State of the Union

What Ferguson Has Revealed

“Whatever happened to Michael Brown in the moments before he died has become secondary to what the response to his death has revealed,” Jelani Cobb wrote in The New Yorker. Since a police officer shot and killed the unarmed black teenager in Ferguson, Missouri on August 9, the shooting—and the vigils, looting, volunteer cleanup, peaceful protests, and overwhelmingly disproportionate police response—has become a national microcosm of urban racial injustice and what is being called the “militarization” of police forces.

Deadspin’Greg Howard summarized the tensions at play:

If officers are soldiers, it follows that the neighborhoods they patrol are battlefields. And if they’re working battlefields, it follows that the population is the enemy. And because of correlations, rooted in historical injustice, between crime and income and income and race, the enemy population will consist largely of people of color, and especially of black men. Throughout the country, police officers are capturing, imprisoning, and killing black males at a ridiculous clip, waging a very literal war on people like Michael Brown.

That war is enabled by military-grade weaponry available to police since the 1990s under the Department of Defense’s Defense Logistics Agency and the “section 1033” program over which it presides. In Rise of the Warrior CopJohn Payne explained earlier this year, journalist Radley Balko makes the case that the Founders would have seen that kind of militarized police as an unconstitutional standing army. Balko wrote, “Just before the American Revolution, it wasn’t the stationing of British troops in the colonies that irked patriots in Boston and Virginia; it was the England’s decision to use the troops for everyday law enforcement.”

Indeed, to many, the scenes of tear gas seemed more like images from Iraq and Afghanistan than suburban St. Louis (even though tear gas is illegal in warfare, if legal domestically). Jamelle Bouie, writing for Slate, was among them:

This would be one thing if Ferguson were in a war zone, or if protesters were violent—although, it’s hard to imagine a situation in which American police would need a mine-resistant vehicle. But an episode of looting aside, Ferguson police aren’t dealing with any particular danger. Nonetheless, they’re treating demonstrators—and Ferguson residents writ large—as a population to occupy, not citizens to protect.

Veterans spoke out against “militarized” police action in Ferguson on TwitterJason Fritz observed, “As someone who studies policing in conflict, what’s going on Ferguson isn’t just immoral and probably unconstitutional, it’s ineffective.”

Adam Weinstein put it more bluntly at Gawker. “The U.S. armed forces exercise more discipline and compassion than these cops.” He cites the first page of the Army’s field manual on civil disturbances, which emphasizes proportional, nuanced responses. “Inciting a crowd to violence or a greater intensity of violence by using severe enforcement tactics must be avoided.” The manual also notes that “highly emotional social and economic issues” inform such disturbances, and that “it takes a small (seemingly minor) incident” to set off violence “if community relations with authorities are strained.”

Unlike the military, who are trained in nonviolent options for conflict resolution, the police often lack such knowledge. Bonnie Kristian expounded this failure and reasons behind systematic police brutality earlier this summer, noting also that cops are rarely held accountable for abuse. “Only one out of every three accused cops are convicted nationwide, while the conviction rate for civilians is literally double that.”

The entrenched racial injustice behind Michael Brown’s death will be difficult to root out, as it has been over centuries of American history. But the decades of policy that allowed for police abuse of Brown, and his town’s peaceful protesters, could be reversed—and if the public outcry over Ferguson is anything to judge by, Americans will be keeping a closer eye on the police in the coming years.

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What Argentina’s Default Means for the Rest of Us

Argentina has defaulted eight times in its 200-year history, the latest coming on Thursday after a bizarre legal saga that left Argentine sovereign debt in the hands of a Manhattan federal district judge.

Judge Thomas Griesa ruled that Argentina could not make its next payment on restructured debt from its 2001 default—money that is already sitting in the New York bank in charge of mediating the payments—until including another set of bondholders in that exchange. That second set of bondholders, representing only seven percent of Argentina’s creditors, consists of hedge funds represented by Elliott Management’s NML Capital. The funds bought Argentine bonds as the country’s economy spiraled downwards, and they rejected the restructuring, holding out for the bonds’ full original value.

The Supreme Court refused to review Griesa’s decision, while also permitting bondholders to issue subpoenas in order to locate Argentine assets abroad. Argentina refused to pay, as negotiations failed and the country defaulted on its debt last Thursday at midnight. Argentina’s standing in international debt markets, not to mention its domestic economy, is so bad that very little has actually happened as a consequence.

Since its 2001 default, Argentina has been experiencing inflation, recession, and exclusion from international capital markets. None of that has changed, though it is slightly accelerating. Argentines, many of whom lost their savings 13 years ago, have long turned to the U.S. dollar as the under-the-table currency of choice, as Argentina’s own peso is worth less and less every year. Last week’s default is practically a laughing matter in the Argentine papers, perennially full of bad economic news. The ever-opportunistic administration of President Cristina Fernández de Kirchner has railed against American injustice rather than making any attempt to minimize the harm.

The case’s international ramifications are even less dramatic, despite concerns over the future of creditors’ rights in debt markets. Peter Eavis and Alexandra Stevenson suggested that “the Argentine dispute will make it much harder for indebted countries to cut their obligations to manageable levels,” since investors now have a greater incentive to demand better deals from countries in crisis. But Hung Tran suggests such worries may be overblown due to the very limited and particular nature of this dispute. In fact, the likeliest outcome is mainly an international study session. After seeing such a small economic problem threatened to cause such a large one in Argentina, countries will likely look to clean up and clarify pari passu clauses, the legal mandate for “equal treatment” in debt repayments that caused the Argentine problem in the first place.

To that end, Nobel laureate Joseph Stiglitz called for a global system of debt restructuring. Calling the hedge funds “vultures”—as the Argentine press has—Stiglitz said that the investors had no interests in the country other than to profit from its demise, and that should have consequences. Read More…

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WSJ Overhypes Story of ‘Scrambling’ over Health Exchange Uncertainty

At first glance, I thought my informal bet—that a red-state governor will soon claim he stood up to the Obama administration over the formation of health exchanges, despite knowing full well that his or her constituents wouldn’t be eligible for tax subsidies—had died a quick death.

According to a report in the Wall Street Journal:

A number of states are scrambling to show that they—not the federal government—are or will soon be operating their insurance exchanges under the 2010 health law, in light of two court decisions this week.

The efforts are aimed at ensuring that millions of consumers who get insurance through the exchanges would be able to retain their federal tax credits if courts ultimately rule against the Obama administration.

The rest of the story, however, doesn’t bear out this picture of “scrambling.” It’s true that a few of the states mentioned—Idaho, Nevada, New Mexico—have Republican governors. And while Arkansas is bona fide red state, it has a Democratic governor. So we’re not talking here about the likes of Rick Perry or Sam Brownback “scrambling” to secure tax credit eligibility on behalf of their states. That’s to be expected. If such governors were willing to forgo expanded Medicaid money, I don’t see why they’d be in a rush to protect health exchange subsidies, either.

There’s a golden political opportunity in the offing, it seems to me. The aforementioned Perry; or Louisiana’s Bobby Jindal; or New Jersey’s Chris Christie; or Ohio’s John Kasich—one or all of these potential presidential contenders could appeal to their party’s base by making a fresh case that they refused federal blackmail. At the very least, they could ensure the Gruber-gate story has legs for weeks to come.

Mind you, I’m not saying I’m prepared to believe them. (One would think the argument would already have been made at some point over the last two years.) But this whole rotten enterprise is an exercise in post hoc opportunism. This is the next logical step.

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How Long Before a Red State Gov Says He Knew It All Along?

A few more thoughts on Gruber-gate:

1. It seems the exponents of the D.C. Circuit’s ruling on Obamacare subsidies have moved from the position that the ACA passively fails to authorize tax credits through federal exchanges to the idea that it actively prohibits them. That’s pretty astonishing.

2. A second clip featuring Gruber surfaced in which the MIT economist said the same thing he did in the first video. I don’t know what more to add to my reaction to the initial revelation. It seems to me that Gruber did not “misspeak” on either occasion; he believed residents of states that hadn’t set up exchanges would miss out on subsidies until such time as the federal exchanges came online. It’s plausible, too, that he was encouraging states to cooperate with the law in order to score consulting contracts. One could see why he’d be loath to admit this now.

3. There’s another meme that’s about to be set loose: that it took “guts” for Republicans not to set up Obamacare exchanges, that is, accept the bribe of federal money. It’s only a matter of time before a Republican governor says he interpreted Obamacare in this fashion all along. Perhaps one with presidential aspirations—say, Rick Perry. I’ll take bets on who it will be, and when.

4. Finally, on substance: A couple of bloggers at law professor Jack Balkin’s website have some helpful analysis on why the Halbig case is hogwash. Of particular interest is this:

Putting aside the fact that no one thought the states wouldn’t want to run the exchanges themselves (indeed, Senators were demanding that option for their states), the exchange provisions simply do not work in the same way as Medicaid.  Unlike the ACA’s Medicaid provisions, the exchange provisions have a federal fallback:  Medicaid is use it or lose it; the exchanges are do it, or the feds step in and do it for you.  In other words, this isn’t Medicaid; it’s the Clean Air Act (CAA).  If a state decides not to create its own implementation plan under the CAA, its citizens do not lose the benefit of the federal program—the feds run it. The same goes for the ACA’s exchanges and so it would be nonsensical to deprive citizens in federal-exchange states of the subsidies.  More importantly, if we are going to compare apples to oranges, the ACA’s Medicaid provisions have an explicit provision stating that if the state declines to participate, it loses the program funds (this was the provision at issue in NFIB v. Sebelius in 2012).   The ACA’s subsidy provisions, in contrast, have no such provision, strong evidence that the subsidies were was not intended to be forfeited if the states did not participate.  If the challengers are going to insist on strict textual arguments, this is exclusio unius 101: the rule of interpretation that provides that where Congress includes a specific provision in one part of the statute but does not include an analogous provision elsewhere, that omission is assumed intentional.”

This wiki entry on the Clean Air Act seems apposite:

Although the 1990 Clean Air Act is a federal law covering the entire country, the states do much of the work to carry out the Act. The EPA has allowed the individual states to elect responsibility for compliance with and regulation of the CAA within their own borders in exchange for funding. For example, a state air pollution agency holds a hearing on a permit application by a power or chemical plant or fines a company for violating air pollution limits. However, election is not mandatory and in some cases states have chosen to not accept responsibility for enforcement of the act and force the EPA to assume those duties.

Again: I can’t believe this contest is even necessary. Sigh. Carry on.

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Jonathan Gruber and the Smoking Gun That Wasn’t

Conservative economist Scott Sumner offers up a desperately needed example of intellectual honesty on l’affaire Gruber. (For those who haven’t been keeping score at home: Some libertarians last night released a video of Obamacare “architect” Jonathan Gruber in 2012 seemingly affirming the reasoning of the D.C. Circuit Court’s ruling on the legality of offering healthcare subsidies via exchange.)

Sumner actually watched the video and noticed Gruber’s remarks were taken out of context (context: what a concept!):

That seems to suggest he agrees with the recent court ruling.  But he actually disagrees with the ruling.  Indeed he seems to regard the ruling as ludicrous.  That doesn’t look good.  Until you realize that the quote was taken out of context, and that the comments immediately preceding the quote tells a very different story: “Yes, so these health insurance exchanges . . . will be these new shopping places and they’ll be the place that people go to get their subsidies for health insurance. In the law it says if the states don’t provide them the federal backstop will. The federal government has been sort of slow in putting up its backstop in part because I think they want to sort of squeeze the states to do it.”

That seems to imply the federal backstops would provide health subsidies.  So how can we reconcile these two statements?  I believe Gruber was trying to say that the federal government was being slow in setting up the exchanges, because until they did so, those states without state exchanges would get no subsidy.  Once the federal exchanges were set up, they would all get the subsidy.

What I don’t understand is why commenters were providing me with the quote on top, but not the second quote, which provides important context.

The cherry-picking of off-the-cuff remarks isn’t the worst thing about this absurdist drama. Take a step back: Michael Cannon, the Cato mastermind, basically went on a fishing expedition to find someone with standing in the Halbig case. His lightbulb: the average citizen has standing! And now this bombshell video: the Gruber remarks were the first and so far only piece of documentary evidence I’ve seen that anyone actually believed subsidies weren’t intended to be offered via the federal exchanges. This evidence was discovered two years after the lawsuit was filed.

We already had a murder charge without a body; now we have a smoking gun with all its bullets. I’m sorry. We’re not in the realm of reasonable disagreement. The charitable explanation is that this stuff is pure unmitigated cuckoo cockamamie BS. The cynical explanation, per Sumner:

BTW, which of the following two statements represents the conservative view on the role of the courts?

A.  The courts should interpret the laws passed by the duly elected members of Congress, and should not be substituting their own views.  Original intent is what matters.  Unelected judges should not set policy.

B.  Yay!!  the courts have just gutted the ACA, which was an awful law passed by Congress.

I used to think it was A; now I wonder if it is B.

You’ll pardon me if I don’t find this behavior—this abusive legal chicanery—the least bit “conservative.”

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Obamacare vs. Dr. Evil’s Legal Eagles

Decades ago, a few friends and I were listening to Not For Kids Only, an album of Appalachian folk songs recorded for charity by Jerry Garcia and David Grisman. An older brother entered the scene, barking, “What’re you guys listening to? This stuff’s for kids!” My friend, who, it should be noted, was quite stoned, retorted, “No! It says right here—‘not’ for kids only.’ ”

I thought of my old buddy, bless his heart, when I learned of the D.C. Circuit’s ruling—its “ringing affirmation … of the rule of law,” according to the reliably florid Charles C.W. Cooke—on Obamacare’s insurance-exchange subsidies.

The right’s chortling reaction, in sum: It says right here — “Exchanges established by the State”!

I’d sincerely like to imagine that Cato’s Michael Cannon was stoned when he discovered this quirk in the text of the Affordable Care Act. But I’m afraid it’s a lot easier to imagine the pinkie ring and prideful guffawing of Mike Myers’s Dr. Evil.

I didn’t think “They’re going to make you buy broccoli next” could be topped.

Oh, was I wrong.

The two judges who comprised a majority of the D.C. Circuit panel argued that the government failed to provide evidence that the authors of the law did not intend to funnel subsidies through state exchanges only. Well, why would such evidence exist—if, as seems exceedingly likely, it never occurred to anyone that the subsidies were so structured until Cannon announced his discovery? “It was a carrot dangled in front of states, just like the promise of more Medicaid money,” the plaintiffs speculated. If so, then why the backstop of a federal exchange? What’s the point of the thing if not to convey subsidies to eligible customers? Much to the dismay of supporters of the ACA, there was no Plan B after the Supreme Court allowed states to opt out of the Medicaid expansion. And so the money remains unspent.

There’s no getting around the fact that those who drafted the law are guilty of a linguistic oversight. In a sane world, the matter would have been dispatched through a technical corrections bill, much as President Clinton and Congress ironed out a kink in U.S. Code that granted citizenship to those born abroad and one of whose parents was a U.S. citizen. Before the correction, the government granted citizenship only to those whose fathers were citizens.

But we’re not living in a sane world right now. We’re living in the world of massive resistance.

Don’t misunderstand. I’m hardly a fan of Obamacare. I’m with those who champion a cheaper and cleaner method of achieving universal coverage. I suppose it could be argued that the Halbig case is one way of getting there. But when its mastermind heads the “Anti-Universal Coverage Club,” I kind of doubt it.

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Fear and Loathing in Guantanamo Bay

The Guantanamo Bay detention center briefly reasserted its presence in the public consciousness this month with the news that a single Navy nurse refused to participate in the force-feeding of detainees on hunger strike. Quietly feted by civil liberties advocates, the story quickly slipped off the radar. The Pentagon confirmed that the nurse “has been temporarily assigned to alternate duties with no impact to medical support operations”—in other words, the torturous force feedings, instituted in 2006, will continue unabated.

Gitmo currently houses 149 inmates. Fewer than 20 detainees have been charged, and 78 are cleared for release—a status some have held for more than half a decade. About 45 prisoners are scheduled for indefinite detention, never to see a day in court.

The tepid response to the nurse’s moral stand is not surprising. Despite the fervor of outspoken antiwar protesters during the Bush years, the broader public has never cared much about the welfare of those imprisoned in Guantanamo Bay, innocent or no. Support for closing the facility peaked at 51 percent in early 2009. That high corresponded with the first inauguration of President Barack Obama, who took office trumpeting his intentions to put an end to Bush-era abuses like Guantanamo, which he labeled a betrayal of American ideals.

A year after the inauguration, the Obama administration’s now-extensive history of Gitmo excuse-making was well underway. “Political opposition” caused the President to break his promise. Temper your expectations, an anonymous White House official suggested, “The president can’t just wave a magic wand and say that Gitmo will be closed.” But of course—of course!—it’s still going to happen.

Come 2011, we found the President admitting that the facility won’t be closed in the near future. “[W]ithout Congress’s cooperation, we can’t do it,” he said. “That doesn’t mean I stop making the case.” And that narrative—the “I really want to close Guantanamo, but Congress just won’t let me!” line—has persisted ever since, typically with a heavy dose of partisan undertones. As Obama moved an issue he once called vital to the restoration of the United States’ moral authority to the backburner, public opinion followed his cue. By 2010, only 39 percent supported closing the prison. Today, just 27 percent are on board.

What’s fascinating about this unwillingness to close Guantanamo Bay as observed in government and citizens alike is the way it encapsulates the charade of modern American politics: a GOP that abandons its support for limited government out of fear, and a Democratic Party whose civil libertarianism is built more on partisan rancor than ethics.

Let’s look at the Republican opposition first—for those partisan undertones in Obama’s narrative are two-faced but not unfounded. Led by hawks like Sen. Lindsey Graham (R-S.C.), congressional Republicans have indeed worked to keep Gitmo open. Polling suggests they have the full support of their GOP constituents—no less than 81 percent want the detention center to stick around—and even Sen. Rand Paul (R-Ky.), perhaps Graham’s staunchest foreign policy opponent in the Senate, agrees with his South Carolinian colleague on this point.

But what about Gitmo meshes with the small government philosophy Republicans espouse? Each prisoner costs taxpayers $2.7 million annually, a massive failure on the fiscal responsibility front (federal prison, for comparison, spends $26,000 a year per inmate).

Even worse for conservatives should be the prison’s blatant trampling of constitutional rights. Read More…

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Toward a New Foreign Policy Consensus

demo

On June 17, The American Conservative will convene leading thinkers from across the political spectrum at George Washington University for a wide-ranging conversation about American foreign policy after the War on Terror.

The goal of the New Internationalism conference is to address America’s role in the world after Afghanistan and Iraq, and to discuss alternative visions for protecting America’s core security and economic interests in the new global framework.

The American Conservative and our co-sponsors The American Prospect and the Institute for Security and Conflict Studies at GW will build on the emerging consensus that favors prudence, the rule of law, and diplomacy. We hope you can join us!

For more information and to register, visit theamericanconservative.com/newinternationalism. The event schedule is after the jump:

Read More…

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Six Questions for Tara McKelvey on Torture

Tara McKelvey is a features writer at BBC News in Washington. She is the author of Monstering: Inside America’s Policy of Secret Interrogations and Torture in the Terror War. We asked her a few questions about the Senate torture report, Donald Rumsfeld, and her book 10 years after the Abu Ghraib scandal.

1) Have you been following the leaks from the Senate inquiry into CIA
torture of detainees’ post-9/11? What do you make of reports that the CIA lied to the government and the public about the scope and effectiveness of the torture program?

Yes. I’m not sure if I would say “lied.” I don’t think we know enough to say they’ve done that. They have kept a lot of things hidden, and people on the Hill are trying to convince them to say more.

If enough of it is declassified, what will the Senate report tell us?

Who knows. But one thing I’ve wondered about is the interrogation methods that didn’t get approved. The former top lawyer of the CIA said in his memoir, Company Man, that they vetoed one method. Given all that they did, I am wondering what they decided was beyond the pale.

2) We recently marked the ten-year anniversary of the Abu Ghraib scandal. Your goal was to get beyond the frame of the Abu Ghraib photographs, and Monstering provides an account of extreme disarray there: interpreters who weren’t tested on language proficiency, private contractors with sectarian allegiances, a prisoner to guard ratio of 75 to one, soldiers who were told that they could “do whatever they wanted” to the detainees. What was the most surprising thing you learned while reporting the book?

How hard it was to give everyone their due. There is a German writer, Friedrich Hebbel, who once said: “In a good play…. everyone is right.” But when I interviewed Lynndie England, I had to keep reminding myself to give her the benefit of the doubt. A lot of people saw her as a monster, and I didn’t want to do that. Otherwise, I kept telling myself, I would be just like the people at the prison–the ones who didn’t see the detainees as fully human. But she was difficult to talk to–and she was at the prison when terrible things happened, and, anyway, I was surprised how hard that interview was.

3) What is the legacy of the scandal today as the U.S. winds down the War on Terror?

Obama outlawed torture. But years after he promised to close Guantanamo, it is still open. There is a place on the island called Camp 7 that is off-limits to virtually everyone, including journalists. That is where the people are who were once kept in the CIA’s black sites. That is one legacy of the scandal.

4) Monstering also addresses the elite policymakers (John Yoo, et al) who contributed to a climate of systemic abuse at Abu Ghraib and elsewhere. You conclude that instead of asking “how could this happen?” the question is really “how could this not have happened?” Several soldiers involved in the scandal, including Lynndie England, were sentenced to time in prison, but so many haven’t been held accountable. What do you make of this?

That it’s not completely surprising, but it still seems wrong. Putting soldiers on trial when they have committed crimes is not a slight against the military, but unfortunately some people think of it that way.

What policy measures have been put in place (by the army if not the CIA) to prevent future abuse?

Most people in the army were horrified by the abuses. They had rules in place before the Iraq war, and they are now making sure that the rules are followed more carefully. The worst abuse was carried out not by people in the military, though, but by people who worked for the CIA. They may have done tons of things to prevent future abuse, but they haven’t really talked about it.

5) Any thoughts on Errol Morris’s new Donald Rumsfeld documentary? Read More…

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Building Conservative Prison Reform

Talk of bipartisan prison form has rallied spirits in Washington in recent weeks, and was a topic of hope at CPAC last month. Though American politics may suffer schismatic divides in many issues, maybe—just maybe—we can find agreement here.

But it’s interesting how many are framing the debate—while the left’s motivation is largely viewed as humanitarian, the right’s motives are seen as decidedly pragmatic: prisons are costing us too much. Let’s change that.

Of course we can appreciate this pragmatism, but where is the principle and conscience in our prison reform views? Do conservatives only think in dollar signs?

In a conversation with Idaho Rep. Raúl Labrador some weeks ago, he agreed that prison reform makes fiscal sense—but expanded conservative interests into the ethical sphere. He argued that as a Christian and defender of justice, our system ought not consign so many people to rotting in jail. “Because of the fear of crime,” he said, “We keep making it easier and easier for the state to take away your liberty and your freedom … we shouldn’t be throwing people in jail for long periods of time over non-violent offenses.”

Is this something other conservatives should be on-board with? Take solitary confinement, for instance: as conservatives, should we support it—and to what extent is it also deserving of reform?

A Wednesday piece by Lisa Guenther for Aeon provides some good philosophical reasons to oppose solitary confinement. She argues that, since man is (as Aristotle put it) a “social animal,” it is spiritually, emotionally, and psychologically deleterious for him to be alone. We depend on “the other” to undergird and reinforce our experience, our reality. Without that, the soul and mind are cut loose:

When we isolate a prisoner in solitary confinement, we deprive him of this network of perceptual and existential orientation. He might still have an experience of the table that is bolted in place in his cell, and he might still have the memory of what tables mean for other people. But the lived experience of these objects as both for-me and for-another is, by and large, denied to him. The ‘there’ that would otherwise anchor his experience of the world from ‘here’ has been pulled up, casting him adrift without a clear view of the horizon.

We may live in a rather individualistic society—but we never have to experience life in total solitude. “Only the prisoner in solitary confinement is forced to occupy the position of an isolated individual, and to bear the full weight of his existence alone,” writes Guenther. Traditional conservatism opposes individualism—it upholds the important and reforming nature of community. Should this principle extend to our penal system?

It depends, to some extent, on what you think prison is for. Those who believe in “locking up prisoners and throwing away the key” have a good, strong understanding of human depravity. But their belief in redemption is somewhat lacking. This is, perhaps, the largest problem I see with solitary confinement: it leaves absolutely no room for reform of the person. Instead, it turns the soul further toward its inner depravity, and keeps it locked there, away from “the other.” This may keep the individual from harming others—but it also leaves no room for the soul to grow or emerge from its inner prison.

True conservative prison reform should consider the impact such measures have on the human psyche and soul—not merely their monetary cost.


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