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‘Inferno’ by Robert A. Ferguson

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It’s getting hard to say much original about the depths to which the US criminal justice system has sunk. Our country imprisons a historically remarkable proportion of its citizens (at least as far as Western democracies are concerned), engages in practices like the death penalty and long-term solitary confinement that have been barred in much of the civilized world, and imprisons those with dark skin at proportions far out of skew with their actual propensity for criminality. While the sheer stranglehold all of this has caused for federal and state budgets has led to a nascent left-right alliance against mass incarceration, it remains an ongoing catastrophe.

Into this terrible situation steps Robert A. Ferguson, the George Edward Woodberry Professor in Law, Literature, and Criticism at Columbia University, with “Inferno: An Anatomy of American Punishment.” This is less a public-policy book than a deeper exploration of what it means to punish.

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The issue is a slippery one. Punishment, Ferguson writes, has an internal logic and momentum all its own, and needs to be understood as a separate, uniquely dangerous part of any justice system. As he notes in his analysis of a Kafka short story on the subject, it “will trump every other concern, including the meaning of crime, procedural integrity, verification of guilt, the rights of the punished, proportionality in punishment, and the mental balance of the punisher.” It’s a black hole, of sorts — because it’s so hard to measure pain or confinement or any of the other results of punishment, it’s simply impossible to “correctly” match it up to a given offense. Instead, many of humankind’s baser instincts take over.

Still, we’ve constructed a sprawling structure of rationalization and sterilization to make widespread mass punishment appear to make sense. One of Ferguson’s main points is that the criminal justice system is built in a way that separates out the organization and administration of punishment into so many disconnected sectors that no one individual or body really has to grapple with the consequences of what it means to send someone to jail, to throw them in solitary, or to execute them — that is, no one other than the person being punished.

Yes, ostensibly the system has this structure as a means of inoculating it against undue passion, vengeance, and so on (there’s a reason “judge, jury, and executioner” has a negative connotation — we wouldn’t want anyone playing all three roles at once). But in reality, this plays out as a sad cascade: legislators shrug and say they’re instituting harsh sentences because it’s what the people want, juries shrug and say they have no choice but to convict because the laws as written are so stringent , judges shrug and say they have little discretion in fixing sentences, prison guards shrug and say they have no choice but to embrace brutality because they are dealing with monsters.

The fact of the matter is, though, that language cannot capture torment, and torment is what our penal system generates in spades. So much of Ferguson’s project is an attempt to bring readers closer to understanding what it’s like to fall into the maw of the justice system — that’s why he has no compunction about bringing in literature (Kafka, Dostoyevsky, and other authors) when nonfiction is too dry or imprecise to do the job. When trying to understand the unimaginable torment of sitting alone in a coffin-like cell for years, or of watching helplessly as one’s execution date creeps closer and closer, sometimes fictions comes closer to capturing these horrors better than any ACLU report ever could.

“Inferno” is a wide-ranging effort that covers many subjects. A section on Cesare Beccaria, an 18th-century thinker and reformer on justice issues, is fascinating. (Beccaria writes, “What reader of history does not shudder with horror at the barbaric and useless tortures that so-called wise men have cold-bloodedly invented and put into operation?”), and Ferguson’s descriptions of the hell that is solitary confinement (and the arbitrary, capricious manner in which the incarcerated are subjected to it) are powerful.

Wonkier readers might not always enjoy Ferguson’s forays into literature, or his zoomed-out approach to many of these issues in which he highlights problems but doesn’t always dig into their public-policy roots. But “Inferno” still stands out as an interesting, intellectually innovative take on a hellish problem.

Jesse Singal is a contributing writer at Newsweek/The Daily Beast and a graduate student at Princeton University. He can be reached at jesse.r.singal@ gmail.com.
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