Law in Contemporary Society
The original paper can be found here.

“When we put people who murder other people in prisons – where, believe me, many of them, indeed, do belong – we don’t do it because they’re sane. We do it for other reasons.” - Robinson

Traditional Reasons for Prisons

1. Deterrence

Humans ought to behave like good Pavlovian dogs, trainable to certain stimuli and able to be directed instinctively or consciously to obey the law through a system of punishments and rewards. This rationale has great moral appeal but is faulty for various reasons.

First, humans do not behave this way. Incentives can succeed but do not in criminal law. Evidence of effective deterrence is hard to come by. High recidivism suggests that prisons double as criminal training facilities and even the death penalty, having its own separate problems, has not shown any measurable deterrent factor compared to life sentences.

Second, for deterrence to work, effective operant conditioning requires the stimulus to be consistently paired with the undesired behavior. Imprisonment is neither consistently nor immediately paired with criminal behavior. A myriad of factors (often power and wealth) can eliminate the “proper” application of the stimulus.

Third, as a rationale, deterrence knows no boundaries. It will justify any expansion of the criminal law, even as we can now witness, into the international sphere.

2. Integration/Rehabilitation

Treating criminals instead of punishing them is the antithesis of the ideal of retribution; if the state motive is therapeutic, the confinement is not punitive. Also, this might become a slippery line, as the authoritative power of the state is cloaked in benevolent motives; one need only think of re-education camps in former communist states. In the case of drug addicts, prisons have an abysmal track record of offering positive change. Thus given the high rates of recidivism and circles of poverty and crime, rehabilitation is an even more pressing concern.

3. Protection/Incapacitation

The notion of removing undesirables from sight is not new; instead of sending them to Australia, which replaced the death penalty in the United Kingdom, they are now incarcerated. The reasons for this are utilitarian, and pose serious problems in terms of the social contract. Prisons are expensive and we’ve run out of faraway continents. Moreover, incapacitation implies that the offenders’ rejection of the social contract is undesirable, unacceptable and that they require change to function in our society, which ironically keeps insisting on individual rights.

4. Non-punishments

Certain persons and certain offenses are penalized through degradation in status: disbarment, deportation and impeachment. These measures do not count as punishment in 5th Amendment jurisprudence, thereby affording the right to jury trials.

5. Retribution

‘The blood cries up from the ground’ (Exodus, chapter two [David Staube, Studies in Biblical Law]). There is a vindictive streak in humankind, a belief that a wrong can only be remedied by inflicting suffering on another person. The moral order of the universe is disturbed when a crime goes unpunished; the punishment then cancels the wrong. Failure to prosecute establishes complicity.

This is the most primal and emotive justification, drawing on our experiences from the schoolyard. A violation establishes the supremacy of the offender over the victim, which can only be remediated by reducing the offender to the status of victim. When we suffer violence, we lose power. That power can only be regained by making the perpetrator suffer personally at our hands, or publicly at the hands of authority. This is a direct clash with notions of rehabilitation and benevolent state activity towards offenders.

6. Setting examples

Though logically an extension of deterrence, this had a separate history. Public executions, marketplace flogging, stocks and public torture as sign of public power used to be the norm before prisons were deemed affordable. Today this use of public power would be thought barbaric. It could be argued that media reporting of the criminal process in fact continues this role. This underscores the fact that retributive justice must be public.

On Review

Treatment for prisoners ought to have two goals. First, rehabilitation is required for those who commit crimes out of positive feedback loops of repression, poverty and crime. Many of these are ‘victims of circumstances’ and need help to break with drug addictions and other habits. The criminal justice system can work as part of a broader plan to amend social injustices.

Second, retribution still demands its place in society. What sort of rehabilitation would be proper for Bernie Madoff? Our thirst for vengeance requires that people be made to suffer in response to violations against us. It is hoped, and probably true, that criminals who outright reject the social contract constitute the minority of current prison inmates.

A problem arises in how to tell the difference. Retribution requires a reliable method of fact determination as its theory is haunted by two ghosts – the injustice of punishing the innocent and the injustice of not punishing the guilty. And though ‘beyond reasonable doubt’ is a high standard, our fact-finding system is far from the verifiable science that we would like.

What There Is To Be Done

Recidivism rates are at 65% while divorces hover around 50%. Like marriage, the prison system appears to be an institution unsuited to human behavior yet is religiously and unthinkingly supported by almost everyone, as the alternatives appear so horrid that they are beyond even rational consideration.

The first step in changing the prison system lies in dismantling the prison-industrial complex and returning every aspect of correctional services to the state. Recidivism must not be encouraged for the profit of prison managers. Changes in management, criminal law and lobbying laws would be required. Under the current administration this is possible, but unlikely to be high-priority.

Second, drug programs, education, healthcare and therapy should be afforded prior to, during and after imprisonment. It will be a brave politician who publicly endorses spending money on supporting and helping criminals instead of bailouts for mortgages, tax cuts or other public programs. However, given that such programs might actually cut costs, this plan might not be completely doomed as the taxpayer considers himself to be a homo oeconomicus.

Third, it must be realized that ineffective prisons are a symptom for deeper sociological problems. While willful crime always exists, systemic change is required in healthcare, education and welfare to change societal habits.


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r2 - 08 Jan 2010 - 22:28:32 - IanSullivan
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