Cross-national comparisons in penology are notoriously tricky, all the more so when the practices involved are the highly problematic one of holding prisoners in solitary confinement, especially under “administrative” rather than legal judgment (meaning it is up to prison officials if or when the prisoner will be released). Comparing California and Israel is especially problematic since the former is a sub-national state and the latter is involved in an ongoing civil conflict over the identity and boundaries of the national state.
Those caveats aside, it is interesting that rare, sustained political protests within prisons have taken place in recent months (and in the case of Israel is happening today) directed specifically against solitary confinement under administrative control; in both cases the struggle is taking the shape of the classic weapon of the weak, a hunger strike.
In Israel, Palestinian hunger strikers have refused food for over 70 days and are at risk of dying if they do not take food soon. [Ed. note: See this May 15 NY Times update on an end to the hunger strike]. The strikers are protesting hardships imposed by the Israeli Prison Service in the later stages of the imprisonment of the Israeli corporal, Gilad Shalit, held hostage by Hamas forces, but which have been maintained despite Shalit’s release last year, including a ban on academic study and receiving books, as well as the denial of family visits from Gaza and the larger issue of solitary confinement under administrative decision (read Jack Khoury’s reporting in Haaretz here). According to the AP some 1,600 prisoners are observing a hunger strike including 2 for over 70 days. Jack Khoury’s latest reports as of Monday, am, suggested Israel might be ready to sign an agreement: “Included in the reported deal was the demand to cancel the policy of solitary confinement as well as granting visiting permits to the families of imprisoned Palestinians from Gaza.” (Read this story on Haaretz here).
In California, hunger strikes by prisoners throughout the system were directed against the practice of solitary confinement in permanent “lock-down” prisons known in California as “Secure Housing Units” or SHUs. These prisons follow a regime widely known as “supermax” in which solitary confinement is reinforced with procedures that prevent even casual contact between prisoners and other prisoners or even staff including as many as 23 hours a day within the cell or cell-like environments, whether for meals or showers. Compared to traditional solitary as a disciplinary punishment for prison misbehavior, California prisoners are often assigned to the SHU on the basis of a judgment by administrators that they are involved in a prison “threat group” or gang, and pose a threat to other prisoners and staff. Such assignments, never litigated before a judge, can last the entire sentence (which may be life).
The hunger strikes last summer ended with a promise by the California Department of Corrections and Rehabilitation to review their SHU assignment policy and to consider humanitarian changes in regime, such as permitting weather-appropriate hats. In March CDCR released a report suggesting they would move toward a new assignment policy in which prisoners could earn their way out of the SHU without the paradoxical requirement that they prove their non-threat by becoming an informant or “snitch” (paradoxical because it results in spoiling any possibility of return to a general population prison for the snitch, who becomes a subject in need of protective custody by virtue of informing). (For the latest on the prisoners’ perspective see California Prison Focus).
Despite the very different political logics in which prison authorities in both Israel and California have found themselves deeply dependent on administrative discretion over solitary confinement, some common themes and cautions are suggested. While they may have come to rely on administrative segregation (as this practice was known in a more benevolent form in the 20th century) through different routes, both prison services would do well to continue on recent indications of reform.
1. Wherever it exists, this kind of long-term, widespread administrative segregation reflects on a prison system that has largely abandoned any hope of legitimacy in the eyes of its subject population. Given the widespread circumstances under which carceral institutions in different places and times have relied at least in part on legitimacy — consider the different ways in which the Big House prisons of the first half of the 20th century and the correctional institutions of the second utilized parole and mutual logic of institutional order — both Israel and the California should think long and hard before accepting this as inevitable.
Prison orders that win even partial legitimacy in the eyes of their subjects (for example through procedural fairness, even where the substantive justice of incarceration is contestable) operate better in every measurable way. This is a proposition that has been most significantly researched inside prisons in the UK; see the original work of Richard Sparks, Antony Bottoms, and Will Hayes, Prisons and the Problem of Order (Oxford University Press 1995); as well as Alison Liebeling, Prisons and Their Moral Performance: A Study of Values, Quality, and Prison Life (Clarendon Studies in Criminology) (Oxford 2005).
2. The historical experience of parole suggests that a horizon of hope is an essential precondition for legitimacy in prisons. Prisons that cannot offer prisoners realistic hopes for going home, or at least returning to a dignified and manageable life, have little hope of achieving any more than a temporary ceasefire with its charges. This is a problem whose solutions lie well above the pay grade of prison managers. In both societies, the politicians who have sold mass incarceration as a stable security strategy to nervous and racially skewed electoral majorities need to be held to account by a better, more inclusionary politics and perhaps someday by their own truth and reconciliation commissions.
3. Prisoners represent a sleeping giant of an issue in the civil order of both societies. Palestinian national leaders who have staked their international prestige on limiting security threats to Israel from the occupied territories have sounded openly alarmed at what might happen in Palestinian civil society, even one as discouraged by the past results of violence. In the U.S., riots like those that broke out last summer in the UK could well emerge in the summer of 2012 or 2013 if the re-election of Barack Obama, and continued quiet on the streets of urban America, does not result in some significant efforts to retrench the twin indignities of aggressive policing and liberal doses of prison time that are accorded so many men of color in these United States.
Cross-posted from Jonathan Simon’s blog Governing Through Crime.