One of the sobering experiences of being a judicial clerk is the mountain of cases you see from prisoners alleging prison violence, abuse, and mistreatment. Even worse is the fate of most of these lawsuits, which is typically a swift and decisive dismissal. Earlier this year I alluded to one case that stood out to me out of the Eighth Circuit, Leonard v. St. Charles County Police Department, where a jailhouse nurse simply refused to give a mentally ill inmate his prescribed medication (despite the insistent efforts of the inmate's mother to ensure the medication was delivered). Instead of giving the man his medication, the nurse placed him under suicide observation -- the end result being jail staff "observing" the man claw out his own eyeball. This behavior, the Eighth Circuit held, carried no liability for the prison staff.
The Leonard case isn't an anomaly. If one is a clerk (or a judge, or an attorney who works on such matters), one sees allegations like this as a matter of course -- a terrible, unending drumbeat of abuse and neglect. Admittedly, these allegations are at the stage where we're talking about just allegations -- they aren't proven. But that it some ways makes it worse, because the procedural posture of the cases requires that judges assume the facts are true as the prisoner alleges them, and so it is those sets of facts which judges repeatedly conclude present no constitutional violation. There is no gainsaying that, as far as the dominant doctrine of constitutional law is concerned, the state is allowed to brutalize its prisoners in an unfathomable variety of sickening ways without any legal recourse whatsoever.
Each time I read one of these cases, I'm horrified anew. They all have their horrible points that stick in your mind for different reasons. The sticker of the Leonard case was the role the plaintiff's mother played in the narrative. I don't know what Leonard did to be in jail; he may be a very bad man. But even if you feel no sympathy for him, the torment his mother must have been put through -- her desperate, impotent, and ultimately futile attempts to ensure her son would not be neglected in his moment of vulnerability -- is nothing short of horrifying. Him being incarcerated meant she was in a position of being completely at the mercy of the state as to whether her child would live or die, would be taken care of or would be cruelly and cavalierly abandoned. The state made the latter choice. There's nothing she could do about it, she ultimately could not protect him. And the law's reply to that choice and that impotence is to shrug its shoulders and say "fine by us".
The thing that gets me isn't (just) the cruelty itself. It's the option of it; the legalized indifference as to whether it happens or not. Another inmate is in an similar position perhaps, but the jailhouse nurse makes the humane choice -- she gives him his medication. Great, but as far as the law is concerned, that was nothing but a choice -- it's basically a matter of fortune she chose as she did. Being perpetually at the mercy of the arbitrary negligence of the state is a punishment, and is a cruel and unusual one at that. I don't make any claims as to whether a program of incarceration demands that sort of systematic indifference to human dignity. I will say that if this is what is necessary to make that program run, then the cost is too high. And that assessment in no way depends on any denial that the prisoners subjected to this system may in many cases legitimately be called bad people.
All of this is warmup to story you might have heard that Derek Chauvin, George Floyd's murderer, was stabbed in prison. This story has led to a lot of replies taking the form of "hope the knife is okay" and other witty posts of endorsement and cheer. Much of this, to be sure, stems from people who are not in any meaningful sense politically aware and active -- they view (correctly) Chauvin as a bad man, and so they cheer a bad thing happening to him. But I've seen plenty of people with more sophisticated political palates who've basically been taking the same line -- they're absolutely fine with Chauvin being subjected to violence and abuse in prison because he's a bad man who has it coming. Indeed, some of them are angry that some "liberals" have the temerity to say it's a bad thing that Chauvin was stabbed in prison. How dare the liberals not permit us to rejoice in Chauvin being subjected to a dose of state-supervised arbitrary violence?
There is, I'll agree, something to be said regarding a "Himpathy"-style critique here -- why, when this sort of violence is pervasive in the prison system, does it seem as if we suddenly find extra stocks of empathy when it's the Derek Chauvins of the world exposed to it? On the other hand, we might suspect that the persons appalled by Chauvin being stabbed are also appalled by other prisoners being stabbed, and the reason we haven't noticed it is because the world doesn't bother paying attention to their identical empathic responses except when it's the likes of Chauvin at issue.
Leave that aside. I don't think resolving that debate changes the fact that it matters that a non-trivial chunk of the voices who present themselves as "abolitionists" are finding themselves unable to contain their joy at seeing Derek Chauvin stabbed in prison. Why? Because it reveals one of their core political promises to be a lie. A core differentiation between reformists and revolutionaries in this domain is that the latter purport to reject outright the leveraging of systemic, organized collective violence as a tool of social discipline and punishment. The former, by contrast, accept that organized, collective violence (which is what prison ultimately is) is sometimes justified as a tool of social regulation and are trying to constrain, ameliorate, or otherwise redirect it. The revolutionary appeal here is that supposedly it isn't just about reshuffling the deck of organized violence. It's a more fundamental alteration; which is why saying "but what about all the bad people who do bad things" isn't taken to be a knockout response. For the bad people too, we need to find an alternative to the leveraging of systematic, organized collective violence as a tool of social discipline and punishment.
But when the "revolutionaries" are seen cheering Chauvin being subjected to prison violence, it suggests that they, too, ultimately are just pursuing an agenda of redirecting these projects of collective violence towards more suitable targets. At that point, their only basis of appeal boils down to "we are better at identifying the true 'bad people' who are deserving of being subjected to collective violence as a means of social discipline, and better at channeling that violence to those people in appropriate dosages, than are the current powers-that-be." For my part, I don't see much basis for why they've earned that degree of trust (note, for what it's worth, that they're aligned with the current powers-that-be with respect to Chauvin -- both have demarcated him as among the "bads", and both are performatively fine with a system where he is at the arbitrary mercy of being stabbed), and it's certainly a far less ambitious proposition than how it's commonly framed. Ultimately, the most honest players of the game might be the relatively apolitical centrists: they never pretended to have a serious problem with "bad people" being subjected to unconstrained violence in prison, they view Chauvin as falling into the category of "bad people", and so they're perfectly happy to see him subjected to unconstrained violence in prison. Say what you will about it, but there's nothing inconsistent there.
One sees, I think, a similar dynamic manifest frequently in the discourse around a "one-state" solution to the Israel/Palestine conflict. In one moment, proponents declare their agenda to be a neutral, secular, "state-for-all-citizens" that is studiously equal in its orientation to Jews and Arabs alike and most certainly is not about institutionalizing a hierarchy of political dominance for their preferred faction. And who could oppose that? (Answer, we're told, is "only people who support hierarchies of ethnonationalist political domination"). But in the next moment, some of these same people can barely contain their ecstasy at witnessing "settlers fleeing the land", land that they are naught but foreign interlopers on to begin with, and also when they are fleeing to distant shores could anybody really blame the locals for organizing a light lynch mob to greet them, genocidal colonizing settlers that they are? The latter expression falsifies the sincerity of the former; the sort of person who believes that "Israelis are, to the man, thieving genocidal settler war criminals" obviously cannot be taken seriously when they portentously aver "and the political arrangement I hope to set up should welcome them as equals." It is beyond obvious that the people who oscillate between these two instincts are simply weaving a narrative that will support a reshuffling of political domination; that their ultimate pitch for why they should be backed is because they'll do a better job than the current powers-that-be at identifying who actually deserves to be on the top and who deserves to be on the bottom of the new state of affairs. And it's equally obvious that many of their backers lend their support to this political program for that exact reason -- they understand full well that this politics is a means to an end, not an end of harmonious equality, but an end of the bad people being thrown down, punished, made to be lessers, and getting the comeuppance they so richly deserve. Maybe they're right in their assessments -- but if they are, it isn't because they're representing some categorical break from what's come before or the politics they purport to reject. It really is a matter of whose ox gets gored.
To be honest, it really doesn't surprise me that, even in political movements that purport to represent rejection of arbitrary infliction of collective violence as a tool of social reform, or rejection of programs of ethnonationalist political domination, much of the practical "foot soldier" energy behind the causes really boils down to a desire to redirect the complained-of atrocities to new and better enemies. There's nothing especially new here (Angela Davis was infamously impassive regarding the mass imprisonment of political dissidents in Soviet bloc nations, for example). And the most cynical but not wholly-incorrect way of describing politics in general is that it is a series of debates regarding when, where, why, how, and to whom we should direct collective projects of violence as means of social regulation and punishment. In that sense, nobody is doing anything out of the ordinary. But that very ordinariness is what reveals the lie; the lie that there is something revolutionary at work here, and that those who don't trust this revolutionary impulse are suspicious only because they're addicted to the violence that their betters are trying to abjure. No -- it turns out, they're absolutely right to be suspicious and their suspicions are absolutely right.
I'm not saying that nobody is principled here; in fact, I suspect there are plenty of people who are absolutely genuine in their commitments. But the number of persons for whom the high-minded rhetoric of abolition or secular equality or what have you is really just a thin veil for crafting a new narrative that can justify redirecting violence towards the "right" targets is, I think, far larger than anyone would care to admit. Cheer Chauvin's stabbing if you want. But don't expect anyone to then believe that the politics you propose is even in utopian concept about rejecting in principle the deployment of collective violence as a tool of social control.
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