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Democracy’s Prison Problem

How much does the existence of democracy depend on depriving some of its people of the benefits of democracy?



“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

– Fourteenth Amendment to the US Constitution, 1865


In 1865, the United States government revised the Constitution to make slavery illegal. Six little words, however, change the whole meaning of the sentence: Forced confinement is illegal “except as a punishment for crime.” These six words hint at a larger flaw in a document that opens with high words about liberty and justice. The existence of democracy depends on depriving some of its people of the benefits of democracy.
As of 2020, the number of Americans in jails, prisons, and out on parole after prison is just over three million. That is, at least one percent of America’s population is at this point incarcerated. Also one third of Americans have a criminal record, meaning that they have been in jail or prison at some time. This is a permanent stain and barrier to existing in society as a full citizen; prisoners and many former prisoners cannot vote.
The most common conclusion from these facts is that America keeps too many people locked up. Changes to the legal system are needed. But what if the problem is deeper than anything that small reform can solve? What if the problem strikes to the core of this country’s founding?

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There is a line from American author Nathaniel Hawthorne’s 1850 book called The Scarlet Letter. The story is in Puritan Massachusetts just after the arrival of the first colonists to the New World:


The founders of a new colony, whatever Utopia of human virtue and happiness they might originally project, have invariably recognized it among their earliest practical necessities to allot a portion of the virgin soil as a cemetery, and another portion as the site of a prison.
American history textbooks present the people who founded this country as a group in search of freedom and liberty. What is less remembered, however, is these people were generally a pretty intolerant lot. Perhaps this intolerance is descended from their reading of the Old Testament in the Bible, which is rich in images of vengeful and wrathful God. No matter the reason, their society was a punishing place to live in an uncolonized continent. Suffering and repentance, the Puritan and Quaker founders of America believed, was a requirement of society. The Bible is rich in descriptions of solitude and revelation. Jesus went to the desert and spoke to God; saintly hermits lived in the desert and gained self-knowledge through the pain of solitude. The founders of America found their democracy through the country’s geographic isolation from the wars and problems of Europe.
In 1830, the largest and most expensive structure ever built in the young democracy of America was not the White House (built with slave labor) or any similar structure built in the image of ancient Greek democracy. The title of largest structure ever built in the now 200-year-old nation was a prison, Eastern State Penitentiary. One of the cruel ironies – or is it an irony? – is that this prison was built in the same city in which the U.S. Constitution was signed and where, in effect, this country was first imagined on paper. The external appearance of the prison was not built in the style of Greece and Rome, as if to imply that the values of these past democracies were embodied in the operations of this prison. Instead, the external appearance of Eastern State was fancifully modeled after a castle with tapered walls, slit windows, towers, and a jagged silhouette. This prison, its builders believed, should inspire fear in those who saw it. And what better aesthetic precedent for the new democracy to follow than the medieval castles of Europe lived in by kings and queens? Inside Eastern State, the isolation of prisoners was absolute. Prisoners spent 24 hours a day in solitary confinement; the average sentence was for five years. Solitude and punishment, the Quaker founders believed, was the path to redemption. Eastern State was one prison, but it was the most influential prison of its time, visited by all manner of foreign dignitaries interested in designing prisons for their own countries. In its time, Eastern State was almost as popular a tourist attraction as Niagara Falls. It set the design precedent that most American prisons today still follow.
Does democracy require that some people be deprived of their freedom? The builders of Eastern State and the authors of the U.S. Constitution were familiar with French philosophers like Jean-Jacques Rousseau. The ideas of Rousseau are now credited with inspiring the actions and writing of the founding fathers of America. One quote from Rousseau stands out:


The word Liberty may be read over the front of the prisons and on the chains of the galley-slaves. This application of the device is good and just. It is indeed only malefactors of all estates who prevent the citizen from being free. In the country in which all such men were in the galleys, the most perfect liberty would be enjoyed.
For Rousseau, slavery is not incompatible with democracy. A democracy can have slaves, so long as those people are made slaves “as a punishment for crime.” But who defines crime, and who defines punishment? What if the crime is being born Black, or woman, or crippled? One definition of crime would seem to come from religion, whose laws were not made by humans. Crime is what God defines as a crime. To go against the Ten Commandments of the Bible is to commit a punishable sin. But at the same time, the Puritans, Quakers, and Christians who founded this country and wrote the Constitution ruled that church and state must be separate. The government cannot rule by religious law. The legitimacy of democracy comes not from God, but from the people. Therefore, the definition of crime comes from what the people define as crime, and not from any higher power or document. This is deeply problematic: Human rights can be revoked for having committed a crime. But since crime is a social construct, then simply convicting someone of a crime becomes justification for all manner of human rights abuses like forced labor, convict leasing, and profit from modern-day prison slavery in America.
Where do we go from here as a society? If democracy requires rules to function, what does democracy do with those who break those rules? I do not know. The challenge seems deeper than anything that reform can fix. But maybe the best path to becoming a democracy is recognizing the many ways you are not yet a democracy. Democracy should not be a state of being; it should rather be aspirational as a state of becoming. Once you are a democracy, that is it; there is no room for improvement. You are perfect, and any flaws are just kinks in the perfect system. At best, this self-congratulatory naivete seems lazy. At worst, it is dangerous.
American lawmakers often claim that America is the world’s oldest democracy. As Republican lawmaker Paul Ryan claimed in 2016: “The United States is the oldest democracy in the world, and its endurance is a testament to our Constitution.” The claim that we are an ancient democracy and that other countries are not has become justification for all manner of American military action in other countries. The wars in Iraq and Afghanistan that began as missions to take down foreign threats to American citizens soon became exercises in nation building. Our civilizing mission, politicians told us, was to spread democracy and the American way of life. Within a few years of the Iraq invasion, images circulated the world over of American soldiers torturing prisoners in Abu Ghraib and Guantanamo Bay. At each instance of police abuse, military torture, drone strikes, and systemic injustice, the problem is represented in the media as not being an inbuilt flaw with democracy but rather a flaw with a few individual bad actors. The torture at Abu Ghraib was not the fault of the US government; it was the fault of individual solders, we were told. The rhetoric of democracy expects us to separate the images of the Iraq invasion from images of torture, as if the torture of prisoners in Abu Ghraib had nothing to do with the opening of Baghdad’s new parliament a few miles away.
Perhaps, recognize the torture and injustice within America’s own borders. Perhaps, recognize that maybe we were not fully a democracy before the time in the 1960s when Blacks, and women, and others could not vote. Perhaps, recognize that we are not the world’s oldest democracy, but one of its youngest. Perhaps, recognize the ways that you are not in order to become what you should be. John Locke might have inspired the leaders of the American revolution when he wrote: “Liberty is to be free from restraints and violence from others.” But this ideal is not reality so long as three words define the national conversation: “I can’t breathe.”
Just like the architects at Eastern State who believed that self-reflection and introspection would produce better people, maybe the work of becoming democracy happens not in the voting booth but in the constant process of self-reflection and self-improvement. The legitimacy for democracy comes not from the country’s innately flawed founding documents, philosophers, and slave-owning “founding fathers” but from people who are alive today, and the degree to which they can participate in the workings of democracy. A utopia we are not and a utopia we must become. But the fact that we can never be a utopia as much as we can never be a democracy is the whole point in trying to become one because it is only in trying that progress is possible. Progress is measured not by what we have but by what we have left to do. So, yes, admitting that democracy requires prisons avoids the harder work of creating a democracy without prisons. There is, as yet, no democracy without prisons. However, that is precisely the point in trying to create one because, even if fail, we will have become better off and more humbled for having tried. As civil rights leader Martin Luther King, Jr. observed: “The arc of the moral universe is long, but it bends toward justice.”
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