Sunday, April 20, 2008

Criminal Law, Punishment & Prisons: A Selected Bibliography

Our fourth installment in the Directed Reading series concerns Criminal Law, Punishment & Prisons. I apologize for not breaking this bibliography into smaller categories, something I plan to do when I next update the list. Still, when browsing through the titles I trust one can fairly discern with ease the specific subject matter at hand. This happens to be one of the few compilations that includes articles in addition to books, as I kept coming across authors who penned important pieces with no books (yet?) to their names. Combined with the fact that the first draft was put together during a rare period of relative leisure helped make it an exception to the rule.

One of a few books that prompted a deeper inquiry into some of the topics covered by this bibliography was John Irwin’s Prisons in Turmoil (1980). I still recall the day I bought a used paperback copy at The Book Den in downtown Santa Barbara: the back cover described its author as a “former prisoner at Soledad” with a “Ph.D. in Sociology from the University of California at Berkeley,” now a “leader in the prisoners’ union movement” and a “tenured Professor of Sociology at San Francisco State College.” I was hooked: they could have priced it as a rare book and I’d still have bought it. Looking back, I realize I wanted a vista into a world that was a far cry from those of my classmates at UC Santa Barbara, most of whom I saw as emblematic of the kind of privilege and affluence that systematically cultivates, or is at least highly conducive to planting, the seeds of self-deception, states of denial and wishful thinking that allow one to ignore the plight of the incarcerated in this country. Among the disturbing facts with regard to this incarceration are the following highlighted by Doug Berman from a Fact Sheet from the National Council on Crime and Delinquency:

The US incarcerates the largest number of people in the world.

The incarceration rate in the US is four times the world average.

Some individual US states imprison up to six times as many people as do nations of comparable population.

The US imprisons the most women in the world.

Crime rates do not account for incarceration rates.

The US has less than 5% of the world’s population but over 23% of the world's incarcerated people.

“When we return to the search for a more humane and rational response to crime, we must keep in mind that the prison is tied to other social and political arrangements that limit what changes are possible. The criminal justice system in general is at least partially involved, directly and indirectly, advertently and inadvertently, in repressing groups and classes of people and in maintaining unfair social, political, and economic relationships. Fundamental changes in its operation are impossible unless some higher degree of social justice has been achieved and the criminal justice system is relieved of these tasks.[….]

One of the important obstacles that must be removed is the public conception of the prisoner. Presently, this conception is formed from the rare, but celebrated and horrendous crimes, such as mass murders by the Manson cult, Juan Carona, or the 'Hillside Strangler.' Whereas prisoners like George Jackson, viewed as a heroic revolutionary fighting back from years of excessive punishment for a minor crime (an eighty-dollar robbery), shaped the conception of the prisoner in the early 1970s, persons like 'Son of Sam' do so today. These extraordinary cases distort the reality. Most prisoners are still in prison for relatively petty crimes, and even those convicted of the more serious crimes must be understood in the context of society in the United States. What we need is a new theory of crime and penology, one that is quite simple. It is based on the assumption that prisoners are human beings and not a different species from free citizens. Prisoners are special only because they have been convicted of a serious crime. But they did so in a society that produces a lot of crime, a society, in fact, in which a high percentage of the population commits serious crime. Those convicted of serious crimes must be punished and imprisoned, because it is the only option that satisfies the retributive need and is sufficiently humane. Knowing that imprisonment itself if very punitive, we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke, nor excessively deprive the human beings we have placed in prison. It also means that we must not operate discriminatory systems that select which individuals should be sent to prison and, once incarcerated, who should be given different levels of punishment.

Since we assume that convicts are humans like us and are capable of myriad courses of action, honorable and dishonorable, we also assume that they will act honorably, given a real choice. This means that we provide them with the resources to achieve self-determination, dignity, and self-respect. This theory continues to be rejected not because it is invalid, but because it challenges beliefs and values to which large segments of the population comfortably cling. [….] In pushing this theory, I admit that many prisoners, like many free citizens, act like monsters. But they are not monsters and often choose to act like monsters when their only other real option is to be totally disrespected or completely ignored, while being deprived, degraded, abused, or harassed.” [emphasis added]
---John Irwin, Prisons in Turmoil (1980)

Update/Erratum: I somehow missed three articles by Kimberly Ferzan that I meant to include. Please note the forthcoming title mentioned on her school webpage, A Culpability-Based Theory of Criminal Law, as well as the Criminal Law Conversations project.

Ferzan, Kimberly Kessler. ‘Defending Imminence: From Battered Women to Iraq,’ Arizona Law Review, Vol. 46, 2004. Available: http://ssrn.com/abstract=901445.

Ferzan, Kimberly Kessler. ‘Torture, Necessity, and the Union of Law & Philosophy,’ Rutgers Law Journal, Vol. 36, No. 1 (2004). Available: http://ssrn.com/abstract=901445.

Ferzan, Kimberly Kessler. ‘Justifying Self-Defense,’ Law and Philosophy, Vol. 24: 711–749, 2005. Available: http://ssrn.com/abstract=887343.

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