06/26/2009 05:12 am ET Updated May 25, 2011

The Detention Election Game

Barack Obama is running for President.
What? Didn't he just win?
Admittedly, he did. But he launched his 2012 Presidential campaign with these words from his deceptively beautiful May 21 speech, which first lauded the Constitution, then proposed:

We're going to exhaust every avenue that we have to prosecute those at Guantanamo who pose a danger to our country. But even when this process is complete, there may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States.

To simplify: We will take to trial those we can. As for those we cannot (including those who have never committed a crime), we'll deep-freeze them behind bars, too. Obama's phrase for his remake of Bush Administration policy -- "prolonged detention" -- can translate (numerous critics have explained) as preventive detention, indefinite detention, administrative detention, or even "American Gulag," as Vincent Warren from the Center for Constitutional Rights put it on MSNBC Wisconsin Senator Russ Feingold noted in a letter to Obama, "such detention is a hallmark of abusive systems that we have historically criticized around the world."

Such a move would be deeply anti-democratic. Currently, the longest detention policy in a democratic country is Britain's twenty-eight days. Our war on terror has already lasted nearly eight years. As President Obama noted in his speech, it could easily last another decade.

Obama wants to win in November 2012. It's never too early for a campaigning Democrat to get tough on crime. By releasing the Bush Administration torture memos, Obama brought cleansing sunlight into some dingy rooms. Now he may, for good reason, worry that the sunlight shows off his vulnerable, humane side. Humaneness, historically, is hardly a voter magnet. Punishment pulls them to the polls. And, given the positive reaction to Obama's speech, this seems to be preventive detention policy liberals are letting themselves love.

Obama's version of tough-on-crime maneuvering is part of a time-honored political tradition.
For instance, when Iowa's Republican Senator Charles Grassley said in March that A.I.G. executives should "resign or go commit suicide," his words tapped a volcano of American public anger.

But Grassley's cry for retributive physical hurt should have sounded familiar. In American politics, similar statements are often vote-getters. Fittingly, Grassley's press secretary insisted to the Iowa Independent in January that the seventy-seven-year-old Senator is running for reelection in 2010.

Grassley is hardly the first campaigning politician in recent memory to suggest new uses for execution (though in his creative iteration, the offending businessmen should exact public revenge on themselves). In 2004, Republican Tom Coburn said to the Associated Press, "I favor the death penalty for abortionists and other people who take life." Coburn won 53 percent of the vote.

Strategic tough-on-crime maneuverings characterize both major political parties. Bill Clinton took a much-publicized break during his 1992 campaign. He returned to Arkansas and signed off on an execution for mentally disabled Ricky Ray Rector.

In late 2005, on a television show called Nevada Newsmakers, Las Vegas mayor Oscar Goodman called for TV broadcasts of physical mutilations. "In the old days in France, they had beheadings of people who committed heinous crimes," he said. This was a preface to Goodman's concern that "these punks come along and deface" the beautiful Las Vegas highway system. "I'm saying maybe you put them on TV and cut off a thumb. That may be the right thing to do."

Later, Goodman claimed he had just been trying to start people talking, according to the Las Vegas Review-Journal. Instead of thumb-severing, he substituted public humiliation: The city should put people guilty of graffiti in stocks. Then, members of the public could paint the convicts' faces.

As I show in Cruel and Unusual: The Culture of Punishment in America (Yale University Press, 2009), an extensive cultural apparatus supports our society's commitment to punish. This apparatus includes political strategies like Grassley's, Coburn's, Clinton's, Goodman's -- and now Obama's.

Even if such words as Oscar Goodman's and Charles Grassley's are jokes or tongue-lashings, such statements by our political leaders can have real-life policy results. Over the past several decades, the spirit of our nation has turned punitive. The new hulking, angry American soul bares its face in some shocking numbers. The United States has 5 percent of the population of our planet, but nearly one-fourth of its prisoners. This was not always so. The U.S. rate of imprisonment has more than quintupled since 1973. This rapid acceleration in the prison population is the reason the United States is now home to both the highest imprisonment rate in the world and the largest prison system. We pay a high price for this housing: $47 billion, as the Pew Center on the States reported in early March

That enormous expenditure is likely to get bigger. That's because our laws are more severe than they once were. Convicts serve more time than they used to for identical offenses. The Pew Center reported that corrections spending grew faster than spending on education, public assistance, and transportation. As the Pew Center noted, much of the growth occurred during the past two decades, while the crime rate fell by 25 percent.

The indefinite detention of alleged terrorists is simply an extension of the long sentences that have come to characterize American corrections, and that help account for our crowded prisons. "Wicked people exist. Nothing avails except to set them apart from innocent people," wrote political scientist James Q. Wilson in 1975. His prescient words have come to characterize American prison policy. But the words also describe American policy in regard to the people our government decides are dangerous terrorists -- even if they have never had a trial.