By Richard A. Posner, The New Republic
Inferno: An Anatomy of American Punishment by Robert A. Ferguson (Harvard)
Robert Ferguson is a distinguished professor of law at Columbia University, with a deep interest in literature and in American culture. (He has a Ph.D. in the history of American civilization.) He has written an eloquent and learned book about the American criminal justice system today, with emphasis on imprisonment. He argues that prison sentences are too long and that prison conditions are abominable. And that is just the beginning.
Statistics confirm that a much higher fraction of Americans are prison inmates than was the case historically or is the case now in other civilized countries. As Ferguson notes, the per capita imprisonment rate is seven times greater in the United States than in Europe. Our inmates also are inmates for a longer period, because American prison sentences are longer than they used to be and longer than the sentences meted out in those other countries, although it is misleading to say as Ferguson does that “the United States imprisons more people than any other country in the world.” The United States is the third-most populous country in the world, and many countries do not publish accurate prison statistics (does anyone know the size of China’s prison population?). Many countries are unable or unwilling to punish most criminals, and in some countries crime is dealt with largely by extra-legal killing of criminals.
Unsurprisingly, given the number of prisoners, American prisons are overcrowded, living conditions are often squalid, and prison violence (including rape) is endemic. The combination of long prison terms with deplorable prison conditions makes our system of imprisonment, in Ferguson’s view, unspeakably cruel and savage. While we can count the number of prisoners, the frequency and the gravity of substandard prison conditions have not been reliably quantified.
Ferguson’s book is unique in the academic literature on imprisonment in its reliance on imaginative literature to illustrate, indeed to demonstrate, the barbarity (as he conceives it to be) of our prison system. Hence the book’s title, Inferno: the reader who misses the allusion to Dante will be enlightened by the last chapter, which is about the first two books of the Divine Comedy, the Inferno and the Purgatorio. Inferno is a prison for (eternal) life and the guards literally are devils. Purgatory is civilized, rehabilitative in its aim and methods. “Punishment through pain … works differently in purgatory. It prevents sin, or unlawfulness, from taking place by breaking the habit of it. The goal is correction; pain is the by-product that makes it possible…. The damned struggle alone in hell except when they are fighting or hurting one another [he is forgetting Paolo and Francesca]. Nothing like that ever occurs in purgatory. Instead of screams of pain, we now have welcoming embraces. The setting is noticeably like regular society in its casual conviviality…. The souls in purgatory have sinned through misdirected love, basically selfishness. The antidote, correct love, manifests itself through kindness and mutuality.” And of course the prisoners have hope of eventual release into heaven. The current model for our prisons, Ferguson argues, is hell—he calls the American prison “a secular version of hell.” He would prefer that it were purgatory.
The invocation of Dante in this context is ingenious; but literature, or at least the literature that Ferguson’s book discusses, provides a dubious prism through which to view imprisonment. Consider two of the other literary works that he discusses: Kafka’s short story “In the Penal Colony” and Melville’s short novel Billy Budd. Neither is actually about imprisonment. Kafka’s story depicts a gruesome method of execution by a machine that tattoos the condemned man’s sentence on his body with needles, hour after hour, slowly killing him. The executioner, in despair over the growing public revulsion toward the machine and the inevitability that the authorities will replace it with a more humane form of punishment, frees a prisoner who is about to be executed and immolates himself on the machine, which disintegrates in the process. It is a story rich in masochism, gallows humor, and lament about the difficulties of communication (the machine with the condemned, the executioner with the skeptics about his method). But it sheds no light on the American prison system.
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