Creating the Permanent Prisoner
University of California, Los Angeles - School of Law; New York University School of Law
May 18, 2011
published in LIFE WITHOUT PAROLE: AMERICA'S NEW DEATH PENALTY?, Charles J. Ogletree, Jr. and Austin Sarat, eds., NYU Press (2012).
UCLA School of Law Research Paper No. 11-13
Of the 2.3 million people currently behind bars in the United States, only 41,000 - a mere 1.7% - are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. In this essay, I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. Instead, a variety of penal practices combine to ensure against any meaningful loosening of control over the people the state has imprisoned. This essay explores the exclusionary effects of several such practices, including the destructive character of prison conditions, the increasing official reluctance to grant parole, and the collateral consequences of felony convictions, which heavily burden the prospects of newly released offenders. This way of framing American penal policy may seem to inappropriately sideline the more legitimate penological purposes - retribution, deterrence, etc. But there is a strikingly poor fit between these more familiar penological justifications and the actual practices of the penal system. By contrast, the exclusionary account offered in this essay is not only consistent with current penal practice, but also helps to make sense of the pervasive normative conception of prisoners as both noncitizens and nonhumans. This normative construction is a key component of the exclusionary project. If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.
Number of Pages in PDF File: 43
Keywords: prisons, prisoners. reentry, collateral consequences, LWOP, exclusion, AgambenAccepted Paper Series
Date posted: May 24, 2011 ; Last revised: August 28, 2012
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