Prisons as Laboratories of Antidemocracy
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.
Introduction
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.
Langston Hughes, Shadows, Acad. Am. Poets, https://poets.org/poem/shadows [https://perma.cc/Z9CN-6GWR].
See Dave Davies, How the Attica Prison Uprising Started—and Why It Still Resonates Today, Nat’l Pub. Radio (Oct. 27, 2021, 1:57 PM ET), https://www.npr.org/2021/10/27/1049295683/attica-prison-documentary-stanley-nelson [https://perma.cc/YD7M-76NY] (“On Sept. 9, 1971, tensions boiled over as more than 1,000 prisoners, including Harrison, revolted, seizing 39 guards as hostages and gaining control of the prison.”).
See Timeline of Events of the Attica Prison Uprising of 1971 and Subsequent Legal Actions, N.Y. State Archives, https://www.archives.nysed.gov/research/topic-attica-timeline [https://perma.cc/CY62-BQFG] [hereinafter Timeline of Events] (“September 10, 1971—Prisoners elect representatives and citizen observers are permitted to enter D Yard to aid in negotiations.”).
See Asha Bandele, After the Attica Uprising, Nation (Sept. 9, 2011), https://www.thenation.com/article/archive/after-attica-uprising [https://perma.cc/Q3Z6-48HC] (describing the complaints of people incarcerated in Attica leading up to the uprising).
See The Rockefellers: Attica Prison Riot, PBS (Oct. 16, 2000), https://www.pbs.org/wgbh/americanexperience/features/rockefellers-attica [https://perma.cc/ZY7N-9836] (“I thought we had closure on all 25 items. And then unfortunately one of the prison guards died from injuries during the attack, the uprising. That changed the whole picture.” (quoting Robert Douglass, Counsel to Gov. Nelson A. Rockefeller)).
See id. (“And the other was general amnesty, which the governor had no power to grant. He could grant a pardon, but that’s after a conviction.”); Davies, supra note 2 (“The one demand that everything hinged on was amnesty, because the prisoners . . . wanted amnesty for anything that was done in the rebellion, because there was a real fear that all of the prisoners would be tried en masse for everything.”).
See Timeline of Events, supra note 3 (“During the assault to retake the prison, 29 inmates and 10 hostages are killed, and many more are wounded. Of the 43 deaths at Attica, four were at the hands of inmates. Of those four victims, all but one, Correction Officer Quinn, were fellow inmates.”); Bandele, supra note 4 (“Then, without warning, the shooting began, the bullets as indiscriminate as the expanding cloud of poison.”); Leslie Gornstein, It’s Been 50 Years Since the Infamous Attica Prison Riot, CBS News (Nov. 4, 2021, 5:26 PM EDT), https://www.cbsnews.com/pictures/attica-prison-riot-50-years-later [https://perma.cc/5UNJ-7F26] (“After a 10-minute bloodbath that would eventually leave at least 43 people dead, the five-day prison rebellion was over.”).
See Justin Brooks, How Can We Sleep While the Beds Are Burning? The Tumultuous Prison Culture of Attica Flourishes in American Prisons Twenty-Five Years Later, 47 Syracuse L. Rev. 159, 161 (1996) (“In May of 1972, New York State Assemblymen approved twelve million dollars for reforms in the New York State Prison System, and by September of 1972, twenty-four of the twenty-eight original demands of the Attica inmates had been met.”).
See James Cullen, The History of Mass Incarceration, Brennan Ctr. for Just. (July 20, 2018), https://www.brennancenter.org/our-work/analysis-opinion/history-mass-incarceration [https://perma.cc/B2Z3-WGHY].
See Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2023, Prison Pol’y Initiative (Mar. 14, 2023), https://www.prisonpolicy.org/reports/pie2023.html [https://perma.cc/E877-AZ7Q].
See Tom Christiano & Sameer Bajaj, Democracy, Stan. Encyc. Phil. (Mar. 3, 2022), https://plato.stanford.edu/entries/democracy [https://perma.cc/ELA9-QB69] (“The term ‘democracy’, as we will use it in this entry, refers very generally to a method of collective decision making characterized by a kind of equality among the participants at an essential stage of the decision-making process.”); Nikolas Bowie, Antidemocracy, 135 Harv. L. Rev. 160, 160 (2021) (“[Democracy is] planted whenever people treat one another as political equals, allowing everyone in the community, or demos, to share in exercising power, or kratos.”); see also W.E.B. Du Bois, Black Reconstruction in America 182-89 (The Free Press 1998) (1935) (discussing the push by leading abolitionists to ensure that emancipation came with the necessary education, civil rights, and economic resources for formerly enslaved Black people to become full citizens and voters in a new social and political order).
See Democracy, Council Eur., https://www.coe.int/en/web/compass/democracy [https://perma.cc/L8UC-3PUM] (“Properly understood, democracy should not even be ‘rule of the majority’, if that means that minorities’ interests are ignored completely. A democracy, at least in theory, is government on behalf of all the people, according to their ‘will’.”).
See Ganesh Sitaraman, Countering Nationalist Oligarchy, Democracy J. (2019), https://democracyjournal.org/magazine/51/countering-nationalist-oligarchy [https://perma.cc/6XAG-ZCND] (“The challenge we face today is . . . nationalist oligarchy. This form of government feeds populism to the people, delivers special privileges to the rich and well-connected, and rigs politics to sustain its regime.”); Camila Vergara, Towards Material Anti-Oligarchic Constitutionalism, 46 Revus: J. Const. Theory & Phil. L. 141, 142-43 (2022) (“Political power is today de facto oligarchic. In almost all representative democracies, the people who get to decide on policy, law, and the degree of protection of individual rights . . . tend to have the same interests and worldview of the powerful few who benefit most from the status quo.”); Megan Gannon, Ancient Greeks Voted to Kick Politicians out of Athens If Enough People Didn’t Like Them, Smithsonian Mag. (Oct. 27, 2020), https://www.smithsonianmag.com/history/ancient-athenians-voted-kick-politicians-out-if-enough-people-didnt-them-180976138 [https://perma.cc/VZA6-3E92] (discussing the process of ostracism by which Athenians removed citizens who posed a threat to their democratic civil order).
See Bowie, supra note 16, at 161 (“[L]ike an herbicide to protect property from the ‘excess of democracy,’ antidemocracy has sustained social hierarchies from the spread of political equality. Whether it comes in the form of violent repression, vetoes of legislation by unelected officials, or practically unamendable constitutional restrictions, antidemocracy has had a long half-life.”); Katherine Stewart, The Claremont Institute: The Anti-Democracy Think Tank, New Republic (Aug. 10, 2023), https://newrepublic.com/article/174656/claremont-institute-think-tank-trump [https://perma.cc/86RD-CC3S] (“Over the past five decades, wealthy conservatives have conducted a grand experiment in American political discourse by investing heavily in organizations and think tanks that have sought to shift the center of public debate in a direction favorable to their interests and privileges.”).
See Christopher Uggen, Ryan Larson, Sarah Shannon & Robert Stewart, Locked out 2022: Estimates of People Denied Voting Rights, Sent’g Project (Oct. 25, 2022), https://www.sentencingproject.org/reports/locked-out-2022-estimates-of-people-denied-voting-rights [https://perma.cc/8LNL-4P3T] (estimating that 4.6 million Americans are denied the right to vote as a consequence of felony convictions); Richardson v. Ramirez, 418 U.S. 24, 54 (1974) (“[T]he exclusion of felons from the vote has an affirmative sanction in § 2 of the Fourteenth Amendment . . . .”).
See Garrett Fisher, Taylor King & Gabriella Limón, Prison Gerrymandering Undermines Our Democracy, Brennan Ctr. for Just. (Oct. 22, 2021), https://www.brennancenter.org/our-work/research-reports/prison-gerrymandering-undermines-our-democracy [https://perma.cc/3L87-PB8G] (“[Areas whose residents are incarcerated elsewhere] see their representation in legislative bodies diluted, while areas with prisons receive more than their fair share. This practice is known as prison gerrymandering, and it turns inequities in our criminal justice system into representational inequities.”).
See Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. Rev. 457, 464-65 (2010) (“[T]he United States’ harsh collateral consequences, particularly those that are unrelated to the underlying crime, continue to degrade individuals once they have completed their sentences.”).
See Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1789-90 (2020) (“Police violence is (1) authorized by law, (2) takes various, interconnected forms, (3) that occur in routine and common place ways, that are (4) targeted along the dimensions of race, class, and gender, and (5) constitute and produce our political, economic, and social order.”).
See Philipp Ager, Leah Boustan & Katherine Eriksson, The Intergenerational Effects of a Large Wealth Shock: White Southerners After the Civil War, 111 Am. Econ. Rev. 3767, 3768 (2021) (“Emancipation resulted in the loss of material resources, without disrupting other potential advantages, such as specific skills and training, social networks or political connections. The recovery of the descendants of slaveholders suggests a remarkable persistence of these other advantages even in the face of large declines in financial wealth.”); Tom Lasseter, Lawrence Delevingne, Makini Brice, Donna Bryson, Nicholas P. Brown & Tom Bergin, America’s Family Secret, Reuters (June 27, 2023, 10:00 AM GMT), https://www.reuters.com/investigates/special-report/usa-slavery-lawmakers [https://perma.cc/AM6D-SSWB] (“In researching the genealogies of America’s political elite, a Reuters examination found that a fifth of the nation’s congressmen, living presidents, Supreme Court justices and governors are direct descendants of ancestors who enslaved Black people.”); Julie Zauzmer Weil, Their Wealth Was Built on Slavery. Now a New Fortune Lies Underground., Wash. Post (Dec. 1, 2022, 7:00 AM EST), https://www.washingtonpost.com/history/2022/12/01/coles-hill-virginia-slavery-uranium [https://perma.cc/SV4W-TPY6] (“Coles, 84, is one of countless Americans who still benefit from the wealth accumulated by America’s 18th- and 19th-century slaveholders.”).
See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) (“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”).
Compare Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009) (rejecting a detainee’s complaint for failing to give detailed facts supporting allegations of discriminatory intent), with Jones v. Hosp. Corp. of Am., 16 F. Supp. 3d 622, 628-36 (E.D. Va. 2014) (applying the Iqbal standard to reject a pharmacist’s complaint for workplace discrimination), and McCauley v. City of Chicago, 671 F.3d 611, 615-19 (7th Cir. 2011) (rejecting a wrongful death action against city and state government defendants who failed to enforce a protective order for pleading insufficient facts under Iqbal), and Shaw v. Villanueva, 918 F.3d 414, 418-19 (5th Cir. 2019) (applying the Iqbal standard to reverse a denial of qualified immunity in a civil rights case).
Other scholars have observed the peculiarities of prison legislation and jurisprudence. See generally Rebecca Cooper, Caroline Heldman, Alissa R. Ackerman & Victoria A. Farrar-Meyers, Hidden Corporate Profits in the U.S. Prison System: The Unorthodox Policy-Making of the American Legislative Exchange Council, 19 Contemp. Just. Rev. 380 (2016) (discussing the role of private-industry advocacy in shaping prison policy); Emma Kaufman & Justin Driver, The Incoherence of Prison Law, 135 Harv. L. Rev. 515 (2021) (discussing the permissive and often contradictory standards at play in prison litigation).
Cf. Attica Liberation Faction, Manifesto of Demands and Anti-Depression Platform, Freedom Archives (1971), https://freedomarchives.org/Documents/Finder/DOC510_scans/Attica/510.Prisons.AtticaManifesto.pdf [https://perma.cc/Y2DC-7HZ5] (explaining that proper medical care, uncensored access to media, fair pay, and reduced sentence lengths were all among the Attica prisoners’ demands).