Categories
Criminal Justice

The use of “chain gangs,” “tent city,” and other novel punishments and how they impact prisoner rights.

Introduction

As the President prepares to address the nation in regard to criminal justice and pertinent ethical considerations, it is inevitable that a dominant element of the occasion reflect concerns in place since the terrorist strikes of September 11, 2001.  That event set in place ideological issues of enormous proportions, as the ensuing efforts to both deter terrorism and apprehend those responsible have generated heated discussions of their own.

Added to this, and increasing a responsibility already of incalculable proportions, are public concerns in regard to extreme violence erupting within the nation and perpetrated by American citizens.  If earlier decades emphasized a more humane approach to criminal justice and prisoner rights, this combination of immense forces has largely brought about a new militancy in the feelings of the people.  Danger, it is perceived, is no longer as hypothetical as it was, at least in terms of public sensibilities.  Threats both external and internal reveal vulnerabilities and forms of criminality rarely considered in relatively recent years, and inclinations to attend to the rights of prisoners have consequently been lessened. This, it may be safely surmised, is the atmosphere in which the President will find himself on this occasion.

At the same time, the President is obligated to approach all such matters in a way reflecting the responsibility of the nation to ultimately adhere to its own ideologies, no matter the dominant levels of concern at the time.  He does not possess the luxury of the ordinary citizen, who may demand measures that, while sating fear and attending to security, deny basic freedoms and ethical treatment of all.  That the controversies surrounding prisoner detention at Guantanamo Bay actually generated dispute in this arena, moreover, indicates an American sense of this obligation as well.  Most importantly, as he addresses this town meeting, the President must maintain his awareness that fear is not new, in regard to how governments treat prisoners.  Historically, most extreme and unethical detentions and punishments have been fueled, not by unconscionable desires for revenge, but out of fear for safety.  This understood, and even as the complexities of the issues are addressed in the following, it is essential that the President fulfill his role and insist on valid and ongoing examinations into the ethics surrounding all prisoner treatment.

Background

       It is urged, first and foremost, that the President enter this assembly equipped with sufficient awareness of the admittedly long and complicated history of governmental response to prisoner rights.  This awareness is essential for more than one reason; it permits the President to speak with authority on the subject, and it may also give him a perspective needed when confronting the inevitably “immediate” concerns of the people.  As noted, it is critical that the President comprehend how invariably difficult these considerations are, always, as ambitions to behave ethically typically clash with public fears and demands that justice be served.  He serves both his own interests and those of the people, then, when he can discuss the issues with an expansive sense of their history, a sense likely not present within the majority of the attendees.  This is not to imply that ethical issues of prisoner treatment will be served by the President’s “instructing” his audience; rather, the goal is that the knowledge itself will create a core of rationale valuable to the President as debate carries on.  That he will be enabled to note parallels between contemporary and historic episodes will as well be of benefit to all concerned.

The history of Andersonville reflects perhaps the most sensational case of a prisoner camp known to American history.  This Confederate “facility”, moreover, serves to illustrate how ethical violations of unspeakable proportions may occur through, not deliberate malice, but inadequate planning and administration.  This is no insignificant point for a President who must assess, not only why ethics are debated in regard to prisoners, but how severe lapses occur.  Erected in 1864, Georgia’s Andersonville existed only through 1865, but within its first few months of operation the influx of prisoners grossly exceeded the bare maintaining of life possible.  Over 100 men died daily at its peak, virtually all due to disease and starvation, and it is critical to note that the conditions of the camp were documented at the time.  Report after report was issued during the camp’s existence, detailing the horrors and demanding federal intervention (Marshall, 1942, p. 287).  This was, of course, wartime, and events may well have moved at a pace denying actual opportunities to address the issues; the Confederacy was at that point unable to properly feed its own soldiers, so the disregard of the prisoners is somewhat explicable.

The ability to explain, however, and as the President must bear in mind during the meeting, is removed from accountability.  Andersonville is legendary, but it is by no means an isolated case of prisoners of war enduring inhuman conditions.  In 1863, for example, the Union prison of Rock Island had an 80 percent mortality rate among its Confederate population, as the Federal prison at Camp Douglas had the highest mortality rate for any Civil War prison, Southern or Northern (Marshall, 1942,  288).  What is essential to note is that, in these turbulent years of American history, a novel mode of punishment was created in the form of the prison for Americans maintained by Americans, albeit of differing loyalties.  There was no precedent, but more significant is that fact that the momentum and deprivations inevitable to war were permitted to allow treatment which would be unthinkable otherwise.  It seems that here, as intensity of conflict changed the foundation of the society, ethics regarding prisoners were ignored because they were, in a sense, “luxuries” the society could not sustain.  This powerfully goes to the nature of ethics itself.  Interestingly, a cultural and governmental dichotomy exists, in that ethics are usually viewed as absolutes, even as circumstances alter how they are valued.

In a sense, this dichotomy is not of itself unethical.  It is inevitable that ethics, usually viewed as an inviolable constant, shift as societies evolve.  It is as well reassuring to believe that certain ethical precepts, embraced by the society and written into constitutional law, are unchanging.  Unfortunately, even the Constitution is subject to interpretation, and the occasions for alterations in these interpretations are typically triggered by extreme circumstances.  The underlying ethics, then, are challenged or modified in processes both subtle and powerful.  More importantly, a concern for ethics demands that factors of circumstances be seen as highly suspect.

In regard to the rights of prisoners, specifically, a testing ground is essentially offered, in that this is an extreme population typically identified as lacking in ethics itself.  There can be no discounting the vast and complex impacts when a nation or culture is threatened, either externally or internally.  Nonetheless, the greatest of care must be exercised when actual, ethical precepts are being considered as malleable.  The importance of the potential change demands a commensurate level of examination as to what, precisely, in encouraging the altered direction.  More simply, when changes in ethical ideologies do not go to enhancing humane concerns – as ethical evolution most properly manifests itself – the regard for circumstances is paramount.

Another instance of America setting aside its ethical precepts due to extreme conditions occurred in the tent cities of the World War II years.  As is well known, Americans of German, Italian, and Japanese extraction were coerced into these arenas, ostensibly to ensure the safety of all.  What this novel creation of punishment represented, however, was a form of prisoner treatment blatantly exceeding any know boundaries.  That is to say, citizens were made prisoners without having committed crimes, as a climate of fear justified so extraordinary a deviation from decency sand Constitutional liberties.  Even more striking was the less known “trade” in Japanese individuals from Latin American countries.  In simple terms, the U.S. entered into an agreement with Peru to deport its Japanese citizens to America, who would then be exchanged with the Japanese government for American prisoners of war (Saito, 1998,  p. 275).  The tent cities comprised an activity of striking dimension, in terms of disregarding the rights of the victims and setting aside the ethical precepts, and even laws, of the nation.  The hostage arrangements, however, utterly abandoned ethics entirely.  Japanese persons were essentially kidnapped and reduced to a prisoner status, and relocated against their will.  This was eventually addressed in civil suits in the 1990s, even as the settlements achieved brought with them no official admissions of governmental responsibility during this period (Saito, 1998,  p. 288).  The President would do well, then, to reflect at the town meeting as to just how radically national fears may eviscerate ethics, both in how prisoners are treated and in how they are even defined as such.

Further Discussion

It is entirely likely that members of the town meeting will admit to excesses of ethical practices as having been in place during war years.  It seems people are largely open to acknowledging violations of the subject which occurred in the past, and for which they may take no real responsibility.  At the same time, and as will be shortly noted, modern circumstances influenced by war reflect unethical prisoner treatment of the same kind to an uncanny, if not more extreme, degree.  This also does not begin to encompass a perhaps more sensitive area, that of how ethics lapse or disintegrate in terms of “ordinary” prisoner address.  For example, there is the institution of the chain gang, which has a lengthy history in the United States.  It is interesting that the Supreme Court, while having investigated aspects of the chain gang, has never actually examined its constitutionality as a concept.  More simply, this form of prisoner punishment, in which convicts are literally chained to one another as they are compelled to perform manual labor, has never been question in the Court as an example of the “cruel and unusual” punishment prohibited by the Eighth Amendment (Vasquez, 2012,  p. 226).  This in turn relates to an extraordinary aspect of 19th century legislation, and one little known to the general public.  It is widely accepted that the Thirteenth Amendment rendered slavery obsolete, an act seen as marking a significant phase in the ethical evolution of the U.S.  The Amendment, however, permits slavery as a punishment for certain, unspecified crimes of such a nature as to warrant it (Taylor, 2011,p. 367).  That this codicil is ignored in the legislature in no way lessens its impact in regard to how ethics are shaped within changing law.  More importantly, and highly relevant to a President addressing a modern climate of fear and an emphasis on severe punishment, it appears that the law has been in the past fully capable of expressing contrasting agendas or platforms.  More exactly, the Thirteenth Amendment simultaneously removes an outrage as applicable to all persons, save those convicted of crimes.

All of this places the chain gang in the light of a novel punishment that exists to mimic slavery itself.  It is established that such gangs originally relied on the inability of freed slaves to pay fines for vagrancy; the imprisonment, then, reflected slavery in terms of both the mandated labor and the leasing out of these prisoners to neighboring counties; “ownership” was transferred for commercial reasons (Vasquez, 2012,  p.  231).  What is more important, however, is that this practice is by no means limited to historical epochs, and the revival of the chain gang in the 1990s powerfully reveals how ethics may be allowed to degrade to standards once deemed unconscionable.  The revival was not long-lived, but that three states legislated the reenactment of chain gangs is evidence of how rising fear over criminal violence insisted on punishment of a retributive kind.  In these years, the officials presented arguments that the chain gang labor would create states of “healthy exhaustion” among inmates and consequently reduce prison violence; the people, meanwhile, were supporting the gangs due to a backlash reaction, in that it was widely felt that prisoners were treated too well (Vasquez, 2012,  p. 240).  What no one considered, apparently, was the the renewal of the practice was as gross a violation of human rights in the 1990s as it was in the 1870s.

It is to be expected that the President will encounter some of the public feeling mentioned.  Crime does indeed escalate, so it is likely that ordinary people will seek more severe punishment to act as a deterrent force.  Unfortunately, deterrence is not the only common goal; it occupies space in American society with an ambition to concretely punish.  Here, as elsewhere, the President’s equanimity of mind is crucial.  While he must certainly not antagonize the public, it remains his responsibility to uphold those precepts at least ostensibly upheld by all Americans.  To assert that, to the average citizen, an actual sense of deprivation is correct for the convicted prisoner is reasonable.  Nonetheless, the public must comprehend that there is a distinction between just punishment and retribution.  The government may not exist to exact retribution beyond the denying of personal freedom ensuing incarceration, and it may not express the society’s need for justice through inhumane treatment of any prisoner.  This translates to the government’s having the unenviable task of observing a reality distasteful or unacceptable to many; that is, we as a society are bound to ethics no matter how the prisoner disregards them.

This inescapable obligation exists within all prisoner scenarios, as the modern warfare aspects mentioned earlier demonstrate.  If chain gangs enjoyed a temporary resurgence and ignored ethical demands, the same may be said for grossly unethical practices set in motion during recent, international conflicts.  As is well known, the terrorist strikes of 9/11 changed the nation in vast ways.  On one level, fear escalated to such a degree that the rights of ordinary citizens were very much sacrificed, and in some cases with the full cooperation of those citizens.  So great a level of fear must affect how the “enemy” is treated as well; extremes within one arena of a culture tend to generate extremes elsewhere.  They also seem to echo patterns of the past.  In reviewing the sensationalized abuses as having occurred at Guantanamo Bay, Cuba, which may be defined as the preeminent arena for terrorist internment for the U.S., it is easy to see a trajectory not unlike historical instances of prisoner abuse.  That is to say, certain individuals are (justly) charged and apprehended, and the machinery behind their grossly unethical practices remains very much in place, simultaneously condemning the excesses while having at least covertly sanctioned them.  As the President hears the feelings of Americans, he must be mindful that such feelings, unrestrained and operating within the form of a military individual, easily lead to the horrors perpetrated by Staff Sergeant Frederick and Corporal Graner.  These are the infamous faces in the photographs of guards smiling behind naked, humiliated Iraqi and Afghani prisoners.  Frederick admitted to repeatedly torturing those in his charge, as Graner spoke of engaging in the same activities.  What was not generally known is that the assignments of these two officers was by no means random; each had a lengthy and documented history of abusing prisoners in civilian facilities (McCulloch, Scraton, 2009, p. 168).  It is difficult, then, to ignore the probable scenario.  As the Guantanamo Bay camp was devised to detain suspected terrorists, the military actively sought out those officers who would be less inclined to adhere to ethical standards of prisoner treatment.

This goes to the mentality regarding prisoners essentially evident within the society as a whole.  On one level, Guantanamo Bay exists to fulfill its nominal purpose, and detain and interrogate.  On another, it was equally in place to inflict harm, an approach enabled by an eagerly accepted wartime attitude:  “It has sought to expel the prisoners….from our shared understanding of what it means to be human, so as to permit, if not necessitate, physical and mental treatment (albeit in the context of interrogation) abhorrent to human beings” (Ahmad, 2009, p. 1687).  Within this statement lies the key to the ethical dilemmas, as well as the ethical answer, to the issue of prisoner treatment.  It appears that, since the inception of the American system of justice, multiple aims and ideologies have been in perpetual conflict.  As ethical standards have improved in keeping with an enlightened and evolving society, so too has an insistent public – and governmental – desire for retribution been in place, and frequently employed within legislative language cloaking its true intent.  It is, finally, utterly incompatible with ethics, if ethics are to have any meaning.  When the President speaks to the people on this subject, he must not lose sight of this reality.  It is to be expected that most ordinary people would wish that criminals suffer to some extent; the impulse is wholly human, if not especially elevated.  We do not define ourselves as ethical beings, however, when we tailor ethics to neatly accommodate such impulses removed from them.  What a criminal and/or prisoner has done may be reprehensible, or even unthinkable.  Regrettably, no such action allows for those addressing their destinies to violate basic standards of human decency and treatment accepted as absolute.

Punishment varies by crime, and this is right; even capital punishment does not apply to the discussion of prisoner treatment, as it is distanced from the matters of housing and care. So too is length of sentencing ancillary to the subject.  What matters is that, no matter the prisoner or the sentence, we conform to the best ideas of ourselves by adhering to the ethical standards we see as essential to that state of being.

Conclusion

As noted, the President faces a challenging hour, in addressing the ethics of prisoner treatment in a society currently both fearful and dissatisfied with rising rates of crime.  This is the ground upon which, historically, ethics are allowed to become diffused, and this is then where the President must perform the role no other need take on.  He must be the voice of authority that declares that we are obligated to separate desires for retribution from justice, no matter our fears or outrage.  Then, as the President discusses these issues of prisoner rights, one point must be reinforced; namely, that the society’s and government’s responsibility to proceed ethically toward all prisoners is in place despite conviction and/or guilt (Luban, 2008,  p. 1986).  There is a duty in exercising ethics that is inherently distasteful, in that they must be in place no matter their absence within the parties whom they affect.  No one is expected to like the criminal or prisoner, but all must concede that human beings must be treated in human ways, or we abandon any right to define ourselves as civilized.  In this, we have failed, and repeatedly.  We have permitted unspeakable prison practices to go on in the past in wartime, both recent and otherwise, and we have repeated inhumane chain gangs to be recreated.  In doing this, we demean ourselves far more than any criminality could.  It is therefore essential that the President fulfill his role and insist on valid and ongoing examinations into the ethics surrounding all prisoner treatment.

References

Ahmad, M. I.  (2009).  Resisting Guantanamo: Rights at the Brink of  Dehumanization.   Northwestern University Law Review, 103 (4), 1683-1762.  Retrieved from https://www.law.northwestern.edu/lawreview/v103/n4/1683/LR103n4Ahmad.pdf

Luban, D.  (2008). Lawfare and Legal Ethics in Guantánamo.  Stanford Law Review, 60 (6),         1981-2025.  Retrieved from http://www.stanfordlawreview.org/sites/default/files/articles/Luban.pdf

Marshall, M. L.  (1942).  Medicine in the Confederacy.  Bulletin of the Medical Library    Association, 30 (4), 278-299.  Retrieved from             http://www.ncbi.nlm.nih.gov/pmc/articles/PMC194039/

McCulloch, J., & Scraton, P. (2009).  The Violence of Incarceration.  New York: Routledge.

Saito, N. T. (1998).  Justice Held Hostage: U.S. Disregard for International Law in the World War II Internment of Japanese Peruvians — A Case Study.  Boston College Third World Law          Journal, 19 (1), 275-348.  Retrieved from http://heinonline.org/HOL/LandingPage?            collection=journals&handle=hein.journals/bctw19&div=12&id=&page=

Taylor, J. R.  (2011).  Constitutionally Unprotected: Prison Slavery, Felon Disenfranchisement,    and the Criminal Exception to Citizenship Rights.  Gonzaga Law Review, 47,  365-392.  Retrieved from https://www.law.gonzaga.edu/law-review/category/volume-47-2011-        2012/page/2/

Vasquez, C. A.  (1995).  Prometheus Rebound by the Devolving Standards of Decency: The Resurrection of the Chain Gang.  Journal of Civil Rights and Economic Development, 11