The Yale Law Journal

April 2024

Prisons as Laboratories of Antidemocracy

Criminal LawAntidiscrimination LawCritical Legal Studies

abstract. Prisons are woefully ineffective as tools to protect society from violence and exploitation, yet America’s prison population exploded in the twentieth century. On the outside, this devastated Black communities, Black opportunities, Black economic power, and Black voting power. Yet a similarly insidious development came from inside prison walls: prison administrators honed antidemocratic techniques for constraining and oppressing incarcerated persons, techniques that would later be deployed against the ostensibly free population. Jeffrey Bellin’s Mass Incarceration Nation provides a robust analysis of the ways state and federal policies have combined to create an explosion in the scope of American prisons in the late twentieth century. This Book Review explores how prisons have served as laboratories of antidemocracy to perfect tactics to suppress access to information, protest, and bodily autonomy.

author. Associate Professor of Law and Director, Frances Lewis Law Center, Washington and Lee University School of Law. I want to thank Jeffrey Bellin, Melissa Murray, Daniel Harawa, Alexis Hoag-Fordjour, Lena Hill, Alex Klein, Matthew Shaw, Bennett Capers, and Jilliann Hasbrouck for their inspiration, guidance, and feedback. Shout-out to my research assistant, Warren Buff, whose outstanding work made this project better. I am grateful for the extraordinary support of the Frances Lewis Law Center at the Washington and Lee University School of Law. So much love to the amazing editors at the Yale Law Journal—specifically, Alaa Hachem, Arturo Zapata, Christopher D’Urso, Dena Shata, Jordan Kei-Rahn, and Sara Méndez—for superb editing and thoughtful comments that significantly advanced this project, and to all the many first-year editors for their diligence in cite-checking and proofing. For my brother Bradford Hasbrouck III who unexpectedly passed away while I was working on this project—he always challenged me to imagine a world braided in love, equality, and justice. Black Lives Matter.


We run,
We run,
We cannot stand these shadows!
Give us the sun.
We were not made
For shade,
For heavy shade,
And narrow space of stifling air
That these white things have made.
We run,
Oh, God,
We run!
We must break through these shadows,
We must find the sun.

—Langston Hughes1

On the morning of September 9, 1971, over a thousand incarcerated men revolted, seizing hostages and taking control of much of New York’s Attica Correctional Facility.2 After the initial burst of violence, the uprising quickly initiated democratic processes to advocate for changes to the brutal and racist conditions of their incarceration.3 The incarcerated men of Attica had demanded that the state remedy overcrowding, unsanitary living conditions, the routine use of solitary confinement, and racist attacks by the all-white prison staff.4 The negotiations with state officials looked promising until one of the guards died of injuries he sustained in the initial violence.5 The state’s negotiators were willing to agree to almost all of the reforms, but amnesty for participating in the uprising was off the table.6 On the fifth morning of the uprising, the state police and National Guard retook the prison, killing thirty-nine people, including ten of the hostages.7

The incarcerated men who seized control of Attica advanced a democratic vision, one where even convicted criminals would have a say in ensuring that the conditions of their captivity were just and humane. Indeed, the legislative response to the Attica uprising resulted in the vast majority of their demands being enacted as law.8 Yet the forces of the carceral state took other lessons from the uprising. Rather than building humane institutions to house incarcerated people, prisons have become more secretive through technology, management, and public-relations efforts.9 The risk of violence is minimized, but more importantly to these efforts, the risk of attracting public sympathy is almost negligible.10 Where the Attica uprising once sparked prominent demonstrations in support of incarcerated people,11 few today hear of prison organizing, and fewer still care. The Attica dream of democracy in American prisons is gone, and antidemocracy has filled in the space it left behind as mass incarceration drove a rapid expansion of prison populations.

Mass incarceration was not the consequence of a single event, but the cumulative effect of several policies. Beginning in the 1970s, American prison populations expanded dramatically, rising to levels out of proportion when compared to other wealthy democracies.12 Today, there are nearly two million people in America’s prisons and jails, with over three million more on probation and parole.13 Black and Brown Americans are incarcerated at higher rates than their proportion of the American population.14

Jeffrey Bellin’s Mass Incarceration Nation15 explores the social and legal factors driving mass incarceration, showing how they came to dominate prison policy so as to keep prison populations rising even as crime fell. Bellin’s analysis teems with statistics, providing a thorough account of how concurrent trends in discretion within the legal system, excessive criminalization, sentencing, and vanishing parole and pardon systems have converged to bring about a modern crisis. Yet Bellin shies away from discussing the role of racism in fomenting all these other trends, leaving his analysis incomplete by failing to say what’s obvious to even a casual observer. The result is somewhat anemic: a view of mass incarceration as a failure of democracy rather than its deliberate subversion by antidemocratic forces.

I should pause briefly to explain how I will contrast democracy and antidemocracy in this Book Review. Democracy, broadly considered, is the ability of the people to participate meaningfully as equals in the decisions that shape their lives.16 Democracy is necessarily more than simply voting and taking the preferences of majorities as law, as democracy’s commitment to political equality demands some measure of respect for minority positions.17 To preserve a democracy, the people must remain vigilant against the creep of oligarchy and retain some mechanism to wrest control when power becomes too concentrated.18 Antidemocracy, by contrast, seeks to accelerate and solidify this concentration of power through the subversion of democratic institutions.19 Antidemocracy sustains hierarchical inequality by suppressing the political and economic power of disfavored groups to entrench the power of an oligarchic elite.

Mass incarceration presents considerable opportunities for antidemocratic actors. First, incarcerated people are typically excluded from voting.20 Prison gerrymandering uses these disenfranchised people in redistricting to bolster white, rural voting power at the expense of diverse cities.21 Incarcerated people are subjected to the last legal vestiges of involuntary labor, forced to work for the institutions that imprison them or even for for-profit corporations at less than minimum wage.22 Convictions also carry a wide range of collateral consequences that rob individuals of essential dignity interests and cause lingering harm to their communities.23 These burdens fall disproportionately on marginalized communities.24 All of this serves to reinforce America’s most fundamental hierarchy: the racialized caste system that persists as a lingering echo of slavery.25 Political elites driving the march of antidemocracy today are largely descended from their predecessors who held other human beings in bondage.26 It should come as little surprise that the political and economic descendants of slaveholders—and their ideological allies—would support slavery and racial caste in their modern transformations.

Yet, prisons hold another benefit for antidemocracy. They offer a proving ground for new antidemocratic policies. Where Justice Brandeis famously hailed the ability of a state to act as a laboratory of democracy,27 prisons, by contrast, have become the laboratories of antidemocracy. Antidemocratic actors can exert all manner of abuses on incarcerated people, far from the condemnation of courts and the voting public. While prisoners challenge such policies in court, they often face an unsympathetic court and resource disadvantages, leading to precedents favoring the prisons’ policies.28 Such decisions then stand as support and justification for politicians interested in broader social control, allowing the spread of antidemocratic policies to the public at large.29 Even when politicians do not explicitly cite to such cases, the cases have already served to demonstrate the roadmap for defending such policies. While the well-documented harms of our carceral state sit uncomfortably with our concept of democracy, prisons’ roles in developing antidemocratic policies could represent an even greater threat. This Book Review is the first piece of scholarship to explore the connection between antidemocratic policies in prison and their subsequent counterparts among the free population.30

Black scholars and activists have long opposed prisons—especially in their modern incarnation—as tools of an antidemocratic order. Prisons by their very nature are an aberration within a democracy, but their potential as laboratories of antidemocracy presents an even greater threat. The lessons of the Attica uprising resonate today, as prisons still fail to provide adequate medical care, censor material on ideological grounds, refuse to pay minimum wage, and incarcerate people for decades at a time.31 While a surge of reform followed the uprising, mass incarceration has exacerbated the problems, and meaningful changes were fleeting.

This Book Review proceeds in three parts. Part I reviews Bellin’s Mass Incarceration Nation, exploring the consequences of Bellin’s meticulously detailed research into the many causes of mass incarceration. It also uses Bellin’s book to probe the question his work implies: Is mass incarceration compatible with democracy? Part II then discusses various antidemocratic policies in place in American prisons, including antilabor practices, censorship, restrictions on bodily autonomy, and limits on legal recourse for official misconduct. Part III discusses the analogs of these antidemocratic policies which are developing in more general applications outside the prison walls. It also addresses the difficulty of proving a direct link between antidemocratic practices and their antecedents in prisons. The final section of Part III examines the necessity of radically reimagining our criminal legal system to preempt these threats to democracy. Mere reform may be sufficient to mitigate mass incarceration, but prison’s antidemocratic effects cannot be resolved without abolitionist interventions.