"The Obsolescence of Prison" by Fernando Picó

Last July, in the middle of the ongoing Covid-19 pandemic, forty incarcerated individuals were transferred from several prisons in the U.S. to the Metropolitan Detention Center in Guaynabo. No one on the island had ordered the transfer, nor understood the reason behind it. Puerto Rican authorities complained that the U.S. Justice Department had gone over the head of the island’s federal tribunal, endangering the lives of the broader incarcerated population. Soon after, six of the arrivals tested positive for the virus.

Over the last two decades, transfers of incarcerated people to private prisons in the U.S. have become increasingly common under the guise of “convenience”––a horrid amalgam of capital and colonial interests. Although politicians have striven to convince us that everyone benefits from these reshufflings (the prisoners will face less overcrowding, they say; think of the upscale facilities), their self-interest is grossly apparent. They’ve kowtowed to the Fiscal Control Board’s demands for budget cuts and looked for a way to pass the buck. They’ve created a pipeline between defunded penal institutions and money-saving private prisons. In 2018, for example, less than a year after Hurricane María, the Puerto Rican government announced that it would move 3,200 incarcerated individuals to private prisons in various U.S. states. People would be moved on a “volunteer-basis,” the Corrections Secretary assured, but it quickly became clear that the Corrections Department had a quota to fill, and $395 million to slash from their operating budget over the next five years. The company with which the Puerto Rican government signed a contract to carry out these transfers, CoreCivic, had a terrible human rights record, a fact that was quietly disregarded. Family members worried that their daughters and brothers would be coerced to move to prisons where no one spoke Spanish, where they’d receive no visitors, no support. At that moment, in an island whose institutions had been ravaged by natural disaster and preyed on by Wall Street vultures, the colonial state found new ways to extract value from the island’s penal institutions and the men and women enclosed within them. During the pandemic, it found another––the mysterious transfer of incarcerated individuals infected with Covid-19 turned the Guaynabo prison into a de facto isolation center. Whether this was the intention of the U.S. Department of Justice is beside the point; no one else benefitted from the “convenience” of the maneuver.

Austerity dictates violence and disguises it as common sense, effectively anaesthetizing our ability to imagine a different future. At times like this, it is all the more important to turn to the work of Fernando Picó and pay attention to the forms of repair he envisions. Born in Santurce in 1941, Picó obtained a bachelor’s degree in History from Springfield College before entering the Saint Andrew-on-Hudson seminary in New York. He went on to obtain a master’s degree from Fordham University and a doctorate from Johns Hopkins University. In 1971, he was ordained a Jesuit priest and returned to the island, where he taught at the Department of History at the University of Puerto Rico, Río Piedras campus until his death in 2017. He was known, and still is, as both a leading authority on Puerto Rican history and a committed prison abolitionist. In 1990, he founded the first prison education program on the island, offering university courses to incarcerated individuals at a correctional facility in Bayamón. Four years later, he published a monograph titled El día menos pensado: Historia de los presidiarios en Puerto Rico (1793-1993) [The Day You Least Expect: The History of Puerto Rican Prisoners (1793-1993)], which narrated the history of Puerto Rican prisons as a history of class conflict. In its concluding pages, he writes: “Prison doesn’t dissuade or rehabilitate, and the punishment it imposes is cruel and inhumane. Instead of solving social issues, prison only complicates them … abolishing prisons should be a public priority.” In 1999, Picó followed up the book with this essay, titled “La caducidad de la cárcel.” Displacing the commonsensical understanding of prisons as centers of rehabilitation, he had realized, would require a massive project of reeducation that touched all levels of Puerto Rican society.

In her article “Puerto Rico, Colonialism, and the U.S. Carceral State,” the scholar Marisol LeBrón explains that there has been reluctance to include Puerto Rico, Hawaii, Guam, and Indian Country in the historiography of the U.S. penal institutions. It’s essential to correct this omission, she writes, because “Puerto Rico and other colonized sites highlight the ways in which the carceral state has always been a colonial project.” This is also Picó’s starting point­­ in “La caducidad de la cárcel,” which I’ve translated as “The Obsolescence of Prison”––the mutual imbrication he brings to light in order to begin the process of denaturalizing the prison complex. Throughout the history of Puerto Rico, he asserts, no iteration of the colonial state has been able to control and regulate the entirety of the island’s population. The state’s legitimacy has been questioned and disregarded since the Spanish arrived, and throughout centuries of parallel economies, illegal settlements, organic authorities, and a growing surplus population rendered unproductive, it has resorted to subjugation, captivity, and enclosure. Not only have these strategies continued to reproduce the same grave economic disparities and social ills, but they’ve also served to repress any movement that would look beyond moralizing civic campaigns for a solution to them. As Picó contends, when Puerto Rico was tossed into American hands at the end of the 1898 Spanish-American War, the new colonial government saw no need to alter the shape or tactics of the carceral state. It simply expanded its punitive reach when other threats to its hegemony––the Puerto Rican Nationalist Party, the Fuerzas Armadas de Liberación Nacional (FALN), etc.––were identified. Colonial and carceral logics have thus historically shaped the form and reach of the state in Puerto Rico. In bridging the tactics of past military governments and those of the current neoliberal administration, Picó shows how the expansion of prisons, and the continuation of its colonial military imaginary, is “a geographical solution to social-economic problems,” to quote the abolitionist and prison scholar Ruth Wilson Gilmore.

An abolitionist approach to decarceration needs to envision, as Angela Davis has written, “a continuum of alternatives to imprisonment––demilitarization of schools, revitalization of education at all levels, a health system that provides free physical and mental care to all, and a justice system based on reparation and reconciliation rather than retribution and vengeance.” It is within this continuum that Picó locates the utopian sketch that concludes this essay. Caducidad is the indictment Picó tacks onto the walls of indefensible colonial institutions that have failed to carry out their constitutive mission––rehabilitation. Caducidad, a word I’ve chosen to translate as obsolescence for two reasons. Firstly, because obsolescence carries over the meaning of something that has exhausted its purpose, outlived its need; secondly, because I hope the choice of word makes it evident that, four years prior to the publication of Angela Davis’s Are Prisons Obsolete?, Picó was already in stalwart agreement with the answer she provides to the question.

The Obsolescence of Prison

by Fernando Picó | Original version “La caducidad de la cárcel” in this link.

There’s been frequent talk of a crisis of values in Puerto Rican society; no better rehearsed argument than invoking this so-called crisis of values. It’s been referred to as a crisis of the family, characterized as a lack of spirituality, as materialism, an identity crisis, and a crisis of emotional intelligence. National public policy has been implemented in the name of this crisis; the energies and efforts of churches and civic groups have been directed toward filling in perceived social vacuums; an enormous amount of money has been spent in saying no to drugs, in affirming that children are our priority, in promoting safety, family cohesion, respect, order, and the love of school. Compressing the complex skein of our social conflicts into the shorthand of a crisis of values has allowed the nation’s resources to be mobilized toward solving problems of spiritual attitude––not toward amending a lack of justice, equity, and equal opportunities.

The promotion of this crisis of values has concealed the true agenda of those in power: to respond to a crisis of control. In Puerto Rico, the state has never managed to encompass its territory. From its centric position on the port of San Juan, the sixteenth, seventeenth, and eighteenth century governments were unable to curb contraband, illegal immigration, informal settlements, and the autarkic creoles scattered over valleys and mountains. When the Spanish governors tried to impose state regulations in the nineteenth century, they realized the new chiefs of the commercial export agriculture were obstructing their authority. The lives of slaves, sharecroppers, day laborers, and small farmers were effectively controlled by merchants, yeoman, and local personalities who commanded the loyalty and obedience of their neighbors.

This system was thrown into crisis with the American invasion of 1898. The seditious tiznados’[1] subsequent attacks on the Spanish and Creole trading houses and estates exposed the magnitude of the old controls, as well as the degree of resistance and resentment they provoked. The new North American military government, however, would reimpose local controls by establishing military patrols and providing aid to landowners after Hurricane San Ciriaco in 1899.

Gradually, the North American regime in Puerto Rico began replacing local controls with government agencies. Schools, in particular, started to leave their mark on the different municipalities. After the Second World War, the accelerated pace of social and economic change, combined with massive waves of migration to the United States and urban centers of the island, as well as the constant presence of radio and television, hastened the dissolution of the old local controls. New generations breathed in an atmosphere of opportunity and equality. Puerto Rico’s “peaceful revolution” displaced the former chiefs from their privileged positions without taking or destroying those seats of honor; it simply fostered better alternatives. Over the last three decades, the vestiges of this imaginary world of influence and power have faded away. Nowadays, no one removes their hat out of respect when facing a landowner; for starters, hats are no longer worn, and anyone who insists on being called a landowner is considered eccentric. Priests don’t decide what movie will be shown in the town cinema on Sunday mornings; town cinemas have disappeared, and everyone watches rented movies whenever they please. Credit lending isn’t controlled by just a handful of financial backers, and private employment doesn’t result from the recommendation of the town commissioner. The elderly don’t have a monopoly on practical knowledge, nor do the town casinos dominate social life.

The disappearance and waning of old social controls during the last three decades did not, however, allow the state’s regulatory scope to expand. Free from the vigilance and paternalism of former controls, new generations responded to different imaginaries and developed their own forms of life on the basis of experiences, images, and traditions distinct from those of the displaced local elites. Drug culture has been central to these alternative forms of life. It has defied the state’s resources, as well as the religious and social codes of the past, to assert itself as a serious challenge to the traditional social order.

The state hasn’t been able to take over all of the traditional social controls, nor has it managed to prevent the emergence and strengthening of parallel economies, popular regulations, and the systematic ignorance of its laws. Powerless in the face of drug distribution points, the state can only do one thing: imprison everyone involved in them, from dealers to hit men to messengers and collaborators. The raid happens in the morning, and already by the afternoon the point has been taken over by the cousins and younger brothers of the detained, often working in order to raise enough money to post bail. The state’s fight to impose regulations has led to the incarceration of tens of thousands of Puerto Ricans whose family and neighborly ties are stronger than the state’s claims for the validity of its decrees.

It’s for that reason that the mouthpieces of the state and its privileged sectors speak of a crisis of values, when really they’re reacting to a crisis of control. They speak of a crisis of values, but all of the measures they take serve to foist new and better controls on a population that insists on ignoring their authority. The governors’ actions belie their speeches: the real fight is not over the minds and hearts of the youth, but over their bodies and their freedom of movement. Enclosed schools, housing developments encircled by wire, gated communities, curfews, closing hours, public spaces that are pictured on postage stamps but whose use is limited or restricted, fear-mongering advertisements, and control over people’s movement; everywhere, suffocated imaginations, the anticipation of prison.

Our governments have been eager to imprison, “to put criminals out of circulation,” but what happens after the sentencings? What does prison––so highly invoked by legislators and civic leaders––consist of? What is the rehabilitation project our constitution fosters? That, no one wants to talk about. Disregarded by public opinion, prisons have become increasingly degrading and vile. They bear all of the weight of the past, express all of the grievances of the present, but don’t even manage to stammer a vision of utopia.

The Weight of the Past

Penal institutions in Puerto Rico still retain many features from prisons under Spanish rule. In the eighteenth century, legal authorities from Spain and New Spain (Mexico) would send men convicted of smuggling, property crimes, and insurrection to do forced work on Puerto Rican fortresses. The penitentiary regime was military. Its head was an official from the Spanish army, and the lower ranks were populated by convicts (usually Spanish as well), appointed cabos de vara[2] (for work on the grounds), and cabos de cuartel (for tasks inside the dormitories).

Even though a relatively small number of Spanish soldiers were part of the administration of the Puerto Rican penitentiary, two centuries of their hegemony left a military mark on the institution. These military features were barely touched under North American management, and they persist to this day among the security personnel of the Corrections Administration. Custody officers insist on calling everyone else who works in Corrections “civilians,” as if they were in the military. This opposition means that the civilian personnel always feel belittled and demeaned. It’s time to do away with the military imaginary of our correctional institutions, to stop speaking of “commanders,” “captains,” “lieutenants,” and “sergeants.” It’s time to eradicate this military past and begin talking about the employees of the Corrections Administration in the same way we talk about the employees of the Treasury Department or the Justice Department. We don’t expect Treasury Department employees to hold military ranks as they did back when captain generals were governors. The imaginary of a military structure in Corrections has only served to foster forms of arbitrary behavior and abuse that are inconsistent with the administration’s pertinent security functions.

Many prisoners who served sentences at different times in our history were considered rebels and subversives, either by the Spanish or North American government, and so our penal institutions retain––consciously or unconsciously––an attitude of ideological surveillance. The custodial staff regularly prohibits or destroys newspapers, magazines, and books they deem illicit, be it because they promote socialism, Puerto Rican independence, or whichever ideology the officer of the day deems objectionable. Needless to say, materials promoting statehood, established religions, and the prevailing economic system are not subject to the same scrutiny. I have often seen university books mutilated, tossed around, and trampled as the result of the whims of some custodial worker during a routine inspection. In those moments I can’t help but think: what kind of institutional order is being upheld when literary classics are trampled and thrown on the ground?

But if books were the only thing trampled in these institutions, perhaps the weight of the military past wouldn’t seem so difficult to dislodge. Prisoners are routinely subjected to terrible beatings and clubbings. In the first half of the nineteenth century, it was still common practice in the Puerto Rican penitentiary to whip slaves convicted of grave offenses, as well as recaptured prisoners who had attempted to flee. Although these practices were later outlawed, today’s guards continue to pummel and incapacitate prisoners out of spite. The courts and administrators have been lax when it comes to putting an end to these abuses. As soon as one case of sadism is exposed in court, another emerges in a different prison. Countless hurdles are placed in the way of whoever wishes to denounce these acts of violence, and Corrections personnel are intimidated when they attempt to inform the authorities about particular incidents. Convenient transfers, conciliatory words, misplaced files––this doesn’t happen, these are isolated incidents, there’s a program to educate the guards, and since judges find it cumbersome to visit the prisons (like the judges of the Royal Audience did 150 years ago), and since prosecutors are overworked, all that’s left to do is put ourselves in God’s hands.

From the moment a prisoner walks into jail, the only message he hears is that they’re worthless. It’s even a saying among the guards: “Prisoners are worthless.” Our secular inheritance debases human beings simply because a court has sequestered them in prison, regardless of whether they’ve been judged or sentenced or not, and this weighs on the popular imagination; it makes itself manifest in newspaper cartoons and in the attitudes of the employees of an agency supposedly charged with the constitutional task of rehabilitation. There’s no presumption of innocence for the detained. The guard condemns him before the judge.

If we’ve inherited practices and ways of thinking that diminish the dignity of prisoners, we’ve also received positive elements from the past­­––the result of notable efforts to strengthen the possibility of social reintegration. Since the time of Spanish rule there have been educational programs, chaplains, and medical treatment available for prisoners, but each one of these areas needs to be radically transformed before being able to fully carry out its purpose.

During the North American regime, the penitentiary was put under the supervision of a Board of Prisons, but the municipal jails remained under the care of the town councils. District jails were built, and probation programs were established over the next few years. In 1933, the new Puerto Rican Penitentiary was inaugurated outside Río Piedras, and many expressed great hopes for the agenda of rehabilitation with which it had been tasked. In the 40s, penal camps, beginning with the one in Guavate, similarly reflected the government’s intention to productively reintegrate prisoners into society. It was during this wave of commitments to the empowerment of prisoners that a new clause was added to the 1952 constitution––it stipulated that rehabilitation was the principal goal of Puerto Rican prisons.

But although the encouraging language of social reformists continued to uphold the slogan of rehabilitation, the reality of the nation’s prisons belied the great hopes that had been placed in its educational and therapeutic programs. These never benefitted from the financial and administrative support needed to accomplish its functions. During the 1960s, the number of prisoners gradually began to climb as drug culture was criminalized, and more and more young people were sent to penal institutions. Overcrowding became a severe issue, and finally, the crisis in the old Cárcel de la Princesa in San Juan alerted the public to the fact that there was a grave problem at the root of Puerto Rican penal institutions.

The Grievances of the Present

As is often is case, the problem confronting the future course of these institutions was defined as administrative. It was assumed that as long as prisons remained under the jurisdiction of the Justice Department, they wouldn’t receive enough attention or be prioritized by the government. It would be best if an independent agency supervised the construction of new prisons. In 1974, the Corrections Administration was established––it was tasked with a mission whose accomplishment would have required much more than the budget of the next few years allowed.

This new agency lived its first years of life in isolation and destitution, conditions that were soon reflected by the accumulation of problems in the prisons. Frustration mounted. Not only did the Morales Feliciano case[3] appear in the federal forum as a response to this sense of deadlock, but prisoners also formed an association in order to ensure a modicum of coexistence and dignity­­––the state’s inability to guarantee their safety led them to organize. These organizations anticipated by over a decade the neighborhood associations that closed their streets to outside traffic in response to governmental negligence.

In the face of the Puerto Rican government’s lack of interest in dealing with the problem of overcrowding, the lack of leisure, health and security issues, and total neglect in the prisons, the federal court intervened with force. The result of this intervention was the rapid construction of new jails.

But at the same time that these new jails were built, the development of new programs of study, learning, and counseling­­––programs that responded to the call to rehabilitation­­––lagged behind. What’s more, no additional staff was being hired to work in the new institutions. The subsequent unrest led the government to experiment with giving contracts to private North American prisons seemingly equipped with the experience and resources to implement study and work programs, as well as recreational activities, for the confined. The Department of Corrections and Rehabilitation was also created with the purpose of overseeing all of the different agencies tending to the population that had committed acts of harm.

This is the present situation: a penal system populated by some fourteen thousand people held in both public and private prisons––an astounding although imprecise number comprising prisoners in pre-trail diversion programs, in probation, on parole, and over a thousand minors in juvenile detention centers. We have one of the highest incarceration rates in the world, surpassing even that of some U.S. states. We are all unsatisfied with the fruit of so many efforts and the waste of so many resources. The general perception is that prisoners aren’t rehabilitated by these institutions, that they don’t find jobs when they leave them, and that they repeat the harmful behaviors that resulted in incarceration. How we define the problem is crucial––much of the future of our incarcerated population depends on it.

If we define it merely as an administrative issue, then the solutions will be administrative. If we frame it as a problem of control, we’ll be left with rows of bars, shackles, mechanical doors, glass walls for visitors, daily searches, and increased suffering for the prisoners. The answer to our carceral crisis will depend on the prism through which we view it.

An Alternative Future

It is essential for the main problem to be defined and for the effort not to be wasted on meaningless reforms and adjustments that polish the institutional façade but leave the central issue intact. Isn’t prison itself––and the unrevised penal philosophy behind it–– the main problem? We need to reconsider the totality of the carceral enterprise. We have to seriously question whether prison hasn’t become an obsolete institution that, far from being the solution to criminality, is at the root of the problem. Today’s prison reminds us of French hospitals prior to Pasteur’s bacterial discoveries. Instead of being places of healing, they were the centers of infection and epidemics.

What is incarceration intended to do? Deter crime? It seems to have been a poor deterrent in areas that suffer the worst harm: homicides, aggression, domestic violence. If incarceration is meant as punishment, who is punished the worst: the repeat offender or the first offender, the incarcerated or their family? How much of what we call punishment in our prisons can’t be characterized as cruel and inhumane? Are violence and beatings, taunts and insults to human dignity, acceptable forms of punishment in our society? And if we tolerate these indignities, aren’t we accomplices to crass violations of human rights? Can we prevent these violations while penal institutions remain unchanged?

If the principal task of prison is to rehabilitate, as the Puerto Rican Constitution of 1952 asserts, what does that word mean? Dictionaries tell us that rehabilitation means the restoration of a thing or person to its former state. In that case, what is the former state to which we want to return prisoners? Do we want them to return to the street in the same conditions they found themselves before committing a crime? Do we want to return someone who left school in the seventh grade to their previous state of unemployment? Is this what we call rehabilitation? There’s nothing more deceitful than metaphorical language. We’ve been using the word rehabilitation metaphorically all these years without truly understanding its implications. The French prefer the word resocialization, but even then people object to the idea that the individuals we seek to reintegrate into the social fabric were ever really socialized.

If the consensus is that the rehabilitation of prisoners involves finding a way to ensure that they can live in dignity and contribute to society, we take a step forward. But how can we fulfill this purpose? Is rehabilitation a passive process to which the prisoner submits, or is it an active one, a process that requires his participation and engagement? If the latter, what programs and treatments best promote this notion of rehabilitation?

In order to avoid getting caught in this field of questions, allow me to outline a utopian vision of what a public institution devoted to the enfranchisement and education of citizens who’ve committed crimes could look like.

Toward a Community of Learning

Think of an educational institution of the highest caliber, equipped with appropriate security measures. The person who has erred and has been ordered by the courts to carry out a sentence arrives at this institution after having been evaluated not only by doctors and psychologists, but also by educators and social workers. They have fully identified their needs and recommend an agenda of tasks to be fulfilled, as well as goals to be accomplished by the end of the sentence. There’s a counselor assigned to assess and guide each person as they complete their agenda and return to society. This agenda allows the person to join a community of learning where peers play a role in the process of acquiring the knowledge and social skills considered necessary for their reintegration to the social world. 

At this educational institution, the entire day is orientated toward learning, and its different constitutive sections coordinate with and consult each other in order to guarantee the flow of activities.

After breakfast, residents head to classes, workshops, therapy sessions, computer rooms, laboratories, and other quarters. In the span of a day, they receive lessons adapted to their needs and interests from competent professionals. The resident participates in and contributes to class, learns languages, works with computers, consults books and audiovisual materials in the library, gives presentations during counseling sessions, prepares different projects, develops skills in workshops, participates in a theater group, paints, draws, plays music, does crafts, belongs to a peer group working on a publication, an exhibition, or a performance, takes on the responsibilities assigned to them in the kitchen or the class room, has the option to attend a religious service or practice sports, meets weekly with their counselor and sees their family on a regular basis. In the agenda they’ve put together with their counselor, they jot down the goals they’ve accomplished and detail the steps they must take to accomplish the rest.

They meet yearly with an external adviser to evaluate their progress and plan their future. They’ve obtained a certificate in a trade or profession, or a university degree. They’ve earned enough money to support their family, they’ve managed to overcome certain social obstacles, they’ve received successful medical treatment. The adviser goes over their achievements, enquires about the difficulties they’ve faced, discusses identified problems, proposes new goals and strategies, confers with both resident and counselor about what next year’s agenda should be. That agenda notes in detail the weekends they’ll spend with their family and any goals to be accomplished during those outings. It also keeps track of community service activities like debris removal after natural disasters, visits to nursing homes and hospitals, and other endeavors.

At this educational institution, perceived problems are resolved through conversations between the residents and the people responsible for running it. There are few security employees, and their presence is discrete. Most of the individuals assigned to this role have received training and have been employed in other tasks––as tutors, mediators, trainers, therapists, paramedics, activities moderators, librarians, and secretaries.

Manifestations of antisocial behaviors are discussed by peers during counseling sessions. Grave infractions are quickly and fairly penalized by an evaluating committee that considers not only the fault but also proposes the sanction and oversees its execution.

The primary focus is given to the agenda of reinsertion into society. The resident, accompanied by their counselor, visits the community, meets with neighbors, makes employment and housing arrangements, renews their driver’s license and any other relevant documents before finally returning home. By the time our utopia has come into existence, courts have already decreed it unconstitutional to ask formerly incarcerated individuals to provide a certificate of good behavior in order to obtain a job or exercise a profession. During the first three months after their client has returned home, the counselor follows up with their case so as to orient and guide them to public or private agencies that could resourcefully help them solve any issue.

This may all seem utopian, but it isn’t so removed from the norm so as to entail a total rupture with the present. It does, however, involve a radical change in the mentality of people tending to the needs of prisoners. What this utopia envisions is that rehabilitation and correctional institutions be fully devoted to the task of promoting the education, health, and sociability of its residents. Wouldn’t it be possible to test out this model in an institution with a small population? Does the only alternative we can think of involve the use of fists, sticks, bars, and humiliation? Why not practice the utopian and abandon the sadistic?

 References

[1] Armed groups of rural workers who raided, looted, and burned Spanish plantations and properties.

[2] Prisoners elected on the grounds of their good behavior to lead a squadron of other prisoners as they carry out manual tasks.

[3] Class action lawsuit filed in 1979 claiming that the conditions of incarceration provided by the state violated prisoners’ constitutional rights.