In Ethics and Infinity, philosopher and Nazi prison survivor Emmanuel Levinas is asked about responsibility for “the Other” and says, “You know that sentence of Dostoyevsky: ‘We are all guilty of all and for all men before all, and I more than the others’. This is not owing to such or such a guilt which is really mine, or to offenses that I would have committed; but because I am responsible for a total responsibility, which answers for all the others and for all in the others, even for their responsibility. The I always has one responsibility more than all the others.”

I was a third-year law student in a seminar on Law and Theology when I read that passage and wrestled with it. The philosophical writings of the Jewish Holocaust survivors and of German Christian writers, such as Dietrich Bonhoeffer, who suffered under the Nazi regime examined the obligation of the individual in relation to others and the state. Levinas was asserting an extraordinarily expansive (and I thought at the time unrealistic) ethical obligation of the person in relation to the other: to be wholly responsible for seeing and uplifting the human dignity of others, even if there is no reciprocity. Is it possible to secure safety and to render justice to the idea of human dignity at the same time?

At that stage in my education, I had already worked with prisoners as a law student in a clinic, so I had some sense how dehumanizing a jail or prison is to the people locked inside. I had also worked in a prosecutor’s office directing people into the prison or jail system and could understand why some people had to be removed from the community. Both experiences shaped my professional views.

Over time I came to believe—and have advocated strongly—that jails and prisons should be reserved only for those posing an acute danger to the community. The most extensive expression of that belief came in the form of the MacArthur Foundation’s Safety and Justice Challenge that the Milwaukee Community Justice Council applied for and was accepted into in 2015. In that same year, I was given the privilege of exploring the management of the German prison system, today a model of humane correctional practices, with the Vera Institute of Justice. There I gained a deeper understanding of what Levinas was perceiving and articulating. More importantly, I saw a nation dedicated to learning the lessons of the past and applying it in concrete ways to the present.

German prisons are fundamentally different from U.S. prisons. They are designed differently, they are run differently, and the people participating in the system think about the carceral experience in drastically different ways from many of their counterparts in the United States. Human dignity is the system’s primary principle, and that applies to the people who run the system as well as those who are detained in it. German prison officials spoke openly of their responsibility to understand that the horrors of German concentration camps were possible only if people abandoned their individual duty to recognize and uplift the dignity and humanity of people placed under the power of the state, and only if the laws facilitated that deliberate and sanctioned blindness to suffering and cruelty.

Actual custodial sentences (non-suspended) in Germany are employed parsimoniously and generally reserved for a small number of offenders who will serve between 2 and no more than 15 years. The notion of actual jail sentences for less than a year, the hallmark of the American misdemeanor system, makes little sense to German policymakers, as does the concept of lengthy prison sentences. The incarcerated live in campus-style housing, retain the right to work and receive health care, wear their own clothes, receive education and job training, and vote. A German correctional officer is an esteemed professional in a highly competitive state job requiring advanced education and training. American prisons, and their attendant miseries, are frightening and mystifying concepts to Germans.

Is it possible to make a U.S. correctional system at least a little more like a German system? In 2015 the Milwaukee County Community Justice Council committed to participate in the MacArthur Foundation’s Safety and Justice Challenge (SJC). The name accurately reflects the inherent struggle that communities experience when confronting the need to respect the civil liberties of people who encounter the criminal justice system, while at the same time seeking to maintain a safe and stable environment in which community members—in many cases the exact same individuals—may raise their families, go to school, and prosper economically.

The premise of the SJC was that American criminal justice systems over-rely on detention and incarceration of people at the front end of the adjudication process, in order to address an array of public safety concerns—problems often originating as calls for police intervention in the outward expression of mental illness, drug addiction, and trauma-induced behaviors. Implicit in the challenge was the belief that public safety systems are activated as a default and surrogate response for what were, in actuality, public health needs, and that a properly resourced public health response and infrastructure was required to intervene in that space—not just police and court systems. Linking service providers and community-based services to people entering the system would safely deflect a portion of the jail population.

A non-negotiable term of the partnership was that all responses should be predicated on strategies that could be measured and evaluated for effectiveness. The benchmark standard that the SJC leadership landed on was a reduction in pretrial confinement in the participating sites or jurisdictions.

While broadly successful in addressing the short-term goal, pretrial confinement reform in Milwaukee has been only partially successful in achieving broader systemic goals. The Milwaukee SJC met and exceeded the goals set forth originally by the MacArthur Foundation. The pretrial detention population was reduced, and people were directed into other pathways of accountability, but the fundamental structure of the detention system remains in place and remains highly punitive.

Conversations during the visit this past May to Marquette Law School by UCLA Professor Sharon Dolovich recalled for me both the MacArthur Project and the German prison model experience. These conversations explored a key tension in the relationship between the state and its citizens—how do we appropriately and legitimately sanction violations of the law, and what is the consequent impact not just on the person incarcerated but on the people tasked with imprisoning and ultimately on the community that tolerates and supports the current structure?

Professor Dolovich’s Barrock Lecture exposed the mutuality of harm that a punitive and poorly resourced correctional system causes (in fact, the harm suffered by correctional officers reminded me a great deal of the moral harm suffered by soldiers afflicted by PTSD). Similar themes emerged from a lengthy lunch discussion with Professor Dolovich and local justice system stakeholders as we explored the lessons learned from our response to the COVID pandemic, including whether our correctional system (local, state, or federal) is at its core dehumanizing to both the inmates and correctional officers by both circumstance and design.

The mutuality of harm is not confined to corrections or to the back end of the system—it pervades the criminal process from arrest to disposition. The same concerns about the dehumanizing force of the carceral system exist in some forms even in everyday interactions between police and citizens. We are at the five-year anniversary of the killing of George Floyd, yet stories of police using deadly force on citizens, and in turn of police being killed and injured while protecting the public, are tragically recent and emotionally raw. The need for greater levels of trust, respect, and acknowledgment of shared humanity seems as urgent as ever.

We have the power to change the American carceral experience. It can be done thoughtfully and in a measured way to assure the public that we have the capacity to keep people safe yet treat each other humanely in the process. This past Memorial Day, shortly before writing this, I visited my grandparents’ gravesite in Kenosha and by happenstance saw a state historical marker in the cemetery. It is on the site of the 1851 burial of  John MaCaffary, the first and last man executed by the State of Wisconsin. The citizens of Wisconsin rejected the worst form of state-sanctioned inhumanity almost 175 years ago. We should build upon that example.