Justifying Prison Breaks as Civil Disobedience
Abstract: I argue that given the persistent injustice present within the Prison Industrial Complex in the United States, many incarcerated individuals would be justified in attempting to escape on the grounds of civil disobedience. I begin by critiquing the classical liberal conception of civil disobedience envisioned by John Rawls. Contrary to Rawls, I argue that acts of civil disobedience can involve both violence and evasion of punishment, both of which are necessary components of prison breaks. I then outline the broad circumstances in which escape attempts would qualify as civil disobedience, which are when individuals have either been incarcerated on unjust grounds (such as coercive plea bargains, draconian laws, or institutionalized discrimination) or when individuals are subject to inhumane conditions within prison (such as physical or sexual abuse, inadequate medical care, and overcrowding). Finally, I outline some requirements that civilly disobedient escapees must fulfill in order to qualify as such. First, escape must be attempted as a last resort. Second, violence and other lawbreaking must be reasonable, meaning it is done with precision, discretion, and proportion. Third, escapees hold the burden of proving they have been subject to injustice. Fourth and finally, the act of escape must contain other key components of civil disobedience such as persuasion, communication, and publicity, which will most likely be accomplished via coordination with nonincarcerated individuals.
Prison breaks are generally not considered acceptable, that much is obvious. Conventional wisdom leads us to believe that those who are in prisons deserve to be there due to crimes that they have committed, and that they should be kept there to prevent them from committing more crimes. But a closer examination of mass incarceration reveals that this is not necessarily the case. Many innocent people are strong armed into pleading guilty by prosecutors, since plea bargains eliminate the risk of receiving an even harsher sentence during trial.1Additionally, there are cases in which perfectly good people are imprisoned based on laws that may qualify as unjust such as non violent drug offenses or sex work offenses involving consenting parties. The prison environment itself is a further source of potential injustice as inmates often lack proper food and medicine, are subject to violence and rape from other inmates and correctional officers, and face inhumane conditions like overcrowding or solitary confinement. It is clear that grave injustice occurs within both the Prison Industrial Complex as well as the criminal justice system more broadly.2 I argue that in the face of these injustices, incarcerated individuals may be justified in attempting to escape prison and subsequently evade reimprisonment on the grounds of civil disobedience.
This may seem radical and surprising at first since prison breaks are inherently a violent form of evading punishment, whereas civil disobedience is often understood to be inherently nonviolent and non evasive. It is for this reason that I begin with a critique of the classical liberal conception of civil disobedience envisioned by John Rawls. Contrary to Rawls, I argue that acts of civil disobedience can involve both violence and evasion of punishment. I then outline the appropriate circumstances and requirements which qualify escape attempts as civil disobedience.
Violence and Evasion in Civil Disobedience: A Critique of the Liberal Conception
Although arguments in favor of violent civil disobedience have been given,3 nonviolence is still assumed to be a part of the very definition of civil disobedience in much contemporary analysis.4 This is no doubt due in large part to Rawls’ definition of civil disobedience stated in A Theory of Justice. For Rawls, civil disobedience must be public, nonviolent, both politically and conscientiously motivated, and it must work contrary to the law/government in hopes of changing the law/government in some way.5 Rawls also thought that civil disobedience demonstrates fidelity to the law by accepting legal consequences, so evading punishment would be unacceptable for him as well.6 This certainly sounds like the intuitive conception of civil disobedience that we associate with figures such as Martin Luther King Jr. or Mahatma Gandhi. But this conception has its critics, and some even question whether or not it truly matches up with the actions of King and Gandhi.7 Pushing back on this traditional conception, contemporary philosophers have offered alternative conceptions of civil disobedience that allow for both evasion of punishment and the use of violence.8 A defense of these frameworks will lay the necessary groundwork for justifying prison breaks as civil disobedience.
I’ll start with the element of evasion, which becomes almost paradoxical in the case of mass incarceration, where it is the punishment itself that is identified as unjust and in need of change. Kimberley Brownlee points this out as well, and argues that accepting the legal consequences of one’s actions necessarily concedes legitimacy of the punishment.9 If acceptance of legal punishment was necessarily a component of civil disobedience then it would be impossible to protest any form of punishment as unjust via civil disobedience. This would lead to the contradictory conclusion that the punishment is unjust yet somehow legitimate. In fact Brownlee argues that citizens have a moral right to protest injustice via civil disobedience, which includes a moral right to evade lawful punishment. Rather than accepting the legal consequences for their actions, citizens need only to accept the risk of being legally punished.10 This makes civilly disobedient prison prison breaks more immediately plausible, and demonstrates that the idea of evasive civil disobedience is not as new and radical as one may assume.
Violence is a more difficult component to analyze due to the question of what exactly qualifies as violence. John Morreall argues that if we see violence as stripping someone of value, integrity, dignity, sacredness, or their rights to body, autonomy, and private property then we clearly cannot limit the term violence to obvious physical acts but must extend it to psychological harm, verbal acts, and coercion in general. Limiting the requirement of nonviolence in civil disobedience to strictly physical violence appears arbitrary and nonsensical to Morreall, and he argues that prohibiting violence of all kinds renders many acts we intuitively think of as civil disobedience unacceptable, such as blocking entrances to buildings in protest.11More important than the distinction between violence or nonviolence, Morreall argues, is the distinction between coercion and persuasion. Acts of protest and resistance might be necessarily coercive in some contexts,12 but this need not disqualify them as civil disobedience as long as the element of persuasion is still present to a sufficient degree.13 An action that is wholly coercive and not at all persuasive won’t qualify as civil disobedience, and this is where prison breaks might run into some trouble. In order for a prison breaks to qualify as civil disobedience, they will need to strike a balance between coercion and persuasion. This will be addressed later, I now turn to the question of what circumstances justify prison breaks and subsequent evasion on the grounds of civil disobedience.
Qualifying Prison Breaks as Civil Disobedience
I argue that there are two broad circumstances in which escaping prison might qualify as civil disobedience. Either the prison sentence itself is unjust, or the incarcerated individual faces such grave and persistent injustice within the prison that they fear for their health and safety. A prison sentence itself might be unjust in a number of ways: if the individual was coerced to plead guilty by a prosecutor; if they were coerced into the crime yet sentenced anyways; if they’ve been given a disproportionate sentence due to characteristics such as race, religion, or gender; if they’ve been incarcerated based on the violation of unjust laws, including laws criminalizing consensual and victimless acts (here following the liberal commitment against paternalism);14 or if the crime was committed in order to preserve the health and safety of the theirself or others (such as economic crime to avoid to starvation, or providing sanctuary to undocumented migrants). For injustice within the prison itself to qualify as a threat to one’s health and safety we might turn to instances of physical and sexual assault, excessive use of solitary confinement, and prison overcrowding, which are all too common in the U.S. incarceration system.15
Beyond the broad contexts in which a prison break and subsequent evasion might be justified on the grounds of civil disobedience there are additional requirements which need be met by escapees as well. For a more detailed framework of justified violence, I turn to Allan C. Hutchinson, who gives us four qualifications which must be met for violence to be justified in civil disobedience. First, it must be used as a last resort (this is reminiscent of Rawls’ stipulation16 that any form of civil disobedience must occur after all available legal channels have been exhausted). Second, the violence must be a proportional response to a serious violation of rights. Third, the burden of proof regarding the aforementioned violation of rights is on those who commit and advocate the violence. And finally, violence must be used with precision and discretion.17 Beyond Hutchinson’s requirements, escapees must also meet Morreall’s requirement of persuasion identified earlier. I’ve combined and distilled Hutchinson’s and Morreall’s frameworks into the following four points:
1. Escape as a Last Resort
As per Hutchinson’s first qualification, escaping prison must come as a last resort. The sheer fact that an individual has ended up in prison means they have gone through the available legal channels already, and faced injustices such as coercion into plea deals. There are few channels available within prisons themselves to remedy injustice. Congress has continually passed legislation making litigation against prisons difficult if not impossible and prison complaint forms have been known to hold no actual potential for recourse.18 I’d argue it is unrealistic to charge prisoners with the task of reforming laws from the inside. Additionally, prison guards who might theoretically be capable of remedying injustices are often committing the injustices in the first place or at least turning a blind eye to them.19 Thus it is not difficult to argue that prisoners facing injustice in the mass incarceration system have exhausted their legal channels, which were limited in the first place.
2. Reasonable Violence
I find Hutchinson’s second and fourth requirements similar enough to lump them together as one requirement for civilly disobedient escapees, that the violence they use to escape and evade must be reasonable. That is it must be proportionate to the violence they are subject to, and it must be used with precision and discretion. Escapees should avoid direct confrontation with correctional officers and law enforcement as best they can, only engaging in physical violence when they are subject to physical violence themselves. Preventative and retaliatory violence would not be permitted. Escapees will no doubt be forced to break other laws while evading capture once they’ve escaped. This additional law breaking must follow the same rule as general violence. It should be proportionate to the escapees needs and similarly precise so as to minimize the harm to others. Stealing small amounts of food or money, and perhaps transportation (be it vehicle theft or not paying for public transit) would be justified.
3. Burden of Proof
Fulfilling Hutchinson’s third requirement is likely the easiest of the bunch. Injustice within the Prison Industrial Complex is well documented, and often self evident. For instance, physical abuse perpetrated by correctional officers and other inmates is likely to leave visible traces on the body. Unjust conditions such as overcrowding and the use of solitary confinement are matters of public record. In sum, the same instances of injustice which ground prison breaks as a potential form of civil disobedience also serve as the proof which fulfills Hutchinson’s third requirement.
4. Persuasion, Publicity, and Communication
Morreall’s requirement of persuasion intertwines naturally with two other important components of civil disobedience: publicity and communicativeness. The requirement of publicity is a part of Rawls’ classical liberal framework,20 and it has critics, notably Brownlee who argues that more important than publicity is communication.21 This particular debate is not necessarily of much important for this particular case, as I argue that escapees can accomplish persuasiveness, publicity, and communicativeness all in the same way. Escaped convicts naturally have incentive to hide from the public eye while the police have incentive to publicize the escape in order to raise awareness of potential danger as well as procure tips from the public. However I believe it is sensible to require publicity that is intentional on behalf of the escapee, if for no other reason than to also fulfill persuasion through communication to the public. Escapees could communicate by disseminating their stories through those on the outside who are capable of being in the public eye more directly such as family and friends or perhaps sympathetic journalists. This method of communication to the public also adds an element of collaboration, which is commonly thought to be another requirement of civil disobedients.22
The act of communication serves a dual purpose. First, by communicating that they intend no harm to anyone and will only use violence as a means of avoiding being reimprisoned, escapees aim to convince people that the typical conception of convicts as inherently dangerous and malicious is not necessarily accurate. This serves to break down the stereotypes of convicts that partially contribute to the injustice of the mass incarceration system, or at least combat apathy to the injustice and generate sympathy for escapees by publicizing their stories of injustice. Second, escapees aim to persuade the public and policy makers that reform of the criminal justice system is necessary from standpoints of both justice and efficiency, thus fulfilling the final requirement of pursuing legal change.23 The specific goals here might vary depending on the specific injustices escapees face. Escapees who were imprisoned on the basis of unjust laws would aim to persuade people that these laws should be changed, for example. With these conditions met, I believe the full requirements for a prison break to qualify as civil disobedience have been outlined.
The proposal to classify certain instances of prison breaks as civil disobedience may seem radical. Analogies of fugitive slave escapes and evasion of the Nazi regime during WWII come to mind, and even though mass incarceration may not be as blatantly unjust or as large in scale as these other examples I believe the injustice is sufficient to warrant civil disobedience. Although this framework is formulated with the U.S. criminal justice system in mind, it is potentially applicable to other instances of incarceration if they’re similarly unjust such as prisons in other countries, migrant detention centers, or psychiatric wards. There are likely many dimensions of this issue not sufficiently addressed here24 and more analysis is necessary in order to cement the justifiability of prison breaks on the grounds of civil disobedience. But by arguing against the requirements of nonviolence and non evasiveness while fulfilling other requirements such as persuasion, publicity, and communication I believe I have presented a sufficient prima facie case that may be useful in beginning the conversation.
1 John Pfaff argues that the power of prosecutors is actually the primary cause of increased prison populations. SeeLocked In, New York, NY: Basic Books, 2017.
2 For readers who are unconvinced of this I recommend: 13th. Motion Picture Documentary. Directed by Ava DuVernay. United States: Kandoo Films, 2016 as well as Angela Y. Davis, Are Prisons Obsolete? New York, NY: Seven Stories Press, 2003.
3 Allan C. Hutchinson, “Civil disobedience: Its logic and language”, The Law Teacher 13 no. 1 (1979): 111. John Morreall, “The Justifiability of Violent Civil Disobedience” Canadian Journal of Philosophy 6 no. 1 (1976): 3547.
4 See for instance, William Smith, “Policing Civil Disobedience” Political Studies 60 (2012): 826842. Smith’s project of determining how to police civil disobedience would obviously require drastic changes if the disobedience in question were to be violent.
5 John Rawls, “Defining Civil Disobedience” in A Theory of Justice, (Cambridge, Harvard, 1971), 364365.
6 Ibid, 366.
7 Candice Delmas takes up this discussion at length in her book A Duty to Resist, (New York, Oxford, 2018).
8 Delmas, A Duty to Resist. Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience(Oxford, Oxford University Press, 2012). Brownlee’s conception diverges from Delmas’ in an important way. While Brownlee argues civil disobedience itself can be violent, Delmas argues for a distinction between civil and uncivil disobedience that are both potentially defensible as principled disobedience. I believe this distinction has merit but for the sake of simplicity and focus I’ll use the more popular term civil disobedience inclusively as per Brownlee.
9 Brownlee, Conscience and Conviction, 8, 23.
10 Ibid, 146147.
11 John Morreall, “The Justifiability of Violent Civil Disobedience” Canadian Journal of Philosophy 6 no. 1 (1976): 3547.
12 Morreall’s example of fugitive slaves violently escaping draws obvious parallels to the application of modern day prison breaks, especially when one recalls that slavery is still entirely legal and constitutional as a form of punishment in the United States under the 13th amendment.
13 Morreall, “Violent Civil Disobedience”, 3547.
14 This raises the obvious question of what makes a law unjust, an important question too complicated to answer sufficiently here. Yet I submit that we can conceive of unjust laws and point to past instances of them such as fugitive slave laws. Other cases are less clear. I for one believe that non violent drug consumers and consensual sex workers are imprisoned on the basis of unjust laws.
15 Davis, Are Prisons Obsolete?, 7783. American Civil Liberties Union, The Dangerous Overuse of Solitary Confinement in the United States, New York, NY: ACLU Foundation, 2014. American Civil Liberties Union,Overcrowding and Overuse of Imprisonment in the United States, New York, NY: ACLU Foundation, 2015.16 Rawls, A Theory of Justice, 363368.
17 Allan C. Hutchinson, “Civil disobedience: Its logic and language” The Law Teacher 13 no. 1 (1979): 111.
18 Kitty Calavita, Invitation to Law & Society: An Introduction to the Study of Real Law, (Chicago, University of Chicago Press, 2010), 4750,
19 Davis, Are Prisons Obsolete?
20 Rawls, A Theory of Justice, 366.
21 Brownlee, Conscience and Conviction, ch. 1.
22 Rawls for example would classify strictly individual acts as conscientious refusal rather than civil disobedience. Escapees may collaborate with other private citizens in other ways as well to further the collaborative element. These citizens would also be civilly disobedient by aiding escaped convicts. And of course collaboration between escapees themselves would be likely to occur.
23 The justice aspect is obvious, but there is an efficiency element as well since mass incarceration constitutes a hefty use of resources that could be used elsewhere. The difficulty of former convicts to procure employment is another issue of efficiency perpetuated by mass incarceration.
24 Whether or not escapees can feasibly view the government in general as legitimate while objecting to such a large portion of it as the criminal justice system is debatable, for example.
13th. Streaming Services. Directed by Ava DuVernay. United States: Kandoo Films, 2016.
American Civil Liberties Union. The Dangerous Overuse of Solitary Confinement in the United States. New York, NY: ACLU Foundation, 2014.https://www.aclu.org/report/dangerousoverusesolitaryconfinementunitedstates
American Civil Liberties Union. Overcrowding and Overuse of Imprisonment in the United States. New York, NY: ACLU Foundation, 2015.https://www.ohchr.org/Documents/Issues/RuleOfLaw/OverIncarceration/ACLU.pdf
Brownlee, Kimberley. Conscience & Conviction: The Case for Civil Disobedience. Oxford, UK: Oxford University Press, 2012.
Calavita, Kitty. Invitation to Law & Society: An Introduction to the Study of Real Law. 2nd ed. Chicago, IL: University of Chicago Press, 2010.
Davis, Angela Y. Are Prisons Obsolete? New York, NY: Seven Stories Press, 2003. Delmas, Candice. A Duty to Resist: When Disobedience Should Be Uncivil. New York, NY:
Oxford University Press, 2018.
Hutchinson, Allan C. “Civil disobedience: Its logic and language” The Law Teacher 13 no. 1
(1979): 111. http://dx.doi.org/10.1080/03069400.1979.9992506
Morreall, John. “The Justifiability of Violent Civil Disobedience” Canadian Journal of
Philosophy 6 no. 1 (1976): 3547. http://www.jstor.org/stable/40230600
Pfaff, John. Locked In: The True Causes of Mass Incarceration—and How to Achieve Real
Reform. New York, NY: Basic Books, 2017.
1/13/2019 Justifying Prison Breaks as Civil Disobedience – OPA Submission – Google Docs
Rawls, John. “The Definition of Civil Disobedience” in A Theory of Justice Original Ed. 1971. Reprint, Cambridge, MA: Harvard University Press, 2005.
Smith, William. “Policing Civil Disobedience” Political Studies 60 (2012): 826842.http://journals.sagepub.com/doi/10.1111/j.14679248.2011.00937.x