Balkinization: The Problems Punishment Produces

The Problems Punishment Produces

Guest Blogger

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

To invite commentary by other scholars is to invite them to bring their work into discussion with your own. As the blogposts make plain, I have done so. Each uses my book, Impermissible Punishments: How Prison Became a Problem for Democracy, to reflect on their own ideas about how lines have been drawn between permissible and impermissible punishments and to argue for new or more constraints.

Death, power, suffering, retribution, imprisonment, abolition, control over information, class, and racism haunt the posts, rich with debates about baselines, frames, knowledge, political and economic structures, democracy and anti-ruination. Here, I offer brief responses.

One of the first in Europe to campaign for abolition of a punishment – the death penalty – was Cesare Beccaria, writing in 1764. Carol Steiker is one of his successors; her own “magisterial” scholarship has mapped capital punishment’s rejection outside the United States and its regulation and decline, albeit not abolition, within.[1] Steiker maps the “resonances” between my project and her “primary preoccupation” as she points to the “interplay” between “capital and carceral practices.” As we both recount, reformers in Europe during the eighteenth and nineteenth centuries sought to curb several commonplace punishments for an array of crimes, including banishment to colonies, branding, and capital punishment. Prisons, promoted as a “replacement punishment,” came to the fore.

Focused largely on the United States, Steiker discusses how some states ended and then reinstated the death penalty, as the disabilities of imprisonment did not suffice to quench racialized vengeance. More recently, sentences to life without parole (LWOP) as a “replacement” garnered support. Further, for those sentenced to death, the U.S. Supreme Court’s mandate that capital sentencing must entail presentation of mitigating circumstances and the potential that post-conviction challenges can take years have resulted in long-term confinement, often in profound isolation. Whether one is executed or dies by violence, suicide, or poor health in prison while awaiting execution, lives end.

Where I diverge from Steiker’s analysis is her view that, while the Court’s regulation of the death penalty has significantly altered its use, “few would say that constitutional litigation has fundamentally reshaped the contours of American incarceration.” U.S. constitutional law has done just that – at times aiming to mitigate some of the horrors and, at others, licensing them. As I detailed, in the 1960s, the Court banned segregated prisons that were then commonplace in many states and the federal system. In the 1970s, the Court insisted on a modicum of health care when none had existed. The Court also required a minimum of food, water, and sanitation as well as due process hearings when prisoners faced the loss of “good time” that would have shortened their sentences.

In contrast, in the 1980s, the Court enabled hyper-density through licensing the practice of putting two people in a cell designed for one. In more recent decades, even when requiring procedural protections for punishments that produce an “atypical and significant hardship,” the Court has tolerated the use of profound isolation. Indeed, Steiker’s longstanding critique of the proceduralization of capital punishment that provides a veneer of legitimacy can be applied to solitary confinement as well. Absent revision of the current Court’s impoverished understanding of “liberty” as a facet of human life that it deems only protected for people outside prison walls, the potential for constitutional law to stop ruination is dim. I quoted Justice John Paul Stevens’ dissent, reminding the majority that, if liberty did not survive conviction and imprisonment, enslavement through prison was the result. In short, the Court is a font of norms for imprisonment that rely on Enlightenment ideas about deterrence, incapacitation, reformation, and retribution as “legitimate penological purposes.”

Death-in-prison is also central to the work of Andrea Armstrong, who has pioneered documentation of individuals who have lost their lives in Louisiana’s jails and prisons. She has shown how medical neglect, poor health care, suicide, and violence have prematurely ended lives. She and her students do the labor-intensive work of excavating the circumstances of each individual’s experiences, their families, and their death. Thus, she has experienced first-hand the power of correctional officials trying to cut off the public from knowing what happens inside.[2]

As Armstrong notes, Impermissible Punishment recounts how committed Eighteenth-century punishment theorists, such as Jeremy Bentham and Cesare Beccaria, were showing the public their practices of punishment. Their assumption was that observation would deter people from committing crimes. Indeed, Bentham’s proposed but never-built panopticon was to have had a watch tower for the public’s use. In addition, he shared with Armstrong another purpose for public access – to watch the keepers. As she discusses, the corrections profession generated power, still largely accepted, to “keep people in” and “to keep the public literally and figuratively out.” Her analyses of the resulting secrecy and harms provide evidence of Bentham’s hope that the “more we are observed, the better we behave.”[3]

Armstrong makes plain that access alone does not suffice. As I argued, in many respects, information about punishment practices has been plentiful, as thought poured into decisions on imprisonment and “congresses” held by the corrections profession produced tomes of their proceedings and manuals full of “how-to” details. Press exposés and litigation have been other sources, as are prisoner accounts that break through the walls. The 2025 film The Alabama Solution, made by prisoners through their cell phones and documenting horrific violence in that state’s prison, is a recent painful example. Armstrong, sharing my distress at public toleration of prison debilitation and degradation and my hope for radical change, discusses my proposed “guiding principle” of anti-ruination, and she has paved a route for new forms of knowledge that may, in her words, help the public to “choose differently.”

Profound isolation is another radical incursion on people’s bodies that in recent years has also been extensively documented, as Ryan Sakoda discusses. He joins me in not equating “corporal punishment” with whipping, even as judges did so in the 1960s, when they licensed and then banned Arkansas prison officials’ imposition of “lashes” on white and Black prisoners claimed to have been disobedient. To enable readers to glimpse the visceral and extensive impact of prison on the body and mind, I provided detailed accounts of the subsequent litigation about conditions that underscored the corporality of imprisonment. Sakoda likewise focuses on the “brutality of the carceral system,” as he reminds readers that solitary confinement ought to be seen through the same lens as whipping and thus an “archaic” form of punishment.

Sakoda takes us through documentation of the widespread use of profound isolation, the studies such as Time-in-Cell and data collection from Unlock the Box -- showing the common deployment of long-term isolation and the efforts to limit and regulate solitary confinement.[4] Sakoda discusses the centrality of prisoner protest, including through hunger strikes and litigation, supported by a growing body of materials detailing the physical and mental injuries from such isolation. Sakoda’s own scholarship has detailed the link between the increase in crowding in prisons in the 1980s and expanded use of isolation, as well as the racialized impacts that put more dark-skinned people into solitary.[5] Like Armstrong, Sakoda focuses on the authority of correctional officials to whom, in recent decades, courts have repeatedly ceded power after a decade when judges seemed to understand their own potential to provide some oversight. (“The more we are watched, the better we behave.”)

Fiona Doherty seeks to bring constitutional oversight back, while bringing the injuries to victims as well as to convicted individuals into sight. Doherty, whose work includes teaching students how to defend individuals accused of crime and knows well the impositions of punishment while in detention and upon release,[6] discusses a 1977 Supreme Court decision about whether a state can impose the death penalty after a sixteen-year-old girl was raped. As Doherty discusses, the plurality described rape as evidencing “almost total contempt” for a person’s integrity and autonomy, and that such an experience could undermine a person for a lifetime. Nonetheless, the decision concluded that the state could not respond by ending the convicted defendant’s life.[7]

Doherty invites consideration of how the “anti-ruination principle” requires thinking about both the people punished for crimes and their victims, “brutalized by the violent actions of others.” Further (along with Armstrong and Nicola Lacey, discussed below), she seeks a better understanding of the “widespread retributive attitudes” that fuel views that “abusers” ought to “suffer for what they have done.” Doherty returns readers to my discussion of the role that “passion” and “dispassion” played in the Arkansas whipping trial, as state officials were asked repeatedly how they felt (“dispassionate” or not?) when whipping. I provide the full transcript on the web.[8]

Doherty calls on us to look at stunning levels of violence in prisons today. Her references include lawsuits involving Alabama and Florida. Soon after she posted, the N.Y. Times published searing details of beatings in New York’s prisons.[9] Doherty is optimistic about the potential for courts to engage with the “violence and abuse” and, through clear limits, make people responsible for ensuring the dignity and safety of detained people.

The embeddedness of imprisonment is central to Gideon Yaffe’s account of my aspiration to show “how it came to pass that prison became the enormous, deeply entrenched social practice it is.” Noting that I “embraced complexity” through mapping a “startling number of interacting forces and figures that produced the prison-infused world of today,” Yaffe pushes for more explanation of the idea of ruination and its relationship to democracy. He distills the core of ruination to be a “reduction of personhood” and the center of democracy to be the even distribution of “influence over collective decision-making.” The subjugation of imprisonment undermines individuals’ opportunities to participate in the body politic - in his words, to join in “co-citizenship.”

Yaffe further understands my view that, in theory, the potential exists for a democracy to punish (“target hardening” as he has put it[10]) and not to ruin. While Yaffe stresses (and I do not disagree) that anti-ruination requires enabling punished individuals to participate in influencing politics,[11] I emphasize the requirement of recognizing individuals’ agency and respecting their autonomy to make choices when being punished. In the United States (unlike some other countries), incarcerated individuals generally cannot choose their clothes, their food, their visitors, their activities, or much else. Further, unlike Yaffe, I am hesitant to use the word “citizen” as a means of redress. People resident in the United States may, like citizens, be imprisoned. Hence government’s burdens are broader because, as I posited (as Yaffe quotes), the acceptance of all persons “equal status makes decisions about punishment harder because the state itself must fulfill its obligation of expressing the wrongness of acts” while likewise expressing commitments to the agency of individuals.

Yaffe thus properly characterizes me as committed to “expressing” shared values through public processes, including forms of state punishment for the “wrongness of acts of violence, aggression, and exploitation.” Here Yaffe joins Doherty in bringing the victims of violence into view. While Yaffe is hesitant that “law” will promote the understanding of the “co-citizenship” of perpetrator and victim (and many people are both), Yaffe concludes that I have shown that the reduction of punishment to “management” undermines its potential as “a tool for the expression” of that relationship.

Yaffe’s commentary helps explain where I converge and diverge from John Stinneford, who commends the book to readers; he describes it as “fascinating,” albeit “disturbing and ultimately infuriating” in documenting that, despite “many well-intentioned individuals,” incarceration remains “brutal” and “dehumanizing.” Stinneford joins Yaffe in probing anti-ruination, which he seeks to disconnect from democracy. Stinneford argues that principles of equality and dignity can be sourced in the “Judeo-Christian belief that every human being is created in the image and likeness of God.”

As I detailed, Christian religion permeated prison practices and later, somewhat secularized, “humanitarianism” did as well. Yet the results were “brutal” and “dehumanizing,” and one of the sources was the view that prisoners were not equals but “civilly dead.” The horrors of treatment in concentration and internment camps intersecting with their resemblance to plantation slavery generated political will after World War II. The revulsion at such treatment gained expression in the Universal Declaration of Human Rights and in the rereading of the U.S. Constitution to include women and men of all colors as able to enforce obligations of “equal protection,” “due process,” and bans on “cruel and unusual punishments.”

Stinneford’s self-described affiliation with “originalism” in U.S. constitutional interpretation is reflected in his turning to the history of the words “cruel” and “unusual.” Instead of my focus on normalization to community life as a key “baseline” by which to assess forms of punishment, Stinneford looks to the past for consensus of “multiple generations.”[12] As I detailed, however, many generations within the United States accepted debilitating violence and horrific conditions of detention. I cited a 1929 report by James Bennett (later the Director of the Federal Bureau of Prisons), where he detailed the horrid subjugation of detained individuals that prompted him “to choose prison” as his life’s work.[13] Food deprivations, shackles, isolation for months, and more were common, not “unusual,” and, as Armstrong and Sakoda point out, tolerated over decades.

Moreover, at the time of the Founding, the Enlightenment figures discussed above sought to abolish many then-common punishments. Given that contestation, looking to practices at the Founding or tolerated for decades thereafter is to reify punishments to which many in the 1780s objected. Stinneford and I oppose ruination; we both have cited solitary confinement as an example.[14] Yet we get to abolition through different routes. Stinneford sees solitary — and potentially other punishments — as part of a “repeated, failed experiment” and hence violating the “Cruel and Punishments Unusual Clause.” I, too, would end the assault of isolation, be it “experimental” or not. I would do so because it radically diminishes a person’s agency through seeking to block ordinary bodily movements and human interactions.

Ruination is also in view in Paul Butler’s comments. To borrow a phrase from Nicola Lacey’s commentary (to which I turn hereafter), his post is “the most perplexing case of all.” I anticipated that Butler would be full throttle[15] — and I assumed he would be insistent on abolition, but I had not expected him to misread the book. After objecting to its length (conflating the 600 pages of text with the remaining 200 pages of endnotes and acknowledgments), Butler ignores the content of both.

The book is all about abolition, as I discuss waves of efforts to eliminate various forms of punishment. Rather than grapple with the transatlantic norm production I document, Butler trains his eye only on the relationship of punishment to U.S. enslavement. He misses the imperialistic, global project of the corrections profession that was mired in colonial hierarchies of class, race, and ethnicity and that spread norms of control around the world. On the English isle, as Bentham explained, it was “poor people” who were sent into confinement. In 1902, one photograph I reproduced demonstrated that such men were consigned to endless useless steps on a treadwheel.

My “lurid descriptions” – as Butler terms them – aim to record and honor the pain of those subjected to degradation, violence, and death. My details of today’s horrors, when “rights” are recognized, hardly suggests the “fantasy” of law as a solo corrector. Rather, as I explain, since the inception of U.S. constitutional law’s invalidation of Alabama’s de jure segregation (Black and white people could not be “chained” together or sleep together), judges have fashioned what I call a “prison discount” that licenses departures from the rights they announce if “discipline, security, and good order” require it. As discussed, that discount can also be found in the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners. Even as it broke through centuries to describe people in detention as rights-bearers entitled to “dignity” and “respect,” those Rules accepted the “aggravation” of suffering if prison management required it.

Butler does not engage with my critique of the rights-regime, detailed in chapters about how the “violence continued” after whipping was banned and after a judge ruled Arkansas’ prisons themselves cruel and unusual and in others linking legal rulings to “hyper-density” and “warehousing.” Rather, he resorts to decades-old rhetoric from a group of scholars identified with Critical Legal Studies (“CLS”), who have been roundly criticized for their ignoring that most of them, unlike many people of color of whatever gender, had lived with “rights,” while so many others lacked that experience.[16] In 1949, in a world awash with stateless persons, Hannah Arendt famously named “the right to have rights” as the predicate for human status; Chief Justice Earl Warren echoed those words when writing about the impermissibility of the punishment of denaturalization.[17] The bundle of citizenship, papers, identity, juridical capacity, and legal recognition have been part of political movements (yet to succeed) aspiring to protect human beings around the globe.

Moreover, Butler ignores the many imprisoned individuals who named “rights” as what they wanted. I detail filings by Winston Talley, Caliph Washington, Martin Sostre, and Thomas X Cooper so readers read their innovative political theories proffering new ideas about the limits of state punishment. By sketching the material conditions under which they suffered and how they lost, sometimes won, and nonetheless remained subjected to violence, I underscore that politics, social movements, economic agendas, racism, wars, and members of professions – including law and social sciences – make and unmake norms of detention.

Because my goal (as Lacey discusses) has been to clarify the centrality of politics to decisions about the metes and bounds of permissible punishments, I offer the metric of anti-ruination and link it to democratic obligations to treat people as equals, including when punishing individuals for the harms they have done to others and the community.[18] In addition to ignoring that I am not court-centric, Butler assumes that, if used by courts, anti-ruination would not suffice to end the violence and suffering. Of course, the question is the content of the principle, and of course my point is that the precept is in no way limited to the practice of judging punishments in courts but ought to be used by people in all settings — government and not.

Butler describes the goal of abolitionists as wanting “social conditions—robust education, healthcare, housing, employment” that he posits would make prisons obsolete. But he offers no roadmaps to getting such services from governments or otherwise, nor for mitigating the pain and harm that, as others in this symposium discuss, fuels punishment. (Some of the authors he cites do explore the complexities.) The goal of anti-ruination is to stop the ruin of individuals, their families, communities, and the body politic, and the method is to acknowledge the interdependencies of people in and out of detention, all of whom require that governments shoulder the burdens of being responsive to needs. I am committed to pushing governments to be generative, to take seriously their obligations to all persons and therefore to take on the burden of developing ways to fashion punishment that express both the harms done and the stature and agency of every individual.

In contrast to Butler, Nicola Lacey faces the political world in which demonization has regained its footing, with a “resurgence” of “populist punitiveness.” Lacey describes the imprisonment I documented in which punishment practices have been “impervious to decisive humanization;” prisons remain “a place of ‘ruination,’” in which safety and civic status have been “either absent or actively subverted.

Lacey joins me in looking beyond the walls of the prison to the social order in which it sits, and beyond the borders of a country to the practices in different places. Lacey is also clear-eyed that examples exist of “less inhumane” confinement that entails efforts to bring detained people closer to “normal civic life.” Yet, as she explains, we have a “much weaker grasp” on “how to build political coalitions stable enough to support the long- term investment needed” to support people inside and outside the criminal system. Her cross-border analyses contribute to understandings of the interdependency of political structure.[19] And she takes “a glimmer of hope” from my account of the contingency of punishment practices that have, over three hundred years, changed on a host of dimensions.

These essays and my book are joined by a wealth of thinking about what Allie Miller and Mindy Roseman have called the “synergies and disjunctures within and between criminal law and rights claiming.”[20] My goal has been to help people see that imprisonment is more than a “strange institution” (pace Foucault[21]); it is a radical, intrusive, thought-filled, man-made violent environment whose rules (especially in the United States) are weird, bizarre, arbitrary, disabling, harmful, and profoundly oppressive.

In 2025, we live in a world replete with exclusions based on citizenship, national identity, religion, gender and more. A glimmer of inclusion of all persons emerged in the wake of World War II and through social and political movements committed to civil rights, human rights, and anti-colonialism. Nelson Mandela is famous for having imagined a world that did not exist when he lived incarcerated under Apartheid. He pushed for recognition that he was a rights-bearing person, and he is one example of how that “foundational norm” of democratic orders (struggling as they are now) aims to sustain commitments to individuals amidst aggressive efforts to disable that belief.[22]

My hope is that Winston Talley, Caliph Washington, and scores of others will likewise be appreciated for the power of their commitments; they put their bodies on the line in their when trying to shackle governments to including them within the circle of rights. As I have shown, what they began is far from realized.

To build on their work again requires imagination - to see what ideas about constraints on power, participation, rights, autonomy, empowerment, democracy, dignity, and equality can do. The repertoire of responses generated thus far has been impoverished, in part because of the redeployment of punishment justifications that emerged when punishment theorists did not conceptualize us all as equals. Recall that in the 1830s Alexis de Tocqueville and Gustave de Beaumont – famous for their commitments to the “rights of man” - labeled the prisons they visited “despotic” and proposed that France adopt some of their methods. In their view, people convicted of crimes did not qualify for the rights they commended for others. The challenge is how to develop political will to mark the harms and injuries around us without inflicting ruin that spreads from individuals to the polities in which they live.

Judith Resnik is Arthur Liman Professor of Law at Yale Law School. You can reach her by e-mail at judith.resnik@yale.edu.

[1] Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (2016); Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355 (1995).

[2] Incarceration Transparency Project, https://www.incarcerationtransparency.org; see also Andrea C. Armstrong, No Prisoner Left Behind? Enhancing Public Transparency of Penal Institutions, 25 Stan. L. & Pol'y Rev. 435 (2014).

[3] Jeremy Bentham, Farming Defended, in 1 Writings on the Poor Laws 276, 277 (Michael Quinn ed., Oxford University Press 2001) (1796).

[4] See Correctional Leaders Ass’n & The Arthur Liman Ctr. for Pub. Interest Law at Yale Law Sch., Time-in-Cell: A 2021 Snapshot of Restrictive Housing (2022), https://law.yale.edu/sites/default/files/area/center/liman/document/time_in_cell_2021.pdf; Solitary Watch & Unlock the Box Campaign, Calculating Torture: Analyses of Federal, State, and Local Data Showing More than 122,000 People in Solitary Confinement in U.S. Prisons and Jails (2023), https://solitarywatch.org/wp-content/uploads/2023/05/Calculating-Torture-Report-May-2023-R2.pdf.

[5] See, e.g., Ryan T. Sakoda & Jessica T. Simes, Solitary Confinement and the U.S. Prison Boom, 32 CRIMINAL JUST. POL’Y REV. 66 (2021); Ryan T. Sakoda, The Architecture of Discretion: Implications of the Structure of Sanctions for Racial Disparities, Severity, and Net Widening, 117 Nw. U. L. Rev. 1213 (2023).

[6] Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 103 Geo. L.J. 291 (2016).

[7] See Coker v. Georgia, 433 U.S. 584, 597, 600 (1977).

[8] For a complete timeline of this litigation, see Arkansas Prison Litigation Timeline, Impermissible Punishments (2025), https://impermissiblepunishments.law.yale.edu/source-timeline.

[9] Bianca Pallaro & Jan Ransom, Why Are Guards Using Force More Often in New York’s Prisons?, N.Y. Times (Nov. 24, 2025), https://www.nytimes.com/2025/11/24/nyregion/ny-prison-guards-use-force.html.

[10] Gideon Yaffe, The Norm Shift Theory of Punishment, 132 Ethics 478 (2022).

[11] See e.g., Gideon Yaffe, Opinion, Give Felons and Prisoners the Right to Vote, Wash. Post (July 26, 2016), https://www.washingtonpost.com/opinions/let-felons-and-prisoners-vote/2016/07/26/f2da2d64-4947-11e6-acbc-4d4870a079da_story.html.

[12] John F. Stinneford, The Original Meaning of “Cruel,” 105 GEO. L.J. 441, 470, 498 (2017); see also John F. Stinneford, The Original Meaning of “Unusual”: The Eighth Amendment as a Bar to Cruel Innovation, 102 Nw. L. Rev. 1739 (2008).

[13] James V. Bennett, I Chose Prison (Knopf 1970).

[14] John F. Stinneford, Is Solitary Confinement a Punishment?, 115 Nw. U. L. Rev. 9(2020).

[15] See, e.g., Paul D. Butler, Race-Based Jury Nullification: Case-In-Chief, 30 John Marshall L. Rev. 911 (1997); Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176 (2013).

[16] See generally Patricia J. Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401 (1987). Williams joined other scholars in what was termed a “minority critique of CLS,”

[17] Hannah Arendt, ‘The Rights of Man’: What Are They?, Modern Rev., Summer 1949, at 24; Hannah Arendt, The Origins of Totalitarianism 298 (1951); see Trop v. Dulles, 356 U.S. 86, 102 (1958).

[18] Examples of grappling with punishment as a social and political practice include Leora Dahan Katz, Response Retributivism: Defending the Duty to Punish, 40 Law & Phil. 585 (2021); Annalise Acorn, Compulsory Compassion: A Critique of Restorative Justice (2004); Rachel E. Barkow, Promise or Peril?: The Political Path of Prison Abolition in America, 58 Wake Forest L. Rev. 245 (2023); Adriaan Lanni, Taking Restorative Justice Seriously, 69 Buff. L. Rev. 635 (2021).

[19] Nicola Lacey, David Soskice & David Hope, Understanding the Determinants of Penal Policy: Crime, Culture, and Comparative Political Economy, 1 Ann. Rev. Criminology 195 (2018). Nicola Lacey, The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies (2007); Nicola Lacey, State Punishment: Political Principles and Community Values (2016).

[20] Alice M. Miller & Mindy Jane Roseman, Beyond Virtue and Vice: Rethinking Human Rights and Criminal Law 3 (U. Pa. Press. 2019).

[21] Michel Foucault, The Punitive Society: Lectures at the Collège de France 1972 – 1973, at 225 (Bernard E. Harcourt ed., Graham Burchell trans. 2015) (1973).

[22] Seyla Benhabib, At the Margins of the Modern State: Critical Theory and Law 37 (Polity 2025).

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