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“In 2014, amid mounting criticism and legal pressure, the Federal Bureau of Prisons imposed a new policy promising better care and oversight for inmates with mental-health issues. But data obtained by The Marshall Project through a Freedom of Information Act request shows that instead of expanding treatment, the bureau has lowered the number of inmates designated for higher care levels by more than 35 percent. Increasingly, prison staff are determining that prisoners—some with long histories of psychiatric problems—don’t require any routine care at all.

As of February, the Bureau of Prisons classified just 3 percent of inmates as having a mental illness serious enough to require regular treatment. By comparison, more than 30 percent of those incarcerated in California state prisons receive care for a “serious mental disorder.” In New York, 21 percent of inmates are on the mental-health caseload. Texas prisons provide treatment for roughly 20 percent.

A review of court documents and inmates’ medical records, along with interviews of former prison psychologists, revealed that although the Bureau of Prisons changed its rules, officials did not add the resources needed to implement them, creating an incentive for employees to downgrade inmates to lower care levels.

In an email, the bureau confirmed that mental-health staffing has not increased since the policy took effect. The bureau responded to questions from a public information office email account and declined to identify any spokesperson for this article.

“You doubled the workload and kept the resources the same. You don’t have to be Einstein to see how that’s going to work,” said a former Bureau of Prisons psychologist who spoke on the condition of anonymity because of a pending lawsuit regarding his time at the agency.

The bureau said it is “developing a strategy” to analyze this drop in mental-health care, consistent with a Justice Department inspector general’s recommendation last year. Although only a small fraction of federal inmates are deemed ill enough to merit regular therapy, officials acknowledged that 23 percent have been diagnosed with some mental illness.

Data shows the reduction in care varies widely depending on location. At the high-security penitentiary near Hazelton, for instance, which is near the medium-security facility where Rudd was housed, the number of inmates receiving regular mental-health care has dropped by 80 percent since May 2014. At the federal prison near Beckley, West Virginia, the number fell 86 percent.

Although hiring and retaining mental-health staff is a challenge for all prisons, it can be especially difficult for remote facilities. A recent study published in the American Journal of Preventive Medicine found that about half of rural communities in the United States don’t have access to a psychologist, and 65 percent don’t have a psychiatrist.

“Most people who have gone through the time and expense to become a psychologist … do not want to live in a really rural area,” said Doug Lemon, a former chief psychologist at two federal prisons in Kentucky. “You can say, ‘Doug Lemon’s lab [should have] five psychologists,’ but if he can only hire three because he can’t get anyone else to work there, guess what? He’s stuck meeting the same mission with three instead of five.”

Staffing shortages elsewhere in the federal prison system have forced the bureau to require some counselors to serve as corrections officers, a situation that worsened under the Trump administration after a lengthy hiring freeze designed to cut spending. In 2016, the bureau had instructed wardens to stop using psychologists for tasks not related to mental health, except in emergencies. But media reports illustrate how counselors and case managers are still being asked to do odd jobs.

“The catchphrase in the bureau was ‘Do more with less,’ ” said Russ Wood, a psychologist in federal prisons for 24 years. “The psychologists were getting pulled off to work gun towers and do prisoner escorts. We’re not really devoted to treating.”

A bureau spokesperson said that all staff are “professional law enforcement officers first” and that the agency does not consider mental-health care to be the primary role of counselors or social workers.”

– Christie Thompson & Taylor Elizabeth Eldridge, “Treatment Denied: The Mental Health Crisis in Federal Prisons.” The Marshall Project. November 21, 2018.

Art by Owen Gent.

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“I don’t put the blame on prison guards. They’re only workers. They’re not inanimate things, cement walls that can neither see nor hear nor think. Most of them didn’t choose their jobs; they ended up there because they thought they had no other choice. I’ve spent a total of twelve years inside walls, behind bars and fences, and I’ve never met a prison guard in whom I saw no trace of myself. I never met a guard who had dreamed that patrolling a convict yard would be the daily content of his life. Very few of those I’ve met admitted to never having dreamed, never having imagined themselves proud of projects undertaken with one or several genuine friends. Was our point of departure the same, and were we at some point interchangeable? How much has each of us contributed to what each has undergone? If a guard ever dreamed, was it of prisons and camps that he dreamed, and was he my jailer-to-be already then?”

– Fredy Perlman, Letters of Insurgents.

Published by Black and Red Press, Detroit, 1976.

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“If the diet in our prisons be dreaded, the idlers will not direct their steps so often towards these establishments. There are in the cities of Montreal and Quebec a certain number of rogues who quit the prisons to return to them, after an absence of a few days; for these miserable wretches – the greater number of whom are without any home – like to establish their abode at the common jail, where they find clean beds, an agreeable temperature, chiefly in winter time, and a certain abundance of food, comparatively speaking, all of which induce them to consider the prison as palaces.

Before building [a new central prison, for which the inspectors have been making the case for twenty years], it must be borne in mind that it is intended for all classes of criminals; that it will have to shelter the scum of society, wretches, who, half the time, have neither home, nor food, nor clothing, picked up by the police in the filthy streets and in the haunts of vice and infamy in our cities; and that, accustomed as they are to every misery and privation, it would not be right to lodge them in a palace, in a building which would create a desire to remain in it, in a word a dwelling affording more comfort than the dwellings of half the honest people of the country…The inhumanity and barbarity of by gone ages must be carefully avoided; but on the other hand we must not be carried away by a ridiculous and dangerous philanthropy.

If…prompted by an exaggerated sensitiveness,, a mistaken idea of philanthropy, we place these criminals in a better position than they were in before committing their crime, does not the punishment become an illusion, a mockery, I may even say a reward for crime. Let us ask ourselves whether the treatment of criminals in our gaols and penitentiaries is in the interest of society and of the state.”

– “Thirteenth Report of the Inspectors of Prisons, Asylums, &c.,&c. for the Province of Quebec for the Year 1882,” Quebec Sessional Papers, Volume 16, pt. 15, pp. 15-17.

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“French Convicts ‘En

Chaîne.” (From a Drawing by Moanet.)” from Arthur Griffiths, Mysteries of police and crime. In Three Volumes. New York: Cassell & Company, Ltd., 1898.  p. 55

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“Juan G Morales belonged to the 1970s crush of incarcerated men and women who asked the courts to ease the harshness of prison life. Morales was incarcerated in the state of Wisconsin, and his jailers were not allowing him to exchange letters with his lover. He brought an action in federal court against the state in order for his right to correspondence to be restored. His case came to Judge James E Doyle, father to a future governor.

Doyle sided with Morales, and the language he employed says much about how the prison system was viewed by mainstream America at that time: “I am persuaded that the institution of prison probably must end. In many respects it is as intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of man, even more costly by some standards, and probably less rational.”

In the years after Doyle wrote, the prison population soared, imprisonment became a predominant feature of American life, and a world without prisons became even more difficult to imagine. Yet Doyle’s words reflected a very real sense common to the early 1970s that the end of the prison could be quite near. The Norwegian criminologist and prison abolitionist Thomas Mathiesen describes this historical moment – not only in the US, but across the Atlantic as well – as the only time in the history of the prison when prison abolition was a real possibility. We are reaching another such moment, and we ought to learn from what went wrong nearly a half-century ago. Among the reasons the protean movement to abolish prisons fizzled was its refusal to speak in plainly moral terms. In foregrounding pragmatic reforms, 1970s prison reformers turned away from the rich abolitionist heritage and failed to generate the force necessary for effecting radical social change.

Michelle Alexander’s book The New Jim Crow has done much of late to introduce the massive scale of the injustices involved in the prison system to a mainstream audience, but from the late 1960s to the early 1970s, there were any number of such publication events: Karl Menninger’s The Crime of Punishment (1968), Nigel Walker’s Sentencing in Rational Society (1969), Richard Harris’s The Fear of Crime (1969), former attorney general Ramsey Clark’s Crime in America (1971), and Jessica Mitford’s Kind and Usual Punishment (1973), to name a few.

To a wide and receptive public, these opponents of the prison system argued that prisons simply do not work. Prisons attempted to rehabilitate, but high recidivism rates proved they were failing. Prisons were also cruel and unjust, according to these early opponents – not merely as they were currently administered, but as such: caging people was presented as fundamentally harmful and wrong. Mitford, an English aristocrat and journalist, went further, claiming that prisons are “essentially a reflection of the values, and a codification for the self-interest, and a method of control, of the dominant class in any given society”. Increased public attention focused on the prison system, stoked by highly visible prison rebellions in New York City in 1970 and in Attica in 1971, led to a sense that dramatic change was inevitable. It was now just a question of sorting out the practicalities.

Writing in his 1971 book The Discovery of the Asylum, historian David Rothman optimistically asserted: “We have been gradually escaping from institutional responses and one can foresee the period when incarceration will be used still more rarely than it is today.” In his widely circulated 1973 exposé, The New Red Barn: A Critical Look at the Modern American Prison, William G Nash prescribed as the only appropriate policy response a moratorium on all prison construction. This proposal was broadly considered plausible and seemed to reflect an emergent common sense. In April 1972, a moratorium was endorsed by the board of the National Council on Crime and Delinquency, a centrist criminal justice thinktank, as well as by the National Advisory Commission on Criminal Justice a year later. The latter commission, operating under the Department of Justice, added a call for the closure of all juvenile prisons, and it explicated the emerging consensus about American prisons: “There is overwhelming evidence that these institutions create crime rather than prevent it.”

With such broad public concern, elites wanted to gain firsthand knowledge of the prison system. Lawyers, judges and politicians spent a day or two in prison to get an impression of the conditions. Thoroughly shaken by his experience, Emanuel Margolis, a prominent Connecticut attorney, concluded that prison reform was the wrong answer: prisons had to be abolished. The son of a rabbi, Margolis concluded from his brief prison experience that in incarceration “the total being is involved and affected – his dignity, even his soul”.

Likewise, in 1972, Congressman Stewart McKinney, a Republican from Connecticut, decided to spend 36 hours in a prison to understand what everyone was talking about. As reported by the Associated Press, the congressman “emerged from prison an emotionally strained man”. McKinney concluded that the current prison system is “a big waste of money and human life”. Upon his “release”, he told reporters: “I can’t see consigning any human being to this kind of existence.”

Yet the rate of incarceration today is nearly five times what it was when McKinney emerged from his cell. As political scientist Vesla Weaver has demonstrated, some of the very same politicians who once advocated for segregation switched to advocating for crime policy that would imprison massive numbers of poor people and people of color when it became clear that segregation was a losing cause. Georgia senator Herman Talmadge associated crime, urban uprisings and non-violent civil disobedience, asserting: “Mob violence such as we have witnessed is a direct outgrowth of the philosophy that people can violate any law they deem to be unjust or immoral or with which they don’t agree.” The necessary response: getting tough on crime and building prisons.

In accounting for the rise of what many now call “mass incarceration”, scholars point to race, politics and economics as driving factors. The composite picture has gradually come into focus. The New Jim Crow rightly pushed race and racism center stage, and laid the blame on shapeshifting white supremacy, but more recent work by Michael Javon Fortner and James Forman Jr shows how concern over crime also led black leaders to support the emergent regime of tougher punishments.

Richard Nixon’s war on crime and Ronald Reagan’s war on drugs have long been seen as pernicious forces, but Naomi Murakawa and Elizabeth Hinton have pinpointed the roots of mass incarceration in Johnson’s Great Society, and Marie Gottschalk has spelled out the thoroughly bipartisan consensus thereafter. Perhaps most fundamentally, Ruth Wilson Gilmore and Loïc Wacquant have shown how economic shifts conjured prisons as a catchall solution. In ways that addressed only symptoms and never causes, prisons solved for unemployment on both sides of the bars: both for the urban underclass that was caged, and for rural white communities that built and managed the cages.

But law-and-order politics also signaled a different kind of cultural reorientation: a shift in American religion. Nowhere was this change more obvious and consequential than in elite political rhetoric. During the civil rights era, politicians on both sides of the aisle would trumpet the ideal of justice, often using religious language to do so. Justice was an ideal; it was up to us to make this divine notion a reality. During the era of mass incarceration, Americans’ ambitions for justice have been thoroughly downsized. Justice is now principally a modifier in the “criminal justice system”. Law is principally something to be followed, and its violation (at least by those with little power) is to be punished. Instead of a world where the poor, the weak, and the hungry might be raised up, justice has come to mean little more than the efficient administration of the punitive system we already have. In the moral imagination of mass incarceration, we can imagine greater fairness – for example, in the elimination of racial disparities – but we are generally unable to envision a qualitatively higher justice.”

– 

Joshua Dubler and Vincent Lloyd,
Think prison abolition in America is impossible? It once felt inevitable.The Guardian. May 19, 2018.

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“The new penology is neither about punishing nor about rehabilitating individuals.
It is about identifying and managing unruly groups. It is concerned
with the rationality not of individual behavior or even community organization,
but of managerial processes. Its goal is not to eliminate crime but to
make it tolerable through systemic coordination. 

One measure of the shift away from trying to normalize offenders and
toward trying to manage them is seen in the declining significance of recidivism.
Under the old penology, recidivism was a nearly universal criterion for
assessing successor failure of penal programs. Under the new penology,
recidivism rates continue to be important, but their significance has changed.
The word itself seems to be used less often precisely because it carries a normative
connotation that reintegrating offenders into the community is the
major objective. High rates of parolees being returned to prison once indicated
program failure; now they are offered as evidence of efficiency and effectiveness
of parole as a control apparatus.

It is possible that recidivism is dropping out of the vocabulary as an adjustment
to harsh realities and is a way of avoiding charges of institutional failure.
Nearly half of all prisoners released in eleven of the largest states during
1983 were reconvicted within three years. In
21 of the 48 states with adults on parole supervision in 1988, more than 30%
of those leaving parole were in jail or prison on new criminal or parole-revocation
charges; in 8 of them more than
half of those leaving parole were returned to confinement (including a spectacular
78% in California and 70% in Washington). However, in shifting
to emphasize the virtues of return as an indication of effective control, the
new penology reshapes one’s understanding of the functions of the penal
sanction. By emphasizing correctional programs in terms of aggregate control
and system management rather than individual success and failure, the
new penology lowers one’s expectations about the criminal sanction. These
redefined objectives are reinforced by the new discourses discussed above,

which take deviance as a given, mute aspirations for individual reformation,
and seek to classify, sort, and manage dangerous groups efficiently.

The waning of concern over recidivism reveals fundamental changes in the
very penal processes that recidivism once was used to evaluate. For example,
although parole and probation have long been justified as means of reintegrating
offenders into the community,
increasingly they are being perceived as cost-effective ways of imposing longterm
management on the dangerous. Instead of treating revocation of parole
and probation as a mechanism to short-circuit the supervision process when
the risks to public safety become unacceptable, the system now treats revocation
as a cost-effective way to police and sanction a chronically troublesome
population. In such an operation, recidivism is either irrelevant or, as suggested
above, is stood on its head and transformed into an indicator of success
in a new form of law enforcement.

The importance that recidivism once had in evaluating the performance of
corrections is now being taken up by measures of system functioning.
Heydebrand and Seron have noted a tendency in courts and other
social agencies toward decoupling performance evaluation from external
social objectives. Instead of social norms like the elimination of crime, reintegration
into the community, or public safety, institutions begin to measure
their own outputs as indicators of performance. Thus, courts may look at
docket flow. Similarly, parole agencies may shift evaluations of performance
to, say, the time elapsed between arrests and due process hearings. In much
the same way, many schools have come to focus on standardized test performance
rather than on reading or mathematics, and some have begun to see
teaching itself as the process of teaching students how to take such tests.

Such technocratic rationalization tends to insulate institutions from the
messy, hard-to-control demands of the social world. By limiting their exposure
to indicators that they can control, managers ensure that their problems
will have solutions. No doubt this tendency in the new penology is, in part, a
response to the acceleration of demands for rationality and accountability in
punishment coming from the courts and legislatures during the 1970s. It also reflects the lowered expectations for the penal system
that result from failures to accomplish more ambitious promises of the past.
Yet in the end, the inclination of the system to measure its success against its
own production processes helps lock the system into a mode of operation that

has only an attenuated connection with the social purposes of punishment. In
the long term it becomes more difficult to evaluate an institution critically if
there are no references to substantive social ends.

The new objectives also inevitably permeate through the courts into thinking
about rights. The new penology replaces consideration of fault with predictions
of dangerousness and safety management and, in so doing, modifies
traditional individual-oriented doctrines of criminal procedure. This shift is
illustrated in US. v. Salerno, which upheld the preventive detention provision
in the Bail Reform Act of 1984. Writing the opinion for the Court, then
Associate Supreme Court Justice William Rehnquist reasoned that preventive
detention does not trigger the same level of protection as other penal detentions
because it is intended to manage risks rather than punish. While the
distinction may have seemed disingenuous to some, it acknowledges the shift
in objectives we have emphasized and redefines rights accordingly.”

– Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications.” 30 Criminology 449 (1992), pp. 455-457. 

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“A central feature of the new discourse is the replacement of a moral or
clinical description of the individual with an actuarial language of probabilistic
calculations and statistical distributions applied to populations. Although
social utility analysis or actuarial thinking is commonplace enough in modern
life-it frames policy considerations of all sorts-in recent years this mode of
thinking has gained ascendancy in legal discourse, a system of reasoning that
traditionally has employed the language of morality and been focused on individuals. For instance, this new mode of reasoning is found

increasingly in tort law, where traditional fault and negligence standards which
require a focus on the individual and are based upon notions of individual
responsibility – have given way to strict liability and no-fault. These
new doctrines rest upon actuarial ways of thinking about how to “manage”
accidents and public safety. They employ the language of social utility and
management, not individual responsibility. It is
also found in some branches of antidiscrimination law, wherein the courts are
less interested in intent (i.e., discrimination based on identifying individuals
whose intentions can be examined) than in effects (i.e., aggregate consequences
or patterns that can be assessed against a standard of social utility.

Although crime policy, criminal procedure, and criminal sanctioning have
been influenced by such social utility analysis, there is no body of commentary
on the criminal law that is equivalent to the body of social utility analysis
for tort law doctrine. 9 Nor has strict liability in the criminal law achieved
anything like the acceptance of related no-fault principles in tort law. Perhaps
because the criminal law is so firmly rooted in a focus on the individual,
these developments have come late to criminal law and penology.

Scholars of both European and North American penal strategies have
noted the recent and rising trend of the penal system to target categories and
subpopulations rather than individuals. This reflects, at least in part, the fact that actuarial
forms of representation promote quantification as a way of visualizing
populations.

Crime statistics have been a part of the discourse of the state for over 200
years, but the advance of statistical methods permits the formulation of concepts
and strategies that allow direct relations between penal strategy and the
population. Earlier generations used statistics to map the responses of normatively
defined groups to punishment; today one talks of “high-rate offenders,”
“career criminals,” and other categories defined by the distribution

itself. Rather than simply extending the capacity of the system to rehabilitate
or control crime, actuarial classification has come increasingly to define the
correctional enterprise itself. 

The importance of actuarial language in the system will come as no surprise
to anyone who has spent time observing it. Its significance, however, is
often lost in the more spectacular shift in emphasis from rehabilitation to
crime control. No doubt, a new and more punitive attitude toward the
proper role of punishment has emerged in recent years, and it is manifest in a
shift in the language of statutes, internal procedures, and academic scholarship.
Yet looking across the past several decades, it appears that the pendulum-like
swings of penal attitude moved independently of the actuarial
language that has steadily crept into the discourse. 

The discourse of the new penology is not simply one of greater quantification;
it is also characterized by an emphasis on the systemic and on formal
rationality. While the history of systems theory and operations research has
yet to be written, their progression from business administration to the military
and, in the 1960s, to domestic public policy must be counted as among
the most significant of current intellectual trends. In criminal justice the
great reports of the late 1960s, like The Challenge of Crime in a Free Society, helped make the phrase “criminal justice system” a part of
everyday reality for the operatives and students of criminal law and policy. 

Some of the most astute observers identified this change near the outset and
understood that it was distinct from the concurrent rightward shift in penal
thinking. Jacobs (1977) noted the rise at Stateville Penitentiary of what he
called a “managerial” perspective during the mid-1970s. The regime of Warden
Brierton was characterized, according to Jacobs, by a focus on tighter
administrative control through the gathering and distribution of statistical
information about the functioning of the prison. Throughout the 1980s this
perspective grew considerably within the correctional system. Jacobs
presciently noted that the managerial perspective might succeed where traditional
and reform administrations had failed because it was capable of handling
the greatly increased demands for rationality and accountability coming
from the courts and the political system.”

– 

Malcolm M. Feeley & Jonathan Simon, “The New Penology: Notes on the Emerging
Strategy of Corrections and Its Implications.”

30 Criminology 449
(1992), pp. 453-454.   

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