What is a Prison? Who is a Prisoner?

In the recent dystopian film by Alfonso Cuaron, The Children of Men (2006), [read the New York Times review by Manohla Darghis] viewers are taken into “Bexhill Refugee Center” a massive detention facility for “illegal immigrants” in the United Kingdom. Located along a sea-coast (the film’s action perversely requires the characters to sneak into this facility in order to meet a ship that will carry them to safety), the detention center looks much like a conventional prison on the outside. It is surrounded by perimeters of razor wire and the detainees encounter a large staging area in which security personnel bustle about separating out some and loading others onto buses for transport deeper inside the facility. But once led off the buses, the detainees find themselves in what appears to be an extremely chaotic and impoverished third world city. The detainees find themselves surrounded by a swirl of hawkers offering lodgings and other kinds of assistance, for a price. The lodgings to which our protagonists are led, consists of a windowless room with a mattress, some buckets of water, and a few implements for preparing food. Some buildings retain markings of former functions, e.g., a bank, a water purification facility, but are now occupied by a deracinated aggregation of individuals and families from all over the world who have come to the UK as refugees (the rest of the world appears to have become one large failed state) only to be arrested as illegal immigrants, held in cages and transported to this detention center by a militarized “homeland security” force.

This dense and roiling city appears to be regulated mainly by local norms that can only be imagined, enforced by individual or small group violence (although later we see armed members of what appears to be an Islamic militia like those that dominate Gaza or Baghdad). The force of formal law and governmental control seems to end at the door of the buses in which the arriving detainees are transported, save for a recorded message broadcast in the entry area which urges refugees not to engage in terrorism, reminding them that the are guests of the UK and under its protection. But that reassuring message of sovereign promise appears to be utterly false. The uniformed personnel of homeland security only enter the city to repress an uprising, and when they do it is as a military phalanx complete with armored personnel carriers and tanks, to direct lethal force against armed militants and any other detainees who happen to be in the way (the reference to current conditions in the middle-east are inescapable).

While the Cuaron and his colleagues were clearly influenced by images coming out of Iraq and other suffering zones of the middle-east, the presentation of Bexhill fits perfectly into the political theorist Giorgio Agamben’s celebrated analysis in Homo Sacer of the concentration camp as the distinctive technology of late modern governance and social control. Inside Bexhill are packed refugees (pejoratively referred to as “fugees” by the hostile homeland security officials), persons who have no legal or political standing in the society. It is a space only of containment, with no promise of transformation, reformation, or restoration to any more desirable status. Indeed it is left unclear whether anyone is ever deported from Bexhill, or given a hearing on their refugee claims, or only die there (although it is not primarily a killing camp like Auschwitz).

The Bush Administation’s “war on terror,” particularly the wars in Afghanistan and Iraq, have generated all too many such horrifying imagines, especially the US controlled facilities at Abu Ghraib and in Guantanamo Bay, Cuba. A recent New York Times story by C.J.Chivers [read the story now] described the incarceration of alleged insurgents held by the Kurdish authorities in Northern Iraq and painted a similar picture of scores of men held in large group cells with little access to hygiene, exercise, and no work, recreation, or educational programs. Like the refugees in The Children of Men, the prisoners in all these facilities have no clear legal path to freedom, no clear way out detention, indeed, no clear future at all.

These new spaces of containment that have proliferated during the recent war, confront us with problems of classification and even description. Should we think of them as prisons (the media often uses this term) and their inmates as prisonsers? Some of the inmates are immigrants, others insurgents, others criminals, all stand in some form of illegality (or non legality). These questions are all the more pressing because of the massive expansion of conventional prisons for convicted criminals in the US (and to a somewhat lesser degree in the UK and many other societies). In what ways do prisons for criminals remain distinct from "camps" "centers" and other custodial facilities set up to contain emerging subjects of state control including illegal immigrants and unlawful combatants? How will the rise of these new institutions of confinement alter the three century long tradition of prisons as spaces of control for lawfully convicted criminals?

In a series of postings during January I hope to offer some preliminary analysis of these vital questions (please share your thoughts and comments).

Saddam’s Execution: Rule of Law or Rule of Tyranny?

Responding to the news Saddam Hussein's execution on December 30, 2006, President Bush noted that Hussein "was executed after receiving a fair trial --- the kind of justice he denied the victims of his brutal regime." (read the New York Times story by Marco Santora, Mames Glanz and Sabrina Tavernise). President Bush's comment echoes a theme that has been frequently sounded by his administration in describing the trial and execution of the former dictator of Iraq, i.e, that both reflect the replacement of the rule of tyranny by the rule of law. Yet several controversies surrounding Saddam’s trial and execution tend actually to blur the lines between tyranny and law rather than clarify them.

• The conduct of the trial against Saddam in which he was sentenced to death has been widely criticized as lacking crucial features of due process. Most importantly, Saddam’s lawyers faced lethal violence (several of them were killed) and the judge who presided over the trial was replaced by action of the ruling Shiite regime allegedly because the sitting judge had shown too much deference to Saddam. This action clearly placed the succeeding judge on notice that the government would accept nothing less than a conviction and capital sentence against Saddam.

• The crime for which Saddam was sentenced involved itself a situation of state execution in which scores of Shiite men and boys were executed for alleged involvement in an assassination attempt against Saddam himself in the town of Dujail. While these executions clearly defied international law and human rights norms, they were authorized by Iraqi law and Iraqi national sovereignty. Unlike some of the Baath regimes other atrocities, these killings took place after trials (no matter how lacking in due process) and represented a response to an alleged act of violence against the regime. Since the trial and execution of Saddam also lack international legitimacy, they too must rest on claims of sovereignty and positive state law, just like the executions for which Saddam was tried.

• The hasty execution of Saddam for the Dujail killings will cut off the current trial in which Saddam stands accused of poison gas attacks against Iraqi Kurds during the Iran-Iraq war, as well as any future trials involving other atrocities. These trials could have served a number of ends vital to the formation of a successful Iraqi nation. One of the most important is establishing a clear historical record of Baathist atrocities by giving a full and open hearing to the defenses that have been and will continue to be offered for Saddam’s actions (e.g., the notion that the gassing was a legitimate act of national defense carried out under the authority of a national leader during a time of war). Another end is to build national unity by documenting the widespread suffering of different communities within Iraq. The hasty execution of Saddam for a crime limited to Shiites, to the exclusion of a full hearing of the grievances of other communities, sends the unintended (or perhaps precisely intended) message that the new Iraq is a regime by for and of the Shiites who intended to dominate all other communities.

As Austin Sarat has argued, capital punishment even under well established court systems like those in the US since the resumption of death sentencing in the 1970s, erodes respect for the rule of law. This is all the more true of the far less reassuring circumstances of today’s Iraq. Saddam’s execution will convince many that the rule of tyranny is far from dead in Iraq.

New Dawn for California Prisons?

Perhaps its a fitting symbol for penal policy in America, but one of the boldest moves to remake California corrections in at least 30 years is being announced on the Winter Solstice, the darkest, shortest day of the year. Governor Arnold Schwarzenegger, recently re-elected by a substantial majority, plans to announce a sweeping package of construction and reform plans for California's swollen prison system today (read the SF Chronicle story by Mark Martin and Greg Lucas). The major part of the plan would allocate nearly 10 billion dollars in new spending to expand correctional facilities. Four billion would go to new prisons and "re-entry programs" (these are likely to mean smaller secure facilities in major cities designed to hold inmates during their last months before release with the aim of improving re-integration into the community before release). Another four billion will go to new county jail space offered on the grounds that counties keep thousands of short term (3 years or less) state inmates in county jails rather than sending them to the state's over-crowded prisons. One billion would go for building new hospital and mental health facilities for the state's aging and probably mentally degenerating prison population. There are several things to note right away about this mammoth spending proposal. First, and most alarming is that at the end of this initiative, California's "penal capacity", is apparatus of punishment, will be larger than it is today, after thirty years of expansion. There may be fewer prisoners in California prisons (although we'll have to see if even that comes to pass) but there are likely to be even more Californian's undergoing penal custody in a jail, "re-entry facility" or juvenile lock up. Second, a whole lot more money is going to be spent on corrections and ultimately into the pockets of the broad industry that builds, fills, and feeds prisons (what some have called the "prison industrial complex"). This shows the vitality of the "patronage state" the structure of interest rewarding that has been linked to political power since the birth of the Republic (even as it has been overlayed by other circuits of political power). The lubricant of policy change is and remains spending lots of new money. Third, much of this appears to be driven by court orders and hearings by three different federal courts considering law suits against California. Just yesterday, two former heads of California's correctional agency, who resigned within six weeks last spring, testified in Judge Thelton Henderson's court yesterday that they quit because the Governor's new political advisors appeared intent on shutting down management reform and cozying up with the state's powerful correctional officer's union. That this political advise was probably sound, and the implication that reforms can only be initiated after the re-election of a term limited governor should be a moment of sorrow to all of us who believe in Democracy. More importantly, the threat of an actual population cap is a potent one because it challenges one of the key elements of California's "carceral state" ( the political authority linked to its capacity to punish), i.e., the potential to incarcerate subjects deemed dangerous. It is this latter point that leaves me skeptical that this massive spending will lead to anything more than a larger and even more punitive system in a decade.

The greater hope lies in the Governor's other major proposals. One would create a sentencing commission to consider revising California's severe sentencing laws. The other would remove the requirement of parole superivsion (currently three years of which follow the completion of almost every prison sentence in California) for some non-violent offenders. The former, opens the door to a much more promising way of shrinking the prison system, by limiting somewhat the capacity of California's proecutors to move portions of their local population to state prison. But just for this reason, look for the legislation to create any such commission and the issue of who serves on it to be hard fought and protracted. The latter is a sad acknowledgemnt of what I showed in my book Poor Discipline: Parole and the Social Control of the Underclass, 1890-1990, over a decade ago; parole has been remade from a mechanism of community re-integration to a mechanism for removing people from the community and keeping them integrated into the correctional system.