Preamble:
“When we return to the search for a more humane and rational response to crime, we must keep in mind that the prison is tied to other social and political arrangements that limit what changes are possible. The criminal justice system in general is at least partially involved, directly and indirectly, advertently and inadvertently, in repressing groups and classes of people and in maintaining unfair social, political, and economic relationships. Fundamental changes in its operation are impossible unless some higher degree of social justice has been achieved and the criminal justice system is relieved of these tasks. [….]
One of the important obstacles that must be removed is the public conception of the prisoner. Presently, this conception is formed from the rare, but celebrated and horrendous crimes, such as mass murders by the Manson cult, Juan Carona, or the ‘Hillside Strangler.’ Whereas prisoners like George Jackson, viewed as a heroic revolutionary fighting back from years of excessive punishment for a minor crime (an eighty-dollar robbery), shaped the conception of the prisoner in the early 1970s, persons like ‘Son of Sam’ do so today. These extraordinary cases distort the reality. Most prisoners are still in prison for relatively petty crimes, and even those convicted of the more serious crimes must be understood in the context of society in the United States. What we need is a new theory of crime and penology, one that is quite simple. It is based on the assumption that prisoners are human beings and not a different species from free citizens. Prisoners are special only because they have been convicted of a serious crime. But they did so in a society that produces a lot of crime, a society, in fact, in which a high percentage of the population commits serious crime. Those convicted of serious crimes must be punished and imprisoned, because it is the only option that satisfies the retributive need and is sufficiently humane. Knowing that imprisonment itself if very punitive, we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke, nor excessively deprive the human beings we have placed in prison. It also means that we must not operate discriminatory systems that select which individuals should be sent to prison and, once incarcerated, who should be given different levels of punishment.
Since we assume that convicts are humans like us and are capable of myriad courses of action, honorable and dishonorable, we also assume that they will act honorably, given a real choice. This means that we provide them with the resources to achieve self-determination, dignity, and self-respect. This theory continues to be rejected not because it is invalid, but because it challenges beliefs and values to which large segments of the population comfortably cling. [….] In pushing this theory, I admit that many prisoners, like many free citizens, act like monsters. But they are not monsters and often choose to act like monsters when their only other real option is to be totally disrespected or completely ignored, while being deprived, degraded, abused, or harassed.” [emphasis added]
—John Irwin, Prisons in Turmoil (1980)
The following proposal strikes me as worthy of wide attention and careful consideration: Sharon Dolovich, “Teaching Prison Law,” 62 Journal of Legal Education 218 (2012), UCLA School of Law Research Paper No. 12-26. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171884
Abstract:
“To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent. This essay argues that that silence is a problem, and that American law schools should expand their curricular offerings to include some class or classes covering the post-conviction period. There are innumerable arguments supporting this reform. These include the sheer number of people in custody, the extreme vulnerability of this population and its enormous unmet legal need, and the fact that any law student who is planning a career in criminal justice — and thus involved in the process by which people are sent to prison — should be exposed to the realities of the American penal system and its governing legal framework. This essay canvasses these and other reasons for the proposed reform, suggests what a course in Prison Law might cover, sketches the possible contents of a broader post-conviction curriculum, and argues that the current gap in the course offerings of most law schools only reinforces the invisibility of vast carceral system currently operating in the United States and the millions of Americans caught up in it.”
See too Giovanna Shay’s post at PrawfsBlawg from last year: “Why Do Law Schools Overlook the Incarcerated?”
Some relevant websites and blogs:
California Correctional Crisis
Center for Justice and Reconciliation
Death Penalty Information Center
“Evolving Standards of Decency:” A Prisoners’ Rights Law Blog
In the spirit of the proposal, I offer a basic bibliography on “Punishment & Prison:”
- Abramsky, Sasha (2002) Hard Time Blues: How Politics Built a Prison Nation. New York: Thomas Dunne Books/St. Martin’s Press.
- Abramsky, Sasha (2007) American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Boston, MA: Beacon Press.
- Acker, James R. et al., eds. (1998) America’s Experiment with Capital Punishment: Reflections on the Past, Present and Future of the Ultimate Penal Sanction. Durham, NC: Carolina Academic Press.
- Acker, James R. and David Reed Karp, eds. (2006) Wounds That Do Not Bind: Victim Based Perspectives on the Death Penalty. Durham, NC: Carolina Academic Press.
- Alexander, Michelle (2010) The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New Press.
- Allen, Francis A. (1981) The Decline of the Rehabilitative Ideal. New Haven, CT: Yale University Press.
- Bae, Sangmin (2007) When the State No Longer Kills: International Human Rights Norms and Abolition of Capital Punishment. Albany, NY: State University of New York Press.
- Banner, Stuart (2002) The Death Penalty: An American History. Cambridge, MA: Harvard University Press.
- Beck, Elizabeth, Sarah Britto and Arlene Andrews (2007) In the Shadow of Death: Restorative Justice and Death Row Families. New York: Oxford University Press.
- Bedau, Hugo Adam and Paul G. Cassell, eds. (2004) Debating the Death Penalty: Should America have Capital Punishment? New York: Oxford University Press.
- Bennett, Christopher (2008) The Apology Ritual: A Philosophical Theory of Punishment. Cambridge, UK: Cambridge University Press.
- Berns, Walter (1979) For Capital Punishment: Crime and the Morality of the Death Penalty. New York: Basic Books.
- Bibas, (2012) Stephanos. The Machinery of Criminal Justice. New York: Oxford University Press.
- Bloom, Barbara E. (2003) Gendered Justice: Addressing Female Offenders. Durham, NC: Carolina Academic Press.
- Bosworth, Mary (1999) Engendering Resistance: Agency and Power in Women’s Prisons. Brookfield, VT: Ashgate.
- Braithwaite, John (1989) Crime, Shame and Reintegration. Cambridge, UK: Cambridge University Press.
- Braithwaite, John (2002) Restorative Justice and Responsive Regulation. New York: Oxford University Press.
- Braithwaite, John and Philip Pettit (1990) Not Just Deserts: A Republican Theory of Criminal Justice. New York: Oxford University Press.
- Braman, Donald (2004) Doing Time on the Outside: Incarceration and Family Life in Urban America. Ann Arbor, MI: University of Michigan Press.
- Branham, Lynn S. and Michael S. Hamden (2005, 7th ed.) Cases and Materials on the Law of Sentencing, Corrections and Prisoners’ Rights. St. Paul, MN: West Group.
- Burnett, Cathleen (2002) Justice Denied: Clemency Appeals in Death Penalty Cases. Boston, MA: Northeastern University Press.
- Burns, Sarah (2011) The Central Park Five. New York: Alfred A. Knopf.
- Burton-Rose, Daniel, Dan Pens and Paul Wright, eds. (1998) The Celling of America: An Inside Look at the U.S. Prison Industry. Monroe, ME: Common Courage Press.
- Chehtman, Alejandro (2010) The Philosophical Foundations of Extraterritorial Punishment. New York: Oxford University Press.
- Chesney-Lind, Meda (2004, 2nd ed.) The Female Offender: Girls, Women and Crime. Thousand Oaks, CA: Sage Publications.
- Christianson, Scott (2006) Innocent: Inside Wrongful Conviction Cases. New York: New York University Press.
- Combs, Nancy Amoury (2007) Guilty Pleas in International Criminal Law: Constructing a Restorative Justice Approach. Stanford, CA: Stanford University Press.
- Comfort, Megan (2007) Doing Time Together: Love and Family in the Shadow of the Prison. Chicago, IL: University of Chicago Press.
- Coyne, Randall and Lyn Entzeroth (1994) Capital Punishment and the Judicial Process. Durham, NC: Carolina Academic Press.
- Cragg, Wesley, ed. (1992) Retributivism and Its Critics. Stuttgart: Franz Steiner Verlag.
- Cummins, Eric (1994) The Rise and Fall of California’s Radical Prison Movement. Stanford, CA: Stanford University Press.
- Cusac, Anne-Marie (2009) Cruel and Unusual Punishment: The Culture of Punishment in America. New Haven, CT: Yale University Press.
- Daly, Kathleen (1996) Gender, Crime and Punishment. New Haven, CT: Yale University Press.
- Davis, Angela Y. (2003) Are Prisons Obsolete? Toronto: Open Media.
- Davis, Angela Y. (2005) Abolition Democracy: Prisons, Democracy, and Empire. New York: Seven Stories Press.
- Davis, Michael (1996) Justice in the Shadow of Death: Rethinking Capital and Lesser Punishments. Lanham, MD: Rowman & Littlefield.
- Demleitner, Nora, Douglas A. Berman, Marc Miller and Ronald Wright (2007, 2nd ed.) Sentencing Law and Policy: Cases, Statutes and Guidelines. New York: Aspen Publ.
- Dow, David R. (2005) Executed on a Technicality: Lethal Injustice on America’s Death Row. Boston, MA: Beacon Press.
- Drucker, Ernest. (2011) A Plague of Prisons: The Epidemiology of Mass Incarceration in America. New York: The New Press.
- Dubber, Markus Dirk (2006) The Sense of Justice: Empathy in Law and Punishment. New York: New York University Press.
- Duff, R.A. (2001) Punishment, Communication and Community. New York: Oxford University Press.
- Duff, Antony and David Garland, eds. (1994) A Reader on Punishment. New York: Oxford University Press.
- Elsner, Alan (2006) Gates of Injustice: The Crisis in America’s Prisons. Upper Saddle River, NJ: Prentice Hall.
- Enos, Sandra (2001) Mothering from the Inside: Parenting in a Women’s Prison. Albany, NY: State University of New York Press.
- Feeley, Malcolm M. and Edward L. Rubin (1999) Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons. Cambridge, UK: Cambridge University Press.
- Findlay, Mark and Ralph Henham (2005) Transforming International Criminal Justice: Retributive and Restorative Justice in the Trial Process. Portland, OR: Willan Publ.
- Foucault, Michel (1995, 2nd ed.) Discipline & Punish: The Birth of the Prison. New York: Vintage Books.
- Friedman, Lawrence M. (1993) Crime and Punishment in American History. New York: Basic Books.
- Garland, David (1993) Punishment and Modern Society: A Study in Social Theory. Chicago, IL: University of Chicago Press.
- Garland, David. (2001) The Culture of Control: Crime and Social Control in Contemporary Society. Chicago, IL: University of Chicago Press.
- Garland, David (2010) Peculiar Institution: America’s Death Penalty in an Age of Abolition. Cambridge, MA: Belknap Press of Harvard University Press.
- Garland, David, ed. (2001) Mass Imprisonment: Social Causes and Consequences. London: Sage.
- Garrett, Brandon L. (2011) Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard University Press.
- Garvey, Stephen P. (2002) Beyond Repair? America’s Death Penalty. Durham, NC: Duke University Press.
- Gerber, Rudolf J. and John M. Johnson (2007) The Top Ten Death Penalty Myths: The Politics of Crime Control. Westport, CT: Praeger.
- Girschick, Lori B. (1999) No Safe Haven: Stories of Women in Prison. Boston, MA: Northeastern University Press.
- Glaser, Daniel (1995) Preparing Convicts for Law-Abiding Lives: The Pioneering Penology of Richard A. McGee. Albany, NY: State University of New York Press.
- Gottschalk, Marie (2006) The Prison and the Gallows: The Politics of Mass Incarceration in America. Cambridge, UK: Cambridge University Press.
- Hafetz, Jonathan (2011) Habeas Corpus after 9/11: Confronting America’s New Global Detention System. New York: New York University Press.
- Haney, Craig (2005) Death by Design: Capital Punishment as a Social Psychological System. New York: Oxford University Press.
- Harcourt, Bernard E. (2011) The Illusion of Free Markets: Punishment and the Myth of Natural Order. Cambridge, MA: Harvard University Press.
- Hart, H.L.A. (1968) Punishment and Responsibility: Essays in the Philosophy of Law. Oxford, UK: Oxford University Press.
- Hanrahan, Noelle, ed. (2000) Mumia Abu-Jamal: All Things Censored. New York: Seven Stories Press.
- Henberg, Marvin (1990) Retribution: Evil for Evil in Ethics, Law, and Literature. Philadelphia, PA: Temple University Press.
- Henham, Ralph J. (2005) Punishment and Process in International Criminal Trials. Aldershot: Ashgate.
- Hensley, Christopher, ed. (2002) Prison Sex: Practice and Policy. Boulder, CO: Lynne Rienner.
- Herivel, Tara and Paul Wright, eds. (2003) Prison Nation: The Warehousing of America’s Poor. New York: Routledge.
- Hirsch, Adam Jay (1992) The Rise of the Penitentiary: Prisons and Punishment in Early America. New Haven, CT: Yale University Press.
- Hirsch, Andrew von (1976) Doing Justice: The Choice of Punishments. New York: Hill & Wang.
- Hirsch, Andrew von (1985) Past or Future Crimes, Deservedness and Dangerousness in the Sentencing of Criminals. New Brunswick, NJ: Rutgers University Press.
- Hirsch, Andrew von and Andrew Ashworth (2005) Proportionate Sentencing: Exploring the Principles. Oxford, UK: Oxford University Press.
- Honderich, Ted (2006 ed.) Punishment: The Supposed Justifications Revisited. London: Pluto Press.
- Huff, C. Ronald, Arye Rattner, and Edward Sagarin (1996) Convicted But Innocent: Wrongful Conviction and Public Policy. Thousand Oaks, CA: Sage.
- Hull, Elizabeth A. (2006) The Disenfranchisement of Ex-Felons. Philadelphia, PA: Temple University Press.
- Ignatieff, Michael (1978) A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750-1850. New York: Pantheon.
- Irwin, John (1980) Prisons in Turmoil. Boston, MA: Little, Brown and Co.
- Irwin, John (1990 ed.) The Felon. Berkeley, CA: University of California Press.
- Irwin, John (2004) The Warehouse Prison: Disposal of the New Dangerous Class. Los Angeles, CA: Roxbury Publ.
- Jacobson, Michael (2005) Downsizing Prisons: How to Reduce Crime and End Mass Incarceration. New York: New York University Press.
- Johnson, Robert (1998) Death Work: A Study of the Modern Execution Process. New York: Wadsworth.
- Kadish, Sanford H. (1987) Blame and Punishment: Essays in Criminal Law. New York: Macmillan.
- King, Gilbert (2008) The Execution of Willie Francis: Race, Murder, and the Search for Justice in the American South. New York: Basic Civitas.
- Koosed, Margery B., ed. (1996) Capital Punishment. 3 Vols. New York: Garland.
- Koritansky, Peter Karl. (2011) Thomas Aquinas and the Philosophy of Punishment. Washington, DC: Catholic University of America Press
- Kupers, Terry (1999) Prison Madness: The Mental Health Crisis Behind Bars and What Must Do About It. San Francisco, CA: Jossey-Bass.
- Lacey, Nicola (1988) State Punishment: Political Principles and Community Values. London: Routledge.
- Lacey, Nicola (2008) The Prisoners’ Dilemma: Political Economy and Punishment in Contemporary Democracies. Cambridge, UK: Cambridge University Press.
- Liebling, Alison and Shadd Maruna, eds. (2005) The Effects of Imprisonment. Portland, OR: Willan.
- Lippke, Richard L. (2007) Rethinking Imprisonment. New York: Oxford University Press.
- Lu, Hong and Terance D. Miethe (2007) China’s Death Penalty: History, Law, and Contemporary Practices. New York: Routledge.
- Manza, Jeff and Christopher Uggen (2006) Locked Out: Felon Disenfranchisement and American Democracy. New York: Oxford University Press.
- Marquart, James W. (1994) The Rope, the Chair, and the Needle: Capital Punishment in Texas, 1923-1990. Austin, TX: University of Texas Press.
- Mathiesen, Thomas (2006, 3rd ed.) Prison on Trial. Winchester, UK: Waterside Press.
- Matthiessen, Peter (1991 ed.) In the Spirit of Crazy Horse. New York: Viking Penguin.
- Matravers, Matt (2000) Justice and Punishment: The Rationale of Coercion. New York: Oxford University Press.
- Matravers, Matt, ed. (1998) Punishment and Political Theory. Oxford, UK: Hart.
- Mauer, Marc (2nd ed., 2006) Race to Incarcerate. New York: The Free Press.
- Mauer, Marc and Meda Chesney-Lind, eds. (2002) Invisible Punishment: The Collateral Consequences of Mass Imprisonment. New York: The New Press.
- Medwed, Daniel S. (2012) Prosecution Complex: America’s Race to Convict and Its Impact on the Innocent. New York: New York University Press.
- Miller, Jerome G. (1997) Search and Destroy: African-American Males in the Criminal Justice System. Cambridge, UK: Cambridge University Press.
- McBride, Keally (2007) Punishment and Political Order. Ann Arbor, MI: University of Michigan Press.
- McClennan, Rebecca M. (2008) The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776-1941. Cambridge, UK: Cambridge University Press.
- Mello, Michael A. (1996) Against the Death Penalty: The Relentless Dissents of Justices Brennan and Marshall. Boston, MA: Northeastern University Press.
- Mello, Michael A. (1997) Dead Wrong: A Death Row Lawyer Speaks Out Against Capital Punishment. Madison, WI: University of Wisconsin Press.
- Mello, Michael (2001) The Wrong Man: A True Story of Innocence on Death Row. Minneapolis, MN: University of Minnesota Press.
- Messerschmidt, Jim (1983) The Trial of Leonard Peltier. Boston, MA: South End Press.
- Moore, Kathleen Dean (1989) Pardons: Justice, Mercy, and the Public Interest. New York: Oxford University Press.
- Morris, Norval and David J. Rothman, eds. (1997) The Oxford History of the Prison: The Practice of Punishment in Western Society. New York: Oxford University Press.
- Murphy, Jeffrie G. (2003) Getting Even: Forgiveness and Its Limits. New York: Oxford University Press.
- Murphy, Jeffrie G. and Jean Hampton (1988) Forgiveness and Mercy. Cambridge, UK: Cambridge University Press.
- Norrie, Alan (2001) Punishment, Responsibility and Justice: A Relational Critique. New York: Oxford University Press.
- O’Brien, Patricia (2001) Making it in the ‘Free World’: Women in Transition From Prison. Albany, NY: State University of New York Press.
- Ogletree, Charles J., Jr. and Austin Sarat, eds. (2006) From Lynch Mobs to the Killing State: Race and the Death Penalty in America. New York: New York University Press.
- O’Shea, Kathleen A. (1999) Women and the Death Penalty in the United States, 1900-1998. Westport, CT: Praeger.
- Owen, Barbara A. (1998) ‘In the Mix:’ Struggle and Survival in a Women’s Prison. Albany, NY: State University of New York Press.
- Parenti, Christian (1999) Lockdown America: Police and Prisons in the Age of Crisis. London, UK: Verso.
- Patillo, Mary, David Weiman and Bruce Western, eds. (2004) Imprisoning America: The Social Effects of Mass Incarceration. New York: Russell Sage Foundation Publ.
- Peltier, Leonard (Harvey Arden, ed.) (1999) Prison Writings: My Life is My Sun Dance. New York: St. Martin’s Griffin.
- Perkinson, Robert (2010) Texas Tough: The Rise of America’s Prison Empire. New York: Metropolitan Books.
- Peters, Rudolph (2005) Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century. Cambridge, UK: Cambridge University Press.
- Petersilia, Joan (2003) When Prisoners Come Home: Parole and Prisoner Reentry. New York: Oxford University Press.
- Prejean, Sister Helen (1993) Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Random House.
- Price, Barbara Raffel and Natalie J. Sokolof (2003, 3rd ed.) The Criminal Justice System and Women: Offenders, Prisoners, Victims, and Workers. New York: McGraw-Hill.
- Primoratz, Igor (1989) Justifying Legal Punishment. Atlantic Highlands, NJ: Humanities Press.
- Rathbone, Cristina (2005) A World Apart: Women, Prison, and Life Behind Bars. New York: Random House.
- Reiman, Jeffrey (2005, 7th ed.) The Rich Get Richer and the Poor Get Prison: Ideology, Class and Criminal Justice. Boston, MA: Allyn & Bacon.
- Rhodes, Lorna A. (2004) Total Confinement: Madness and Reason in the Maximum Security Prison. Berkeley, CA: University of California Press.
- Rideau, Walter (2010) In the Place of Justice: A Story of Punishment and Deliverance. New York: Borzoi/Alfred A. Knopf.
- Sabo, Don, Terry A. Kupers and Willie London, eds. (2001) Prison Masculinities. Philadelphia, PA: Temple University Press.
- Santos, Michael G. (2006) Inside: Life Behind Bars in America. New York: St. Martin’s Press.
- Sarat, Austin (2001) When the State Kills: Capital Punishment and the American Condition. Princeton, NJ: Princeton University Press.
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