Hoffinger Forum Recap: Sharon Dolovich on “Incarceration American-Style”

On Tuesday, February 28, 2012, Sharon Dolovich, a Professor at UCLA School of Law, delivered the second Hoffinger lecture of the spring semester, entitled “Incarceration American-Style.” Dolovich began by noting the wide gap between American penal practice and the asserted justifications for the penal system. Her lecture offered an alternative account of why we incarcerate, positing that the “animating mission” of the American prison system is to exclude and control those labeled criminals.

In support of this argument, Dolovich pointed to inhumane prison conditions, limited use of parole grants, and collateral consequences of criminal conviction. First, Dolovich argued that prison conditions, including over-crowding, isolation, threats of violence, and lack of programming to address the problems that often lead to incarceration, result in permanent exclusion of prisoners from mainstream society. These conditions foster behavior that will either lead to recidivism or keep the prisoners on society’s social and economic fringes. Similarly, according to Dolovich, prisoners who have been incarcerated for decades and who pose little risk to society are given no meaningful opportunity for parole. Finally, in addition to the many obstacles that recently released prisoners already face, the government imposes further hardships through restrictions on access to benefits, such as public housing and food stamps. Dolovich suggested that these aspects of the penal system cannot be explained by the traditional justifications of retribution, deterrence, and incapacitation. They are, however, consistent with the goal of permanently excluding criminals from society.

Dolovich went on to argue that society would not impose these conditions on people it considered moral equals. She explained that society removes prisoners in a manner that allows others to forget about them. In order to achieve this goal, society must ensure it keeps prisoners completely separate from its other members. Dolovich referred to this phenomenon as “society’s carceral bargain.” This arrangement, which seeks to allow prisoners to be forgotten, implies that those prisoners are not entitled to moral respect and are essentially “non-humans.” Radical individualism seeks to justify this bargain by positing that prisoners are wholly responsible for the actions which led to their incarceration.

Dolovich then turned her attention to the increasing use of solitary confinement and the rise of Supermax facilities. She explained these practices as repeating the logic of exclusion and control within the context of the prison. Inmates are subjected to inhumane conditions that often compound their behavioral problems. Nonetheless, their behavior is viewed by the state as the product of free will. This explanation allows for another carceral bargain to occur in which prisoners who cannot control themselves are taken out of the general population so that prison officials can forget about them.

Exclusion and control is not limited to the penal context. Rather, Dolovich suggested that it has become America’s instinctive response to any perceived threat. She pointed to examples, such as the incarceration of pre-trial detainees, undocumented immigrants, and “enemy combatants.” In these instances, just like in the penal context, society uses prison to separate out people who it does not want to deal with.

Dolovich did, however, end on a positive note. She pointed to the Second Chance Act and the Prison Rape Elimination Act as examples of federal legislation that, not going far enough, creates hope for a new moral conception, by affirming that people in prison should not be subjected to physical abuse and, although they have made mistakes, deserve the opportunity to return to society and try to rebuild their lives.

–Student fellow Michael Pabian (‘12)

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