The essence of Ferguson's proposal, what he wants to see done differently, is that "the life of the recipient of punishment must continue to be worth living." Here is what that means to him: "It stipulates the avoidance of unnecessary pain and degradation in the name of human understanding. It tells everyone that what is held in prison is a person ... The addition asks for a more basic level of recognition: that of a human bond between the inherently destructive and hostile one-sided vigilance of guards guarding the guarded."

And here is what Ferguson believes such a concept would mean for inmates. First, he writes, it would represent "the need to retain some idea of self, and from it some small but defined area of self-control; second, the desire for productivity in some form; and third, the prospect of continuing growth. The most abominable phrase in the popular language of punishment," Ferguson writes, "is 'Let 'em rot!'... The idea behind the phrase takes away the very nature of existence as intelligence has allowed anyone to define it and want it."

So there "must be an incentive system with rewards that encourage productive behavior" in prisons, Ferguson proposes, there must be reforms to the parole process, and there must be a deal more education and training for correctional officers. And of course there must be a shift away from retributive justice toward rehabilitation and restoration. Each of these suggestions is perfectly reasonable. Each would be a step toward redeeming America's prisons. And were each made even five years ago the response in Washington would be the sound of crickets.

But that was then and this is now. At Tuesday's hearing don't just listen to the words the witnesses speak from their prepared remarks. Don't just listen to the speeches the Democrats make. Listen to what the Republican senators-- those that attend the hearing, anyway-- ask of the witnesses. Listen to what the GOP otherwise says about the need to reform solitary confinement. Sentencing reform today has bipartisan support. But such support has not yet materialized when it comes to prison reforms that cut to the core of the problem.

Postscript

Over the weekend, I asked Professor Ferguson to help me understand, again, what accounts for the degree of passion so many Americans express when they justify or defend policies like solitary confinement or the abuse of mentally ill prisoners—and also why there is so much official denial about the nature and scope of the problem today. "We do not believe that the current carceral system is broken," he wrote in his book, "because we do not want to think about much it violates the basic principles that supposedly define us as a culture."

On Saturday, via email, Ferguson was just as direct:

Cruelty is an instinctual part of us, and we have to learn not to inflict it. Otherwise we will. Any crowded playground will demonstrate the truth of this proposition. In a corollary, punishment is pleasure or at least a satisfaction in a punisher. It follows that all punishment regimes tend toward greater severity unless there are very strong institutional safeguards against it.

I have covered these "institutional safeguards"—our nation's courts—for the past 17 years and it is manifestly true that our judges have consistently failed to stop even the worst excesses of punishment in our prisons. The worst aspect of this failure isn't just that it is happening—that officials who abuse and neglect inmates aren't immediately stopped or punished. But rather that it is happening because judges hide like cowards behind procedural, technical barriers to justice. As a matter of law, of law handed down by judges and legislators, it is virtually impossible to get a prisoners' rights case before a jury.