PUNISHMENT: THE AMERICAN STORY
July 10 - July 29, 2022 (3 weeks)
Location: Amherst College, Amherst, Massachusetts
Director: Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science
Meetings: 8:30 a.m. to 5:00 p.m., Monday - Friday
This Institute will address three questions about punishment that go to the heart of humanistic inquiry and are perennial sources of lively debate.
1.What is punishment and why do we punish as we do? Definitions of punishment abound. The Institute will assess the strengths and weakness of various definitions and link punishment to significant political and ethical concerns, e.g., how we define the limits of freedom and what justifies legal restrictions on our conduct? In addition, the Institute will take up the history and meaning of the Eighth Amendment prohibition of “cruel and unusual punishment” and the importance of determining what counts as punishment in the jurisprudence of the Eighth Amendment.
2.What can we learn about politics, law, and culture in the United States from an examination of our practices of punishment? How have issues of punishment figured in our “national story”? What are the arguments that today shape our thinking about punishment? What forms of punishment have figured most prominently in American history?
3.What are the limits of punishment? Are there instances in which people regard punishment as a badge of honor and when, as a result, it cannot deter violations of the law? Alternatively, are some crimes so heinous that they leave us feeling that punishment, no matter how severe, nonetheless is inadequate? What is the place of forgiveness, mercy and reconciliation as alternatives or supplements to retributive justice?
The issues raised by these three guiding questions are integral to a larger story of punishment in America and are continuous with commentary dating back to the early nineteenth century. Such commentary shows the importance of humanistic inquiry in addressing contemporary challenges and portrays punishment as a key part of the American story, revealing hopes and fears, fissures and conflicts at different moments in our history.
Today, arguments about punishment’s meaning and purpose, the ways it illuminates themes in American history, and its appropriate limits continue unabated. Some say punishment is essential in protecting society and defending its values. It expresses respect for crime victims, allows for atonement and expiation of guilt, and adds clarity to our moral thinking by rightly separating good and evil, victim and villain. Critics respond that we should punish too severely and point out the use of punishment as a tool of racial subordination. They contend that the problems to which punishment responds are too complicated to be comprehended using absolute, moral categories.
This Institute will attend to facts about, and practices of, punishment in contemporary American life, some of which proceed almost unnoticed and some of which galvanize attention. Among these, the size and racial composition of our prison and jail population are especially noteworthy. Indeed, any study of punishment in the United States involves a study of racial justice as well.
We shall read closely, and discuss at length, material ranging from “classics” such as the Book of Job and Thoreau on civil disobedience, to legal cases, literary treatments of punishment, and film. The range is broad, asking each of us to move out from our areas of specialization to see the subject of punishment through an interdisciplinary lens. Participation in the institute demands no specialized training in law or jurisprudence.
The reading list will include sociological, historical, and literary treatments of punishment as well as examples of legal, political, and cultural issues in America. This list provides needed background for the lectures and discussions. It covers various perspectives on punishment and connects scholarly concerns with the lives and work of educators and citizens. Together with the Visiting Faculty, we will explore the complexity of a subject that often is treated in a partisan fashion and cultivate respect for the different views that this subject elicits. During the Institute, participants will take a fresh look at familiar texts and explore new resources on which they might draw when they teach about punishment.
Topics we will take up in the Institute.
The first week, What is punishment and why do we punish as we do? starts with a definitional question. What differentiates punishment from other kinds of painful or unpleasant treatment? We know that that all punishment involves the imposition of pain, but not all pain is punitive. But what more is needed to have a satisfactory understanding of punishment?
On Monday, Professor Leo Zaibert, will join us to discuss different ways of defining punishment and explain how they relate to the history of the Eighth Amendment. More expansive definitions of punishment extend the reach of that constitutional protection; more limited ideas of what counts as punishment also limit the protections of the Eighth Amendment.
On Tuesday we will focus on the traditional purposes of and justifications for punishment, e.g. retribution, deterrence, rehabilitation, and the fact that in different periods in American history one or another of those purposes have come to prominence. That discussion will be led by Prof. Paul Robinson.
Wednesday we will consider whether persons have a “right to be punished” and whether there is a “duty” to punish when the law is violated. On Thursday of the first week, the Institute will take up the role that emotions play in punishment. Here attention will be devoted to considering anger and vengeance as motives for punishment.
On Friday we will focus on the purposes and methods of punishment/discipline used in American schools. Here participants will read selections on so called zero tolerance policies and on restorative justice practices. We will be joined by Prof. David Karp.
The Institute’s second week takes up the question of What can we learn about politics, law, and culture in the United States from an examination of our practices of punishment?
On Monday we consider imprisonment in America’s history and in the present moment. Prof. Ashley Rubin will join us to analyze how the character of the early republic was manifest in its penal institutions and especially how religious belief structured America’s early penitentiaries. Prof. Rubin will also help us understand what our current practices of mass incarceration and their disproportionate impact on racial minorities reveal about the character of America today.
Tuesday Prof. Karamet Reiter will join us to discuss prisoners’ rights. What rights do and should prisoners have? Attention will be paid to the protections afforded by the Eighth Amendment and other provisions of the Bill of Rights. In “Talk About Teaching,” Mr. Blumenfeld will discuss ways to plan lessons about punishment using among other things Tocqueville’s Democracy in America, which is sometimes used in American History courses to illuminate life in the Antebellum period (http://www.teachushistory.org/detocqueville-visit-united-states/lesson-plans).
Wednesday we will focus on the lives of those incarcerated in the United States and the consequences of mass incarceration for their families and communities.
On Thursday, we will take up the death penalty, asking about its justifications and its place in the American legal system. Here, we will confront questions about whether punishment, even the death penalty, can bring closure to crime victims or their families. We will be joined by Robert Blecker, one of this country’s key academic experts on, and supporters of, the death penalty.
Prof. Naomi Murakawa will join us on Friday for a comprehensive overview of the role of race in American punishment, including both imprisonment and capital punishment. She will offer an historical picture, drawing on her groundbreaking work on the reproduction of racial inequality in 20th and 21st century American politics and in the carceral state.
The Institute’s third and final week is devoted to considering the limits of punishment. Prof. James Martel will join us for a discussion of the place of punishment in the theory and practice of civil disobedience. In fact, accepting punishment is part of the very ethos of American thinking about civil disobedience. We will discuss the place of punishment in Henry David Thoreau’s “Essay on Civil Disobedience,” and we will talk about ways of teaching Thoreau that do not simply produce a polarized for-and-against civil disobedience class dynamic (see, for example https://www.morningsidecenter.org/teachable-moment/lessons/teaching-critical-thinking-believing-game-doubting-game).
We will be joined on Tuesday by Prof. Lawrence Douglas, and we will examine the kinds of punishments that are appropriate in responding to crimes against humanity.
On Wednesday, the Institute will take up alternatives to traditional forms of punishment that focus on rebuilding and restoring community. Prof. Adriann Lanni will help us consider the strengths and limits of truth and reconciliation and restorative justice approaches in the American context.
Thursday will focus on mercy and forgiveness and their relationship to the effort to achieve justice. Professor Linda Meyer will be with us for this discussion.
Friday of our last week will be devoted to a symposium during which participants will offer reflections on, and identify takeaways from, the work of the Institute. They also will have the chance to discuss the curriculum development work that they have done during the Institute or are panning in its aftermath.
LOCATION OF CLASSES
The institute will be held in an air-conditioned classrooms on the Amherst campus. You will be designated a "Visiting Scholar" with full access to the College's library, computer, athletic, and dining facilities. The facilities are quite good. During the summer the library is open weekdays from 8 a.m. – 5 p.m. While there are many computers on campus, you might also be advised to bring your laptop computers as this will facilitate your work on the group writing projects.