level nonviolent offenders languish in jail for days, weeks, and even years before their day in court. More than 10 percent of felonies take more than a year to resolve. But the majority of people in our jails have not been convicted of any crime. Jail is supposed to be for brief detentions before trial and for sentences of less than one year (sentences of more than a year are usually served in prison). If you have to pay bail—and through a bail-bond agent, you generally need to come up with only a fraction of the actual bail amount—you can pay and get out.
In New York City more than three-quarters of nonfelony defendants are released on their own recognizance. But of 19,000 misdemeanor cases with bail set at $1,000 or less, 16,500 did not post bail. No matter how low bail is set, if you don’t have it, you stay in jail. The average stay for these minor offenders was sixteen days, which costs the city approximately $3,000 per person.
Every year millions of people like this get funneled through a very dysfunctional criminal justice system that is too overwhelmed to properly administer justice. Literally and figuratively, justice is pleabargained. Given the capacity of our courtrooms, most cases can’t go to trial. For serious crimes—prosecuted felony cases—fewer than one in twenty goes to trial. Baltimore City, where I worked, provides a typical example. The city’s Circuit Court has ten thousand felony cases a year and the capacity to hold five hundred jury trials. Something has to give, so the system does its best to clear its caseload. In the seventy-five largest counties, about two-thirds of defendants accept a guilty plea, and most of the rest have the charges against them dropped. The small remainder are “diverted” (into drug treatment, for instance) or have “exceptional” outcomes (such as the suspect’s death).
Nationwide, three-quarters of those who plead guilty to felony charges are given time behind bars. But with time served and a median sentence length of a year, simply saying you’re guilty can allow you to walk free. If you refuse to accept a guilty plea—you might be innocent—you stay behind bars to wait your day in court. In a further Orwellian twist, some suspects spend more time in jail awaiting trial than the maximum possible time they could receive even if found guilty. Such can be life if you’re poor and innocent and stubborn.
Of course it’s not that everybody in jail is an innocent victim. People usually have some behavioral problems before they go to jail, but these problems just get worse behind bars. In jail people naturally fulfill the role expected of them. Consider Philip Zimbardo’s notorious 1971 Stanford Prison Experiment. Two groups of college students were randomly assigned to play the role of either prisoners or guards in a make-believe prison experiment (it was pretty realistic in that students were “arrested” on the street and the prison was a refitted basement in the psychology department building). Both groups fell all too readily into their arbitrarily assigned roles: Students who were objectively similar just a few days earlier began acting like guards and prisoners. After only six days, the experiment had to be called off because “guards” were abusing “inmates,” and some inmates were beginning to rebel, and others started to crack psychologically.
Almost as horrifying as what goes on in modern jails and how so many people wind up there is what happens after they’re released. Whereas the process that sends so many Americans to prison is fundamentally defective, getting out of prison is equally problematic, albeit in different ways. Coming home after prison is called “reentry,” and like every other stage of the criminal justice system, it fails. Just take the simple standard of making people not commit crime: Of the more than seven hundred thousand prisoners released each year, two-thirds are rearrested within three years, and half end up back in prison. Why? Maybe they’re bad eggs. But even good eggs can do stupid things when they’re without money, a stable home, antipsychotic medication, common sense, or the ability to find a job. Whatever circumstances led somebody to commit a crime probably haven’t changed by the time they’re freed. A released prisoner hangs out with the same friends in the same neighborhood and without the same job he never had. Or maybe a prisoner is a badass who enjoys adrenaline and the thrill of the crime.
Part of the problem is that not only do prisons not “cure” crime, they’re truly criminogenic: Prisons cause crime. When released, people who go to prison are more likely to commit a crime than similar criminals who don’t go to prison. This should be no surprise considering what happens when you group criminals together with nothing to do and all the time in the world. People make associations, form bonds, learn illegal skills, and reinforce antisocial norms.
Furthermore, to point out the obvious, criminals often come from neighborhoods with more crime. But what may not be obvious is the direction of the relationship between the two. It is not just that high-crime neighborhoods increase incarceration; high-incarceration neighborhoods also increase crime. Prisons and the war on drugs have turned entire neighborhoods into self-sufficient criminal creators. Currently, at some point in their lives, more than 50 percent of black men without a high school diploma do time in prison. Moreover, these men disproportionately come from very specific neighborhoods. A few years ago a researcher did an innovative analysis that highlights a phenomenon dubbed “million-dollar blocks.” These are individual city blocks where more than $1 million is spent each year to incarcerate people from that block. Some particularly high-crime blocks require more than $5 million per year. This is money we’re already spending, but poorly.
When too many young men from one neighborhood are in the criminal justice system, whether locked up or on probation or parole, the area reaches a tipping point, after which it can’t function properly. When such a large segment of the population is sent away, everybody loses. Crime increases because a significant portion of the male population is not present. Of course there is a community benefit when a criminal menace is removed from the streets, but not all prisoners are menaces or will commit crimes all the time. And even bad people have some attributes that help their family and community function. From behind bars a prisoner can’t be a father, hold a job, maintain a relationship, or take care of elderly grandparents. His girlfriend suffers. His baby’s mother suffers. Their children suffer. Because of this, in the long run, we all suffer.
Consider the length of our sentences. There’s no evidence that longer sentences deter crime. Unfortunately, we don’t hear much of a call for shorter sentences for criminals. But the more time prisoners serve, the worse they and their job prospects will be upon release, and 95 percent
of prisoners get released. What would happen if we just cut sentences in half? It’s not too hard to imagine; Canada, just across the border, gives us a clue. The majority of all incarceration sentences in Canada are for less than one month. In Canada those convicted of “major assault” receive an average sentence of thirtynine months. In America, however, the equivalent mean sentence for any violent offense is sixty-seven months. Shorter sentences are not the only reason for Canada’s lower rates of crime and incarceration, but it’s a small contributing factor.
In truth, even though very few people openly advocate that all prison sentences should be life sentences, all too often, that is essentially what happens. What would you do as a released felon? Get a job? On a job application there’s a little box where you can write a paragraph to explain your felony conviction. Go ahead and write the best story you can, because it won’t matter. When a potential employer asks if you’ve ever been convicted of a felony, there’s a correct answer—and it’s not “Yes, but. . . .” Given the choice between a convicted felon and a nonfelon, why hire the felon? There’s almost always a hard-working immigrant applying for the same job. And immigrants effectively get any criminal history expunged when they cross the border. Most of these immigrants do quite well, at least judging from the disproportionately few, compared to native-born Americans, who end up in prison. Maybe some US citizens deserve a similar clean slate.