In the coming year, “law and order” rhetoric will once again dominate our politics. We’re already seeing it — mass detention of immigrants, celebration of El Salvador’s concentration camp-style prisons in viral 60 Minutes segments, and calls, according to my guest, to return punishment standards to the 1790s. But what’s actually at stake when we cage human beings? And where do our attitudes about punishment come from?

On this week’s WhoWhatWhy podcast, Yale Law professor Judith Resnik, author of Impermissible Punishments: How Prison Became a Problem for Democracy, offers crucial historical context. Arkansas legally whipped prisoners for failing to pick cotton quotas until 1968 — just one generation ago. The modern prison system, she reveals, maintains structural ties to plantations and concentration camps, normalized through choices that weren’t inevitable and aren’t irreversible.

Resnik explains the “anti-ruination principle”: Democratic governments committed to equality cannot set out to debilitate or destroy the personhood of anyone, including the “duly convicted.” 

As federal courts abandon “evolving standards of decency,” as private companies globalize incarceration, and as political leaders celebrate images of mass dehumanization, this principle couldn’t be more urgent.

The conversation traces three centuries of contested ideas — from Enlightenment philosophers to prisoners who smuggled out handwritten petitions demanding their dignity be recognized. Resnik argues that now, more than ever, we face fundamental choices about our relationship to power, about what surveillance and transparency mean in a democracy, and ultimately about the “soul” of our society.

Apple PodcastsGoogle Podcasts RSS

Full Text Transcript:

(As a service to our readers, we provide transcripts with our podcasts. We try to ensure that these transcripts do not include errors. However, due to a constraint of resources, we are not always able to proofread them as closely as we would like and hope that you will excuse any errors that slipped through.)

[00:00:14] Jeff Schechtman: Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. We live in an age where we’ve become numb to the language of punishment. We casually speak of people doing time, or being behind bars, or paying their debt to society. Phrases so commonplace they’ve lost their capacity to shock. But what if we’ve normalized something profoundly abnormal? What if the very act of locking human beings in cages, often for years or decades, under conditions we wouldn’t tolerate for our pets, represents not the natural order of justice, but a specific historical choice, one built on the architecture of plantations and concentration camps? In 1965, a man named Winston Talley, imprisoned in Arkansas, did something extraordinary. His story represents one threat in a much larger story about how democracies struggle with the fundamental question of what they owe to the people that they punish. Talley’s story is only one of the stories that my guest Judith Resnick tells in her new book, Impermissible Punishments, how prison became a problem for democracy. It’s a story that spans three centuries and crosses the Atlantic, examining how the modern prison system emerged, how the corrections profession developed, and how prisoners themselves fought to establish that they retained rights even behind bars. It’s also a story about the present moment, when mass incarceration strains beyond sustainability, and when the very gains of the prisoners’ rights movement face renewed challenges. But perhaps most importantly, Resnick asks us to think differently about punishment itself, to recognize that democratic governments committed to equality cannot set out to ruin people, that there must be limits to how much degradation and debilitation we inflict on even those duly convicted of crimes. She argues for what she calls an anti-ruination principle, the idea that punishment must not aim to destroy personhood or eliminate autonomy, and that many practices we now accept as normal in prisons violate this basic obligation. These questions have never been more urgent, as facilities crumble and staffing crisis mount on both sides of the Atlantic, as private companies globalize the business of incarceration, and as judges debate whether to abandon evolving standards of decency in favor of 18th century baselines. We face fundamental choices about the relationship between punishment and democracy, between justice and human dignity. My guest Judith Resnick is the Arthur Lyman Professor of Law at Yale Law School and the founding director of the Arthur Lyman Center for Public Interest Law. Her scholarship has shaped how we think about federalism, procedure, equality, and the relationship between democratic values and government services. Her new book represents the culmination of years of research into the history and practice of punishment, and it arrives at a moment when that history feels urgently present. It is my pleasure to welcome Judith Resnick here to the WhoWhatWhy podcast to talk about impermissible punishments, how prison became a problem for democracy. Judith, thanks so much for joining us.

[00:03:33] Judith Resnik: Well, first, I’m delighted to be here. And second, your summary and discussion of this book enable me to… Let me have a sentence that works. Well, let me say I’m breathless and speechless because this book has been in my head for a long time. As you know, it’s got a long history, so therefore it’s not that short in length. And you have so well articulated the ambitions to engage readers in thinking about how bizarre the institution of incarceration as we practice it is, and to help people, invite people to rethink in any venue they’re in about the ways in which we express our distress and horror at violence against others without doing violence to others.

[00:04:37] Jeff Schechtman: Which is a good place to start in terms of the modern practice of incarceration and what we know about it today, what we see about it today, and how it wasn’t always the case that there has been an evolution to this idea of punishment. Talk about that first.

[00:04:54] Judith Resnik: Well, I want to underscore that if you take a long view, punishment changes over time. And there’s a way in which, given we live with a lot of concrete and steel, we could think it’s intractable, but actually practices that were once seen as ordinary are now seen as gross. Example one, branding people. I mean, gross in some cultures, not in all, let me be clear. It’s a transatlantic account that is centered on Europe and the United States mostly, but the idea that people were branded was very common. Execution for minor crimes, couple hundred listed in England. England also ordinarily used whipping, lashing, breaching, flogging. There are a lot of different names for hitting people with straps and sharp things. And that is mostly seen as out of bounds. And transportation is a fancy name for shipping people off, exiling them to colonies. And talking about the current moment, it looks like there’s an effort in the United States by the federal executive to push people out of the country in order to degrade them and to put them into grotesque settings. So the question about how we punish and what’s in bounds and what’s out of bounds is one that needs to be engaged. And those of us engaging with it now should take part in the fact that things that were seen to be inside the boundaries of punishment have, through political and social movements and the development of democratic values, been pushed out.

[00:06:49] Jeff Schechtman: You talk about the fact that even something like whipping wasn’t really outlawed or found to be unconstitutional until 1968.

[00:06:56] Judith Resnik: So Arkansas whipped its prisoners in the 60s as an official discipline, not anything covert, on the grounds that they hadn’t picked enough cotton or okra or cucumbers, or because they were disobedient in one form or another. An amazing man you mentioned at the beginning named Winston Talley, as far as I know from published records about him, an ordinary individual who had not been engaged in political and social movements, a young white man from Arkansas accused of small amounts of theft at the time, and in prison. He got smuggled out of prison, a one-page piece of paper, which is actually the frontispiece of my book, the first page, it opens with it, reproduced from our national archives, and it basically says, stop the whip. So here in 65, white and black men being whipped, imagine a world in which they are rights holders and courts law judges can stop the state from doing something that it wants to do to people. A federal judge merits credit in Arkansas for appointing lawyers for Winston Talley and other, his two co-petitioners, and the lawyers appointed were the head of the bar of the state. So the idea was to equip these prisoners with resources to make their claim, held a hearing in October of 1965, and then the judge ruled that Arkansas could whip, that it did not violate the U.S. Constitution’s prohibition on, quote, cruel and unusual punishment, but only if it was limited to 10 lashes at a time, and after a procedure that meant it wasn’t utterly arbitrary that government officials decided upon it, and if there were rules that explained to people what it was they could do or not do that could prompt there being a whip. Um, I want to underscore that in 1965, states across the United States defending lawsuits by individuals who were incarcerated stood up and said, people who are incarcerated have no constitutional right, have no statutory federal rights, cannot speak to federal judges. So whether you’re in California, New York, Illinois, Arkansas, all of those defending states, officials, claimed that the people they incarcerated were without rights, they were what the law sometimes called civilly dead. They couldn’t enter into contracts, they couldn’t get married, they couldn’t own property, and they couldn’t petition for, um, claims that the conditions under which they held were unconstitutional. So we have to appreciate the 1965 federal judge in Arkansas for insisting and recognizing that these guys were rights holders, even though, and as we also have to depressingly acknowledge that he did not say that it was out of bounds to whip people, and he didn’t say it for a few different reasons that are worth mentioning. One is that, um, the cruel and unusual punishment clause has words that are called unusual and cruel, and the judge noted that the state of Delaware had a statute that still licensed whipping as a punishment. More generally, any of us who are part of the English Commonwealth and were colonies are heirs to a tradition in, um, Great Britain of using flogging, lashing, whipping as sanctions. Indeed, the U.S. military till the 1850s used that practice till people, till sailors and soldiers petitioned the Congress to insist on its stopping. So for the judge said, I can find examples of it, it doesn’t make it unusual enough. Now, that’s one facet in a complicated situation, because now I want to land us back in Arkansas. Uh, listeners may remember that the school desegregation fights about whether or not black and white children could be kept separate, had as one epicenter, Little Rock, Arkansas. So federal judges there were acutely aware from the late 1950s or the 50s about how embattled they were in the conflicts over the insistence on equality of various kinds. So again, coming back to the judge in the whipping case, Judge Henley, Chief Judge Henley of the federal district court there, we need to appreciate him for seeing the personhood of prisoners. Even if he was reluctant to tell the state of Arkansas, you’ve got to stop the whip. We also have to understand in a political social interaction that by then the whipping was called controversial, their front page news stories showing you these big whips. And the judge may well have thought that with a detailed opinion, which he wrote great length about all the horrors of it, he would persuade the prison to stop doing it. But instead what was born in 1965 is what the Arkansas prison system called the tally rules, which were official rules about what the things you could do wrong and how you could get whipped. And then in 1966, three more white men brought handwritten petitions to court saying, stop the whip. They’re not obeying the tally rules. It’s still cruel and unusual. It’s unfair. And two more federal judges sitting in that little rock courthouse appointed more very famous lawyers in their state. And there was a three-day trial about whipping and connected, there’s a URL connected to this book that invites anybody who’d like to read the actual 640 pages of this transcript, which of course I give you snippets of in the book, to read how people say how they felt while they were whipped, whether the people who were whipping were dispassionate or not. People had one person pulled down his pants and showed the injuries that he had suffered. And then some of the defense was that they were raised by the whip. They whipped their children. Whipping was ordinary and it goes on. And so those two judges sitting together heard the trial and once again said, you can, but only with more caveats. Arkansas paused the whipping, but didn’t stop it. And then you referenced in your eloquent introduction that in 1968, it was the court of appeals with an opinion written by Judge Harry Blackmun before he went on to be Justice Harry Blackmun on the U.S. Supreme Court, who said whipping’s out of bounds, you can’t whip, in a lengthy opinion. So to get to Judge Blackmun’s decision for the unanimous appellate court, they were appalled at the whipping, but they thought and wrote to preserve a great deal of authority for prison officials to punish in other ways.

[00:14:36] Jeff Schechtman: One of the things that this grew out of, and as you point out, that the development of the current system wasn’t inevitable, but it was the result of specific choices made along the way. And that so much of the modern system, or what we take for understanding the modern system, really has structural ties to plantations and even to concentration camps. Talk about that.

[00:14:59] Judith Resnik: Let’s flip back, bear with me for a second to flip back to the 1700s and in Italy, and a guy named Cesar Beccaria was appalled at execution, capital punishment. And he famously, in a book called On Crimes and Punishments, objected in a monograph, and I think we would appreciate, he published it anonymously because he was afraid he would be viciously attacked for disagreeing with the idea that monarchs can do whatever they want. So he helps launch a centuries-long discussion about proportionality and punishment, the legitimacy of punishment, the justifications for punishment, and this project coming in the Enlightenment era along with the American and French revolutions and people like de Tocqueville and Jeremy Bentham are figuring out what are the constraints on sovereign power. And they argue that to punish, you have to justify, and they offer kinds of sets of justification. Some of them are what we call retributivists. You really did something wrong, I’m mad at you, and I want to punish you, and I want to express it. And some of that is rooted in religious ideas of sin. Some of them were utilitarian. I want to maximize general welfare, happiness, and in order to do that, we need you to conform to some rules, so I’m really looking to the future to deter you from doing bad things, so I’m utilitarian. And then some of them were also obviously wanting, so that’s deterrent, what we would call deterrence. And then there’s this idea of incapacitation in the mix. I don’t want to do anything right now, so I want to hold you down. If your baseline is executing people for lots of minor offenses, and you are an astute activist, which all of these people were, you need to proffer what one describes as an alternative punishment. And so over the course of basically 80 years, as the campaigns for abolition of transportation to the colonies of capital punishment grow, the argument is we’ve got something that’s more humane, that’s better, that’s more useful. And here let me flip to Jeremy Bentham is a very famous English philosopher, utilitarian, who described and in great detail wrote a contract to the British government for something he called the Panopticon, which was a prison in which there could be a lot of surveillance. Underappreciated by people, horrified by the degree of surveillance that Bentham proposed, is that Bentham wanted to have the people running the prison surveilled as well, and moreover, he wanted us all to come in and look so we would be scared witless and be deterred and not commit crimes. So his wasn’t a closed secret system, which is the way it’s sometimes portrayed. There’s a very famous French philosopher, Michel Foucault, sociology philosopher, who has described Bentham, and there is a certainly creepy surveillance because everybody should be watched, but it’s also less creepy when you think that Bentham also wanted judges to be watched. The more we’re seen, the better we behave is one of his phrases, and another is when presiding at trial, a judge is on trial. So this idea of mutual and some form of egalitarian surveillance is in the mix, but mostly it’s utilitarian, I want to stop you from doing it. And here to flash forward to these prisoners and a few other people, it is only in the 20th century that there’s a clear voice for the idea that in addition to the past mattering and the future mattering, what matters a huge amount is the present condition of how people are being treated while they are incarcerated, or while they’re being punished. And it is the prisoners who I want us to appreciate as political theorists, having the imagination to say, yep, you may be able to punish us, but not like this, because our current experience matters because we, like you, are rights bearing individuals. And that’s really an innovation. And in the worlds of some parts of the academy, being a theorist is a good thing. In some worlds, it’s not such a good thing. If it’s being a good thing, prisoners should get recognized for it. All of these theorists are also activists and advocates trying to make changes to make for what they see could be a better world.

[00:19:54] Jeff Schechtman: To your point about Bentham, he was also one of the earliest to talk about prisoners being provided with food and clothing and health care. Talk about that.

[00:20:03] Judith Resnik: In the United States Supreme Court, there’s something, there’s an idea that the Constitution has to be interpreted as it was originally intended. It’s called originalism. So if we’re trying to think about what people thought in the 1770s and 80s and 90s about cruel and unusual, one resource could be the long, detailed, and boring contract that Jeremy Bentham wrote and proffered to the English government and was really annoyed that they never signed. And in that contract, what you’re describing is he describes food, he describes health care, he describes that the governor of the prison with whom he wanted to be would get their pay docked if anybody died because he wanted to link duty and interest to his terms together. So if we were thinking about the original understanding of what was supposed to be provided, that original understanding is that at the time, people designing what was then a newfangled thing called the penitentiary, were designing it to not kill people and not harm them. They did want people to work to make it economically efficient, but not to make it individually, personally destructive. Indeed, Bentham enough is a thoroughgoing utilitarian. He wants people to want to work because when you leave, he wants you to work as well.

[00:21:30] Jeff Schechtman: Talking about when you leave, it was also the idea that came out of this of rehabilitation, really.

[00:21:37] Judith Resnik: There’s a big commitment to in the early… Let me just do a little bit of what some historians will call periodicity. Before the 1850s, there’s a lot of people, not Bentham, but a lot others who are retributivists. I really want to punish you. And my reform is because I want you to look at your heart and stop being a sinner. Bentham has got a very distant view of religion. He’s not embracing it in any way. And so Bentham is looking to want to create incentives for you to change your behavior in the future. And reformation becomes the term rehabilitation that is embraced by the correctional establishment that starts coming into being after the US Civil War. And so this idea, and there are societies for the discharged prisoners, there’s efforts to help people return in some form or fashion. And coming back to Bentham, he didn’t like branding in part because it marked the offender and not the offense. And if you’re a utilitarian, I’m trying to generally stop anybody from doing this. So if I make you, if I ostracize you, I’m not getting anywhere. I want to stop people in the future. I’m not trying to individualize it in quite that same way. And so this idea of reform comes into being that gets embraced enthusiastically, and this may be a good place to just reference. So you can have a lot of ideas about how to punish people. If you’re killing people through execution, you don’t need a big infrastructure, as gross as that sounds. But if you’re incarcerating people and you’re spending, and you’re incarcerating more and more people as you are interested in control, you end up needing some kind of bureaucracy. So you can think of the development of jails and prisons as early forms of government bureaucratic service of a kind. We don’t like to think about it as service, but it is one of government services that is per Bentham supposed to house and food and provide food and keep people safe, as well as in Bentham’s terms, make them work to make it not costly for the government. When you start scaling that up, you end up having enough people who are running jails and prisons around the world, that they start understanding themselves as in a shared profession. So now if I’m in the second half of the 1900s, I’m in the growth of something called professionalization. And in the world of professionalization, the profession of corrections gets born in a time when social sciences are differentiating themselves. And anthropology says we’re different than sociology, says we’re different than psychology, than psychiatry. And in this context, penology, criminology, and then correctional professionals, prison men running prisons. So first, a few meet in the 1840s in Frankfurt and Brussels, 1850s in Europe. And the first convening in the United States in 1870 is at Cincinnati, Ohio, where then Governor Rutherford B. Hayes greets and assembled 350 people, mostly from the United States, a few from Canada and elsewhere, to welcome them to the first National Prison Congress, developing a declaration of principles that absolutely is a tie to your question, because it rejects the degrading effort of the earlier retributivists who wanted to impose bad food and menial labor to make you pay in some sense for your crime. Instead, the new wave with this medical sociological kind of gestalt is we want to reform you, and we want to rehabilitate you, and we want to return you to a functioning social order. So starting in the 1870s declaration of principles and running all the way through now, something called the American Correctional Association, which is the heir of all this in the United States, still has on its website those declaration of principles from 1870s. And if you go to Cincinnati, Ohio, you can see a little plaque marking this as the birthplace of a thing called corrections. So what you see is the beginning of an infrastructure. And now let me return to the global story for a minute, or at least the transatlantic one. The infrastructure has aspirations to cross the Atlantic because the normative project of figuring out what do we do with people who’ve committed crimes isn’t a national project, it’s a transnational project. So these same self-styled philanthropists, clergy people who are developing their identity as corrections people in 1872 launch in London something called the International Penitentiary Commission, which ends up being called the International Penal and Penitentiary Commission, and it runs from 1871 to 1951. And it’s a transatlantic group of people who run prisons and who meet every five years. They have things they call congresses, they have a constitution, they have bylaws, they have resolutions we would call best practices, and they are a government appointed entity. So the presidents of the United States appoint people to sit as their representatives on this commission that meets every five years and develops the norms that turns out to normalize the thing we call prison.

[00:27:26] Jeff Schechtman: And talk about the anti-ruination principle and how that emerged.

[00:27:30] Judith Resnik: Well, as I’m trying to understand the last decades, and we need to both return to Arkansas, because in the Arkansas prison litigation, first it says in 1968, you can’t whip me. That’s the discipline, quote unquote, that the prisoners objected to and the state defended. And then what happens next in Arkansas, not sui generis to Arkansas, but it happens first in Arkansas, is in 1970, the federal district judge who first in 1965 was willing to at least tolerate deference to the corrections people, holds the entire Arkansas prison system, cruel and unusual punishment, a dark and evil world, and says you have to change it. Because over those intervening years, the disgusting events inside those prisons were revealed in part through amazing newspaper reporting, thank you Arkansas Gazette and Arkansas Democrat, and in part through these whipping trials, and in part through new lawsuits about filth, food that was called rue, G-R-U-E, which was just paste of flour and some whatever else, and no healthcare whatsoever, incredible violence with people stabbing each other, a documentation of nauseating conditions and treatment. And in addition, and horrified to have to report it, is that inside that prison system were a few staff people who were in charge and who shocked prisoners, who lashed them, who were violent, sadistic, and disgusting, as reported by the Arkansas Police Department, who documented the violence. As the criminal federal civil rights indictments jury trials are underway, the entire world, because it’s covered on both sides of the Atlantic, are learning about horrific, sadistic behavior by people staffing the Arkansas prisons. And it is that documentation that moves the federal judiciary, and the legislature, and the governor, Winthrop Rockefeller at the time, to call for important reformation of the way in which people are held in prison. And basically, you can see from the 1960s to now, the debate on both sides of the Atlantic is, what does it mean to be rights holders? But I need to flip back one more to tie to your opening question about the relationship between plantation and concentration camp, and prisoners and anti-ruination. Which is to say that on both sides of the Atlantic, prisoners were civilly dead for centuries. And it is in the wake of the civil rights movement in the United States and the identity of plantation and practices in prisons, forced labor, and terrible conditions and degradation. And in the wake of the concentration camps in Europe, where people cross class, race, religion are in horrific and deathly settings, that the idea that people are rights holders takes hold as a legal proposition. And here, I need to fill in two more parts of this narrative. So the organization called the International Penal and Penitentiary Commission is meeting after World War I in London, when wonderful feminist suffragettes from the Howard League say, wait a second, prisoners should have rights and prison can be torture. Direct experiences of people who were in detention in Europe during World War I and violence. And all prisoners, they say, political, quote unquote, or not, should be treated the same. They argue that to the International Penal Penitentiary Commission, which now is worried that between them, the Howard League and the League of Nations, they’re getting competent, the prison people will be shutted to the side a little bit, in terms of thinking through a transnational view of how to treat people. So the prison men develop and draft something called the Standard Minimum Rules for the Treatment of Prisoners, that in 1934, the League of Nations adopts. But those rules, one, don’t use the word rights, two, don’t say torture, and three do say that in exceptional cases, you can use corporal punishment, you can use dark rooms, meaning dungeons, and you solitary, and you can use food deprivation, as long as a doctor says it’s okay. And that’s 1934. Hitler comes to power in 33. The prison organization nonetheless meets in Berlin in 35 over objections from some of its members, and is greeted by representatives of the Nazis extolling how well they control prisoners. So after World War II, the International Penal Penitentiary Commission ends, the US pulls out, other countries pull out, and the UN takes over the project of Standard Minimum Rules for the Treatment of Prisoners. Taking over that project in 1955, new rules are promulgated, and those rules do use the words rights and dignity in the rules themselves, and equality and non-discrimination. And so in 1955, formal rules from the United Nations guidance, not binding, but rules say that in the 1950s, the United States, black citizens and individuals are claiming their personhood as well. And it’s from then on, that on both sides of the Atlantic, the question is, what does it mean to be in detention and have rights? And then we get to the contemporary world. If you live in some European countries where everybody gets some healthcare and some education and some economic support, it is assimilating to treat prisoners the way you treat others. And the European prison rules that exist in the 21st century, talk about normalization and regularization. If you live in the United States where most people don’t get free healthcare or higher education or other forms of housing and subsidies, the challenge of giving to prisoners something other people don’t get can feel more acute or more alienating, especially when you’re angry at people for doing bad things. And the dysfunction in the United States is acute because we have a huge prison population outstripping many other countries, most other countries, and density is detrimental, which gets me, of course, to the rights have to mean in a democratic world that you can’t punish people by ruining them for them or for you. I hope people read the word ruin to mean not ruining your social order, our social order, our communities, our families, and the people who are in detention by so disabling some part of the population, even while they’ve done bad things and you want to constrain them.

[00:35:39] Jeff Schechtman: And to that last point in terms of the contemporary part of this, talk about it in the context of mass incarceration and what the consequences of that are within the framework of this larger picture you’ve been talking about.

[00:35:53] Judith Resnik: So I’m going to use the word massive just because I want to remind everybody that mass sometimes sounds like it happens to all of us, but it doesn’t happen to all of us. It happens to some of us because race and class and ethnicity overpopulate our prisons with darker-skinned people than lighter-skinned people in the United States. Up until the 1980s, it was a relatively flattish progression of the numbers of people in detention. And it is in the 1980s with a retreat from racial equality commitments and something called a war on crime and a war on drugs and a lot of other aggressive metaphors, that the new laws come into effect that are lengthening the time of sentences, imposing mandatory minimums, limiting the use of back-end relief in terms of parole and clemency. And the outcome is that more people are going in, staying for longer, and fewer people are getting out, and that increases the density. In the book, I reproduce a little bit of a document that in 1980 comes from the U.S. Department of Justice, absolutely unequivocal. Density is terrible. It’s scary. It’s noisy. It’s disease-riding. It is violence-producing. You’ve got to de-densify prisons, something we saw in stark relief during COVID, is the harm of the density of aggregate housing. And going back to my corrections establishments, the corrections establishments all say single-selling, single-selling. The Army says single-selling. It’s all obvious that you don’t want no privacy for individuals. And also, I think people who don’t go to prisons underestimate how A, noisy they can be, and B, that the metal concrete and light makes it a very disabling setting, which gets me to underscore that it’s actually not well-making for the people who work in prison, as well as for the people who are required and detained in prison. So that gets to the idea that the first thing, first order, which is so not news, but has never been implemented, is to have there be less dense facilities and have more people not in full lock-up. Coming back to my International Penal Penitentiary Commission, at its last meeting in 1950 at The Hague, a man named Paul Carnie, who had been the head of the Belgian prison system, gives a lecture and says, there’ll come a time when incarceration will seem as primitive as we now look at corporal punishment. He is unusual in that setting because he was briefly interred by the Nazis toward the end of the war after running the Belgian prison system. And he talked about the utter intrusion and effort at demolition of individual autonomy as a terrible thing to do. As far as I can tell, he’s the first person in any of those thousands of pages of meetings, recording, Congress proceedings, the first to speak who had himself been in detention. And his words are very moving and, of course, resonate today.

[00:39:43] Jeff Schechtman: And in fact, one of the things that we’re seeing today here in America is almost the reverse of that, an abandonment of some of these evolving standards of decency and moving backwards.

[00:39:56] Judith Resnik: So you’re properly underscoring very worrisome legal shifts intersecting with worrisome popular shifts. So the current president and the current Secretary of Homeland Security celebrate images of people in prisons in El Salvador in settings that are horrifically reminiscent of concentration camps, forced crouching, shaved heads, incredible density, startling dehumanization. So that the political side, the idea that one would think this something to do anything other than object to is awful. On the political side often intersects with the legal side. Over the course of the second half of the 20th century and until relatively recently, and coming back to the 1968 whipping trial, federal courts interpreted cruel and unusual punishment through the lens of the idea of evolving standards of decency, what might not be cruel in one setting becomes understood to be cruel. I do need to flash back to the 1700s because Beccaria said, as our Barbary lessons, we will be less barbaric. So it isn’t some justices in the 1950s who invent the idea of evolving standards of decency. And so here we are with concerns that our commitments to decency and dignity and one line of cases under the interpretation of cruel and unusual punishment, regularly use that phrase. But justices on the current court who are writing majority opinions have not used that phrase. And instead ask, was this something someone was permitted to do in the 1790s, when the Eighth Amendment was added to our constitution. And the problem with that, even from the lens of the originalist, is that there was huge contestation then, as we discussed earlier on, about how you should punish people. Should you whip? Should you transport? Should you execute? Should you have a prison? So the idea that you’re codifying, reifying, solidifying something that was incredibly dynamic in the 1790s is startling, or should be startling.

[00:42:26] Jeff Schechtman: And as we move forward trying to find ways to argue against many of these contemporary actions that we’re talking about, is this something you see taking place in the courts through legislative action, ultimately perhaps through executive action? How do we begin to move this forward?

[00:42:44] Judith Resnik: Absolutely. So first, if I’m in the United States, I think we always need to understand that the institutions you just listed, courts, legislatures, and the executive branch are interactive and interdependent, and we’re in a federation, so there’s state and federal vectors as well. So to think about it as like either something that a court can do single-handedly, we have had lesson after lesson underscoring the proposition that once a court says something, it doesn’t mean it stays forever, seeing Roe v. Wade and Dobbs, or see fights over what affirmative action means, and seeing what the conflicts over what kinds of punishment are listed means. So courts are always part of the story, and the contributions courts can make is when they’re working well, careful documentation of facts on the ground, applying legal premises, and here, invite all of us to look at what’s happening in Portland and Los Angeles and Chicago, and district court judges who, like the guys in Arkansas in the 60s, make careful, detailed records that, thank you, newspapers, we all had access to reading and looking at, that enabled us to see, here now, back in the streets in those cities, violence in the streets and the sources of it in terms of, or non-violence in the streets, and the efforts to incite violence on the streets of these different cities. So one of the ways to make change is to get information and documentation, and thank you, Jeremy Bentham, surveillance and the capacity for us all to look and see and learn. The other is, of course, in a world riddled with false facts and potential ways to create fake information, is how to collectively share, document, and develop a sense of grounded information. So once one sees, the question is, what do you want to do with what you see? And obviously, I see pictures of El Salvador and say, this is what we all have rejected in the past and should insist on rejecting. So yes, it’s legislative, whether it’s a mixture of cities, states, legislative efforts, federal Congress, when it is back in session, interacting with courts and popular social movements. And again, it’s the social movements that have moved us through all the eras I’ve described.

[00:45:31] Jeff Schechtman: Judith Resnick, her book is Impermissible Punishments, How Prison Became a Problem for Democracy. Judith, I thank you so much for spending time with us today here on the WhoWhatWhy podcast.

[00:45:42] Judith Resnik: I am glad to be able to engage in serious conversation about this hard topic. And very lucky for your thoughtful readership. Thank you.

[00:45:51] Jeff Schechtman: Thank you. And thank you for listening and joining us here on the WhoWhatWhy podcast. I hope you join us next week for another WhoWhatWhy podcast. I’m Jeff Schechtman. If you like this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.