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University of Chicago Legal Forum

Abstract

Allow me to begin with a scene from one of my favorite novels of the last twenty years. The novel is Hilary Mantel’s Bring Up the Bodies, 1 the second in her award-winning trilogy of historical novels about Thomas Cromwell and King Henry VIII.2

By the start of Bring Up the Bodies, King Henry VIII has had his first marriage annulled and is now married to Anne Boleyn. Indeed, Anne Boleyn is pregnant, and the king is optimistic about a male heir. But the king already has eyes on Jane Seymour, and when Anne Boleyn miscarries, the king is determined to rid himself of her. This proves easier said than done, until the king and Cromwell hatch a plan to show Anne has been unfaithful. By the end of the novel, Anne Boleyn has been arrested, as have several of her suspected lovers. They are to be tried for treason. And it is only here, in the last pages of the novel, that the meaning of the novel’s title becomes clear. Here is the line: “The order goes to the tower, ‘Bring up the bodies.’”3 In the wording, it is as though the prisoners are already just that, bodies, dead men walking. It seems an afterthought that their names are added: “The order goes to the tower, ‘Bring up the bodies.’ Deliver, that is, the accused men, by name, Weston, Brereton, Smeaton, and Norris, to Westminster Hall for trial.”4

I open with this scene—and have used the title of Mantel’s novel as inspiration for the title of this essay—because it captures so much of what I hope to explore in these pages. We are used to thinking of convicted men (and women) as merely bodies, known by their inmate numbers, dressed in identical prison garb to strip them of individuality. But what interests me, and what I hope to explore, is how we reduce defendants to bodies long before a verdict is announced. Or, since we have become a system of pleas, well before a plea of guilty is entered.

For some readers, the idea that defendants—in a system that constantly extols the presumption of innocence, no less—are treated as just bodies will come as little surprise. Recently, when I was describing this project to a former New York City public defender, and telling him about Hilary Mantel, he responded that detained pretrial arrestees are referred to as bodies still, at least in New York criminal courts. It’s not uncommon, he told me, for prosecutors, and even judges, to use the term.5 “Are the bodies here from Riker’s yet? Let’s hope they didn’t forget any of the bodies.”

Beyond this, the fact that we are living during a time of mass incarceration— the emphasis on mass is deliberate—facilitates this reduction. We have grown accustomed to speaking in terms of numbers. For those of us who write about criminal justice, the recitation of numbers may even seem de rigueur. There are about 2.2 million people behind bars, several multiples of the incarceration rate just a handful of decades ago.6 Although we have about 5 percent of the world’s population, we have about 25 percent of the world’s incarcerated population.7 Indeed, by most measures we have one of the highest incarceration rates in the world.8 Beyond this, each year our jails cycle through approximately ten million people, the vast majority to await trials for nonviolent crimes.9 We are at a point where one in every three adults in America has a criminal record,10 and where for every fifteen persons born in 2001, one will likely spend time in jail or prison.11 And on and on. In a way, the numbers themselves become, well, numbing. Our eyes begin to glaze over. We may follow the trials of Kyle Rittenhouse, or Harvey Weinstein, or Derek Chauvin, or Elizabeth Holmes. But as for the millions of others who are convicted, or the more than ten million who shuffle through jails, including those exposed to and dying from COVID-19? Those undifferentiated defendants are just bodies. We speak of “assembly- line justice: robotically convicting defendants and imposing onesize- fits-all punishments.”12 One pictures defendants as bodies on a conveyor belt while police officers, prosecutors, and judges stand on either side keeping the bodies moving until they finally enter prison to be “housed.” Even defense lawyers work the conveyor belt, though we might call them “unwilling actors,” to borrow Robert Cover’s term.13 In any event, the destination remains the same: prison, or what I have elsewhere called “invisible cities.”14

So, for some readers, describing defendants as bodies may not seem new. What hopefully is newer—what hopefully will give readers pause—is the argument I want to make. And that argument, at bottom, is this: That perhaps counterintuitively, it is precisely the rules we have created to protect the rights of defendants that contribute to stripping them of individuality. Put differently, the reduction of arrestees to bodies becomes possible—I am tempted to say becomes perfected—by rules we have come to think of as pro-defendant.

To make this argument, I begin in Part I by setting forth the numerous ways we reduce arrestees to bodies. Much of this process, I argue, is accomplished by prodding, encouraging, and even coercing arrestees to remain silent.15 Mute. Think of Miranda “rights.”16 You have the right to remain silent. Anything you say can and will be used against you in a court of law. In fact, this encouragement to sit silently, and stand silently, and simply be silent permeates every stage of the criminal process. It happens upon arrest and continues through each pretrial hearing. It certainly continues throughout any trial. And it continues, in many ways, post-conviction—through sentencing and appeals and beyond. It is so pervasive that a visitor from another planent—or for that matter a visitor from a civil law country17—might be tempted to ask, “Can the subaltern speak.”18

For me, this prompts two further questions. First, what happens when we silence defendants? Second, what do we lose when we silence defendants? Part II takes up these questions and attempts to answer them. But really, the goal of Part II is to gesture towards a better system, one where defendants are allowed, even encouraged, to speak. And in which we are encouraged to listen.

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