This is the 100th anniversary of Franz Kafka's In the Penal Colony. The story brilliantly imagines a gruesome killing machine at the epicenter of a mythical prison's operations. The torture caused by this apparatus comes to an end only after the “Traveler,” an outsider invited to the penal colony by the new leader of the prison, condemns it. In the unfolding of the tale, Kafka vividly portrays how, even with the best of intentions, the mental and physical well-being of inmates will be jeopardized when total control is given to people who run the prisons with no independent oversight.
At the core of America's vast prison system is the pervasive practice of solitary confinement, a practice that in many ways is analogous to the penal colony machine. Like the machine, it inflicts great psychological and often physical pain on people subjected to it. It, like the machine, is used to punish people for trivial offenses without due process. Like the machine, it is seen as essential to the operation of this closed prison system. Many of the new leaders of American prisons want to reform solitary confinement practices, but like the new Commandant in Kafka's tale, without oversight, these leaders operate in the dark, unable to effectuate meaningful change by themselves.
Kafka knew what he was talking about. The historic record, reviewed in this Article, demonstrates that Kafka had a notable legal career as an attorney at the Workers' Accident Insurance Institute for the Kingdom of Bohemia in Prague. In that job he worked on behalf of industrial workers to open closed worksites to oversight, thereby improving worker safety and preventing needless accidents. These experiences gave Kafka a realistic understanding of what can happen in closed, unregulated institutions such as prisons.
Despite the relevance of In the Penal Colony, Kafka's voice has not yet been heard in this debate. This Article is intended to fill that void and to reveal how Kafka's profound insights, so artfully crafted in the powerfully beautiful prose of In the Penal Colony, help us understand why we must open prison doors to outside scrutiny and put an end to the gruesome practice that is solitary confinement.
Michael B. Mushlin, "I Am Opposed to This Procedure": How Kafka's In the Penal Colony Illuminates the Current Debate About Solitary Confinement and Oversight of American Prisons, 93 Or. L. Rev. 571 (2015), http://digitalcommons.pace.edu/lawfaculty/989/.