Ten-year-old Christian, acused of family violence, sits alone in his cell. It sounds harmless: “pre-trial detention.” But the reality is far different. In a squat block building in Laredo, Texas and in similar places around the nation children await trial or placement in concrete cells while the underlying issues that led to their behavior fester. Some are addicts who need treatment; others are kids battling mental illnesses. Many are angry and have been virtually abandoned by absentee or irresponsible parents. Some spend a few days, others months, but despite the efforts of a small corps of dedicated professionals, few actually receive treatment for the issues that brought them to juvenile hall. Photo: Steve Liss.

Last Autumn, I popped my head in at The New Yorker offices. If you can get yourself to the 20th floor of the Conde Nast Building I recommend it; lovely folk and The New Yorker’s photobook library is a treat.

When TNY staffers Whitney Johnson and James Pomerantz asked if I could recommend any prison photographers, I thought, ‘Yeah, how long have you got?’ Turns out, they already had the feelers out; they just wanted to check they had not overlooked anyone.

In the end they plumped for Steve Liss’ image of an incarcerated youth (above). In negotiating the image use, Steve was given – in a separate Photobooth blog post – a platform to talk about the collective American Poverty he founded. Fair trade.

Steve Liss at his desk at Columbia College, Chicago with an image from No Place For Children to his back. Photo: Pete Brook

To be honest, back in November, I was just pleased to hear The New Yorker was doing a feature piece on American prisons. 10 weeks down the line, we now know that that feature is Adam Gopnik’s The Caging of America.

Gopnik delivers a scathing – but eloquent – telling of the story of mass incarceration in the U.S. He opens, as he should, with the shocking facts:

“There are more black men in the grip of the criminal-justice system—in prison, on probation, or on parole—than were in slavery then. Over all, there are now more people under “correctional supervision” in America—more than six million—than were in the Gulag Archipelago under Stalin at its height.”

and,

“In the past two decades, the money that states spend on prisons has risen at six times the rate of spending on higher education.”

and,

“Every day, at least fifty thousand men wake in solitary confinement […] where they see no one, cannot freely read and write, and are allowed out just once a day for an hour’s solo “exercise.” (Lock yourself in your bathroom and then imagine you have to stay there for the next ten years, and you will have some sense of the experience.)”

and,

“Prison rape is so endemic—more than seventy thousand prisoners are raped each year—that it is routinely held out as a threat, part of the punishment to be expected. The subject is standard fodder for comedy, and an uncooperative suspect being threatened with rape in prison is now represented, every night on television, as an ordinary and rather lovable bit of policing. The normalization of prison rape—like eighteenth-century japery about watching men struggle as they die on the gallows—will surely strike our descendants as chillingly sadistic.”

But where most of us might sit tight on feelings of anger or helplessness, Gopnik tries to find out why America cages people at six times the rate of other developed nations.

Gopnik leans heavily on the hypotheses of two formidable thinkers.

First, on the late William J. Stuntz, a professor at Harvard Law School who argued in his book The Collapse of American Criminal Justice that the scandal of our prisons derives from the Enlightenment-era, “procedural” nature of American justice and that the Bill of Rights favours procedure over principles.

Second, Gopnik summarises the work of Berkeley Law criminologist Franklin E. Zimring. His new book The City That Became Safe tries to fathom the dramatic drop in crime in New York in the context of what happened in the rest of America. “One thing Zimring teaches us,” says Gopnik, “is how little we know.”

In the first case, common sense does not prevail. If a trial is deemed to have been conducted correctly, then factors such as inadequacy of council, prosecutorial misconduct to the disadvantage a defendant may not be of importance; the legal procedure has been carried forth. It takes a lot to win a retrial. On the other hand, a defendant who is clearly guilty, may be set free due to a minor legal technicality.

In the second case, common sense – or more precisely compassion and dexterity of process – it is argued is all we might have left. Zimring shows us that New York’s 40% drop in crime, “didn’t come from resolving the deep pathologies that the right fixated on—from jailing super predators, driving down the number of unwed mothers, altering welfare culture. Nor were there cures for the underlying causes pointed to by the left: injustice, discrimination, poverty. Nor were there any “Presto!” effects arising from secret patterns of increased abortions or the like. The city didn’t get much richer; it didn’t get much poorer. There was no significant change in the ethnic makeup or the average wealth or educational levels of New Yorkers as violent crime more or less vanished.”

Instead it came partly from attentive policing in high-crime areas:

“As Zimring puts it, that a ‘light’ program of stop-and-frisk could be less alienating and just as effective, and that by bringing down urban crime stop-and-frisk had the net effect of greatly reducing the number of poor minority kids in prison for long stretches.”

This is an uncomfortable thesis for liberals and civil rights lawyers, but Zimring isn’t in the business of placating political groups and Gopnik is not in the business of avoiding difficult propositions.

The long and short of it is that the legal system is too rigid to adapt and that cultural ideas shift far quicker than legislators will, or are able to, respond to. Gopnik also suggests that too much of law-making is attached to partisan politickers unwilling to entertain approaches that don’t fit their staked ideology, even when actually work. In that way Gopnik echoes the arguments of beat cops and community workers who from first hand experience can tell you what is effective and what is not.

Gopnik amplifies Zimring’s conclusion that prisons have had very little effect in reducing crime. A multitude of other factors achieved that. Gopnik notes that 1 in every 100,000 men will commit a very serious violent act and these individuals should be locked away. You’ll get few arguments from prison reformers on that. But what of the other 730? (The U.S. incarcerates 731 per 100,000 people).

Surely then, it is incumbent on us as a society to demand non-custodial sentences for non-violent crimes. Clearly the drug war has failed, and drug users need treatment not imprisonment.

If there is one weakness in Gopnik’s article it is that he repeats too often his example that decriminalising marijuana would be a step in the right direction. Of course, it would and so would his other suggestions of “ending sentencing for drug misdemeanors and leaving judges free to use common sense (and, where possible, getting judges who are judges rather than politicians)” but we’re given no indication of how much of an effect the decriminalization of marijuana would have on reducing the prison population.

GOPNIK’S ARTICLE ARRIVES AT THE RIGHT TIME

These are enlightened times.

This week, dozens of people have emailed me to say that they’ve been affected by Gopnik’s article.

One prominent photoblogger wrote:

What’s interesting is that the article really illuminated the issue for me with several “ah-ha” type moments. Why is that photography doesn’t or can’t do that? I mean, I’ve been following Prison Photography for a couple years now and haven’t really had one of those “ah-ha” moments. Maybe I wasn’t paying enough attention? Or maybe I’m NOT looking for those “ah-ha” moments from photography.  It all fits together though. I mean, now that I’ve read the Gopnik article, I view your work with Prison Photography much differently.

One prominent photographer wrote:

The whole business of  emphasis on process over principles, I can’t tell you how often when I was doing the documenting the public defender and the courts that I thought this isn’t about justice this about slavery to the law. But what I really meant was that it was slavery to process. I ran into even more glaringly with a story on a death row prisoner in Missouri. The Missouri Attorney General actually said it didn’t matter that he was probably (actually he was more than probably) innocent, he had gotten a full and fair trial and they were going to kill him.

So there are two very important things for me to take away.

One – that I must always be crystal clear not only about what I write, but why I write. There are so many problems (death penalty, juvenile incarceration, aging prisoners, inadequate healthcare, poor representation for the indigent, separation of families, control of media, physical and psychological abuse, private prisons, immigration policy and detention, absent education and rehabilitation) with the criminal justice and the prison systems that each needs its space … and people need time to digest the issues and synthesise the information.

Two – the burden on me to talk about these complex issues in a clear way is made only more important because I think we’re experiencing something of a zeitgeist moment. More and more in mainstream media, the prison system is being discussed and challenged; practices that were considered standard are being looked at again; politicians from across the spectrum are happy to be “sensible on crime” instead of “tough on crime” (they may not share the same solutions but they’re agreeing that the system is broken.)

I really do feel we’ve past a tipping point and that the American people are aware now how their communities have been wrecked and that their money has been wasted.

The failed policies that created mass incarceration need to be scrapped and more humane solutions sought. For opponents, America’s archipelago of prisons has always been a moral issue, but now we see everyday Americans and their politicians speaking of it in the same terms. I’m hopeful we’ve begun to turn the corner.

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