Revolution #253, December 18, 2011

A Talk by Colin Dayan at NY Revolution Books

The following is an edited excerpt from a talk by Colin Dayan given at Revolution Books in New York on November 22, 2011. Dayan is the Robert Penn Warren Professor in the Humanities at Vanderbilt University, where she teaches American Studies, comparative literature, and the religious and legal history of the Americas. Her op-ed piece, "Barbarous Confinement," appeared in the New York Times on July 17, 2011, during the California prison hunger strike. Her most recent book is The Law Is a White Dog: How Legal Rituals Make and Unmake Persons.

During the past 25 years the Supreme Court has limited not only the rights of prisoners, but redefined these persons in law. That redefinition—the creation of a new class of condemned—has introduced an amazingly extensive and endlessly adaptable strategy of domination and control. Degrading forms of confinement, the psychological torture and excessive force ask us to reconsider the meaning of "cruel and unusual" punishment.

Part 1: The Cruelty of Supermax Confinement

I began my project with the so-called "return to chain" in Arizona in the summer of 1995— politicians thought this was a very good way to show they were tough on crime. I was fascinated that this degradation was coming to Arizona, since it reminded me very much of the South I grew up in. Now it was no longer just a southern thing, but the trappings were moved to the contemporary Southwest. The turning point for me was when I began to speak with the wardens and the prison director himself. This was what turned me around. I had no idea what was actually happening within the prisons. And I did not know, for example, what it meant to suffer under supermax confinement, 23-hour lockdown, no human contact and complete sensory deprivation. It was surreal when the spokesperson for the Arizona Department of Corrections said, "You know, you don't want to look at the chain gangs, that's just for the guys who don't want to work. But what you want to see is the clean state-of-the-art places for the 'worst of the worst.'" And of course we now know that these labels are applied to persons all over the world: "the worst of the worst," the "incorrigibles." He wanted me to see these clean well-lighted places, where all basic needs are met.

Now the irony is that SMU I [Special Management Unit] in Arizona was the model for Pelican Bay. Before 60 Minutes went into Pelican Bay in 1995, they wanted to see SMU in Arizona and the warden said, no way, you're out of here. So they went to Pelican Bay. I don't know if any of you saw the 1995 60 Minutes show on Pelican Bay, but that's what began the case Madrid v. Gomez against cruel and unusual conditions of confinement. No one from the outside was allowed into the supermax units in Arizona. And I posed as… well, being a professor and speaking with a southern accent which I can do still pretty well, I was able to kind of pass as someone who wanted to write a history of the prison system. "I'm so fascinated about what y'all are doing in Florence, oh god, these Bluetick hounds, it reminds me of home." I really put on an act that summer in 1995.

So the project that became The Law Is a White Dog began as fieldwork. What are these men doing to other humans? How is this possible? What is their language like? So I spent a great deal of time talking with them about their philosophy of supermax confinement, punishment and isolation. And they were ready, especially the warden of SMU II, which is still I think the harshest supermax prison in the United States, in Florence, Arizona. I write a great deal about it here because it has a special section called the Special Security Unit, or SSU, and it has on its walls not just the shanks and the weapons that are made by prisoners who are on 23-hour lockdown, but also photographs of their self-mutilation. And it's a special room, a museum of torture within the SMU II. There was a way in which my brain couldn't get around practices called "lawful" that were nothing less than torture. I'm just going to read you these two paragraphs. This is right from the original work in '95-'96, it changed a great deal but, "On one of my first visits a correctional officer explained, 'we razed the desert, bulldozed it, tore up anything that looked green. Now you see these cell doors? Don't they look like a regular shaped Swiss cheese? I want you to know that the stainless steel mirror, the sink and toilet are fastened with adhesives that cannot be chipped. Nothing inside the cells can be moved or removed. They sleep on a poured concrete bed. They have no control over the water. We control it all. If we turn off the water for just a few seconds in the morning we can discipline them real good.'"

But the real surprise when I first walked down the hall in SMU II was the immaculateness. And I began to wonder about that, since all I knew about solitary confinement at the time was the "hole," like Alcatraz, the kind of thing you see in Murder in the First. And I was so interested in these very, very large, technologically advanced, tremendously expensive units that were containing more and more groups of people under the label "security threat." So in my early interviews I was interested in who ends up here. And I think it was very telling that they were not persons who, for the most part, had committed major infractions while in prison. They had not actually committed any violent acts. You might have had one or two, as you know many very, very psychologically disabled persons end up in the SMU units. But the majority of people in the SMU units were alleged gang members, marked as security risks. And what I found hard to comprehend, was how did this happen? How do you end up in a solitary confinement unit indefinitely, how is it legally possible?

And the big thing that happened that year was meeting Dan Pochoda, who is now Legal Director of the ACLU in Phoenix. He was one of the Attica lawyers, and I was put in touch with him because there was a very important case going on at the time, also in Arizona, called Casey v. Lewis. It eventually reached the Supreme Court as Lewis v. Casey (1996) and it was about meaningful access to the courts, and Dan was bringing this case forward. The upshot of it all was that the law libraries were judged not to be necessary for meaningful access to the courts, and they were destroyed. But Pochoda introduced me, after we had had many conversations, to Judge Carl Muecke, who was the only liberal judge in the District Court in Arizona. He was retiring, he had had death threats, he was in his 70s, and conservatives in Arizona wanted him out. So he decided, with his wife's urging, to retire. He turned over this office to me that summer of 1997, and I began to read case law. It was then I realized that law-making was the kind of demon underbelly to the abhorrent practices I had witnessed.

So though I am not a trained lawyer, I wrote a book that I hoped would give flesh and blood to the abstractions of law. It's about case law, about how, for example, something as torturous as a supermax unit in the United States of America could have become constitutionally legal. How is it that a place that drives prisoners mad and pushes suffering beyond the limits of what is endurable, how is it that it can be legally possible? Why is this not an Eighth Amendment violation? So the course of my work really changed. This is the story of the making and unmaking of persons over time, about how law and certain kinds of legal language begin to do the very things we think the law is there to prevent or prohibit. As I move through the book I'm interested in the way in which we could not have had a supermax unit, there could have been nothing called indefinite solitary, if it hadn't been for a few legal cases (building on a real legal history), which I deal with in Chapter 3 and Chapter 5. And those cases, surprise, surprise, were part of the Rehnquist court (1986-2005). What had to happen was that what used to be seen as solitary confinement, with the legal limits of duration, say 30 days, could suddenly become indefinite, prolonged, with no end in sight.

And there are two very unique cases, which I won't go into now. We can talk later if you're interested in how it happened. But the supermax is the materialization of a certain kind of legal logic, and that legal logic has to do with a sharp separation between two kinds of pain. One that is physical—that shows visible injury, a scar or wound. The courts will recognize that as an Eighth Amendment injury. But what could not be recognized after the Prisoners Litigation Reform Act, which Clinton passed into law in 1996—will never be recognized—is psychic injury, what happens to the mind and the spirit of prisoners. And the idea that the solitary confinement building, whether you call it security housing unit, supermax unit, special housing, special management, whatever euphemism you choose, they all share a complete absence of anything that you can see or hear. There is nothing in your cell, you can attach nothing in your cell, and you can have no mail. The mail problem is the subject of great litigation. But, most of all, you have no human contact. You only see the hand of a guard when "you feed," as officers put it, through the cell slot in the door, or through often violent cell extractions.

Part 2: Foundation for Legal Torture

I was interested in how the history of the law over time began to shape a certain kind of person who was just flesh and blood, without mind, spirit, or intelligence—and no rights that the state was bound to recognize, except the most minimal human needs. It was all legal when this country began to really work hard at warehousing and containing large groups of people who were political activists, jailhouse lawyers, who were some form of threat. It is shown, a number of psychiatrists who have testified in these cases have said that even two weeks in this kind of lockdown can drive anyone mad. And it is the forms of law, as I tell the stories of legal fictions that make this book rather strange, I think, especially for the guild of lawyers. I'm a woman who worked very long and hard in Haiti. I'm a woman who knows about practices that some call primitive, backward or supernatural. I lived through the ways in which anti-Vodou, anti-superstition campaigns were carried out in the '80s after Baby Doc left, and I was always interested in the way in which those who hold on to power could only hold on to the power, if they projected their own fears and beliefs onto those they disdained. They held on to power by making divisions between the so-called civilized and the so-called barbaric. And of course, Vodou and African-based spirit religions were always on the side of barbarism.

I was very interested in demonstrating in this book how the law—which is supposed to be highly rational, the height of enlightenment—traffics in weird and occult and ghostly propositions, meaning that some of the cases as I describe them, really do project and depend on creating a space that is steeped in magic, where one is dead-alive, civilly dead in the eyes of the law. It is this life in death, this zombification that I became very interested in, especially when lawyers I knew, when I was part of this program at the Woodrow Wilson School at Princeton, would question me, saying, after I spoke about one of Justice Antonin Scalia's really shocking and precedent-setting cases, Wilson v. Seiter (1991).

I describe it here, since it is the foundation of the torture memos*. It's where Scalia spells out the contours of injury, and when someone can be judged guilty of harm. To prove an Eighth Amendment violation, the injured must demonstrate that the official who injures had the intent to harm. If the official does not intend, had no deliberate indifference, no malicious intent, then you can't prove a violation. In other words, the person who has been injured must go on an impossible chase to prove the state of mind of the officer: was it malicious, did he have a malicious state of mind? But the thing that I was saying to these lawyers that year in 2000 is that a decision like this contained a philosophy of personhood, that legal language created an anomaly in law. And I guess if I have to describe anything about this book, it is that the law really has a near preternatural power, and those who are most oppressed and those who are in prison know how forceful the law is. They comprehend it. You do not have to be a lawyer to know what its effects are. And I began to really think about legal opinions over time as having certain formulae, certain repetitions, nearly incantatory, that carry a great deal of power in creating, for the larger public, the way in which groups of people are seen as unfit, expendable, and beyond the pale of human empathy.

Once we get to Guantánamo, then you understand that something called "security threat" has now been expanded to something called a "terrorist," because, again, I cannot stress strongly enough that the real problem, as the Pelican Bay prisoners understand, is that there is no proof involved. There is no necessity for guilt to be proved. There is no redress there for them, since we are dealing with preemptive justice. What matters is the status the detained possess in society: not what they have done, but what they are like. In prison, for example, if someone happens to say, you're a member of the gang, that's it. You've got to debrief. They call it "blood in, blood out." And how do you debrief, if you're not a gang member? And if you do debrief, you end up in protective segregation, so you're still in complete isolation so it's basically a death sentence. But there is a way in which, and I think Obama recognized it, Obama of all people…. In the very first chapter of my book I describe the uncanny way in which he decided the solution to Guantánamo. It was the supermax—to move alleged terrorists to the mainland and put them in supermax prisons. And he presented this as the only common sense thing to do. But, of course, many Americans did not want the Guantánamo prisoners moved to the mainland. But what's fascinating is the way legal thinking or legal logic crosses borders—inside and outside the borders of the United States. The global export of our prison practices demands that we recognize the hyper-legality of what we think of as lawless.

And again I'm making an appeal here to read the law and think through it, because I'm very angered by most constitutional lawyers who pay no attention to prison cases. Let's just take Ronald Dworkin, a brilliant man, who can write book after book about justice without attending to any prison case, not one. It's because there is an alternative law for prisoners, just as there was an alternative law for slaves. It's not that the language is different; it's that the words no longer mean the same. So a slave could be beaten until death, but that was just a "correction." So it was not murder, it was not legally legible as criminal. And then you have slaves who don't exist, they have "no legal minds," no "legal personalities." Thomas Jefferson said famously that slaves, those he called "that race of men," do not think. But it was the law that took that racism and made it permanent, made it stick, made it part of an undying cultural, social and political agenda. The origins of stigma and hate are not just private beliefs. People like to think, you know, if you could just correct how people think about others. But I'm trying to discuss a larger structural transformation that occurred in slavery and it could occur, it could only occur, through legal decisions, and it was always the law that created the forms that the most consummate exclusion would take.

And again the thing that's rather uncanny, certainly in reading the writings of Guantánamo prisoners, the writings of prisoners here under horrific conditions of confinement, that is beyond anything we can imagine, the kind of torture that is occurring in our prisons…. But if you read the writings, the incredible writings of prisoners, written to me or published, and those, especially, in supermaxes—and then if you read slave writings, you realize the tremendous resilience and resistance. Not only do they know what is happening politically, but they know the law, and they are its sharpest interpreters. Perhaps that's why the possibility of reading—what can be read—in supermax units is so severely restricted. Although some cases treat them as if they can't read, they can't think, and, hence, they are in conditions that make them less than human, what we find, again and again, is how prisoners might now be this country's most incisive critics and commentators. What solitary confinement does is not just degrade, but it also causes depersonalization—you can no longer know yourself as you. And, yet, with all the money spent, and all the horrors inflicted, many of these prisoners fight back with strength and determination, as we saw in the recent hunger strikes.

Part 3: Creating the UnPerson

The law goes to great lengths to construct a person who is un-personned, who is less than a thinking being. Take a look, for example, at one of the great cases that I deal with in Chapter 5. It's the case Bailey v. Poindexter (1858). The entire case is as if it is being decided not by court justices sitting in Richmond, but as if they're ethnographers, creating a field for discussion about whether or not slaves can inherit. And in order not to decide in favor of testamentary trust for slaves, the lawyers have to prove that they cannot choose. So the entire case is about how legally you demonstrate that there is no mind, no legal mind here. And once you do that, you have created a being who is something anomalous, not quite an animal even, but instead a husk of a human who doesn't have anything inside any longer, anything like free will or choice or opinion.

This case stands in my mind as a kind of haunt because I think one of the most powerful cases I deal with is a very recent one, decided by the Supreme Court in 2006. It's called Beard v. Banks, and this is a First Amendment case about reading. And for those who are in special management or secure housing units, a behavioral adjustment strategy was decided, the prison officials argued, that depended on their choice of reading: they could read romances, Harlequin romances. They could read what officials called "leisure books." But no newspapers would be allowed. Nothing about current events, nothing that could educate or keep prisoners informed. Justice Stevens said in his dissent, what you're doing here is taking a prisoner and turning him into a mere slave, or worse.

And I want to quote David Fathi who many of you might know is the head of the American Civil Liberties Union National Prison Project. It's about words behind bars and what you can actually allow behind bars. I think one would want to look at the case this way: How much can you take away from a prisoner for it still to be legal. How far can you go before something becomes illegal? Of course the key people in the prison cases to really watch for are Scalia and Clarence Thomas. It is their language that demonstrates how hard they are trying to return the prisoner to the way in which prisoners were thought of right after the 13th Amendment. I don't know how many of you know the wording of the 13th Amendment, but it has a very horrible loophole in it: slavery is abolished except for prisoners who have been convicted of a crime. So you always had this loophole, that's how you had convict lease, etc. But these justices are returning to the idea that once you've committed a crime, you have no capacity, it's not just you have no rights that the state is bound to respect—you have no capacity to use rights. And that's what I mean about how the law is creating persons who are seen as disabled, seen as not quite able. And here, at last, here is Fathi: "The prison policy at issue here is unique and unprecedented. A long-term and indefinite deprivation of virtually all news from the outside world. It is a deliberate attempt to strip prisoners of the fundamental attribute of citizenship and even of personhood—the right to know, to learn, and to think about what is happening in the community, the country, the world."

And Justice Thomas, however, believes that the private experience, or as he calls it, subjective mental states, when it comes to prisoners, are irrelevant to the law. So I do think that one has to say to themselves, well, this must be a different kind of law. And when I said it's not that in, let's say cruel and unusual punishment, the words are not the same, or with due process, the constitutional idea of due process, the words are the same but they do not mean the same for prisoners. As Rehnquist said famously in another case, Sandin v. Connor, there is no difference between administrative confinement and solitary confinement. And there is no liberty interest here, why? Because solitary confinement, and again, the phrasing is great, because solitary confinement in Connor's case did not create the kind of "atypical and significant hardship in relation to the ordinary incidents of prison life" that created a liberty interest, that called for due process protections. But what is atypical or significant? It's the kind of dangerous language that becomes more imprecise the more you try to define it. As the dissenters, Ruth Bader Ginsberg and John Paul Stevens asked: What is this? What design lies behind these words? Who's going to know what atypical and significant is when we don't even know any longer what we mean by "ordinary" when it comes to imprisonment. So Rehnquist really raised the bar, and you have to ask yourself: well how extraordinary does something have to become before it is recognized by law; when is something not ordinary? And then Rehnquist hits the point home by suggesting that "ordinary" is anything that prisoners are bound to expect.

I'm putting lots of emphasis on these cases because the U.S. places a lot of emphasis on these cases. And all you need to do is look at the March 6 torture memo* of 2003 and look at the footnotes and see which cases are quoted. It's quite a few of the cases I've discussed, quite a few of the prison cases of the Rehnquist court, concerning conditions of confinement, due process, and cruel and unusual punishment. Because they are the cases that allow the perpetrator of harm against those who are defenseless to not be charged with crimes. Those are the cases that remove all proof from the table and base everything on the idea of either security on one hand, and intent, on the other. Did they act, did the torturer act in good faith, did he have the intent to harm? You know there is a great line in the Bybee memo about torture unto death, very much like the slave memos. How much of the brain is left to be working? But again it doesn't matter, it is not legally, or even now, federally possible to make any kind of claim against a perpetrator of torture because of these intent requirements.

Let us think about the ways in which under cover of law and under cover of legality, things that we understood to be constitutionally illegal can continue. Guantánamo is not a legal black hole, after all; instead, its practices were prepared for by our very own local cases here, and taking them to the Nth degree. So, again, it's a hyper-legality that we're dealing with, not lawlessness. These are not pockets of lawlessness, but something that is systemic within the system that we call the law. And I think that prisoners really understand this, and that is why jailhouse lawyers who are brilliant interpreters of constitutional law are such threats. Every jailhouse lawyer that I have ever known has ended up in a special management unit.

Some people would say to me when I lecture about this, but wait, why? Why do you think people want to be so mean, why do they want them to suffer? And I really do, as I try to describe here, see this, as I said, as a much larger project. And suffering is crucial as long as those who are suffering can be identified clearly as part of a specific group. And then you've got these pockets that don't affect you at all and you can forget about them. I think this is increasingly powerful and important because the people who are, the whole global movement of money and men and materiel across borders, they want to be free to keep doing this. So on one hand, you take people who are really threats, who are thinking, definitely movement people, people who are trying to move out from the degradation, you want to really make sure that they are contained. But you also want these containers to be very visible to the other people in the public who are still privileged and who are not yet there. Because that is the other part of all this. The worse you're treating large groups of people, the more afraid your neighbors will be and you will be.

I mean it is no accident, although nothing is written about it, that the Patriot Act, which has been renewed with Obama, it makes no bones about it—anyone who is suspected of abetting activities against the government of the United States will be deemed a terrorist and can be detained. So the point is that there is this deep, large cloud hanging over people as we begin to see pockets of deprivation, unmerited punishment. And I believe that what we might call a kind of sadistic illogical hurting of those who haven't really done anything violent because two thirds of the prisoners in our prisons are not in there for violent crimes. It's a display, it's a performance, and it's a terrifying spectacle of what might happen to you. Because as we're seeing with the movements that are happening now, the slippages are very, very easy. The students getting sprayed. And I think a lot of that is not just police losing control.

This is a moment, a teaching moment for the public. The police are telling us: "We are going to be brutal, we're going to do it quickly and we're going to do it hard." And then your voice is going to be silenced. So it's running that two-way thing: it's both to silence within but also to stop action from without. And the more you do, the more you make a spectacle of large groups of some people, the more other groups learn fear. It's really quite deliberate.

* For more on the torture memos, see "The Torture Memos... and the Need for Justice," Revolution #164, May 17, 2009. The torture memos themselves are available at the ACLU website: yoo_army_torture_memo.pdf.


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