by: Ava Fisher (Prison Writing Competition winner, 2021)
The criminal justice system in the U.S. has long represented a response to a very fundamental belief of democracy: the concept of the social contract. Social contract theory is rooted in ancient political theory that inspired the very birth of democracy itself. However, a contemporary understanding that has been implemented in much of western governance draws its influence from the discourse of enlightenment thinkers such as John Locke, Thomas Hobbes, and Jean Jacques Rousseau.[i] This idea of the social contract revealed that in order to receive protection of property and life by the State, individuals had to sacrifice personal liberty. This sacrifice was viewed as the action to forgo man’s intrinsic nature to pursue brute power and war against his brethren in favor of society, community, and governance.[ii]
The formation of the criminal justice system relies on these fundamental political assumptions. The State holds the view that by committing a criminal act, the individual has thus violated their role within the social contract, thus forfeiting the protection and community the State provides. An adherence to social contract theory reveals itself through policies such as imprisonment, fines and fees, and felon disenfranchisement laws in an effort to deter such violations.[iii] In doing so, the State claims to ensure the continued protection and community of those who diligently obey the provisions of the social contract. This represents a “civil death” of one who has been found to commit a criminal action, representing an inability by the individual to participate meaningfully in public life.[iv]
In the assessment of the U.S.’ criminal justice system, it is of great importance to examine whether the policies articulated by the State do in fact achieve their desired results. Since policies of imprisonment and reentry are typically justified to deter criminality, such policies may be quickly undermined if found to result in the opposite effect. To analyze the current success of criminal justice policies, this comment will explore the relationship between the State and ex-felons. In addition, this comment will explore the political, social, and historical roots of criminal justice practices in order to assess their role or relevance within a contemporary view. This will be achieved through an analysis of the psychological effects of the criminal justice system, as well as an examination of the barriers to reentry into society that may result in increased recidivism rates. Recidivism, for these purposes, may be defined as the reincarceration of ex-felons after completion of an initial prison sentence. Such an action may yield alternate solutions that the State may employ to foster justice, equity, and community.
Relationship with the State
The criminal justice system, as it is currently implemented, acts in such a manner that results in a discouraged relationship with the State. This results from rhetoric by the State that alienates ex-felons, branding them with a lifelong “other” status that distinguishes ex-felons from their peers, family, and community.
Rhetoric by the state may be revealed not through a mere dialogue but by the continued action of the State to dehumanize ex-felons. This may occur through the prison experience itself, represented by substandard living conditions, abusive treatment, and an attitude of punishment rather than of reform.[v] In addition to the prison experience, the State also discourages ex-felons from reentering society after their sentence is completed. Rather than allowing ex-felons to resume their previous status as complete citizens, subject to the protection provided by the social contract, ex-felons are targeted in such a manner that often leaves little opportunity for connection. The State discourages this reentry through felon disenfranchisement laws, loss of civil rights, and limited economic opportunity.[vi]
A discouraged relationship with the State may occur at a very psychological level. The psychological effect of the criminal justice system may be explained by what is known as classical labeling theory. Classic labeling theory provides for an explanation of recidivism through the attribution of an individual of a deviant label by society. Those that adhere to this theory argue that the label of “criminal” is one that affects the very mindset of an individual, resulting in a sort of self- fulfilling prophecy in which criminals may turn to criminal actions out of a desperation that leaves no other opportunity for advancements in civic life. [vii] Actions by the State perpetuate this labeling, signaling to ex-felons that they may never become fully realized citizens. This result may be employed to question the validity of felon disenfranchisement laws and other barriers to reentry, for they invite the very criminality they claim to discourage.[viii]
In addition, these barriers represent a contradiction to the social contract theory posited by the state. If imprisonment is designed to address violations of the social contract, then released felons ought to enjoy the same status as their peers. In serving their prison sentence, ex-felons have already addressed their alleged violation of the social contract. Any additional action by the State violates their own role in such a contract by devaluing the citizens they claim to protect. By encouraging ties to the community through civic engagement and methods of social capital such as marriage, the literature surrounding recidivism argues that the State may indeed see the results it seeks: lower crime rates and strength of community. [ix]
The Prison Experience
Beyond the labeling by the State, the prison experience itself results in a psychological toll on ex-felons. The prison system employs measures that are both isolating and overcrowded, creating a paradox that damages the psyche of prisoners and undermines the very idea of the social contract. The social contract is, in its name, a concept that draws from the idea that there exists a level of “togetherness” within human experience. By creating a protection of a community through the promise that individuals will refrain from harming one another, the social contract unites one’s concept of the “self” with their relations with others.[x] Therefore, the practices utilized in prisons may go beyond a mere status of “other” for prisoners, but may in fact assign prisoners a status of subhuman.
The concept of the “self” is one fundamental to an understanding of philosophy and has been employed in varying ways to justify or condemn human behavior. Concepts of the “self” as a result of our interactions with others have erected an entire branch of study, dubbed “social psychology”.[xi] Chartin Horton Cooley, for example, created the concept of the “looking glass self”, in which human nature compels the individual to look to others and to in return gain an identity of oneself. [xii] In addition, Leon Festinger’s theory of social comparison relies on the idea of the human drive to belong to groups and associate with those in which individuals find meaning.[xiii]
This isolation extends beyond the isolation of prisoners from the rest of society. The psychological effects of prison may be found within the atmosphere of prison society itself. Methods such as solitary confinement further prevent prisoners from enjoying such basic human needs as social interaction. Solitary confinement may indeed constitute a form of sensory deprivation in which individuals are subject to changes to a normal expectation of external simulation. Subjects of sensory deprivation in this manner often report psychological effects such as increased stress, anxiety, heart rate, and hallucinations after a mere 8-hour period. Solitary confinement is often three times as long, representing a lasting trauma incurred by prisoners.
Case law regarding solitary confinement typically favors the practice, revealing the continued attitude by the State to prize an image of strict action against crime over the very humanity of prisoners. In State ex rel. Jones v. Walls, the Court ruled in favor of solitary confinement for periods of as long as five days. If such psychological effects are observed after only hours, this period represents an injustice that cannot be justified by an action to deter criminality. [xiv]
Barriers to Reentry
By depriving prisoners of this fundamental human need to connect meaningfully with others, the State further conveys the reduced value of ex- felons as people, an action that causes further criminality. This is a result of a perceived hopelessness of ex-felons that is further confounded by loss of economic opportunity after release. With little employment opportunities, ex- felons may turn to criminality as a means of financial support. [xv] In addition, the burden to pay court fines and fees represents a cyclical phenomenon in which individuals may feel trapped. [xvi]
In addition to economic loss, felon disenfranchisement laws represent another relevant barrier to reentry. Beyond the social contract justification for such laws, another view suggests that ex-felons ought to be prevented from exercising voting rights due to their ability to form a voting bloc. This idea rests on concepts of the tyranny of a majority originating in James Madison’s Federalist 10. [xvii] Those that hold this view suggests that ex-felons, if permitted to vote, will unite to form a voting bloc that ensures the implementation of policies favorable to the practice of criminality. [xviii] The voting bloc argument may be quickly dismissed through an understanding of case law.
In Carrington v. Rash, the Court examined the constitutionality of a Texas statute designed to prevent military members from influencing local elections.[xix] The Court ruled against such a statute, stating that the “fencing out” of a group’s ability to vote based on the assumption of how they would vote was unconstitutional. Through an adherence to this precedent, the implementation of felon disenfranchisement laws may cease to exist. Viewing ex-felons as a voting bloc alone may not constitute a justifiable reason to inhibit their voting rights.
Solutions to Heal a Damaged Relationship
In view of the limited success of the State in deterring criminality and administering true justice, the State must consider methods of reform. Such methods must counter the State’s rhetoric that ex-felons are devalued and instead encourage the reentry of ex-felons into society. By simplifying the very complicated process of reentry and demonstrating the intrinsic value of ex-felons, the State may be able to decrease recidivism rates and address the discrepancies of the social contract.
A study conducted by the Brennan Center indicated that limited community participation by ex-felons may result from misinformation and confusion over processes of reentry. [xx] The study found that by merely notifying ex-felons of their ability to vote, voter turnout amongst ex-felons increased. The State could replicate such an action by removing barriers to voting such as certification of eligibility requirements. By increasing voter accessibility in such a manner, the State will counter their own rhetoric of the value of ex-felons and encourage them to develop ties to their community and its welfare. Such ties may result in decreased criminality as a result of a higher loss incurred by imprisonment due to the removal of family and community.
Policies that increase voter accessibility and other civil rights amongst ex-felons have already shown decreased recidivism rates. This is evident in the case of the automatic restoration of civil rights to ex- felons passed by Florida Governor Charlie Crist in 2007. After this automatic restoration, the state saw a considerable difference in the three- year recidivism rate of non-violent offenders, those subject to the change in policy. [xxi] This occurrence may be explained by the action of Governor Crist to counter typical rhetoric surrounding ex-felons and instead encouraging their role in society.
By removing barriers to reentry in this manner, the State may at last ensure the criminal justice system is in fact just. Policies that encourage reentry rather than recidivism will solidify ex-felons as equals to their peers that may enjoy the same humanity and protection by the State. However, these reforms represent just a beginning to criminal justice reform in the U.S. The rhetoric of the State is a longstanding view that has permeated every aspect of legislation regarding criminal justice and must be dismantled. This will require the collaboration of experts across fields unified in the interest to preserve the human experience.
[i] See Jean Jacques Rousseau, The Social Contract (1762) (inspiring political reform and revolutions across Europe).
[ii] See Thomas Hobbes, Leviathan (1651) (arguing that man’s natural state is one of war and he must be controlled by a strong, unyielding government).
[iii] See Alabama Appleseed, Under Pressure (2018) (assessing the disparate impact of criminal fines and fees and their effects on economic growth).
[iv] See Matt Vogel, The Violence of Voicelessness: The Impact of Felony Disenfranchisement on Recidivism, 3 La Raza L.J. 22, (2012) (revealing the effects of the State’s rhetoric on the tendency of ex-felons to recidivate).
[v] See Craig Haney, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev L. & Soc. Change 477, (1997) (analyzing the psychological effects of the prison experience).
[vi] See Tanya Whittle, Felony Collateral Sanctions Effects on Recidivism: A Literature Review, 29 Crim. Just. Pol’y Rev. 505, (2018) (revealing the effects of sanctions on various methods of reentry).
[vii] See Howard Becker, Outsiders: Studies in the Sociology of Deviance (1963) (explaining the psychological impact of social labeling).
[viii] Id. at 25-40.
[ix] See Matt Vogel, The Violence of Voicelessness: The Impact of Felony Disenfranchisement on Recidivism, 3 La Raza L.J. 22, (2012) at 409.
[x] See Craig Haney, Regulating Prisons of the Future: A Psychological Analysis of Supermax and Solitary Confinement, 23 N.Y.U. Rev L. & Soc. Change 477, (1997) at 2.
[xi] Id. at 3.
[xii] See Charlie Horton Cooley, Human Nature and the Social Order (1902), (explaining the concept of the “self” through interactions with others).
[xiii] See Leon Festinger, A Theory of Social Comparison Processes, 7 Human Relations 327 (1954) (revealing human tendency to erect societies and belonging).
[xiv] State ex rel. Jones v. Walls, 356 So. 2d 75 (1977).
[xv] See Alabama Appleseed, Under Pressure (2018) at 4.
[xvi] Id. at 7.
[xvii] See James Madison, The Federalists Papers (1787) (justifying the ratification of the U.S. Constitution).
[xviii] See Matt Vogel, The Violence of Voicelessness: The Impact of Felony Disenfranchisement on Recidivism, 3 La Raza L.J. 22, (2012) at 413.
[xix] See Carington v. Rash, 380 U.S. 89 (1965).
[xx] See Erica Wood, De Facto Disenfranchisement (2008) (weighing the merits of felon notification programs and their effects on voter turnout).
[xxi] See Cody Tuttle, Snapping Back: Food Stamp Bans and Criminal Recidivism (2019) (revealing the effects of automatic civil rights restoration in Florida).