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Cruel and Unusual

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Emily Costa
December 15, 2017

I’ve always thought the Constitution was interesting. I’ve wanted to know the words more closely and feel proud of them. I’ve read the document. I’ve read the Amendments. I keep coming back to the Eighth: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Without a criminal record or an arrest experience, I am merely an onlooker, but it is obvious. Excessive bail and fines aside, the Eighth Amendment to our Constitution is not now, and perhaps never has been, upheld.

The pre-modern era of prisons in this country deeply frightens me. Narrow and wet hallways crawling with rats. A darkness that never turns to light. Women and men housed together on the brink of starvation. Rampant crime, rape and disease. I took a class about the history of poverty during my undergraduate years. The public poor houses were like prisons. Poverty, like crime, was a personal fault, not a societal condition.

The Quakers were among the first to challenge this assumption. And like everything else in American history, incarceration became deeply intertwined with religion, reformation and redemption. Quakers in Pennsylvania saw the suffering of those incarcerated and believed they could change the prisoner’s spirit. This concept was radical for the early Nineteenth Century. As Christian biblical teachings describe, sinners must repent. Enough repenting could reform not just society’s best, but the worst criminals and miscreants too. One look at the criminal justice system today, and it’s clear we still believe this.

The restructuring of prisons in Pennsylvania was two-fold, beginning in the mid 1800’s. First, build clean and orderly facilities and house each gender separately. Second, make prisons a site of redemption and reformation, although this was never quite recognized. Prisoners would be housed alone with little to no human interaction. Identities unimportant, meals through a door hole. Guards would be stern and violent if necessary. But most importantly, prisoners would read the bible and repent. They would ask for forgiveness and reform their bad ways. Depending on their crime, they might someday be deemed fit to re-enter society.

Much of these structural concepts survive today. Barren barracks filled with small, secured rooms. A total domination of the prisoner and his daily routine. Punishment over positive reinforcement. Solitary confinement as a method of control, not redemption. It’s hard to stomach the similarities because there are so many.

Practically, we must consider what we know about mental health today compared to what we did in the early 1800’s. There is ample data that favors the reward method versus punishment. There is also ample data on how mental health issues may lead individuals to commit crimes. Evidence of incarceration helping to further criminalize individuals instead of reforming them has been studied over many years, by many different researchers. Therefore, I don’t know how the history, or the implementation of incarceration, can be categorized as anything but “cruel and unusual.”

In 2016, Keramet Reiter published 23/7: Pelican Bay Prison and the Rise of Long Term Solitary Confinement. Her book focuses on the violent past of the California Prison System and the scars it endures today. Namely, the extended use of solitary confinement. “Most of these marks (scars) date to his early twenties; he has had virtually no human contact in the intervening decades. In 2015, Todd was fifty-two years old and had been in continuous solitary confinement for almost thirty years. He spends at least twenty-two hours of every day; locked in a windowless concrete cell measuring eight by ten feet…fluorescent lights remain on all day, every day.” Her book goes on to tell the details of Todd’s personal history, which mostly makes me cringe. Mainly, Reiter recounts his time in prison when he was young and how he became radicalized by white supremacists. This period of violence led to further convictions and incarceration. Ultimately, that is why his life serves as an interesting case. His “threat to society” upon entering prison wasn’t terminal. He was convicted of theft and burglary in his early twenties. His upbringing was difficult. Prison did change him. His changes didn’t lead to reformation or redemption though.

I understand the need for criminal justice. It would be naïve to believe there are not individuals who pose a threat to society. The Quakers got nearly everything wrong, except for the concept of redemption. Incarceration should be an opportunity to reform society’s sins of poverty and social injustice. It should be a place that recognizes the mental sensitivities of its population and implores itself to correct, instead of nurture, them.

Long-term solitary confinement is linked to severe mental anguish, anxiety and depression. It’s both cruel and unusual. More unsettling is that society’s view of criminals hasn’t changed. Realistically, many of society’s greatest flaws create criminals and their bad behavior. Ironically, many of them are sins too. That is what is really cruel and unusual.

Author: Emily Costa is a Master’s in Public Administration Student at Roger Williams University in Rhode Island. While pursuing an Undergraduate Degree from Rhode Island College in History, she became highly concerned with issues of social inequity and their intersection with Public Policy. Her greatest future aspiration is to receive a Doctorate Degree. [email protected]

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