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1. The American Prison Nightmare
By Jason DeParle / The New York Review Book Of Reviews
Punishment and Inequality in America
by Bruce Western
Russell Sage Foundation, 247 pp., $29.95
Confronting Confinement: A Report of the Commission on Safety and Abuse in America's Prisons
by John J. Gibbons and Nicholas de B. Katzenbach, co-chairs
Vera Institute of Justice,122 pp. (available at
www.prisoncommission.org)
Locked Out: Felon Disenfranchisement and American Democracy
by Jeff Manza and Christopher Uggen
Oxford University Press, 359 pp., $29.95
1.
Among the many jarring sights I have witnessed as a reporter writing about poverty, one of the saddest involved a father, a son, and a maximum security prison outside Joliet, Illinois. The son, a voluble thirteen-year-old named Dwayne, wasn't a bad kid but had become increasingly troublesome in class. His father had been locked up since Dwayne was five, but still had influence with the three children he had left behind. Or so their mother hoped. Alarmed at her difficulties controlling the family, she looked to the sound of a father's voice to set things straight. It was a two-hundred-mile round trip from their home in Milwaukee, and I had the only car.
The Stateville Correctional Center is a gloomy fortress with high concrete walls that could serve as a prison movie set. About half its inmates were in for murder, including Dwayne's father, a low-level crack dealer who had acted as the lookout during an attack on a rival in which a teenage girl was accidentally killed. Eight years later, Dwayne's mother still missed him too much to settle down with another man. Dwayne claimed to give him little thought, though a school essay suggested otherwise. He had written about an abandoned mouse who was surrounded by predators, only to realize the abandoned creature was himself. "That's about my Daddy!" he said.[1]
After sleeping through the drive, Dwayne struck a pose of boredom as we approached the main cell block, while his mother looked stoic and his siblings seemed alarmed. A guard led us to a room ringed by vending machines where a worn-looking prisoner said he was thankful for the rare chance to see his kids. I left them to a private visit, and when they reappeared Dwayne was sobbing and the others looked like they had witnessed a death. "They miss their father," was all their mother could say. They piled in for a mournful ride home, a study in how many lives can be linked to one prison cell.
Bruce Western makes a crucial point at the start of his important book, Punishment and Inequality in America: "If prisons affected no one except the criminals on the inside, they would matter less." But with more than two million Americans behind bars, the impact of mass incarceration is impossible to contain. Their fate affects the taxpayers who support them, the guards who guard them, the families they leave behind, and the communities to which they return. Not even the war in Iraq escapes the reach of prison culture; Sergeant Charles Graner, the villain of Abu Ghraib, worked as a Pennsylvania prison guard.
Everyone is affected, but not equally. Black men in their early thirties are imprisoned at seven times the rate of whites in the same age group. Whites with only a high school education get locked up twenty times as often as those with college degrees. Among the many impediments to reform has been the gap between the people who make criminal justice policy—mostly educated whites who favor imprisonment, especially during twelve years of Republican congressional control—and those who live with the consequences.
There is another impediment to reform: mass incarceration seems to have made the streets safer. The vast increase in the prison and jail population from about 380,000 in 1975 to 2.2 million today overlaps with equally stunning declines in crime. The homicide rate in the 1990s fell by 43 percent. Many critics of incarceration argue (a bit too quickly) that crime would have fallen without the prison boom. Perhaps. Still the value of safer neighborhoods is immediate, while the costs of excessive imprisonment are theoretical and vague.
Western's achievement—a large one —is to make them less vague. He identifies mass incarceration as a major cause of modern inequality, with large and uncounted collateral effects. Imprisonment does more than reflect the divides of race and class. It deepens those divides—walling off the disadvantaged, especially unskilled black men, from the promise of American life. While violent criminals belong in jail, more than half of state and federal inmates are in for nonviolent crimes, especially selling drugs. Their long sentences deprive women of potential husbands, children of fathers, and convicts of a later chance at a decent job. Similar arguments have been made before, but Western, a Princeton sociologist, makes a quantitative case. Along the way, his revisionist account of the late 1990s detracts from its reputation as an era of good news for the poor. Its appearance coincides with several other instructive new studies of American incarceration.
2.
For much of the twentieth century, about one American in a thousand was confined to a cell. The proportion of Americans behind bars started rising in the mid-Seventies, and by 2003 had done so for twenty-eight consecutive years. Counting jails, there are now seven Americans in every thousand behind bars. That is nearly five times the historic norm and seven times higher than most of Western Europe.
The penal population grew because crime increased; because the number of police and prosecutors grew (which raised the odds of punishment); and because policymakers, disillusioned with the ethos of rehabilitation, imposed tougher penalties. The increase in severity occurred on the front end with longer sentences and reduced judicial discretion to shorten them, and on the back end by making fewer prisoners eligible for early release.
Meanwhile, the "war on drugs" led to the arrest of growing numbers of small-time users and dealers. By the late 1990s, 60 percent of federal inmates were in for drug offenses. The result is an ever-growing prison system, populated to a significant degree by people who need not be there. It was no liberal advocate but Supreme Court Justice Anthony M. Kennedy who offered a damning view of criminal justice in the United States: "Our resources are misspent, our punishments too severe, our sentences too long."
Despite the crackdown, white men with college degrees are only slightly more likely than previously to end up in prison. Among black men with college degrees, the odds of imprisonment have fallen. But by 2000, high school dropouts of either race were being locked up three times as often as they had been two decades before. And racial disparities have become immense. By the time they reach their mid-thirties, a full 60 percent of black high school dropouts are now prisoners or ex-cons. This, Western warns, has resulted in "a collective experience for young black men that is wholly different from the rest of American society."
Much about black underclass life is tragic, but the racial imbalance in the priso population is particularly extreme. For example, while blacks are twice as likely a whites to be unemployed, they now go to prison eight times as often. We are used t thinking of prison as at least partially a byproduct of the larger tragedy of poverty Western depicts it as a cause. Through mass incarceration, he writes, "the poor ar made poorer and have fewer prospects.
This happens in part because an inmate's earnings prospects fall. Most men in their twenties and thirties experience rapid earnings growth, as their skills and contacts expand. Those in prison atrophy and leave stigmatized. Devah Pager, a Northwestern University sociologist, conducted an experiment in which pairs of otherwise identical men applied for jobs with one identifying himself as an ex-con. The disclosure of a prison record reduced the chances of getting a second interview by half for whites and by two thirds for blacks. Using the National Longitudinal Survey of Youth, Western estimates that a prison record reduces a man's annual earnings by 30 to 40 percent, through less work and lower pay. For the average black man, the lifetime loss comes to $86,000. (Whites, with more to lose, lose more: $114,000.)
Incarceration taxes family life, too, leaving disadvantaged men with even weaker prospects as husbands and fathers. A prison record reduces a black man's chances of getting married by 11 percentage points. Married or not, most jailed men have kids, making the prison boom a growing source of disadvantage for young people. As the gloomy trip to the Joliet prison made clear, the whole family does the time. From 1980 to 2000, the number of children with fathers behind bars rose sixfold to 2.1 million. Among white kids, just over 1 percent have incarcerated fathers, while among black children the figure approaches 10 percent.
It may be tempting to view these men—dope sellers, petty thieves—as fathers in name only, with few ties to their kids. But nearly half are living with their children at the time of their arrest. And the perpetual surprise about bad parents is how much their children need them anyway. In marginalizing so many men, in the cause of stabilizing their community, the prison boom risks destroying the communities it aims to save. Mass imprisonment, Western writes, "may be a self-defeating strategy for crime control."
There is a rejoinder, of course— locking them up makes streets safer, especially the streets of poor neighborhoods. Western acknowledges that "the 1990s crime drop provided a remarkable improvement in public safety and quality of life, particularly for the disadvantaged." But his analysis gives the prison boom just 10 percent of the credit. The theory is partly one of diminishing returns: we are locking up people who pose little threat, and keeping others long past their most dangerous years (typically ending in their mid-thirties). And prison time, Western says, can turn minor offenders into hardened criminals, through the influence of other inmates and the denial of later opportunities.
My own sense is that Western may be underestimating the role that increased imprisonment has played in reducing crime. A fivefold increase in prison rates is a huge change; it may have had effects that statistical models missed. Steven Levitt of the University of Chicago and William Spelman of the University of Texas have each done statistical analyses that give rising incarceration about a third of the credit for reduced crime.[2] Whatever the number, one can accept that imprisonment has helped reduce crime, while appreciating Western's disclosure of the costs and sharing his sense that the urge to incarcerate has gone too far.
The 1990s were said to be a time when rising tides finally did lift all boats. Western warns that part of the reason, statistically speaking, is that many poor men have been thrown overboard—the government omits prisoners when calculating unemployment and poverty rates. Add them in, as Western does, and joblessness swells. For young black men it grows by more than a third. For young black dropouts, the jobless rate leaps from 41 percent to 65 percent. "Only by counting the penal population do we see that fully two out of three young black male dropouts were not working at the height of the 1990s economic expansion," Western warns. Count inmates and you also erase three quarters of the apparent progress in closing the wage gap between blacks and whites.
Western is not just tinkering with the numbers. He is rewriting one of the era's major story lines. "This is the first recovery in three decades where everybody got better at the same time," President Clinton said just before leaving office. "I just think that's so important." Punishment and Inequality in America shows that among one vital group of the poor, the opposite was true: as official unemployment hit record lows, joblessness among young black dropouts rose to record highs. The prison expansion reflected inequality. The prison expansion created inequality. The prison expansion hid inequality from view.
3.
Given how many people they affect, one would expect prison conditions to draw more scrutiny. While two prison stories have made recent news, both prisons were overseas—at Abu Ghraib and Guantánamo Bay. Hoping to direct interest back to the US, the Vera Institute of Justice, a New York policy institute, convened what it called the first national commission on prison conditions in three decades.
The Commission on Safety and Abuse in America's Prisons was presented as a left–right affair, with Nicholas de B. Katzenbach, the former attorney general, occupying the Democratic half of the co-chairmanship, in partnership with John J. Gibbons, a Republican and former federal appeals court judge. With money from, among others, the Ford Foundation, twenty commissioners held four regional hearings with ninety-eight witnesses and issued its unanimous report in June 2006. Confronting Confinement is notable less for the originality of what it says than for showing the continuing need to say it.
The report tells us that America's prisons are dangerously overcrowded, unnecessarily violent, excessively reliant on physical segregation, breeding grounds of infectious disease, lacking in meaningful programs for inmates, and staffed by underpaid and undertrained guards in a culture that promotes abuse. What is more, prisoners' ability to legally challenge their living conditions has been curtailed by a congressional roadblock called the Prison Litigation Reform Act of 1996, which has cut in half the number of inmates filing civil rights complaints.
There is some good news. Since 1980 the murder rate inside prisons has fallen more than 90 percent, which should give pause to those inclined to think that prisons are impossible to reform. But programs for inmate education, training, and drug treatment have been made scarce. (If policymakers were once too credulous about rehabilitation, they are now too dismissive.) And physically separating some inmates from the rest of the population (often in conditions amounting to solitary confinement) has become a punishment of first resort, leading to what the commission called "tortuous conditions that are proven to cause mental deterioration." From 1995 to 2000, the number of inmates in isolated cells rose 40 percent to 81,000. Despite the decline in homicide, serious violence is common and recordkeeping so poor it often escapes notice. As the commission met in Los Angeles for its final hearing, two thousand prisoners at the North County Correctional Facility erupted in a race riot.
Like Bruce Western, the authors of Confronting Confinement emphasize that few of the problems inside prisons truly stay confined. Ninety-five percent of those who go in also come back out. The problems that arise inside prisons, the authors write, go home "with prisoners after they are released and with corrections officers at the end of each day's shift." The most obvious example involves the 1.5 million people who are released from prisons and jails each year with an infectious disease—tuberculosis, hepatitis, HIV, and drug-resistant staph infections. They are a threat to everyone, but especially to the minority neighborhoods from which they are disproportionately drawn. Meanwhile, the increasing number of prisons that require inmates to pay for part of their own medical care, an innovation intended to deter malingerers, has been found to reduce clinic visits by up to 50 percent.
Some of the worst news is the most familiar: prisons are the modern mental wards. By the most conservative estimate, the mentally ill account for 16 percent of the prison population, or about 350,000 people on a given day; their true numbers may be twice as high. Aside from adding to their misery, their presence in such large numbers makes cell blocks harder and costlier to police. The solution is not merely to improve the woefully inadequate mental health treatment of prisoners. It is "to improve and expand community mental health treatment" on the other side of the prison walls. But how many blue-ribbon panels have already told us that?
4.
Jeff Manza and Christopher Uggen, who understand the vastness of the jailers' reach, follow the story out of the cell and into the voting booth. Locked Out examines how the disenfranchisement of felons shapes American democracy—hardly a hypothetical matter in an age of split electorates and hanging chads.
The subject caused a stir in 1998 when a prophetic report by two advocacy groups, the Sentencing Project and Human Rights Watch, showed that four million Americans had lost the right to vote. "This is an issue that can potentially affect some elections," warned Marc Mauer, a coauthor, with a prescience he could not have grasped.[3] Surprised at how little was known about the practice of disenfranchisement, Manza and Uggen, sociologists at Northwestern University and the University of Minnesota, set out to investigate it. Exacting and fair, their work should persuade even those who come to the subject skeptically that an injustice is at hand.
"Disenfranchised felon" is a term that encompasses three groups. Some 27 percent are still behind bars. Others, 34 percent, are on probation or parole. And the largest share, 39 percent, are what the authors call "ex-felons," whose sentences have been served. Voters are least receptive to letting the first group vote and most receptive to the last. But state practice varies greatly. Maine and Vermont offer ballots to those still behind bars; thirteen states strip the franchise not only from current prisoners but also from probationers, parolees, and some or all ex-felons. By Election Day 2004, the number of disenfranchised felons had grown to 5.3 million, with another 600,000 effectively stripped of the vote because they were in jail awaiting trial. Nationally, they made up less than 3 percent of the voting-age population, but 9 percent in Florida, 8 percent in Delaware, and 7 percent in Alabama, Mississippi, and Virginia.[4]
We often hear that the transgressions of felons are so severe that they forfeit the moral right to vote. Yet as with many aspects of criminal justice, the United States is out of step with its international peers. At least twenty democracies, including Canada and Israel, allow current prisoners to vote. More to the point, the United States is out of step in this matter with its own historical logic, by which it has been making its democracy progressively more inclusive. We have, over many years, found fit to enfranchise the landless, African-Americans, women, and eighteen-year-olds, and we admit into the polling place any number of others whose political judgments might be compromised—addicts, illiterates, the heavily medicated. But not if they once were caught selling a bag of dope.
Manza and Uggen write with an appealing evenhandedness, searching ou arguments that challenge their own. They find few people articulating the case fo felon disenfranchisement, which appears to thrive more as practice than theory. Still Senator Mitch McConnell of Kentucky, now the Republican minority leader, mad the case on the Senate floor in 2002, while defeating a Democratic effort to let ex-felons vote in federal elections
States have a significant interest in reserving the vote for those who have abided by the social contract that forms the foundation of a representative democracy. We are talking about rapists, murderers, robbers, and even terrorists and spies. Do we want to see convicted terrorists who seek to destroy this country voting in elections? Do we want to see "jailhouse blocs" banding together to oust sheriffs and government officials who are tough on crime?
The authors do not dismiss worries about "jailhouse blocs." They simply find no evidence that such blocs have ever formed. (Rape, murder, and robbery, the crimes McConnell cites, account for about 8 percent of felonies, while drug crimes account for a third.) They do find evidence that disenfranchisement is linked to the less hypothetical problem of race. The more African-Americans a state contains, the more likely it has been to ban felons from voting. Tracing the statutes' history in states such as Virginia and Florida, Manza and Uggen find that they were enacted along with grandfather clauses, poll taxes, and literacy tests as "another means through which the African American vote was restricted."
The practice continues to skew the racial composition of the voting rolls today. By denying the vote to felons, the average state disenfranchises 2.4 percent of its voting-age population—but 8.4 percent of its voting-age blacks. In fourteen states, the share of blacks stripped of the vote exceeds 10 percent. And in five states (including Kentucky), it exceeds 20 percent. Focusing on black men, Marc Mauer has estimated that felony laws keep nearly one in seven from voting nationwide. (See chart)
Do felons care? The authors warn against overestimating felon apathy. Locked Out estimates that about 35 percent of disenfranchised felons would vote in presidential elections (compared to 52 percent of the general public). Indeed, the authors attach such importance to the franchise that they see it as a crime-prevention strategy—part of the "civic reintegration" needed to weave "former criminals back into the fabric of law-abiding society." Anything that builds civic interest is welcome, but Manza and Uggen offer little evidence for the thesis that voting heals.[5] While it would be nice if voting builds character, that is not the reason to give felons the vote. The reason is that to do otherwise—to exclude 5.3 million people from the rolls—is to offend the principle of universal suffrage and undermine democratic legitimacy.
However much voting matters to felons, their voting matters to the country. If felons were allowed to vote, the United States would have a different president. Disproportionately poor and black, felons choose Democrats in overwhelming numbers —giving them between 70 percent and 85 percent of their votes in presidential elections. Had they been allowed to vote in 2000, the authors estimate, Al Gore's margin in the popular vote would have doubled to a million. If Florida had allowed just ex-felons to vote—those who can claim to have paid their debt to society—Gore would have carried the state by 30,000 votes and with it the electoral college. (This estimate uses conservative assumptions: a 27 percent turnout with a 69 percent Democratic preference).
Nor is the impact limited to the presidency. Manza and Uggen find that seven modern Republican senators owe their election to laws that keep felons from voting: John Warner of Virginia (1978), John Tower of Texas (1978), Mitch McConnell of Kentucky (1984), Connie Mack of Florida (1988), Paul Coverdell of Georgia (1992), Jim Bunning of Kentucky (1998), and Mel Martinez of Florida (1998). According to the authors' estimates of turnout and candidate preference among the disenfranchised, four would have lost even if only the ex-felons in their states had voting rights.
These represent a small share of the four-hundred-plus elections held since 1978. But since the Senate has been so closely divided, a fuller enfranchisement might have shifted some years of partisan control to the Democrats. (This outcome depends on how long one assumes the Democratic victors would have held the seat.) It certainly would have bolstered the Democrats' power in the minority. Consider just one result of Senate legislation—the upward distribution of wealth through the Bush-era tax cuts—and one sees anew how mass incarceration abets inequality.
5.
In December, Senator Sam Brownback announced he was running for president. A few days later, the conservative Kansas Republican chose to spend the night in a cell at the Louisiana State Penitentiary in Angola. "We don't want to build more prisons," he said. "We don't want to lock people up." He was there to advertise his support for the prison's religious programs. Still, his move represented, to say the least, a break with past presidential campaign practice, which includes advertising the crimes of a black rapist (George H.W. Bush), executing a brain-damaged man (Bill Clinton), and mocking the fears of a soon-to-be-executed woman (George W. Bush).
The current President Bush, who as governor oversaw 152 executions in Texas, made a surprising proposal in his 2004 State of the Union speech, when he called for a modest expansion of services to help newly released prisoners. "America is the land of second chance, and when the gates of the prison open, the path ahead should lead to a better life," he said. The bill for expanding services is still pending, but it has support among religious conservatives influenced by the account of personal redemption put forward by Charles Colson, the Watergate felon turned prison minister.[6]
A few months earlier, at the urging of Colson and other religious conservatives, a Republican Congress passed the Prison Rape Elimination Act of 2003, which monitors and guides state efforts to eliminate sexual assaults on prisoners. As the law was signed, Colson argued in a column that "whatever a prisoner may have done, he is still created in the image of God, a being whose dignity is to be protected."[7]
As the rape bill was heading to President Bush's desk, Justice Kennedy, a Reagan appointee, chided the members of the American Bar Association for their failure to show more interest in prisoners' fates. He warned,
A decent and free society, founded in respect for the individual, ought not to run a system with a sign at the entrance for inmates saying, "Abandon Hope, All Ye Who Enter Here."[8]
Elsewhere on the conservative landscape, several right-of-center think tanks have attacked the prison boom as wasteful of dollars and lives. The Texas Public Policy Foundation recently called for an expansion of parole, which "recognizes that inmates may change."[9] And the new Democratic Congress, with the support of federal judges to the left and right, is talking of hearings to reexamine mandatory sentencing laws.
The US remains a law-and-order society in a law-and-order age. But with skillful leadership modest change may now be possible. The commission on prison safety report got a plug from a Washington newspaper—not from the Post but from the editorial page of the conservative tip sheet The Washington Times. Prisoners deserve punishment, it said. "But we shouldn't forget that a vast majority will also be returned to society, which has as much at stake in their rehabilitation as they do."[10]
Notes
[1] I was following Dwayne's family for my book about the welfare system: American Dream: Three Women, Ten Kids, and a Nation's Drive to End Welfare (Viking, 2004).
[2] Other possible explanations include changes in demographics, an improved economy, an expanded police presence, gun control laws, the shrinking impact of crack, and perhaps most controversial, the legalization of abortion.
[3] Tamar Lewin, "Crime Costs Many Black Men the Vote, Study Says," The New York Times, October 23, 1998.
[4] Although most prisoners cannot vote, they do subtly affect elections through the drawing of legislative districts. Those districts are based on the decennial Census, which counts prisoners as residing where the prison is located. Since inmates largely come from inner cities and prisons are often rural, Manza and Uggen argue that "this practice results in a small but measurable transfer of political power and money from urban centers to rural towns." They note that 60 percent of Illinois's prisoners come from Cook County, though only 1 percent are incarcerated there.
[5] Manza and Uggen cite data from a single source, the Youth Development Study, a longitudinal panel in St. Paul, Minnesota. Among people with arrest records, 12 percent of those who voted were rearrested, compared to 27 percent of nonvoters. But once they controlled for other factors, like race and sex, the differences were not statistically significant. Still, the authors call the pattern "suggestive."
[6] For an interesting look at the importance of conservative evangelicals to criminal justice reform, see Frank O. Bowman III, "Murder, Meth, Mammon, and Moral Values: The Political Landscape of American Sentencing Reform," Washburn Law Journal, Vol. 44, No. 3 (Spring 2005). Through them, Bowman, a former federal prosecutor, argues, "Republican politicians ...can be brought to see that taking the Gospels seriously means forgiveness of at least some criminal sinners and the possibility of redemption for those sinners in this life as well as the next."
[7] Chuck Colson, "Jesus' Special Interest: Prison Rape and the Law," Townhall.com, September 4, 2003.
[8] Anthony M. Kennedy, speech at the annual meeting of the American Bar Association, August 9, 2003.
[9] Marc Levin, "The Role of Parole in Solving the Texas Prison Crowding Crisis," Policy Perspective, November 2006.
[10] "Snapshots Behind Bars," The Washington Times, June 8, 2006.
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2. On the Genealogy of Morals
by SAMUEL MOYN
from the April 16, 2007 issue of The Nation
The enterprise of writing the history of human rights has become a widespread activity only in the past decade. Lynn Hunt's Inventing Human Rights is its most prominent result so far, identifying the Enlightenment and the age of democratic revolutions as the moment when the cause was born. Yet if human rights history is now chic, it is also confused. A few months ago the president of the main American professional association of historians announced to all students of the past--whatever the place and time and subject of their research--that they "are all historians of human rights." But what could such a claim possibly mean?
The most troubling shortcoming of the contemporary attempt to give human rights a history is that it distorts the past to suit the present. And in this gambit, it is late, fatally late: The current wave of human rights history is the tardy fruit of the fashion of human rights in politics, and contributors to the genre clearly set out to provide backstories to the vogue of human rights just a few years ago, when they exercised a literally millennial appeal. But the vine withered as the fruit ripened. The sad fact is that historiography has not caught up with history, and even the professionals--especially the professionals--are still providing the prologue to Clinton-era idealism.
The shift in political debate has been impossible to miss. Even those who retain an investment in human rights cannot treat them as an unquestionable good, mainly because the America that once seemed to many enthusiasts to be the prospective servant of universality abroad all too quickly became the America pursuing low-minded imperial ambitions in high-minded humanitarian tones. The effect on human rights as a public language and political cause has been staggering, and it is not yet clear whether they can recover.
If radical apostasy is the sign that times have changed, then the ideological journey of the writer David Rieff provides the most spectacular evidence. Once a paladin of human rights--and a champion of American humanitarian intervention--Rieff has now turned on the politics he once embraced. For Rieff, human rights, far from the universal panacea he and writers such as Michael Ignatieff and Samantha Power once considered them, now stand revealed as an ideology perfectly designed to cloak the "military humanism" of empire. Agree with him or not, Rieff's evolution shows that Communism is not the only god that can fail.
The conversion of Tony Judt has been less radical but more interesting. He made his name excoriating French left-wing intellectuals for their failure to champion rights--a failure he saw as rooted in their nation's revolutionary tradition, especially when measured against Anglo-American political wisdom. Rights have an "extrapolitical status," he wrote thirteen years ago, diagnosing as French pathology the error of making them "an object of suspicion." Now he says that universalistic invocations of rights often mask particular interests--and never more so than in America's current wars--even though he once chastised opponents of rights who took this very position. Formerly treating them as an intellectual talisman, Judt now complains in passing about "the abstract universalism of 'rights'--and uncompromising ethical stands taken against malign regimes in their name." He warns that such abstractions can all too easily lead those who invoke them to "readily mistake the US president's myopic rigidity for their own moral rectitude." Of course, Judt still understands himself to be a committed liberal intellectual, at a time when he thinks practically all other liberals have disappeared. But not just the world has changed; he has too, and most strikingly in his acknowledgment that his old standard can hallow many causes.
The travails of rights today mean there is more, not less, at stake in excavating their history. Hunt's account falls neatly into two parts. The first deals with Enlightenment humanitarianism. She argues that the early modern explosion of novels, especially the wildly popular sentimental novels of Samuel Richardson and Jean-Jacques Rousseau, led people beyond aristocratic and religious frameworks to see one another as fellow humans worthy of empathy. In this connection, Hunt devotes an interesting chapter to the eighteenth century's rejection of torture--a topic that gives her book obvious contemporary relevance. Since the majority of human cultures have valued or at least tolerated bodily violation, the repugnance it now inspires has to be explained. Hunt suggests that the rise of sentiment purveyed by the novel combined with a new view of the integrity of the body, with potent results. Torture--together with other corporal violence like honorable dueling, beating wives, spanking children and baiting animals--began to fall from favor in Western culture (save in exported form in colonial rule).
It is true that a rise in compassion for suffering humanity was one ingredient in the explosion of claims for political rights. As Hannah Arendt once observed, in Roman times to call someone a "human" meant referring to him as "outside the range of the law and the body politic of the citizens, as for instance a slave--but certainly a politically irrelevant being." Of course, the eighteenth century had a foundation on which it could build in conferring meaning and value on being human alone. Monotheistic religions always made room for notions of common brotherhood. The source of "empathy" with suffering humanity, for its part, has most plausibly been located in changes in medieval spirituality: Jesus began to be valued as an exemplar of corporal suffering, and Mary became central to Christian piety for having practiced the virtue of compassion. Meanwhile, it is familiar to credit the Renaissance for discovering (or rediscovering) the dignity of man; in his famous study of the Renaissance, Jacob Burckhardt claimed that this period elevated humanity from a "logical category" to a morally resonant force. Probably, the eighteenth century did more to strengthen and secularize the emotive appeals to dignified and suffering humanity than it did to create them. Still, Hunt is surely right about the crucial significance of the Enlightenment--an age of feeling as much as it was an age of reason--for spreading the value of humanity as an end in itself.
If there is a connection between the eighteenth-century rise of humanitarian sentiment and the new wave of rights claims, however, it is only a very loose one. The close relationship Hunt asserts between the two is overly general because humanitarianism did not and need not always take the form of revolutionary rights assertions or the search for legal guarantees, whether domestic or international. It is also questionable because "rights talk," rooted in ancient Stoicism, Christian natural law and seventeenth-century contractualism, had historical lineages completely different from humanitarianism. The most sensible conclusion to take away from Hunt's book is that the rise of humanitarianism affected and broadened the rights tradition. But it hardly determined it completely.
Hunt links the rise of the phrase "rights of man" in France after the 1750s to the efflorescence of sympathy as a cultural imperative. But, as she shows, the older language of natural rights persisted, notably in the United States. More important, in spite of her claims that this transformation was also essentially connected with the creation of a new kind of autonomous individual, the humanitarian lineage does not and cannot account for many of the central notions of the rights of man, ones that Hunt ignores: other sorts of judicial guarantees, the right to practice one's religion, the liberty to speak one's mind or publish freely and, above all, the protection of private property.
The second half of Hunt's book turns to some of these subjects, in a highly readable story of the revolutionary declaration of the rights of man. She gives Americans credit for announcing human rights first (even though, again, they used the phrase "natural rights" and did not accord bodily suffering the same centrality). To their discredit, Hunt argues, the Americans did not keep the faith with their own contribution. Luckily, the French soon took up the torch, especially in their Declaration of the Rights of Man and Citizen of 1789. Hunt is most interested in what she repeatedly calls the cascading logic of human rights, whereby those who announced rights were compelled to extend them to Jews, blacks and women (or at least to consider doing so). And when groups initially excluded from humanity were not brought into the fold, as Hunt points out, they sometimes forced the issue. Early feminists like Olympe de Gouges and Mary Wollstonecraft declared the rights of women, while slaves in the French Caribbean demanded liberation.
Even restricting attention to what Hunt does cover, her massively disproportionate emphasis on bodily violation in general and on torture specifically is revealing. Hunt's book is for an audience for whom torture--and other visible state action--is the most grievous affront to morality. But humanitarian sentiment will seem less praiseworthy for anyone who suspects that the focus on visible forms of cruelty obscures structural wrongs that are less easy to see--even when they sometimes also cause the body to suffer, as with the pangs of hunger or the exhaustion of work. This is the sense in which Hunt's narrative is structured to provide background and authority for 1990s humanitarian idealism--and its recent aftereffects. There is a relationship between George W. Bush's justification of the Iraq War as a humanitarian campaign against "torture chambers and rape rooms" and the single-minded focus on America's own torture sparked by the Abu Ghraib images. Only very recently could outrage so tightly focused on Abu Ghraib shift to deeper questions, whether about the morality and plausibility of the war and the global relations that permitted it or the inherently violent nature of occupation. Hunt's exclusive concern with spectacular wrongs like torture therefore comes at a price. It leads her to overlook, among other things, the central place held by the right to private property in the declarations of the era, as well as the countervailing pressure for social and economic rights. Strangely, for a book about the revolutionary invention of human rights, Hunt fails even to mention either the "right to work," which first appeared in the French Revolution, or the very different declaration of rights of 1793, which first featured it.
But in the end the main failing in Hunt's book--and the contemporary agenda of human rights history--is not selectivity. In a highly summary concluding chapter, Hunt indicates that the point of her tale is to explain how it later became possible for the United Nations to base itself on human rights in its Universal Declaration of Human Rights (1948) and for a global movement to form. But this is to forsake an authentically historical treatment of rights in the age of revolution. And if historians miss how different rights were in the past, they will fail even to recognize what it would take to explain rights in the present.
Hunt often treats "human rights" as a body of ideas somehow insulated from history--as if they were a set of beliefs analogous to heliocentrism or relativity, needing only discovery and acceptance. The protagonists of her book are not people thinking and acting on their convictions but rights themselves, which do things like "creep," "thicken," "gain ground," "gather momentum," "reveal a tendency to cascade," have a "bulldozer force," "make their way ineluctably," "take shape by fits and starts," "take a backseat" and "remain in need of rescue." Hunt provides historical details about the recognition of human rights but ultimately seems to think of them as timeless. In a few mysterious asides, she suggests that rights have biological foundations, in spite of her own demonstration of how chronologically and culturally specific they are.
But a series of interlocking contexts for the revolutionary rights at the center of Hunt's book shows that they need to be differentiated from contemporary "human rights" rather than seen as paving the way for their eventual triumph. So the difficulty is not just that many of the rights of the era are left out of account but that those that are examined need to be put in the proper context.
The first crucial fact is that humanitarianism could underwrite violations of rights as well as their defense. Forty years ago, Arendt argued that the explosion of pity was the source not of rights but of terror. The most important text for critically analyzing emotion in the politics of the period, Arendt's On Revolution (1963), interpreted Maximilien Robespierre's Terror not as an act of demented criminality but as the first politics based on feeling others' pain. But for Robespierre, the alleviation of suffering required what he called "a compassionate knife," to lance the dangerous pustules on the body politic, purging the enemies of virtue without and within. The results were catastrophic: "Par pitié, par amour pour l'humanité," petitioners from the Paris Commune wrote to the National Convention, "soyez inhumains!"--out of pity and love of humanity, you must be inhuman. Hunt briefly acknowledges some of the dark sides of a culture of sentimental virtue like sensationalism and compassion fatigue. But the Terror is not in her book, and so she does not confront Arendt's disquieting contention that "pity, taken as the spring of virtue, has proved to possess a greater capacity for cruelty than cruelty itself." (It is not for nothing that Communist parties, particularly the French one, have always seen 1917 as the logical successor of 1789.)
If humanitarianism could have ambiguous consequences, so could rights themselves. Some historians have attached great significance to the fact that the French, even in 1789, did not proclaim the rights of man alone; they declared the rights of "man and citizen," as part of a paean to the general will. From the outset of the French Revolution, there was a conceptual and political dilemma between membership in humanity and membership in a collective. And what if a choice arose between honoring the rights of men and preserving the community of citizens? The doyenne of the field, Hunt has for a few years been insisting that the French Revolution needs to be defended as a progressive victory against those skeptics who would reduce the event to its violence and terror. She deserves great credit for doing so, but it is rather disappointing that she fails to address how revolutionary-era rights might be salvaged from their implication in the bloodshed that so swiftly followed upon their announcement.
The abolition of torture, climaxing in the Revolution, also needs to be understood in a larger context of the changing deployment of violence. In her study of the campaign against torture, Hunt echoes Michel Foucault's view in Discipline and Punish that modernity forced the state to relinquish its hold on the body; but while Foucault famously argued that this departure involved more insidious forms of control, Hunt defends it as a good thing. Yet both overlook the fact that the violence involved in what Hunt calls the "sacrificial rite" of punishment under the Old Regime--in which the criminal's public torture provided communal expiation--persisted in novel and magnified forms. As historian David Bell spells out in a fascinating new book, the invention of total war over the revolutionary years, whose explosion swamped the world with more devastating violence than ever, is the new and often more frightening guise that public sacrifice could take. In her last pages, Hunt acknowledges that the rise of humanitarianism and the upsurge of carnage are historical twins, thanks especially to the quintessentially modern penchant to sacrifice oneself and others in war waged for humanity's sake or at least in humanity's name. But she seems not to grasp that this admission amounts to a considerable qualification of her thesis, and she follows this insight with the anodyne reassurance that empathy "has become a more powerful force for good than ever before."
In contrast to Judt--not to mention Karl Marx, to whose critique of the language of rights she devotes only a page--Hunt is not sensitive to the way that formalistic invocations of rights can sometimes mask narrow agendas. For her, the true significance of this same "abstract universalism" is that it can permit proliferating rights claims. But what is at stake in interpreting the unintended consequences of abstraction is nowhere more in evidence than in recent shifts of views about the meaning of the Haitian uprising of the time. Until recently, the standard interpretation of the "Black Jacobins" of the Caribbean--in the phrase C.L.R. James gave to his 1938 masterpiece on the subject--saw them as presaging an era of revolutionary nationalism, decolonization and even Third World socialism. Today, in the work of Laurent Dubois and now in Hunt's book, Caribbean antislavery insurgencies are seen as human rights causes. But this idea seems as much a reflection of contemporary passions as the old filiation it displaces. It is true, as Hunt insists, that Toussaint L'Ouverture and others were spurred by the French Revolution to seize citizenship when Frenchmen did not live up to their rhetoric. But when the "cascade" did not happen by itself, it had to be forced through violence, and what these radicals insisted on was mainly their right to be masters of their fate. Hunt pays homage to "the soft power of humanity." Toussaint, for his part, found it necessary to resort to weapons. In any case, the new image of Caribbean insurrection makes one wonder why twentieth-century anticolonialism, the movement from which James took his inspiration, most often disdained the language of human rights, even though the Universal Declaration had only just been propounded.
The Haitian case suggests another reason the connection between the revolutionary "cascade" and contemporary rights needs to be questioned. For slowly over time, but decisively by the post-World War II era, rights became separated from the revolutionary ambience in which they were originally articulated. As Arendt emphasized, rights in the late eighteenth century were part of revolutionary foundings. But it was nationalism, and even more so socialism, that inherited their radicalism, as well as their tolerance of violence. This is what makes it so difficult to assert any real link between the French Revolution and "human rights" of today. The immediate aftermath of World War II, when the Universal Declaration appeared, partook more of the spirit of restoration than it did of revolution (and the fundamental role of Catholics in the postwar promotion of talk of human rights extended this spirit).
Thus, when Eastern European dissidents made it possible for "human rights" to be reclaimed by liberals and the anti-Communist left in the 1970s, they asserted that what mattered most about those rights is that they were antirevolutionary. Vclav Havel and Adam Michnik retrieved human rights precisely against the tradition of revolution--as an "antipolitics," in Hungarian dissident George Konrd's influential phrase. So human rights arose on the ruins of revolution, not as its descendant. That these figures later played a role in "velvet revolutions" of liberal democracy only reinforces this point. And their fervent support of Bush's war, precisely as a human rights cause, raises new doubts about the defense of rights as an extra-political moral code that made them famous, and not just about their recent peregrinations.
But the most glaring difficulty in placing the French Revolution at the origins of human rights today is that--unlike dissidence--it gave rise to nothing like the international human rights movement so central to the contemporary moral imagination. It is worth pondering in what ways the campaign to abolish slavery, which began in the years Hunt covers, anticipated contemporary human rights movements. But to do so one would have to move beyond her way of defining human rights so as to see in them a set of institutional practices, prominently including international mobilization, information gathering, public shaming and so forth. Otherwise, there simply was no "rights of man movement" in the nineteenth century--or if there was, it was liberal nationalism, which sought to secure the rights of citizens resolutely in the national framework.
Hunt's position is that nationalism sank the rights of man after their announcement, but from the first they were seen as overlapping or even identical commitments. (The Declaration of the Rights of Man and Citizen insists that "no body and no individual may exercise authority which does not emanate expressly from the nation.") True, there were occasional proto-internationalist moments in the era, as for example in the presence in the National Assembly of the amusingly named Anacharsis Clootz, a German baron who considered himself the voice of non-French humanity. (Among other things, he begged for military action against his own people.) But such innovations hardly pointed ahead to the United Nations or anticipated the contemporary realities of international law and international groups sprouting in civil society to pressure governments to obey it. Clootz surfaces in Herman Melville's Moby-Dick, in fact, as the symbol of multicultural humanity united on shipboard in a metaphysical quest, not for prophesying an international legal regime.
If rights had an internationalist pedigree flowing from the French Revolution, it was, alas, mainly in Napoleon Bonaparte's claim to be spreading the flame of the rights of man as he engulfed the world in the conflagration of his imperial designs. "Oh ye Egyptians," Napoleon proclaimed in 1798 in advertising his conquest as a benevolent act, "they may say to you that I have not made an expedition hither for any other object than that of abolishing your religion.... But tell the slanderers that I have not come to you except for the purpose of restoring your rights from the hands of the oppressors." Omitting the longstanding imperial entanglements of both humanitarianism and rights simply will not do; history shows how frequently they have been offered as justifications for invasion, expansion and annexation. This isn't to say that the revolutionary rights of man anticipated George W. Bush and neoconservative empire rather than a universalistic regime of international law. It is that one cannot embrace rights in the distant past without acknowledging their radically different futures.
Each of these diverse perspectives on revolutionary-era rights forces the same recognition. In order for the contemporary human rights movement to emerge, old meanings and associations had to be dropped and new ones formed. What Hunt presents as an epilogue to a creation long ago turns out to be what really needs to be explained. This is what Marc Bloch meant when, in The Historian's Craft, he indicted "the idol of origins." Did Thomas Edison invent the Internet? He created some of the conditions for its much later possibility, but that is about it.
When, then, were human rights invented? As Hunt acknowledges, the phrase hardly ever shows up in English in her period. And while it percolated in diplomatic and legal circles beginning in the 1940s, it was not until the 1970s, with the emergence of dissident movements in Eastern Europe, that it entered common parlance. This is the period that historians need to scrutinize most intently--the moment when human rights triumphed as a set of beliefs and as the stimulus for new activities and institutions, particularly nongovernmental organizations. Yet the minds of human rights scholars constantly wander backward--disinclined, it seems, to face up to the recent vintage and contingent beginnings of their subject.
Of course, with the founding of the United Nations and its Universal Declaration (along with related instruments like the genocide convention as well as the origins of intra-European rights protection), the 1940s were of obvious significance. But if there is little reason to locate the "invention" of human rights as we now know them in the late eighteenth century, there are scarcely more grounds for rooting them in World War II's aftermath.
Currently, a powerful movement among US historians portrays contemporary human rights as flowing as directly and fully formed out of Franklin Delano Roosevelt's wartime vision and planning as Athena sprang from Zeus's skull. For this school, the internationalist rights agenda is an American invention that extended and supplemented the nation's original commitment to liberty with more full-bodied social protection. In Elizabeth Borgwardt's phrase, human rights were America's "new deal for the world." The wistfully nostalgic tones of the historians of an invigorating and well-intentioned American liberalism are poignant and can lead to insight. But there are serious objections--political and interpretive--to this story.
For one thing, it makes human rights seem like the natural outcome of the last consensual war, an uncontroversial good that emerged in response to incontestable evil (never mind that the assertion of rights bore little relationship to the Nazi genocide). Second, it Americanizes rights, evoking a time when the US government could be seen as a benevolent guarantor of universal norms of conduct. Self-evidently, the actual content of the portrayal of human rights as the product of a moment when America offered a genuine universalism is the contemporary moral it allows: that Bush's worst sin is to have ruined the story line that began with America's invention of human rights in the 1940s and was finally on the way to fruition thanks to Bill Clinton's commitment to enforce them in the 1990s.
As David Rieff has argued in these pages, affirming America's universalistic self-image in the past (as the city on a hill, the leader of the free world or the indispensable nation) is to fail to ask just how it was that Bush was able to succeed so easily in burnishing the morality of his adventures--as if what went wrong were a purely accidental perversion of America's true and proper vocation. But there are also historical distortions. Scholars who return to the 1940s, like Borgwardt and Cass Sunstein, devote little or no attention to non-American contributions to "rights talk" in the era, and exaggerate its importance and impact at the time. They select and single out what now look like milestones because of their retroactive importance but fail to grasp their marginality in their own period, from which no broad-gauged international movement emerged. Once again, historians are choosing tunnel vision over historical sense.
None of this means that the new fashion of human rights history is entirely misguided. Only those who missed the last thirty years of ideological history--like Marxists who see in human rights nothing but a rhetoric that makes the cage of globalizing neoliberalism more bearable--could think so. But it does mean that we need to understand that human rights in their specific contemporary connotations are an invention of recent date, which drew on prior languages and practices the way a chemical reaction depends on having various elements around from different sources, some of them older than others. The explosion took place only yesterday, and we have to come to grips with why it happened and what the costs and benefits have been for us all. The fact that it occurred to historians to uncover the origins of human rights only recently is itself a sign that they should not seek to find them too long ago and far away.
But there is also a strategic consideration. Human rights norms and organizations remain the chief source of idealistic passion in the world--at least among its well-meaning cosmopolitan elites. Any future idealism will have to draw on the power of their current ethic and put it to good use. In this regard, Hunt is exactly right to stress the emotional charge of human rights. But besides lacking any coherent understanding of how human rights came to have their current power, we have not even begun thinking about how to reinvent the creed in ways that are progressive rather than brutal.
In closing what feels in the end like a creation myth, Hunt writes: "The human rights framework, with its international bodies, international courts, and international conventions, might be exasperating in its slowness to respond or repeated inability to achieve its ultimate goals, but there is no better structure available for confronting these issues." For better or worse, the plangent reassurances have lost their power to comfort, and deep background--especially when brought to bear so instrumentally on our very different present--is of little use in responding to our confusion and dismay
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C. Quote
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- Paul Farmer
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