For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).
Judith
Resnik’s important new book, Impermissible
Punishments: How Prison became a Problem for Democracy, sets itself several
tasks and largely accomplishes them. It
lays out a history of the prison, focusing on prison brutality and efforts to
rein it in. It argues that prison brutality
violates our “democratic commitments to treat each person as an equal.” Finally, it proposes a solution: The
anti-ruination principle – the idea that, whatever punishment the government
inflicts on a person, it may not inflict ruin.
This
book should be read by every person interested in prison law, and by every
Justice of the Supreme Court. The history it sets forth is fascinating,
disturbing, and ultimately infuriating.
Despite the efforts of many well-intentioned individuals and groups,
incarceration has repeatedly resulted in brutal, dehumanizing treatment of
those subjected to it. Moreover, the
idea of an anti-ruination principle to ameliorate this problem is both morally
and (potentially) legally compelling. But the book raises some fundamental
questions that need answering before the moral can be translated into the
legal. I will focus on some of these and will then propose my own (not entirely
satisfactory) answer.
1.
Are “democratic principles” of equality really the basis for the anti-ruination
principle?
Impermissible Punishments seems to treat democracy as a
self-justifying source of a comprehensive moral order. Our commitment to democracy, the argument
goes, requires a commitment to equality. Our commitment to equality requires commitment
to a whole variety of specific policies – not merely policies against brutal
prison conditions, but also policies providing comprehensive social services
both inside and outside prison.
This
argument seems to treat democracy as the ultimate ground for moral reasoning –
but it is not. We are not committed to
equality because of our abiding conviction in democracy; rather, we are
committed to democracy because of our conviction in the fundamental dignity and
equality of each individual person. Democracy is the result of moral reasoning,
not the source of it.
This
distinction is important because it means we need to look beyond politics to
understand what equality is and how it cashes out in practice. Historically, at
least in Europe and America, the idea of equality and human dignity comes from
the Judeo-Christian belief that every human being is created in the image and
likeness of God. Whatever crime a person has committed, and whatever punishment
he deserves, he still possesses the same core dignity and equality as his
fellow human beings. Slave-holding Athens, the progenitor of democracy in the
West, did not believe in equality in the Judeo-Christian sense. Although Impermissible
Punishments speaks in the language of Athens, its moral commitments seem
to derive more directly from Jerusalem.
And appropriately so, for the Judeo-Christian idea of equality is the
foundation of American democracy (“We hold these truths to be self-evident…”). America’s accommodation of slavery at its
founding and its tolerance (or even encouragement) of various forms of
invidious discrimination ever since shows that we often fail to live up to this
commitment. But if this commitment were
not the foundation of our society, we could not criticize prisons for violating
the anti-ruination principle - for the principle simply wouldn’t apply.
Just
as the anti-ruination principle does not derive from the logic of democracy, it
is not inconsistent with other social and political orders. Indeed, Professor Resnik traces the
anti-ruination principle back to Magna Carta, a document from a distinctly hierarchical
and non-democratic society.
In
short, both equality and the anti-ruination principle must be based on an
adequate moral anthropology. We cannot
commit to either principle unless we have some idea of who we are as human
beings and why we matter.
2.
What counts as ruination? Is punishment
itself permissible?
Impermissible Punishments does not set forth a positive
account of the legitimate purposes of punishment. At one point, the book
references the legitimacy of “seeking public acknowledgement that an individual
has unlawfully intruded on other people.”
Later, it says that “putting some form of confinement in place marks the
radical injuries caused by an individual.”
These descriptions imply that punishment may serve an expressive
purpose, but perhaps not a retributive one.
The book briefly mentions deterrence and incapacitation but does not endorse
them.
At
the same time, the book argues that the anti-ruination principle requires that
“prison life should approximate community life” and should “approximate the
normalcy of free movement.” The book
also implies that the government has an affirmative obligation to help
prisoners “thrive outside of prison,” although it rejects the idea of
rehabilitation because it entails working “on” rather than “with” prisoners.
This
discussion raises the question of whether punishment is permissible at all
under the proposed anti-ruination principle. Blackstone, for example, made a distinction
between punitive and non-punitive confinement. He wrote that because pretrial
prisoners were held “only for safe custody, and not for punishment,” they “ought to be used with the utmost humanity; and neither be
loaded with needless fetters, or subjected to other hardships than such as are
absolutely requisite for the purpose of confinement only.” American courts also recognize a distinction
between punitive and non-punitive confinement.
If the anti-ruination principle requires that prisoners “ought to be
used with the utmost humanity; and . . . [not] subjected to other hardships
than such as are absolutely requisite for the purpose of confinement only,” is
punishment permissible at all, or merely non-punitive confinement? On the other hand, if the anti-ruination
principle does not prohibit all hardships that are not strictly necessary to
effectuate confinement, where are we to draw the line?
3.
The original meaning of the Cruel and Unusual Punishments Clause
I
have argued elsewhere that in the context of the Eighth Amendment, the word
“Cruel” originally meant “unjustly harsh” and “unusual” meant “contrary to long
usage.” A punishment is “cruel and
unusual” if it is unjustly harsh in light of longstanding prior practice. There is no requirement that the punishment
be motivated by cruel intent; the relevant question is whether the punishment
has an unjustly harsh effect. The
baseline for measuring cruelty is neither current societal consensus (as called
for by the evolving standards of decency test) nor the societal consensus of
1790 (as called for in Justice Scalia’s Harmelin opinion). Rather, it is
the consensus of multiple generations, up to and including today, as revealed
through the actions of legislatures, prosecutors, judges and juries. The tradition may develop over time, as some
practices fall out of the tradition and some enter it, but it also maintains a
fundamental continuity.
The
normative basis for this approach to deciding questions of cruelty derives from
the common law, which was traditionally called the law of “long use and
custom.” The basic idea was this: We may all agree on core principles of
justice (for example, the equality principle), but it is often difficult to
translate such principles into practice reliably. What counts as cruelty? What counts as ruination? Common law thinkers concluded that the
longstanding customs of a free people were the most reliable way to determine
what practices were just, reasonable, and enjoyed the consent of the
people. Therefore, if a practice was
universally received over a very long period of time, it was legally
enforceable and presumptively just. If a
new practice violated a right established through long usage, on the other
hand, it was considered unjust because it was “unusual.” This mode of thinking provided the
justification for the American Revolution and underlays many of the provisions
of the Bill of Rights.
Under
the common law reasoning that underlies the Cruel and Unusual Punishments
Clause, a punishment might constitute “ruination” if its effects are
significantly harsher than those traditionally given for the same or a similar
crime. Because punishments traditionally
involve some infliction of physical or psychological pain, an anti-ruination
principle would not necessarily require that life in prison closely approximate
life in the community, although it certainly would condemn many of the harsh
and degrading prison conditions identified in Impermissible
Punishments.
4.
The problem of prison.
That
being said, prison poses a particular problem for the “original meaning”
approach to questions of cruelty. The
normative power of the common law depended on the people having a certain level
of awareness of what the government did to those subjected to punishment. When punishments were inflicted in public,
they were also more likely to be regulated by the public. It is no accident that public pressure to
eliminate the death penalty, for example, largely disappeared when executions
were moved out of the town square and into hidden rooms inside prisons, and
when obviously violent methods like hanging were replaced by scientific-sounding
methods like lethal injection. If people
cannot see the suffering, they are not likely to oppose the suffering. Thus, enforcement of the prohibition of cruel
and unusual punishments depends upon the judiciary being willing to take a
close look at prison conditions to determine whether they meet our traditional
standards.
This leads to the other problem with prisons: As Impermissible Punishments shows, the history of incarceration is a long history of experimentation. Most prison practices that might be challenged under the ruination principle do not enjoy “long usage” – that is, they have not been universally received over a very long period of time. But the experimentation is so pervasive that it may be difficult to establish a traditional baseline against which to judge such practices. Nonetheless, in at least some instances, comparison is possible. For example, as I have shown elsewhere, long-term solitary confinement is a repeated, failed experiment that violates the original meaning of the Cruel and Unusual Punishments Clause. Doubtless, many of the practices identified in Impermissible Punishments do so as well.
John
Stinneford is a Professor of Law and the Edward Rood Eminent Scholar Chair at
the University of Florida Levin College of Law.
He may be reached at jstinneford@law.ufl.edu.