The Public & The Prison

Guest Blogger

For the Balkinization symposium on Judith Resnik, Impermissible Punishments: How Prison Became a Problem for Democracy (University of Chicago Press, 2025).

Andrea Armstrong

The nature of punishment in our prisons has been debated for the past three centuries. This dispute has not merely focused on the number of days a person is incarcerated for, but also the conditions they are subjected to while confined. In “Impermissible Punishments: How Prison Became a Problem for Democracy,” Professor Judith Resnik frames these debates within the demands of democracy and legal claims of rights by incarcerated men.

This is a breathtakingly comprehensive interrogation of the influence of social movements and politics on the imposition of prison punishment, historically and in the present day, as well as around the globe, in the U.S., and in Arkansas. I write to make a small contribution within the enormity of this book, namely to ask how the relationship between the public and the prison may have been influenced by the broader arcs and incentives identified by Resnik.

Through both a transnational and national lens, Resnik also examines the growing institutionalization of prison administration as a profession. Bureaucracy imperatives, judicial deference, and claimed expertise combined to prioritize order and security over dignity and personhood. Reforms such as standardization and rule-making functioned to limit certain practices while also enshrining carceral domination.

As Resnik notes, early versions of incarceration made punishment a public ritual, consistent with the 18^th century philosophies of Cesare Beccaria and Jeremy Bentham (30, 32). Not only was public viewing an integral element of deterrence for some, it also generated revenue, such as for Auburn prison in the 1830. (46) Images of punishment, such as photographs of the “Tread Wheel” taken inside of an English prison in 1902 (68), expanded the audience of public witnesses to punishment.

Beyond public ritual, Resnik provides scores of examples of contemporaneous public knowledge about inhumane punishments occurring within the prison. In 1867, a survey was submitted to the New York state legislature that documented “freezing cold shower-baths” and use of the “’yoke or crucifix ‘(hanging people on bars).” (54) In 1935, international attendees at an international penal conference in Berlin were given regulations governing concentration camps (109). In Arkansas during the time of Talley, the “miseries” in the state’s prisons were well-documented by the media. Still, the tortuous conditions continued.

Building on these and other examples, Resnik argues that the harms of incarceration have been public, not hidden. Indeed, “[t]he question haunting this book is why judges—and everyone else—have not done more to end the abysmal treatment of incarcerated people” given the public’s knowledge. (238). Thus, this history is in part about public complicity for punishment claimed and imposed in the public’s name.

However, there is another story embedded within this history, building on Resnik’s powerful insights into the development of the “corrections profession.” This story connects the bureaucratization of punishment through judicial deference and the empowerment of prison administrations with increasing secrecy about the types of punishment experienced behind bars.

Over time, prisons and the punishments imposed inside of them have become increasingly hidden. Early versions of punishment in America included public humiliation, whippings, and hangings. After the end of the Civil War, incarcerated people were forced to work, sometimes for the highest bidder, outside the prison walls in dangerous environments. The historical permeability of the prison was also exhibited by the access of outsiders to the carceral space. Journalists like Taro Yamasaki (Jackson State Prison) and documentarian photographers Keith Calhoun and Chandra McCormick (Angola), among others had repeated unrestricted access to the prison grounds and buildings in the 1980s. Famous musicians, including B.B. King at Sing Sing prison and Johnny Cash at Cummins prison in Arkansas (303-4), played concerts behind bars. In person visitation, both by media and community, was the norm, not the exception.  

Resnik identifies instances where public pressures contributed to prisons adopting new restraints on their own authority, including certain rules facially limiting their discretion and authority over a person’s physical body. Media exposés, litigation, and advocacy campaigns successfully limited more gruesome practices, including Alabama prisoners being handcuffed to a hitching post, which was deemed cruel and unusual by the Supreme Court in 2002.

Prisons are no longer the public spaces they once were. Today, prisons in America are generally closed environments, walled off from the public. In person visitation is routinely limited, and journalists in some states can only interview incarcerated people by mail. Administrators have denied elected officials entry to carceral spaces, including the DC jail, federal detention centers in New York and California, and a state managed immigration detention center in Florida. For researchers like myself, extracting data from carceral spaces, like the number of people who die behind bars, is often a Sissyphean task. In the modern day, tracking the costs and harms of prisons, to both individuals and communities, is difficult. (509)

The punishments endured in prisons today can still shock the conscience.  The evidence of the impact of incarceration is clear: incarceration shortens life expectancies after release. The New York Times published gruesome photographs of degradation and violence from an Alabama prison in 2019, evidence that bloodiness colors both our past and present prisons. Mothers like Linda Franks are not the first to demand answers about the death of their child behind bars, nor unfortunately has she been the last. The entire healthcare system in Arizona fails to provide adequate medical and mental health services.  Perhaps we already know enough. 

The question I pose is not to avoid accountability for the public or to debate the public’s complicity. Instead, I am thinking about the contours of the relationship between the public and the prison in a world where Resnik has illustrated that bureaucrats have expansive dominion over incarcerated people, who simultaneously have the “right to have rights.” (186) In addition to the power to keep people in, prisons also claim the power to keep the public literally and figuratively out. Limiting public access has the potential to shape the content of public knowledge, much as prison managers of the past adopted broader standards to control the content of the new rules (75).

This carceral shift towards secrecy is also perhaps a tacit acknowledgment of the power of public solidarity through transparency. An early version of the prison standards from 1857 acknowledged this potential power by suggesting “outsiders” be responsible for supervision of prison operations. (51) Dr. Martin Luther King, Jr. in his Letter from Birmingham City Jail has argued that it is only through public exposure that we create the conditions for the “light of human conscience and the air of national opinion” to cure injustice.

Still, Resnik is (rightly) suspicious of equating public knowledge with ending the ruination of people behind bars. Part of her intervention is to forcibly contest the perceived inevitability of our carceral choices. Resnik’s provocation to focus on anti-ruination as a guiding principle captures the deep harms and scars of incarceration past and present. A future that refuses ruination as punishment is a future that recognizes the humanity of everyone “through political commitments to all.” (609). As products of our politics and social order, the public has both the tools and the opportunity to choose differently. 

Andrea Armstrong is the Dr. Norman C. Francis Distinguished Professor of Law at Loyola University New Orleans, College of Law and a 2023 MacArthur Fellow. She can be reached at armstron@loyno.edu.