The New York State Assembly will soon vote on Assembly Bill No. 9939, which would establish independent oversight of NY’s prisons. Prof. Michael B. Mushlin drafted a letter in support of the Bill, which he sent to the Speaker Heastie on June 7, 2016.
The purpose of the 2015 Assembly Bill No. 9939 is summarized as follows:
[This Bill] creates the office of the correctional ombudsman to achieve transparency, fairness, impartiality, and accountability in New York state correctional facilities; relates to reports by coroners; designates investigators of the office of the correctional ombudsman as peace officers; authorizes the attorney general to investigate the alleged commission of any criminal offense committed by an employee of the department of corrections and community supervision in connection with his or her official duties; relates to the confidentiality of certain records; and includes the office of the correctional ombudsman records within the definition of public safety agency records; makes related provisions.
Prof. Mushlin concludes his letter with a quote from the U.S. Supreme Court Justice Anthony Kennedy from his 2003 speech to the American Bar Association:
It is no defense if our current prison syste is more the product of neglect than of purpose. Out of sight, out of mind is an unacceptable excuse for a prison system that incarcerates over two million human beings in the United States.
We are very excited to feature Prof. Michael B. Mushlin’s latest law review article in which he compares Kafka’s fictitious world of punishment to the current state of solitary confinement in the United States. Prof. Mushlin has extensive experience in the field of prisoner’s rights work and specific issues such as solitary confinement.
POST WRITTEN BY: Erica Danielsen (’16), J.D. Pace Law School
Franz Kafka lived in the Austria-Hungarian empire, in what is now Czech Republic, and wrote fiction stories in German during the 20th century. In 1914 Kafka wrote In the Penal Colony, a story describing a torture and execution device used in a mythical prison’s operation system. The machine would carve the sentence of a condemned prisoner on his skin before killing him over the course of twelve hours. The use of this machine only came to an end when a “Traveler,” an outsider invited to the penal colony, condemned its use by expressing, “I am opposed to this procedure.” Without the Traveler having been allowed to enter and observe what occurred in the penal colony no change to the system would have taken place.
For the 100th Anniversary of Kafka’s work, Prof. Muslin wrote, “I Am Opposed To This Procedure:” How Kafka’s In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons. The article, which is published in the Oregon Law Review, compares the use of the penal colony’s machine to the current use of solitary confinement in American prisons. Both the penal colony’s machine and solitary confinement inflict great psychological and physical pain on the people subjected to it. Additionally, both are seen as essential to the operation of the prison system yet neither would see change without an outside perspective into its use.
This article first recounts Kafka’s story In the Penal Colony and describes how Kafka’s professional life as an attorney might have influenced his story. It then provides a description of the American prison system focusing on two important aspects: the massive use of solitary confinement and the lack of meaningful oversight. The article is then brought together with a discussion of how Kafka’s profound insights, so powerfully set out in In the Penal Colony, can help society today understand why prison doors must be opened to outside scrutiny and why the rampant use of solitary confinement in the United States must end just as the penal colony’s machine was put to an end.