Capping
or Branding?
Once
upon a time long ago (no, not the Stone Age, only 1978) I took a course in
Chinese legal systems at Harvard Law School, and one item in particular has
stuck with me ever since. Professor
Jerome Cohen told us that, in contrast to Anglo-American legal traditions that
spoke of someone being branded a felon, the classical Chinese idiom referred
instead to capping him as a felon. The
differences are profound.
The
Chinese thinking was that people were not intrinsically bad or good, and that
bad behavior was the result of improper learning and life. While those whose acted badly had to be
removed from society for the protection of others, their confinement should be
used to re-educate them, teaching them to be proper and useful members of
society, and it should last until, but only until, that goal was reached. When they showed themselves to be
rehabilitated[1],
they would be released, shedding their prison garb (including the cap), and
with the cap removed, rejoin society.
Professor Cohen’s analogy was a misbehaving school boy, forced to sit in
the corner, but who, his lesson learned, would shed his dunce cap and rejoin
the class. Even after the Communist
revolution of 1949, the Mao government, rather cynically, continued to pay lip service
to this tradition by calling their brutal and repressive prisons “Reform
Through Labor” camps. (Perhaps it was not totally cynical; after Mao’s death
almost every one of the next generation of leaders had spent some time toiling
in one of these camps.)
The
English tradition, which later migrated to America, did not separate the act
from the actor. Compatible with the
Christian view that Man was inherently sinful in nature, bad acts were seen as
the visible sign of that internal evil and the purpose of the law was to remove
the evil-doer to prevent his further harm to others. At first, that removal was accomplished by
outlawing him: all protection of the law would be denied to him. Anyone providing food or shelter to the
outlaw would themselves be punished, and any person could legally kill the
outlaw. His only hope of survival was to
leave the kingdom. As the legal system
developed, outlawing was replaced by capital and corporal punishment, which
included flogging and amputation as well as public abuse in pillories or
stocks. These punishments were usually
accompanied with branding or mutilation so that, for the rest of his life, the
felon’s appearance would warn others of his inherent criminal and sinful nature. An A (arsonist), R (rapist), T (thief), or B
(burglar) would be branded on his cheek or forehead; or an ear or nose would be
cropped off as a more general warning.
By
the time the American colonies were founded, England was moving away from
corporal punishment to imprisonment, soon combined with banishment to penal
colonies, although corporal punishment continued to a small extent in some
American states until the twentieth century.
But the idea of criminal behavior as a symptom of an inherent character
flaw continued. American criminals
continue to be symbolically branded even after they have completed prison
sentences and been released from judicial supervision. (Hester Primm’s big red A in Hawthorne’s The Scarlet Letter is a literary example
of this kind of thinking.) Even today in
many states former convicts are barred from voting, denied student aid, cannot
get public housing, and find themselves barred from many jobs. Even if their faces are not scarred their
pasts have branded them for life.
But
America began to take faltering steps from branding to capping at an early
date. Dr. Benjamin Rush, one of the Founding
Fathers and a leading medical practitioner of the time, advocated a new design
for prisons that he called “penitentiaries”.
These would be places where a convict would have quiet and solitude to
meditate on his sins, become penitent for them, and reconstruct himself as a
new man. By the middle of the nineteenth
century most juveniles and some women were not flogged or imprisoned, but were
sent to “reformatories” where they would be taught to lead proper lives. Gradually some of these ideas were
incorporated into prison doctrine: inmate education, pre-release programs,
parole, half-way houses; but the programs remained primarily punitive and
conviction remained a permanent stigma, not a lapse that could be remedied. Convicts are still barred from voting, from
jobs, from housing.
However,
the last half-century, combining the War on Drugs and “tough on crime” has
swelled the prison system to the breaking point. Total federal and state inmates have almost
reached the two-million mark, the highest rate in the world. This American Gulag is peopled primarily by
Black males and non-violent drug offenders.
Over half the federal prisoners are confined for simple commercial drug
transactions, and these, like other prisoners are disproportionately men of
color. Almost one-third of all black men
in America are under the supervision of the criminal justice system: on
pre-trial detention or release, on probation or parole, or in jail or prison. And the stigma of that incarceration remains
for their entire lives – just like a brand.
This
prison complex has become so blotted and inhumane that it can no longer be
supported. Ironically, one of the most
hard-nosed of the tough-on-crime jurisdictions first realized this failure, and
Texas has become a leader on penal reform – albeit under the force of federal
court orders. Community-based and
education centered programs aimed at rehabilitation have emerged. The federal government has also began backing
away from some of the worst excesses of the War on Drugs and the New Jim Crow. Federal Prosecutors have been ordered to
avoid filing charges that require mandatory minimum sentences, and the Attorney
General is starting to examine clemency for those previously sentenced under
those laws. He has also started to
question state laws that disenfranchise felons who have completed their
sentences. Legalization of marijuana in
Colorado has led to wide-spread calls to retroactively purge the criminal
records of those who have previously been convicted for offenses now legal.
Change
is in the air, and ending drug Prohibition is a prime driving force of that
change. The humanization of brutal,
scarifying prisons is now under way.
Perhaps we are finally beating our branding irons into plowshares to
till the fields of rehabilitation so that those who act badly can finally shed
their felon’s caps and rejoin society.
