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More and more art is challenging long-held assumptions about the criminal justice system.

By Adam Bradley, Aug. 11, 2022

“…the Prison Policy Initiative reported that what we call the criminal justice system comprises “almost two million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals and prisons in the U.S. territories.” In total, the U.S. criminal justice system controls 5.7 million people, when one accounts for parole and probation. On top of that, it is estimated that more than 113 million Americans have an immediate family member who has been to prison or jail. The racial disparities are stark, particularly for Black Americans, who make up less than 15 percent of the total U.S. population but 38 percent of the nation’s incarcerated population.”

Mandela’s “The Guard Tower” (2003). Credit...© Nelson Mandela. Courtesy of the Belgravia Gallery

WHEN THE INTERDISCIPLINARY artist Maria Gaspar was 12 years old, her teachers took her to jail. It was the early 1990s, in the era of Scared Straight programs aimed at curbing juvenile delinquency, and Gaspar and her classmates were deemed “at risk,” by virtue of where they lived — the West Side of Chicago — and who they were, many of them first-generation immigrants from Mexico. Back then, on any given day, Cook County Jail, located in the city’s South Lawndale neighborhood, housed some 8,000 people, a third of them pretrial detainees unable to post bail, mostly men, Black and brown. Gaspar remembers her frightened teachers, all of them white, scurrying through tiered cellblocks; the inedible food served to them in the mess hall; the guards scolding the young visitors for crossing their legs and for “not being ‘clean.’” But her clearest memory is of the faces of those who gazed back at her from their confinement. “I remember feeling like the guys behind bars looked like people down my block,” she says. “They just looked like people I knew. That stuck with me.”

Thirty years later, Cook County is demolishing the nearly century-old Division 1 section of the jail, the very cellblocks Gaspar visited as a child. She has been documenting that process for the better part of a year. Shooting video footage, salvaging bars and bricks, Gaspar, 42, has been gathering raw materials that she and a group of jailed artists, collaborators who comprise what she terms an ensemble, will use in conceiving an experimental performance piece that reflects on absence and presence. “Sometimes it feels very abstract, a little bit vague,” she admits, though she understands this indeterminacy as a necessary feature of any collective artistic labor — and as a reflection of her collaborators’ precarious condition. “This is a place for us to play and to experiment,” she says. “It may not fit the different categories that we have already determined, but that’s OK. We can make new ones.” The acts of creating art and serving time share this much: They both demand that one find freedom in constraint.

The art of mass incarceration, both the art that incarcerated people produce and the art that incarcerated people and the system itself inspire, has never been more visible than it is today. Galvanized by the events of 2020 — the police killings of Breonna Taylor and George Floyd, and the protests that followed — the art world is increasingly centering works that engage with and critique America’s carceral state. In late 2021, for instance, the conceptual artist Hank Willis Thomas debuted an exhibition titled “Another Justice: Divided We Stand” at the Kayne Griffin gallery in Los Angeles, featuring mixed-media works composed of prison uniforms and American flags, making literal the tensions between American freedom and captivity in a patchwork of labyrinthine pathways and star-filled skies. This year’s Venice Biennale features the conceptual artist Sable Elyse Smith’s “Landscape” series, a sequence of large-scale neon textual installations that blur the lines between the institutional and the intimate. “Like the hands of the correctional officer on my abdomen searching for metal — rather — groping for the sake of taking over — for possession,” one begins.

The art world’s turn toward incarceration hasn’t happened overnight. In 2018, the curator Risa Puleo, with support from the National Endowment for the Arts, debuted the landmark exhibition “Walls Turned Sideways: Artists Confront the Justice System” at the Contemporary Arts Museum Houston. The show helped coalesce a community of nonincarcerated contemporary artists who, through a diversity of media and practices, were each seeking ways for their art to take more than symbolic action when it comes to social justice, prison reform and abolition. Building on this momentum, in September 2020, the scholar Nicole R. Fleetwood, 49, curated “Marking Time: Art in the Age of Mass Incarceration” at MoMA PS1 in Queens, which underscored the continuities between work that’s done inside and done outside the prison walls, and in the spaces in between. Propelling all of these efforts are writers and activists, from the social justice advocates Bryan Stevenson and Angela Davis to the scholars Michelle Alexander and Ruth Wilson Gilmore, all of whom recognize the importance of art as a tool for structural change.

Like any cultural expression that looks at society’s most vulnerable and voiceless, the art of incarceration is often defined from the outside in. For decades, the art establishment described the work of imprisoned artists — when it described that work at all — in terms of folk or outsider art. Prison art was relegated almost exclusively to the domain of rehabilitation: classes offered to keep inmates out of trouble, to cordon off safe spaces for unruly emotions. The first documented prison art program in the United States dates back to 1876, at the Elmira Reformatory (now the maximum-security Elmira Correctional Facility) in New York State. With the rise of expressive therapy approaches in the 1960s and ’70s, arts programs flourished nationwide, benefiting from federal funding that dried up during the tough-on-crime ’80s and ’90s.

Over the years, the most celebrated individuals making art in prison have often been political dissidents and human rights advocates — those individuals, in other words, whom an audience could accept as “innocent” rather than as “criminal.” The Japanese American artist and landscape architect Isamu Noguchi, for instance, voluntarily entered the Japanese internment camp known as Poston Relocation Center in Arizona in 1942 with the intention of designing recreational spaces to ease the suffering of his fellow detainees; though he drafted multiple plans, the government never implemented them. In 1999, almost a decade after his release from Robben Island prison, near Cape Town, Nelson Mandela began painting a series of watercolors portraying his cell. More recently, in 2011, the Chinese government detained the conceptual artist Ai Weiwei for 81 days. He channeled the experience into his acclaimed work “S.A.C.R.E.D.” (2011-13), a series of six near-life-size dioramas portraying Ai and his guards in confined spaces as he sleeps, showers and uses the toilet.

In popular media, the artist as prisoner is a potent if rare figure, usually rendered through fanciful imaginings of artistic savants. In Wes Anderson’s 2021 film, “The French Dispatch,” Benicio Del Toro portrays a painter jailed for murder whose genius affords him wide latitude to flout prison regulations, even to the point of painting nude portraits of a female guard. On the strength of a single work, he becomes an art world sensation. Defying his newfound marketability, however, he spends years painting his magnum opus on the walls of the prison hobby room. A wealthy American collector purchases the work, whose preservation requires the walls of the prison itself be dismantled. Anderson’s madcap character is in keeping with the romantic notion expressed by the prison arts educator Phyllis Kornfeld in her book “Cellblock Visions: Prison Art in America” (1997), in which she writes that “the criminal is a rule-breaker. So is the true artist.”

KORNFELD’S CLAIM IS perhaps too breezily aphoristic, but it posits an undeniable truth: Art made by, with or about imprisoned populations demands subversion. Art that deals in some way with lockup generally requires the collaboration of individuals and organizations beyond the prison walls, and it frequently has the aim of changing people’s opinions. Art for Justice, which the philanthropist Agnes Gund launched in 2017 with $100 million in seed money made through the sale of a 1962 Roy Lichtenstein painting, outlines on its website an ambitious agenda that includes ending mass incarceration in the United States. To date, the fund has distributed over $105 million in grants to support work across the nation. “We think of ourselves as movement funders,” says the project’s director, Helena Huang. She emphasizes that social transformation has always required art as a means of projecting alternative realities. “Artists are only going to help broaden everybody’s imagination about what is possible and give fuel to advocates and organizers,” she says.

It’s a common misconception that if given full knowledge of the inequities and abuses of American prisons, citizens would unite in raising their voices to call for reform. In fact, evidence alone very rarely shifts opinion. But feeling does. “All the public policy change in the world, all the legal change in the world, it doesn’t happen without people being moved in a deep way,” Huang says. For her part, Gaspar understands the art she makes both with and about jailed people as necessarily confrontational and transformative. “People come with a certain preconception about incarcerated people or about criminalization and, to me, art fails when they leave with the same idea,” she says.

Listen to artists like Gaspar and it soon becomes clear that prison is not simply another conceptual preoccupation or source of inspiration. The artists engaged in this work don’t tend to talk about it as a theme or as a visual aesthetic. They aren’t interested in portraying the abuses and failures of the system as a metaphor for some aspect of the human condition beyond the walls of confinement. Instead, the work often contests and deconstructs the ready-made visual vocabulary that the carceral system propagates — mug shots and sentencing documents, prison-issued garments and commissary goods, visiting room photographs and letters stamped “inspected” by correctional personnel. It fights to render the invisible — both people and systems — visible. It denies easy recourse to sympathy in favor of work that invites and sometimes compels direct action.

One of the early projects to gain support from Art for Justice was a collaborative effort between the interdisciplinary artist Titus Kaphar and the poet, attorney and founding director of Freedom Reads (an organization that provides prisoners with books), Reginald Dwayne Betts. Though Betts, 41, has written extensively on mass incarceration, first in a memoir about his own experience as a juvenile and most recently in his poetry collection “Felon” (2019), he has a profound appreciation for what art can achieve. “I think the visual artist has more of an inclination against darkness,” he says, by which he means artists are particularly well equipped to expose harsh truths.

In his and Kaphar’s collaborative work, some of which will be published this fall as part of a book titled “Redaction,” Kaphar’s mug-shot-like etchings are paired with Betts’s poems based on redacted lawsuits. Redaction here functions as much to reveal as to conceal. The mug shot is a vestige of the carceral system that comes to the artist preaestheticized. Practically speaking, it is a tool of capture and coercion, of state control. In the hands of these artists, however, it becomes, in Betts’s words, “an act of love.” For Betts, that love extends beyond word and image; he has helped negotiate the release of five of his incarcerated friends, who donated prison-issued clothing that he and Kaphar made into paper.

The path between creation and liberation is rarely as straight as this. The American carceral state is a patchwork of facilities that include federal and state prisons, local jails, federal holding cells for migrants and much more. Though certain conditions of privation unite them, they are not the same. Earlier this year, the Prison Policy Initiative reported that what we call the criminal justice system comprises “almost two million people in 1,566 state prisons, 102 federal prisons, 2,850 local jails, 1,510 juvenile correctional facilities, 186 immigration detention facilities and 82 Indian country jails, as well as in military prisons, civil commitment centers, state psychiatric hospitals and prisons in the U.S. territories.” In total, the U.S. criminal justice system controls 5.7 million people, when one accounts for parole and probation. On top of that, it is estimated that more than 113 million Americans have an immediate family member who has been to prison or jail. The racial disparities are stark, particularly for Black Americans, who make up less than 15 percent of the total U.S. population but 38 percent of the nation’s incarcerated population. Though the overwhelming majority of Americans support reform, recent years have shown only halting progress toward substantive change.

IN THE IMMEDIATE aftermath of the 2020 protests prompted by the murder of George Floyd, politicians seemed more open than ever to the idea of legislative reform. Yet even in these seemingly hopeful moments, some artists and advocates sensed a vulnerability, an evasion. Too many who all of a sudden seemed to support change had arrived at that position without confronting and examining their own core beliefs and biases. As long as they could hold on either to the mollifying myth of innocence through stories of the wrongly accused or to the blurring rhetoric of analysis, cut off from the uncomfortable human particulars, they could stay committed to wholesale reform, at least in principle.

“I think for us to really understand the aesthetic and cultural impact of mass incarceration, we have to have works by people who are differently positioned by the carceral state in conversation with each other,” Fleetwood, the art historian and curator, says. “We can’t understand the sheer impact of the carceral state by just looking at the work of conceptual, socially engaged artists who are working out of art institutes or commercial galleries, nor can we just look at the work made by people held in captivity. We actually have to think expansively about culture making in this era.”

Among those thinking expansively is Ashley Hunt, 52, a multimedia artist and faculty member in the Program in Photography and Media at California Institute of the Arts in the Santa Clarita Valley. Several years ago, he noticed when visiting prisons how many facilities were disguised in the landscape, hidden in plain sight. This was no coincidence, he thought, but a calculated strategy to render invisible the massive system of warehousing human beings. What emerged was “Degrees of Visibility” (2010-present), a photographic project that has since grown to encompass correctional facilities in all 50 states and the country’s territories. Some of the images are startlingly beautiful; others are nondescript. We might see, Hunt explains, “a landscape that we think we recognize as bucolic, and then we realize that there are 4,372 men out of sight there.” Within his work, Hunt detects “a chance to trouble that distancing.” At the center of “Degrees of Visibility” is a struggle with the systemic, with how something can grow so beyond human scale that it becomes unfathomable. How do you describe something you can’t see? Focusing on the big picture mitigates against the “bad apple” claim — the idea that abuse is isolated to certain specific instances alone. “That’s how the system absolves itself of its guilt: ‘It was the bad cop,’ or ‘That’s the bad prison. We’re gonna fix it.’ We need to be looking at the overall structure,” Hunt says.

A full commitment to reform requires something else of us, as well: that we demand dignity for the incarcerated without consideration of guilt, that we understand the system as necessarily consisting of individual lives and complexities. Hunt’s work and that of others like him who are engaged with on-the-ground activists offers one way forward. It’s about ensuring that we don’t elide the facts of incarceration — the enormity of its scale and impact. Art’s full accounting demands both: the human scale and the systemic; the power comes in superimposing one on the other, in appreciating the weight of each of those nearly two million souls against that of the power structure that frames their enclosure.

One might think of this as the Richard Wright Theory. In 1938, Wright, a young Black author from Mississippi living in New York, published his first book, the short-story collection “Uncle Tom’s Children,” to strong sales and critical acclaim. His success, however, left him regretting that he had written “a book which even bankers’ daughters could read and weep over and feel good about,” as he notes in the 1940 essay “How ‘Bigger’ Was Born,” which recalls the genesis of his most famous character, Bigger Thomas, the brutal and unsympathetic protagonist of his naturalist masterpiece, “Native Son” (1940). He never again wished to publish a book like “Uncle Tom’s Children.” Instead, he released a novel in which his Black protagonist accidentally kills the daughter of his white boss, hacks her body into pieces and incinerates her in a furnace. “I swore to myself,” Wright concludes, “that if I ever wrote another book ... it would be so hard and deep that they would have to face it without the consolation of tears.”

Many contemporary artists are following Wright’s example, rejecting calls for sympathy — or even empathetic audience connection — in favor of a cold-eyed accounting of the implications of mass incarceration, both on the lives of the imprisoned and on the souls of the free. Increasingly, this kind of art demands that the nonincarcerated audience sit in discomfort, without the moral clarity of supporting only the innocent. Is there any crime that warrants society robbing an individual of human dignity? Must dehumanization necessarily accompany punishment?

“I’M NOT INTERESTED in only telling the story of the innocent,” says the New York-based artist Sable Elyse Smith, 36, who has spent much of her life visiting her father in prison. “I am interested in confrontation.” For Smith, that confrontation often takes the shape of cutting off all paths of retreat from a stark engagement with the cruelty and contradictions of a system in which we are all implicated. “A lot of people just classify my practice as only talking about prison,” Smith says, “but I often like to say, ‘I say “prison,” but I mean the world.’ It’s an everyday condition.”

Smith’s “Backbend” (2019) uses replicas of five blue prison visitation tables to build an arch, at once institutional and organic. But the sculpture also makes something beautiful out of the ugliness of cold utility. In “Backbend” and her other series of works that make use of these tables and chairs — like “A Clockwork” (2022), included in this year’s Whitney Biennial, in which visitation tables are turned into a Ferris wheel — Smith renders the functional fantastic. For an audience seeing such a form out of context, there is a process of gradual revelation. From a distance one notices the work’s sensual shape, its bold color; only up close does it finally resolve itself into the institutionalized vocabulary of carceral form, one that may be familiar to some, but not all.

Like Gaspar, Smith wants her work to challenge viewers, because challenge is required to elicit change. In her “Coloring Book” series, which takes images from a coloring book intended for the children of those caught up in the criminal justice system, the artist uses oil pastels that mimic a child’s crayon scrawl across the enlarged pages. In one spread, she paints over the phrase “If we all work together, we can make the world a better place,” casting doubt on such easy answers. Viewers of her art, Smith says, “are visually seduced into something, they’re interested in it or salivating for it or desiring it — they’re having some pleasure in it.” But “there’s the moment when it comes into focus. For certain audiences, that’s a moment of some tension and some discomfort.” Audience members who are distanced or willfully blinded may just see an abstract sculpture. But those with a personal connection will find affirmation of an experience from which many people would rather look away.

Some of the most vital art being made today reminds us that we are all much closer than we might imagine to mass incarceration. “In cities in America, we’re used to police sirens going all the time,” says the New York-based artist Dread Scott, 57, who has long engaged with themes of race and justice. “We’re used to the sound of police helicopters flying over our heads; we’re used to seeing images of cops harassing Black folk; we’re used to seeing wanted posters,” he adds. For “Wanted” (2014), a community-based art project out of Harlem, Scott enlisted a former police sketch artist to make portraits of local residents who haven’t committed any crimes. “Wanted for lifestyle choice,” one of the posters reads. “The male was observed standing on a corner with other males. The suspect exhibited dress and behavior typical of alleged gang members,” the notice continues.

The posters look so much like actual ones issued by the police department that they elicit double takes, calling attention to the overpolicing of young Black and brown people, and to the dangerous assumptions made about them. The message, according to Scott, is straightforward. “There are many things right now that are normalized that should not be accepted,” he says.

For a nonincarcerated artist, venturing behind the prison walls often means normalizing absurdities: learning that a paint color you’ve been using for months is now considered contraband; discovering a collaborator is missing — sent to solitary, transferred to another facility or simply gone without explanation; reconciling yourself to the fact that, no matter how democratic your artistic practice, you will walk free that day and the people you are making art with and about will not. The art of mass incarceration, in all its forms, might just be the last distinctly American art we have left: a testament to our cruelty, as well as to our ingenuity — our irrepressible drive to create meaning out of darkness. Gaspar recalls a conversation she had recently with Christopher Coleman, one of the men from her ensemble, about the work it took for the group to transform a sterile room in the jail into a space for creativity. “What was that like?” she asked him. “It was so powerful,” he told her, “that even the guards became unshackled.” Art, perhaps better than anything else, can do that: liberate us, if fleetingly, imperfectly from the manacles that bind us.