Ever since the “War on Terror” began over a decade ago, but especially in recent months after the release of the Senate Report on Torture in December, America and her allies have been engaged in often heated debate and soul-searching over the practice of torture. Following important discussions on the issue at this year’s Society of Christian Ethics annual meeting,Political Theology Today has invited a range of scholars in the fields of political theology and Christian Ethics to explore the issue.
The 2014 Senate Intelligence Committee Report on CIA torture contained important information unavailable to those of us without access to classified information. However, it largely confirmed what many scholars working on torture already knew. The response to the report was also predictable. Once again, we debated whether torture “works.” Once again, we talked about whether those responsible for torture should face prosecution. Once again, journalists and ethicists trotted out ingenious “ticking bomb” scenarios. Sadly, few people used the release of the Senate report as an opportunity to look inward at domestic policy, and to consider the torture that occurs in our jails and prisons. I think this is particularly true of those who talk about torture and the state of exception (a concept emphasized by the Nazi legal scholar Carl Schmitt and developed by Giorgio Agamben). They hold that after September 11th, we entered a new era that normalized exceptions to laws prohibiting torture. This approach ignores the history of U.S. penal institutions. Rather than occurring as an exception to legal norms, torture in jails and prison often received legal sanction. Today, it occurs in an environment of both law and absolute authority. We cannot understand this complex situation with superficial arguments about states of exception.
Too often, scholars enamored with Foucault’s work assert that physical torture waned with modernity. However, this is an uninformed understanding of penal history. From their inception, U.S. jails and prisons frequently tortured inmates. In the first few decades of the 19th century, prisons were supposed to be an improvement over previous forms of confinement. Prison reformers announced that they were instituting a humane alternative to the barbarism of earlier generations. However, prisons almost immediately began torturing inmates. For example, at the famous Auburn prison in New York State, inmates were put in solitary confinement at night and forced to work silently in groups during the day. To enforce silence, officers savagely beat inmates. Auburn became the model for dozens of other U.S. prisons. Similarly, the Sing Sing prison outside of New York City was built by inmates who toiled for hours with only minimal food. Corrections officers repeatedly lashed them out of fear that they would rebel. Facing mounting public opposition to the use of the whip, Sing Sing and Auburn emphasized other more “humane” means of enforcing discipline. But too often, these proved to be disguised forms of torture. For example, in the 1850s, an African-American inmate at Auburn died after being put in the “shower bath.” This perverse device immobilized inmates, and then dumped water (sometimes freezing) onto their faces. These and other forms of torture routinely appeared in penal institutions in the first half of the nineteenth century.
In 1865, the U.S. formally adopted the 13th amendment abolishing slavery, but made an exception for prison inmates (this exception remains in the Constitution). Prisoners were considered “slaves of the state” well into the 20th century. Wardens and sheriffs often claimed license to treat them in whatever way they pleased. For example, for decades after the Civil War, Southern states adopted the convict-lease system. Tens of thousands of people, mostly African-Americans, were arrested by local sheriffs (often on trumped charges of vagrancy), and sold to business owners. They labored in horrific conditions in mines, mills and forests, and were often tortured in numerous ways. In the Jim Crow South, the convict-lease system was legally-sanctioned and many people thought it was an appropriate way to control African-Americans. Likewise, in jails and prisons throughout the South, inmates were subjected to excessive heat and cold, beatings, water torture and bizarre torture devices (for a depressing catalogue of these forms of torture, I recommend Darius Rejali’s monumental work, Torture and Democracy. Robert Perkinson also discusses torture in Texas in his wonderful book, Texas Tough: The Rise of America’s Prison Empire).
Perhaps we might think that progressive Americans gave up on such barbarity in the 20th century. Or, maybe we might be tempted to adopt the comfortable fantasy that only evil Southern sheriffs tortured people. However, jails and prisons all over the United States tortured inmates in the last century. Savage beatings, scalding, and forced injections of Thorazine occurred in Northern, Western and Midwestern jails and prisons. As our prison population grew in 1980s and 1990s, juvenile facilities in particular became sites of horrific violence. Confronting massive overcrowding and inmate unrest, authorities often resorted to brutality to compel obedience. In the Cook County Jail in Chicago in the 1990s, women entering the jail were stripped naked, and herded into large groups for humiliating body cavity searches (thousands of women underwent this degradation before a federal lawsuit ended it). The women were grouped so tightly that they touched each other. Correction officers would often make derisive comments about their bodies, and would sometimes bring in dogs to bark and snap at them.
In our current century, torture continues to occur in some institutions. For example, in the early 2000s, a jail in Ohio tortured inmates with Tasers. People who showed the slightest sign of disobedience were reportedly stripped naked and blasted with continuous jolts of electricity designed for “pain compliance.” Thousands of inmates in the Los Angeles County Jail were terrorized by organized gangs of corrections officers who brutally beat and sexually humiliated them. Officials knew about this abuse for years and journalists wrote about it, but until recently little changed at the jail. In the last few years, adolescents have been physically assaulted at New York City’s Rikers Island. In jails in Miami and Dallas, helpless inmates are often sprayed with chemical agents to force them into submission. Last year in a Florida prison, a mentally-ill man was deliberately put in a scalding shower and died. Officers mocked him as he screamed in agony. An inmate talked about cleaning up pieces of his skin in the shower. A subsequent investigation found a pattern of disciplining inmates with scalding water.
In light of these horrors, I find the state of exception approach to torture to be simplistic and ahistorical. Undoubtedly, the “torture memos,” the Patriot Act and other developments in the Bush and Obama eras represent a shocking and unethical assertion and institutionalization of sovereign power. However, these developments come as little surprise to those who know about what happens in jails and prisons. Inmates have often lived in environments where the sovereign seems to exert unlimited power. American adolescents in particular can find themselves handed over to violent sexual predators working in penal institutions. In such situations, challenging abusive authority is very difficult, and those willing to do so face many bureaucratic and legal hurdles. They can also suffer retaliations ranging from lose of privileges to beatings. For many inmates, submission seems like their only viable option.
Yet, today’s jails and prison don’t operate in a pure zone of the state of exception (this was also true of many in the past). Some institutions control staff violence with clear use of force policies. Some compassionate wardens and corrections officers treat inmates with dignity. Legal interventions can help individuals subjected to torture. Federal investigations and indictments, investigative journalism and grass-roots efforts protect people from torture. Organizations like the American Civil Liberties Union initiate lawsuits against abusive institutions. At considerable risk to their lives and safety, brave inmates bring forward allegations of torture. Hard-working public interest lawyers expose torture, and force institutions to make positive change. There is no reason to believe that torture operates in state of exception so outside the law that we cannot reduce its use. Such theories insults those who have and continue to oppose torture in both its domestic and international manifestations.
The state of exception discussion of torture also enables scholars to avoid asking uncomfortable questions about our history and practices. For example, why are African-Americans continually subjected to torture in penal institutions? What is it about American culture and politics that leads us to frequently torture those in captivity? Why do we have an official creed committed to human rights, but routinely and openly assault human dignity in jails and prisons? How are domestic torture and torture overseas connected? How can we help hundreds of thousands of mentally-ill inmates, many of whom are abused by staff and other inmates?
These questions rarely appear in the work of those analyzing torture through the lens of a state of exception. Instead, these scholars operate a level of abstraction that ignores U.S. history and contemporary punishment. After September 11th, the United States didn’t suddenly enact entirely new torture policies and radically depart from American practices (an assertion found in countless essays on torture and September 11th). Instead, the Senate report revealed variations on practices that have existed in U.S. history stretching back centuries. In some cases, U.S. torturers operated in a state of exception, but in others they received legal sanction. Today, torture occurs in a complex milieu that mixes law and untrammeled exercises of power. Most Americans will never confront the possibility that they will be tortured, but this is hardly true for many who are poor, mentally-ill or in some way marginalized from society. To understand and alleviate their plight, we receive no guidance from those adopting the work of Agamben and Schmidt to talk about states of exception. Perhaps it’s time to abandon such uninformed and one-dimensional approaches to torture.
 See W.D. Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796-1848. Cornell: Cornell University Press, 1965.
 Darius Rejali, Torture and Democracy. Princeton: Princeton University Press, 2009: 285-286.
 David Oshinsky, Worse Than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice. Princeton: Princeton University Press, 1997.
 “Strip Searching Women in Jail,” The Chicago Tribune, April 8, 2001, available at http://articles.chicagotribune.com/2001-04-08/news/0104080149_1_searches-sheahan-cook-county-jail.
 See the Department of Justice’s official investigation, available at http://www.justice.gov/crt/about/spl/documents/franklin_complaint_11-8-10.pdf.
 See the ACLU’s report, “Cruel and Usual Punishment: How a Savage Gang of Deputies Controls LA County Jails,” September, 2011, available at http://www.aclu.org/files/assets/78162_aclu_jails_r2_lr.pdf.
 See the Department of Justice’s official investigation, available at http://www.justice.gov/usao/nys/pressreleases/August14/RikersReportPR/SDNY%20Rikers%20Report.pdf. The New York Times has also extensively covered abuses and deaths at Rikers Island. For a recent article see “Even as many eyes watch, brutality at Rikers persists,” New York Times, February 21, 2015.
 The Miami-Herald did an award-winning series on the torture deaths in Florida prisons. The entire series is available at http://www.miamiherald.com/news/state/florida/article2498455.html.
The image at the top of this article is a photo from Alcatraz Prison. The photo was taken by Krystian Olszanski and is available through a Creative Commons license.
Derek S. Jeffreys is Professor of Humanistic Studies and Religion at the University of Wisconsin, Green Bay. He is author of Spirituality and the Ethics of Torture (Palgrave Macmillan, 2008) and Spirituality in Dark Places: The Ethics of Solitary Confinement (Palgrave Macmillan, 2013). He is currently writing a book on dignity and stigma in U.S. jails. He also give philosophy and religion lectures to inmates in a maximum security prison and a county jail.