For a Human Rights Approach to Reforming the American Penal State

Economic arguments seem to be the most promising avenue for driving reform of America’s bloated penal state in the aftermath of mass incarceration. Raising human rights concerns has limited appeal beyond cultural elites and, on occasion, courts, but today reform is coming from elected branches. Talk of human rights for criminals, or human dignity for prisoners, can risk backlash as happened around the death penalty in the 1970s. This essay challenges this conventional account in three ways. First, I argue that historical conditions make the potential for backlash limited. Second, that economic arguments will always be limited by the political and institutional frameworks that define the current meanings of criminal justice; only a human rights approach can drive a truly abolitionist reform agenda, one aimed at rethinking the institutions themselves, not just their budgets. Third, human rights campaigns can, if properly conceived, expand the constituency for deep criminal justice reform.