Litigating the Carceral Soundscape
by David Howes and Simcha Walfish
Osgoode Hall Law Journal
Sound has always been a material issue in the prison, whether it be in connection with sonic surveillance, the “silent cell,” or the insistence of sound (excessive noise, countercarceral music-making). This article asks: how and when does the carceral soundscape become a litigable issue? The article opens with a discussion of the challenges involved in attempting to study the sonic ambiance of the penitentiary through the medium of written documents and proposes a methodology of “sensing between the lines” by way of a solution. It goes on to analyze the “moral architecture” at the foundation of the modern prison in an effort to excavate the sonic dimensions of incarceration in the context of a system that was designed with silence at its core. Solitude and silence were presumed to have an “emancipatory effect” on the prisoner by attuning the carceral subject to “the inner voice of conscience” through forced withdrawal from the distractions of the senses. The next part considers the ways that, despite attempts to manage sound, its insistence has resisted control. It presents solitary confinement as a crucial site to explore the ways in which enforced silence, as an organizing principle, has undergone several contortions that gave rise to alternative rationales, such as “structured intervention,” yet has persisted. The article then explores how this enduring silence has figured in the contemporary case law, alongside other forms of acoustic violence, such as excessive noise, and sonic resistance to the conditions of incarceration on the part of prison inmates (e.g., rapping to beat the rap). While some cases describe the experience of the prison as one of unbearable silence, others describe it as noise without respite. This research highlights the ways that sound in prison has remained an important site of discipline and contestation that reverberates through the case law, yet without being appreciated adequately by the courts. The article concludes with observations about the ways that probing the role of sound in the logic of incarceration can complement litigation efforts that question carceral logics.