A longtime leader in movements for collective liberation, Angela Y. Davis has been at the forefront of abolitionist activism and scholarship for decades. Her latest book, Abolition: Politics, Practices, Promises, Vol. 1, compiles years of writing and speeches that track the depth and evolution of her political thought. The following excerpt, from “Prison: A Sign of US Democracy?”, was first given as a speech at the UC Santa Cruz Cultural Studies Symposium in November 2007. Though over fifteen years have passed since the text’s original delivery, its considerations of the place of incarceration in U.S. democracy remains deeply resonant.
—The Editors, Inquest
Not long ago I was going through old family papers and happened upon a term paper written by my younger brother during his first year of college. His paper not only tried to make a case for the abolition of prisons, relying largely on the available literature by incarcerated and formerly incarcerated people, but it also argued that the project of revolutionary democratic transformation could not be accomplished without the participation and leadership of incarcerated people. My initial surprise gave way to a troubling moment of nostalgia as I tried to ward off the feeling that prison abolitionists are condemned, like Sisyphus, to endless rehearsals of all the compelling reasons why prisons simply do not work, why they are anathema to “democracy,” and why they should thus be removed from the social arena.
Are we now simply repeating the arguments that achieved some measure of acceptance during the sixties and seventies but failed to stand up to the law-and-order discourse associated with the Reagan–Bush era? After the Attica Rebellion in 1971, prison abolition was widely acknowledged not only in young, Black, and radical communities but also in popular, scholarly, and legal circles as a legitimate topic of discussion. As I questioned why my younger brother’s term paper seemed to be a strange artifact of a bygone era, I thought about the way my own reaction recapitulated the current assumption that prison abolition has no history—and that it can only be envisioned as either a wild and unrealizable utopian fantasy or as a forever delayed future project.
Prominent legal scholar Michael Tonry begins his preface to the 2004 tribute to Norval Morris, The Future of Imprisonment, with this observation:
Not so long ago, serious people thought the prison’s days were numbered. ‘The days of imprisonment as a method of mass treatment of lawbreakers,’ wrote Norval Morris’s mentor Hermann Mannheim, in 1943, ‘are largely over.’ In a 1965 festschrift for Mannheim, Morris wrote that the prison’s origins were ‘makeshift, its operation is unsatisfactory, and its future lacks promise,’ and ‘confidently predicted’ that ‘before the end of this century,’ the prison, as Mannheim and Morris knew it, would ‘become extinct.’
However, even though Tonry is in agreement with the critiques proposed over sixty years ago by Mannheim and over forty years ago by Morris, he concludes that while the prison is indisputably iatrogenic—its alleged cure creates more disorders—it still has a future, at least for the lifetimes of those who are now adults. He even goes so far as to suggest that just as imprisonment was proposed two centuries ago as a humane alternative to capital and corporal punishment, it might now be conceived as a humane alternative to the possible use of psychotropic drugs to control the impulses of lawbreakers, who might be introduced in a zombie-like state into the free world. Such drugs, he believes, would violate the autonomy of human beings even more than imprisonment.
While Tonry does not explicitly relegate abolitionism to the ultraradical fringes of prison activism, he seems reluctant to ask how the demise of the prison might be accelerated, instead of assuming that the institution itself can only fall as a result of its own internal contradictions. What he proposes are mandates for the proper functioning of the prison during the remainder of its life. In this sense, he reenacts the two-hundred-year-old drama of proposing the prison as the only solution to the problems that have never managed to be solved—and indeed have been consistently exacerbated—by the prison. Bigger and “better” prisons have always produced more crises, the solutions for which are always even better prisons, which, in turn, produce more crises.
In the United States, the project of instituting imprisonment as the dominant mode of punishment was historically linked to the postrevolutionary metamorphosis of government and society during the late 1700s and early 1800s. The rise of the penitentiary in the new United States of America was viewed simultaneously as dramatic evidence of democratization and as a symptom of the unacknowledged racial, gender, and class inequalities embedded in the very structure of the new democracy. Imprisonment as punishment meant, on the one hand, that the denial of liberty provided negative proof of the emergence of liberty as the social standard. The denial of liberty was the exception that proved the rule. On the other hand, there were those like scholar Adam J. Hirsch, who argued that “liberty was too precious a treasure to confiscate for minor (or even major) criminal infractions.” Hirsch’s study of the rapid spread of the penitentiary in the postrevolutionary United States also points out that during the debates regarding the new punishment, there were radicals who called for the abolition of all punishments, “a viewpoint that, had it prevailed, would not have led Americans toward the penitentiary.”
But, alas, this viewpoint did not prevail. Although an important element of the intellectual history of the prison is precisely the persistence of arguments for its abolition (though almost always overshadowed by calls for prison reform), the prison has obstinately established itself as a permanent and hegemonic institution in U.S. democracy. Ironically, it still presents itself as both evidence of democracy, thus a necessary exception, and as an irreconcilable contradiction. The question I want to ask is whether a deeper consideration of the relationship between imprisonment and democracy might establish a more productive framework for arguments against the hegemony of the prison and thus for prison abolition today.
Previous campaigns for the abolition of various modes of punishment, the prison included, have largely relied on the assumption that certain kinds of punishments are morally and politically incompatible with liberal democratic ideals. Despite the huge archive of legal cases relying on the Eighth Amendment to the Constitution, which prohibits “cruel and unusual punishment” (along with excessive bail and fines), the Supreme Court has not yet been persuaded to abolish the death penalty, and certainly not even the most extreme forms of incarceration: the indefinite solitary confinement and sensory deprivation characteristic of the super-maximum security prison. It has been frequently observed that “few constitutional guarantees of individual liberty have so often been relied upon, to so little avail, as has the Eighth Amendment.”
In her study of the Eighth Amendment, Colin Dayan argues that the bizarre juxtaposition of legal affirmations of cruel punishments alongside their prohibition in the Eighth Amendment can be traced to the history of slavery and the ideological efforts to justify racialized subjugation within a social order based on democracy. If the methods of punishment used in the United States today—the death penalty, prolonged solitary confinement, extreme force, and psychological torture—seem barbaric by our standards and by those of the rest of the so-called civilized world, this can be traced to the colonial history of the legal stigmatization and deprivation of a group considered less than human. Dayan traces the history of the Eighth Amendment as she attempts to understand the legal justifications for the treatment of prisoners of the U.S. global war on terror, which she links to legitimized practices within domestic prisons, which, in turn, are historically anchored in the practices of slavery.
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It is significant, for my purposes, to take note of the fact that the institution of the prison has played a pivotal role in the U.S.-initiated global war on terror, which George W. Bush frequently characterized as an “ideological struggle in defense of democracy.” The articulation of carceral institutions with neoliberal democratic ideologies poised against the threat of terror recapitulates the early history of U.S. democracy as it executed the project of extending rights and liberties to some, while denying them to others—denying them most consistently to Black slaves.
This raises the question: What if imprisonment is so philosophically anchored to liberal conceptions of democracy, inflected with and infected by racial exclusion, that we cannot unthink it—much less disestablish its institutions—without reconceptualizing democracy? This requires us to pay serious attention to the complicated interdependencies of racism and capitalism that are responsible for the peculiar institutions of democracy in the United States.
Considerations of punishment and democracy are expected to make an obligatory nod to Alexis de Tocqueville’s research for his book Democracy in America, which was occasioned by a commission he and his colleague Gustave de Beaumont received from the French government to study the new U.S. penitentiary in light of its applicability to France. Explanations for the silence regarding this new form of “democratic punishment” in Democracy in America usually assume that he was not really interested in prisons (even though he visited every major prison in the United States and interviewed almost all the prisoners held in the new Eastern State Penitentiary in Pennsylvania).
In 1997, in celebration of the “Tocqueville revival,” C-SPAN sponsored a nine-month school bus tour exploring democracy in the United States. They retraced Tocqueville’s and Beaumont’s trip, stopping in the communities visited by the two researchers for discussions on topics such as “religion and politics, the impact and power of the press and the changing role of government.” The goal of the trip was to discover “what democracy means today.” This series—on C-SPAN 3, used largely in high school and community college classrooms—coincided with a renewed public awareness of the prison crisis. While the series did include some discussions about specific prison sites, such as Sing Sing and Eastern State, they do not appear to have had any organic relationship to the discussion of democracy.
In this sense the C-SPAN tour was consistent with the historical tendency to secret the prison behind the shadows of democracy. Following the example and reception of Tocqueville, the punishment of imprisonment was expelled beyond the margins of democracy. In a very real sense, it was the negation which liberal democracy required as evidence of its existence. Carceral punishment, i.e., punishment that consists of the deprivation of rights and liberties, only makes sense within a society that purports to respect individual rights and liberties. The liberal democratic subject knows he is free precisely because he is not imprisoned (and I use the masculine gender intentionally here). But this constitutive negation is a necessary negation that demonstrates the value of freedom. In this sense it is structurally similar to slavery. I know I am free because I am not a slave. I know I am free because I am not a prisoner.
How else can we explain the persisting fascination with the prison? In the nineteenth century, prisons were major tourist destinations (10,000 people visited Eastern State Penitentiary in 1858, for example) and historical prisons continue to hold this fascination for tourists. Over 68,000 visitors walked through the cell blocks of Eastern State in 2002. It is interesting that with all the secondary literature on Tocqueville’s Democracy in America, there is very little attention to the fact that his intimate engagement with the U.S. penitentiary may have influenced his analysis of democracy. How might the silences regarding the prison be read?
There are now more people in and out of prison during the course of a year than there were in the entire population of the United States at the time of Tocqueville’s visit. In 1831 there were approximately 13 million people in the country. Today, over 13.5 million people spend time in jail or prison over the course of a year. The figure we usually hear is 2.2 million, which reflects the number of people in jail or prison on any given day of the year. The lives of 7 million people are directly supervised by prison guards, probation officers, and parole officers.
I could continue this litany of statistics, relying on the Bureau of Justice Statistics, which publishes an annual prison census entitled “Prisons and Jails at Midyear.” The census taken on June 30, 2006, highlights the fact that 4.8 percent of all Black men were in prison or jail—11 percent of Black men between the ages of 25 to 34. I quote the BJS knowing full well that the enormity of the numbers has little impact on how the public responds to the knowledge that the United States now holds more people behind bars than any other country. But I cannot restrain myself, and despite the abstractness of numbers I do want you to think about the quantitative impact of imprisonment on Black communities.
I have referred to the clandestine ideological role the prison has played and continues to play in affirming individual rights and liberties in liberal democracy. Now I want to dwell for a moment on the way these rights and liberties operate within the trajectory that leads to imprisonment. What is peculiar to the United States is the entanglement of slavery in the historical emergence of the prison. Already during slavery, Black people were acknowledged as individuals with legal personality only through their culpability. That is to say, there was one significant sense in which slaves could not be said to be property—property cannot be found guilty of a crime.
The legal trajectory that concludes with a prison sentence recognizes the individual as a juridical subject with a range of rights—to confront one’s accuser, to due process, to a trial by a jury of one’s peers, etc. Thus, the prisoner experiences their rights and liberties precisely through the process of their denial. Even within the confines of the prison, such rights are supposed to be respected. Some years ago, I had the opportunity to sit in on a classification hearing at a maximum-security men’s prison in California. The hearing was to decide whether the prisoner would be classified as a Level IV inmate to be housed in a 180-degree facility or as a Level III inmate to be housed in a 270-degree facility. What was most emphasized was his right to due process. He could not be indiscriminately classified to whatever level. The administration had to follow due process in deciding whether he was so dangerous as to merit housing in cells that were always in the line of vision of the guard tower.
From its advent, the prison has been a quintessentially democratic institution—it demonstrates through the process of negation the centrality of individual rights and liberties. Civil life is negated and the prisoner is relegated to the status of civil death. Following Claude Meillassoux and Orlando Patterson, Dayan and other scholars have compared the social death of slavery to the civil death of imprisonment, particularly given the landmark legal case Ruffin v. Commonwealth, which in 1871 declared the prisoner to be “the slave of the state.”
Although prisoners’ state of civil death has now mutated so that their residual rights have been slightly augmented, there remains a range of deprivations that situate the prisoner, and indeed also the ex-prisoner, beyond the boundaries of liberal democracy. I want to look at one such deprivation—the loss of the right to vote—and would like to think about the impact of felon disenfranchisement on the workings of contemporary U.S. democracy. The majority of the imprisoned population loses the franchise either temporarily or permanently. Thus 5.3 million people have lost their right to vote. Among Black men, the figures are even more dramatic—almost 2 million Black men, or 13 percent of the total population of Black adult men. In some states one out of every four Black men is barred from voting.
Felon disenfranchisement has a long history, but during its early appearance in the United States, voting itself was a rare practice, largely because a very small minority of the population had the right to vote. This was clearly democracy for the few—those who were white, propertied, and male. The historical period which witnessed a significant expansion of felon disenfranchisement laws was the post–Civil War era, after the passage of the Fourteenth and Fifteenth Amendments. Just as the Thirteenth Amendment—which legally (and only legally) ended slavery—designated convicts as an exception, the Fourteenth Amendment, which guaranteed all persons equal protection of the law, also contained an exception: Section 2 permitted states to withdraw suffrage rights from those who were engaged in “rebellion or other crimes.”
According to Elizabeth Hull, southern constitutional conventions during the period following the overthrow of Radical Reconstruction—to use Du Bois’s periodization—developed strategies of criminalization precisely to divest former slaves and their descendants of the right to vote. Many southern states passed laws that linked crimes specifically associated with Black people to disenfranchisement, while those associated with white people did not result in withdrawal of the right to vote. In states such as Mississippi, there was the ironic situation that if you were convicted of murder you retained your voting rights, but if convicted of miscegenation, you lost your right to vote.
Sociologists Jeff Manza and Christoper Uggen found that between 1850 and 2002, states with larger proportions of people of color in their prison populations were more likely to pass laws restricting their right to vote. “When we ask the question of how we got to the point where American practice can be so out of line with the rest of the world,” they write, “the most plausible answer we can supply is that of race.”
What would the world look like today—what would be the prospects for democracy—if ex-prisoners had been able to vote in the 2000 elections? As I reflect back on the meaning of my baby brother’s college term paper in which he predicted that revolutionary democratic transformation would have to involve the participation of incarcerated people, it sheds its anachronistic aura. As Congressman John Conyers has pointed out, the fact that 600,000 ex-felons were denied participation in the elections in the state of Florida alone “may have literally changed the history of this nation.”
Excerpted from Abolition: Politics, Practices, Promises, Vol. 1. Copyright © 2024 by Angela Y. Davis. Reprinted with permission from Haymarket Books.
Image: Intricate Explorer/Unsplash
