Deviance, risk, and law: reflections on the demand for the preventive detention of suspected terrorists.

• Author: Margulies, Joseph
• Position: Symposium: Preventive Detention

1. INTRODUCTION

   The post-9/11 world has produced a call for the preventive detention of suspected terrorists, by which I mean a system of indefinite detention based solely on predictions of future dangerousness without regard to past conduct. (4) Legal academics and journalists have spilled considerable ink exploring this topic, but almost no attempt has been made to place the call in its larger cultural context. (5) This is regrettable since it amounts to reading only the last chapter of a long book then grumbling that events seem to have come upon us with so little explanation. (6)

   The loud clamor for preventive detention stands at the convergence of three powerful developments in contemporary American culture. The first is what my colleague, the historian Michael Sherry, calls "the punitive turn in American life," which refers to the angry impulse over the past several decades to purge the community of undesirable elements by dramatically increasing the government's power to monitor, exclude, restrain, and imprison those considered a threat. (7) The second is a dangerous refinement of the concept of "security," which has merged the cultural demand for the elimination of risk with the impassioned rhetoric of war. (8) And the third development is a parallel turn in the law of criminal procedure. Over the past several decades, "[t]he call for protection from the state has been increasingly displaced by the demand for protection by the state.'' (9) Criminal procedure has steadily accommodated this demand, endorsing what the sociologist David Garland has branded "the criminology of the dangerous other." (10)

   Taken together, these developments have given rise to a distinct habit of the American mind, a characteristic way of understanding and responding to perceived deviance and risk. In contemporary American thought, a certain type of event triggers a corresponding collection of mental images and sets in motion increasingly familiar solutions, all of which Americans describe with a predictable set of tropes. Much of American society now gazes upon deviant behavior, sees only risk, and recognizes only one response, which it has summoned--and intensified--to meet the insatiable demands for security in a post-9/11 world. (11)

   In this way, the cultural demand for preventive detention of alleged terrorists has slid into the familiar and preexisting frames about risk and deviance. Because Americans know only one reaction to the problems of deviance and risk, they have enlisted them in response to the post-9/11 iteration. A belief that terrorism always reflects the act of an inherently malevolent disposition, for which no further explanation is possible or necessary, swims in the same stream as a similar view of serial sex offenders, juvenile super-predators, and other dangerous criminals. The conviction that American foreign policy cannot be blamed for terrorism and that it is heresy to suggest otherwise is merely an amplification of the belief that society cannot be blamed for criminal conduct. The mistrust of the criminal justice system, and particularly the certainty that the courts are too lenient and that "justice" is hamstrung by elaborate technicalities spun by liberal courts, elides easily into the belief that the courts cannot be trusted to preside over terrorism trials. And the view that any margin of error is too great when dealing with apocalyptic threats naturally produces a system constructed so that it cannot be allowed to fail. (12)

   At the same time, the call for preventive detention is not simply the application of existing penological thought to the latest constructed crime wave. Terrorists (at least Islamic terrorists) are imagined as vastly more dangerous than any mere criminal and therefore wholly unsuited to the prosaic and quotidian machinery of the criminal justice system, a condition confirmed by the overheated rhetoric of war. In the popular imagination, war has always magnified threats and justified repression. Whatever stomach society may have for peacetime risk diminishes dramatically during war when any willingness to accept risk is attacked as dangerously foolhardy. The cultural response to 9/11 in general, and the call for preventive detention in particular, has thus intensified and sharpened the frames of risk and deviance that were borrowed from modern criminology. (13)

2. THE PUNITIVE TURN IN AMERICAN LIFE

   The numbers are still sobering, notwithstanding their depressing familiarity. Approximately 2,300,000 people are in prison or jail--at least as of yearend 2009--more than every man, woman, and child in Detroit, San Francisco, and St. Paul combined. (14) It is both the largest prison population and the highest incarceration rate in the world, (15) and has been accommodated by an astounding growth in prison capacity: from 1985 to 2000, on average, a new state or federal prison opened in the United States every week. (16) As of 2008, more than 41,000 men and women in the United States were serving life sentences without the possibility of parole. (17) Another five million are on probation or parole--again, far more than any country in the world. (18) And the racial impact of these numbers is even more dispiriting. African Americans are eight times more likely to be incarcerated than whites. As of 2004, over twelve percent of African-American males between the ages of twenty-five and twenty-nine were in custody. (19) And for under-educated young black men, the incarceration rates are astounding: in 2000, nearly one in five African-American men under the age of forty-one who had not attended college was in prison or jail. (20) The extent to which incarceration has become part of the normal life experience for African-American men is simply staggering. As Bruce Western recently observed,

   The criminal justice system has become so pervasive that we should count prisons and jails among the key institutions that shape the life course of recent birth cohorts of African American men. By the end of the 1990s, black men with little schooling were more likely to be in prison or jail than to be in a labor union or enrolled in a government welfare or training program. Black men born in the late 1960s were more likely, by 1999, to have served time in state or federal prison than to have obtained a four-year degree or served in the military. For non-college black men, a prison record had become twice as common as military service. (21) The punitive turn has produced not only a great many more prisoners and prisons. It has also generated a fondness--in fact, an enthusiasm--for harsh conditions of confinement that was unthinkable only a few decades ago. Though prisons as a whole have become stunningly cruel places, this trend is perhaps best illustrated by the dramatic growth in supermax facilities. In 1984, only one prison in the United States fit the description of a supermax--the federal prison at Marion, Illinois, after the lockdown imposed in 1983. (22) Twenty years later, there were supermax prisons in forty-four states holding approximately 25,000 inmates. (23) The Federal Bureau of Prisons also operates a supermax at Florence, Colorado, which houses another 11,000 inmates, including a number who have been convicted of terrorist-related offenses. (24)

   Conditions at supermax prisons vary modestly from state to state and from states to the federal facility, but in general they are characterized by strict isolation and rigorously enforced, unrelenting control. (25) Supermax prisons have abandoned even the pretense that they are meant to rehabilitate or reform. The facility typically provides little or no programming, education, or counseling--nothing more than the barest constitutional minima. (26) Prisoners, who are routinely described as "the worst of the worst," (27) spend nearly every minute of every day confined in a small cell made of concrete and steel. Norval Morris once described the cells at Tamms, the Illinois supermax, where conditions are representative:

   Your cell measures ten feet by twelve feet. It is made of poured concrete with a steel door--no bars--just a lot of little holes, smaller than the tip of your finger, punched through it. You have a stainless steel toilet and sink built as a unit that would not be easy to destroy. There is a small window, high and narrow, that lets in a little outside light. There is a mirror made of polished metal, again tending to be indestructible. Your bunk or bed, or whatever you may call it, is also of poured concrete, an integral part of the cell, but you have a slim plastic foam mattress to put on it. There is a well-protected fluorescent light and a light switch. At night ..., the light cannot be turned off entirely; it unrestrainedly gives out a dim light, bright enough for the guards to peer in at you. There is a small trapdoor, low down on the steel door to your cell, through which your food can be pushed to you. (28) Within this space, prisoners are deliberately confined so they cannot see or touch another human being. At Tamms, and only with great difficulty, they can communicate with other inmates by shouting through tiny spaces where the food trap meets imperfectly with the remainder of the steel door--an opportunity considered a design defect at Tamms and since remedied at other supermax prisons. (29) Prisoners average more than twenty-three hours a day in solitary confinement. They are allowed out of their cells a few hours a week for exercise--anywhere from one to five, depending on their disciplinary status--and never more than an hour a day. (30) They cannot leave their cells unless they are first heavily shackled and manacled, and only when escorted by several guards wearing riot gear and armor. Exercise, like everything in their lives, is an entirely solitary affair. At Tamms, they are brought to a concrete cage somewhat larger than their cell, "with a small grating high in the comer of the roof through which you can...