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Published in Psychology, Public Policy, and Law, 3, 499-588 (1997).
Psychology and the Limits to Prison Pain:
Confronting the Coming Crisis in Eighth Amendment Law
A suitable amount of pain is not a question of utility, of crime control, of what works. It is a question of standards based on values. It is a cultural question.
Prison policy represents a compromise between competing sets of human values-concerns for social order and respect for humane justice. On the one hand, legal theorists agree that "[t]he criminal sanction is the paradigm case of the controlled use of power within a society." Nowhere in our society is more forceful and sustained control over persons exercised than in its prisons-control applied in the name of achieving and preserving civil order. Indeed, some have argued that the inherent violence of prison colors the entire legal system that regularly resorts to it. On the other hand, commentators as diverse as Dostoevsky and Churchill have observed that the real measure of civilization in any society can be found in the way it treats its most unfortunate citizens-its prisoners.Historically, popular movements, citizens' organizations, professional groups, and political factions have argued, lobbied, and taken action against punishments that were perceived as draconian and repressive. Thus, a society's conception of humane justice constrains what may be done legally to persons in the pursuit of order. These two very different perspectives establish the parameters for a centuries-old debate over the nature and legitimacy of legal punishment: What is the proper relationship between necessary levels of social control and minimal standards of humane treatment?
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Like many other scholars, I, too, lament the recent passing of humane values from public, political, and-to a certain extent-legal discussions of the virtues of punitive social control. However, I see in contemporary psychological theory the potential to develop a reasoned analysis of what, in an earlier work, Nils Christie called the "limits to pain." I will argue in this article that the profession of psychology bears a degree of responsibility for the current crisis in American prison policy. Historically, we have contributed significantly to the intellectual framework upon which modern corrections is built.Indeed, Michel Foucault argued that the conceptual systems of social science owed as much to the development of the modern penal form as vice versa.We have said little and done less while our nation's penal system has been used in a terribly inhumane, exceedingly expensive, and in the long run, I believe, very dangerous political tug-of-war over who can lock up the most people for the longest amount time. History will not judge this period very charitably. Neither will it judge kindly those of us who early influenced (perhaps quite inadvertently) the direction of our nation's crime policy and then simply stood by while the political powers that be twisted this course of action beyond any rational limits. What Cullen has recently said about criminologists applies with equal if not greater force to psychologists (albeit in somewhat different ways):
In recent decades-as authors and as consultants-we have played a large role in delegitimizing the rehabilitative ideal and in providing the intellectual justification and technology for managing penal harm. The challenge now is to help fashion an alternative plausible narrative that can move us beyond harm as the organizing principle of corrections.
Yet, contemporary psychological theory has the capacity to both rekindle a debate about humane limits to pain and provide a blueprint for creating an intelligent policy of crime control that does not sacrifice correctional justice. It is time for the discipline of psychology both to assume responsibility for its historical connection to the shape and direction of past correctional policies and to play a more significant role in developing pathways out of the current crisis.
Prison is a supremely individualistic response to the social problem of crime. It is a clear reflection of a longstanding belief in our culture that crime should be addressed almost exclusively by identifying and incarcerating those responsible for committing it. Yet, modern psychological theory has added a new dimension to contemporary accounts of social behavior that places our dependency upon traditional forms of imprisonment in a fundamentally different light. In Ross and Nisbett's words: "[W]hat has been demonstrated through a host of celebrated laboratory and field studies is that manipulations of the immediate social situation can overwhelm in importance the type of individual differences in personal traits or dispositions that people normally think of as being determinative of social behavior." Situational structure is now recognized as exerting a powerful influence over behavior in a range of social settings. Psychologists also have demonstrated that the cognitive representation of situations exercises an important effect on behavioral consistency. Contemporary psychological research has provided empirical documentation of the powerful influence of situational characteristics on various forms of psychopathology, including depression, and on behavior as diverse as altruism, coping, cheating, and a police officer's decision to take someone into custody. In a more directly relevant way, we also know that variations in social setting and context play an extremely important causal role in the incidence of criminality, aggression and violence, homicide, and even torture. Moreover, numerous studies have now shown that exposure to a variety of background situations and developmental contexts (like poverty and parental maltreatment) constitutes a significant risk factor in delinquency and adult criminal behavior. Similarly, situational analyses of misconduct and violent behavior in prisons themselves underscore the importance of social context in influencing behavior in institutional settings. Although most contemporary social scientific analyses of social behavior can be described as interactional in nature, situation, context, and structure have attained empirical and theoretical significance that they did not have several decades ago. Indeed, the problems of crime and violence-formerly viewed in almost exclusively individualistic terms-are now understood through multi-level analyses that grant equal if not primary significance to situational, community, and structural variables.
Modern psychological theory thus contains several powerful lessons for contemporary criminal justice and penal policy, virtually all of which have been overlooked, ignored, or disregarded in recent trends toward ever increasing levels of imprisonment: 1) That exclusively individual-centered approaches to crime control (like imprisonment) are self-limiting and doomed to failure if they do not simultaneously address criminogenic situational and contextual factors; 2) That prison environments are themselves potentially damaging situations whose negative psychological effects must be taken seriously, carefully evaluated, purposefully regulated and controlled and, when appropriate, changed or eliminated; 3) That programs of prisoner change cannot ignore situations and social conditions that prevail after release if they have any hope of sustaining whatever positive gains are achieved during periods of imprisonment; and 4) That longterm legacies of exposure to powerful and destructive situations, contexts, and structures can mean that prisons themselves may act as criminogenic agents-in both their primary effects on prisoners and secondary effects on the lives of persons connected to them-serving to increase the amount of crime that occurs within a society. All of these implications argue in favor of more critically and more realistically evaluating the nature and effect of imprisonment and developing psychologically-informed limits to the amount of prison pain we are willing to inflict in the name of social control.
In attempting to formulate some humane limits to legal pain I will explore the interplay between modern psychological theory, contemporary conditions of confinement, and definitions of cruel and unusual punishment. By providing a snapshot of the "corrections crisis" that now plagues the nation, I will also examine the more immediate context that gives these issues pressing, contemporary significance. This crisis threatens to bankrupt state and municipal governments, doom generations of citizens to lives at the legal and economic margins of our society, and thwart the development of any effective and humane national policy of crime control. The connection of the discipline of psychology to the current corrections crisis has an historical component to it and extends to the role of psychology-both as an ideology and a professional discipline-in the very development of the institution of prison. Although few psychologists acknowledge or reflect upon this connection, the discipline of psychology has been deeply involved in the creation and transformation of the prison form. This historical legacy carries both a warning about repeating the sins of the past and a mandate that appropriately implicates us in future solutions.
More recently, dramatic shifts have occurred in the public's conception of the purpose of legal punishment that have altered the nature of imprisonment and its connection to the discipline of psychology. These include the emergence of a revisionist view of rehabilitation, the increased prominence of "just deserts" in penal philosophy, and a recently changed public view of the nature of criminality. Not surprisingly, changes in the way in which our society justifies the legal pain it inflicts have had a direct impact on the nature of the institution charged with the responsibility of delivering that pain-prison. In this regard, I will review some of the empirical literature on prison conditions and the psychological consequences of imprisonment, giving special attention to the impact of overcrowding. In the next section of the article I will examine the general question of legal regulation of imprisonment-the attempt to use law to set legal "limits to pain." I will discuss what I believe to be largely outmoded conceptions of the nature of prison life that continue to haunt the primary instrument by which legal punishment is regulated in the United States-8th Amendment law. Finally, I will attempt to extend the parameters of the debate about effective strategies of crime control and humane limits to penal pain by proposing alternatives to current models of incarceration that are premised on contemporary psychological theory.
The combination of empirical, legal, and political developments that I describe throughout this paper raise the specter of a coming crisis in 8th Amendment law, one whose implications are troublesome and far reaching. It derives from the fact that prison pain is not only widespread but has become the raison d'être of American corrections. The United States Supreme Court's methodology for defining unconstitutional cruelty-whether it fails to serve any legitimate penological purpose, on the one hand, and whether the is evidence of widespread legislative or public repudiation, on the other-breaks down when pain is made the purpose of imprisonment, when legislatures owe their continued electoral viability to increasing levels of prison pain, and when the public has been kept uninformed about the nature and longterm consequences of this state-sanctioned cruelty. Thus, widespread correctional harm is no longer "unusual," but neither is it regarded as "cruel" by popular constituencies. That is, the public not only has been kept ignorant of the harm that prisons can do but they have been convinced that cruel treatment is a carefully considered, effective, and perhaps even the only viable strategy to be followed in crime control. This shift, combined with the politicizing of the question of pain by the courts-many of whom have arguably abdicated their regulatory function in deference to explicitly popular, political forces-means that there are few if any limits on what can be done in the name of "corrections," even as we have abandoned any hope of ever correcting anything. I argue that insights derived from the discipline of psychology can help to avoid this coming crisis.
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