Unconscionable Punishment

Here, I discuss America’s mass incarceration problem.*

[ *Based on: “Unconscionable Punishment,” in Rethinking Punishment in the Era of Mass Incarceration, ed. Chris Surprenant (Routledge, 2018), pp. 34-48. ]

1. The Incarceration Question

America is the world leader in incarcerating people, with about 1.9 million people incarcerated (583 per 100k population, https://www.prisonpolicy.org/reports/pie2024.html). This is about a sixth of the entire world’s prisoner population. A little under half of them are in for violent crimes (as their most serious offense). Maybe we’re imprisoning too many people?

Some costs of incarceration:

• Inherently harmful to the prisoners.

• Makes criminals more dangerous when they are eventually released. Prisoners learn new criminal skills, make criminal contacts, and absorb antisocial values while in prison.

• Disrupts families.

• Costs the government ~$30,000 per prisoner per year.

• The economic cost of having people removed from the labor force.

Some benefits:

• Incapacitation: While in prison, criminals can’t victimize the general population.

• Deterrence: May prevent people from turning to a life of crime, or deter some criminals from continuing their life of crime.

• Retributive justice: Bad people deserve to suffer.

Do the benefits outweigh the costs? Maybe. But the costs are so high that it makes sense to look at alternatives, such as compulsory restitution (criminals have to compensate their victims, with prison as a backstop if they fail to do so).

2. Unconscionable Punishment

Abuse is widespread in America’s prisons (and probably around the world). This is well-known, but few seem to care. People tell jokes about prison rape (e.g., telling someone who is being prosecuted not to bend over to pick up the soap in the shower, hahahaha), because rape is funny when it happens to criminals.

An anonymous survey indicated that 4% of state and federal prison inmates suffer some form of sexual abuse per year, but that is probably a dramatic underestimate. Sometimes, prison officials intentionally allow rape as a punishment, or as a reward for the rapist.

Periodically, prison guards seriously injure or kill inmates, usually with impunity. Examples:

In 2008, Florida inmate Kelly Bradley was beaten by a group of five prison guards, one of whom gouged out his eye. Some officers tried to cover up the incident. Of the 6 officers involved in the attack and the coverup (including the commanding officer), one was prosecuted, four were later promoted, and the officer who reported the incident was fired.

In 2015, New York state inmate Samuel Harrell, a nonviolent drug offender, was beaten to death by a group of guards known in the prison as “the Beat Up Squad”. Since then, it appears that no one has been charged in his death, and it is unclear whether anyone has been disciplined in any way.

Granted, most criminals are bad people (so are most non-criminals, but let’s leave that aside). Still, everyone agrees that not just every way of treating them is okay. Everyone agrees that it would be wrong to expressly sentence people to be severely abused, e.g., to be raped, beaten, or have their eyes gouged out. If so, it seems that it is prima facie morally problematic to sentence criminals to prison when we know that there is a high, ongoing risk of such abuse.

When prisoners suffer abuse, the state is responsible for that abuse, since (a) the state has intentionally confined them in dangerous conditions, (b) the state intentionally stops them from using most methods of self-defense (such as carrying weapons, or simply avoiding the dangerous people), (c) in many cases, the abuse is directly carried out by government employees.

The conclusion seems to be that we should try to greatly reduce the reliance on incarceration.

3. Why Not Reform?

Why not instead conclude that we should just reform the prisons so there won’t be any abuse?

Obviously, if you have the option to do that, you should do that. However, it makes sense to ask what we should do given the fact of widespread abuse, because:

1. There are systematic reasons for the prevalence of prison abuse; it’s not accidental. Prisoners are in an inherently weak position (unable to defend themselves, unable to escape threatening people), they’re surrounded by violent people (the other prisoners, and even the guards), the rest of society has very little sympathy for them, other people tend to not believe them, and they’re in a culture that rejects the idea of reporting crimes to the authorities (snitches get stitches).

2. As with any crime, prison abuse can only be reduced, not completely eliminated.

3. The people who decide on convicting and sentencing criminals do not have any power over prison reform. Juries and judges, in deciding whether to convict or whether to sentence someone to prison, do not have the option of first eliminating prison abuse before sentencing. Legislators deciding whether to assign prison as a penalty for certain offenses also do not have the realistic option of first eliminating prison abuse.

Realistically, if we continue to imprison people, they will in fact continue to suffer serious abuse while in prison.

4. Alternatives for Punishment and Deterrence

Some common alternatives to prison: community service, probation, house arrest, movement restrictions (with ankle monitors and such). The most important alternative, especially for property crimes, is compulsory restitution: the criminal has to pay back his victim (with the threat of prison if the criminal fails to do so; in fact, this threat is highly effective, so almost everyone would make the payments).

Could these alternatives achieve the same benefits that prison is supposed to achieve? It is said that prison (a) deters crime, and (b) gives bad people what they deserve (retributive punishment).

(a)

Would compulsory restitution provide a sufficient deterrent? Probably, yes. Granted, it’s not as unpleasant as prison. But the costs of most crimes to the victim are many times greater than the benefit to the criminal. So being forced to compensate the victim should generally suffice to make the crime not worth it (even with the uncertainty of being caught).

(b)

Does compulsory restitution provide sufficient retributive punishment? It’s controversial whether retributive punishment is a good at all. But let’s suppose it is.

Even retributivists don’t think that one should maximize the suffering of wrongdoers. They think wrongdoers should suffer punishment proportionate to their crimes. There’s a pretty good case that the current regime of mass incarceration overpunishes huge numbers of people. For most crimes, compulsory restitution would in fact impose a less disproportionate cost, so it is superior from the standpoint of retributivism.

5. Prison for Incapacitation

Prison abolitionists say that we should completely eliminate prisons. This is really not a serious position. These people are like children trying to talk to the adults.

Take an extreme case, say, Ted Bundy, the sadistic psychopath serial killer. During the 1970’s, he murdered over 30 women just for fun. In 1977, he escaped from prison, then was recaptured, then escaped again. Shortly after his second escape, he murdered three women and injured another 2 before being recaptured. Eventually, he was executed, after spending 11 years in prison (that’s how long our system takes to execute someone).

Now, what is the prison abolitionist’s solution for Ted Bundy? A stiff fine? Give him a fair wage, and he’ll turn nice? More mental health care? There is no cure for psychopathy. Psychopaths are about a quarter of the prison population. These are not normal people just like you and me except that “society” mistreated them. These are people who literally are incapable of empathizing with anyone and incapable of understanding morality. They were born that way. They have never been interested in normal relationships with other humans, no matter how nice you are; their only interest is in using other humans. As soon as they get the chance, they will go back to abusing other people.

So if you don’t want them to be imprisoned, our only other alternatives are (a) we immediately kill them, or (b) they run rampant across society, raping and pillaging for the rest of their lives. I would bet that about 0% of the prison abolitionists would support (a), so we’re left with (b). This is not a position that a serious person could favor. This is not a compassionate, sophisticated position, as the abolitionists probably think; it is not compassionate or sophisticated to want Ted Bundy to go around raping and murdering innocent people for decades until he finally dies of old age.

So we have to maintain prisons for the most serious, violent criminals. Here are three reasons why imprisoning these people is much more acceptable than imprisoning minor criminals:

1. The prisoners most vulnerable to abuse are the weakest and least aggressive. The serious violent criminals are thus at lower risk of suffering abuse.

2. Serious violent criminals deserve more suffering than lesser criminals do. Therefore, it is less unjust when they suffer prison abuse.

3. The risks of releasing serious violent criminals are much greater than the risks of letting out lesser criminals, e.g., drug or property criminals. One violent criminal who gets out can very quickly cause much more harm than his own entire life is worth.

On the other side, perhaps some would say we should immediately kill the most serious, violent criminals, rather than imprisoning them. The problem is that sometimes we are wrong about who committed a crime. We have to hold people in prison for some time while we’re figuring out whether they’re really guilty. Also, even after a conviction, there is a significant risk of error. So, maybe some criminals should be executed, but surely not everyone who appears too dangerous to release should be executed.

6. Conclusion

We should keep prisons for serious, violent criminals. We should greatly reduce the use of prison for lesser crimes, including property crimes and drug crimes. For property crimes, the main remedy should be compulsory restitution. For drug crimes, there should be no punishment because drugs should be legalized; however, if you think they should be punished, they should probably just be punished with fines, community service, or the like.

In addition, we should increase the use of ankle monitors or similar devices, so that criminals know their whereabouts are being constantly logged. This will probably deter a lot of recidivism.