Law in Contemporary Society

Reforming the U.S. Penal System

-- Originally by Keith Edelman - 19 Apr 2009


“How about, gangs of murders, rapist, drug addicts, and machine—gun—toting police to boot—in one wondrous place. The digs ain’t cheap, either—more expensive a night than the Plaza.” — Robinson

Due to the serious and costly nature of human imprisonment, the goals and structure of the U.S. penal system should be properly analyzed.

  • Are you sure this is what you mean? Would it really not need proper analysis if it were somewhat less costly?

Here, a brief explanation of retribution, deterrence, incapacitation and rehabilitation leads to the conclusion that prison may not be the most effective means of bettering society. Nevertheless, it is unlikely that the electorate or legislature will make any effort to remedy the problems of our current system. This leaves lawyers as the persons in best position to bring forth prison reform.

Brief Examination of Justifications for Imprisonment

  • This could be still briefer. One sentence is all that's needed, if that much.

Retribution is commonly cited to support judicial punishment. Imposing a punishment proportionate to the crime is thought not only justified, but required of a moral society. Time in prison is given for the injury caused to society.

Prison is also credited with deterring future behavior. It is believed that humans will incorporate the costs of imprisonment into their calculations that determine conduct. Alternatively, imprisonment is thought to condition humans to avoid criminal behavior. If a negative stimulus –prison – is presented (or a positive stimulus – freedom – is removed) in conjunction with criminal behavior, convicts might learn to avoid committing these transgressions.

Incapacitation is another theory used to support imprisonment. If the person will only do harm, society is thought better off with him/her behind bars.

Finally, prison is thought to rehabilitate criminals. Society is better off morally and practically after individual reform. Although some might believe deprivation of liberty itself facilitates reformation, rehabilitation is most often associated with services administered to inmates within the prison.

Problems With These Justifications

Retribution theory assumes the “criminal” is guilty of a crime. “Punishment … must in all cases be imposed only because the individual on whom it is inflicted has committed a crime.” This requires a reliable method of determination. Retribution theory cannot justify punishing the innocent; it likely implies that such punishment is morally wrong. Our fact-finding system is far from the verifiable science that we would like. Frank would say our judicial system utilizes legal magic to avoid the uneasiness of uncertainty. Even if retribution is assumed to be a proper goal, our current system does little to validate its assumptions and ensure that only the guilty will be imprisoned.

Deterrence theory is similarly conditioned on questionable propositions. Human beings rarely act as a “rational-actor”. This simplification ignores the many dimensions of the human experience: adherence to seemingly foolish social scripts, the lack of free will within organizations, and the overall effects of minds on minds. To expect an individual to know the law and behave as homo economicus, or the “Thinking Man”, is unrealistic. After all, why would 63% of convicts freely get re-arrested?

Incapacitation, assuming individuals cannot change, seems proper. If an individual will only harm, incarceration seems justified on both moral and utilitarian grounds; isn't it wrong and ineffective to keep such a person in mainstream society? But most people, with proper support, can improve. In this regard, long prison sentences and the death penalty may cruelly punish convicts who are no longer a threat to society. Incapacitation is only logically effective, where rehabilitation is ineffective.

The rehabilitative effect of our current prison system, however, is questionable at best. For instance, in 1997, only one in ten state inmates received drug treatment. This systematic neglect to rehabilitation has come in the face of ample evidence (i.e. educating inmates reduces recidivism) that a commitment to rehabilitation works. Rehabilitation for all convicts would certainly benefit society, but the cost of this treatment is equally burdensome.

  • I'm not sure what this discussion was supposed to accomplish. If you are a supporter of, say, retributive justice, the dismissal above will seem very tendentious: whatever you may think about the punishment of the innocent, or the probability of false conviction, there is no meaningful doubt about the guilt of those who have pled guilty on full allocution, which requires a finding of voluntariness and completeness by a neutral magistrate, who are the overwhelming majority of the population subject to significant criminal punishment. So the proponent of retribution will think your argument meretricious and misleading, while the opponent of retribution, on whatever ground, doesn't need an argument from you on the point. The same could be said of the brief dismissals you adduce with respect to motives of deterrence and rehabilitation. So what's the goal? You don't need to preach to the choir, and those not convinced before won't be convinced now. Can something better not be done with the space you're using?

What Does This Mean?

Imprisonment, as used in the U.S. penal system, should focus on bettering our society. Taking the above theories at face value, it is sensible that the only human beings who “belong” in prison are those who, even with full rehabilitative efforts, will continue to do harm. Unfortunately, as American society grows less prison-minded, empathy for convicts is miniscule.

  • I don't know what "less prison-minded" means.

It is unlikely, that in the middle of the current economic crisis and lingering war on terror, prison reform will be an issue given major consideration. The average citizen does not view a convict as someone in need of help, especially during a recession. Consequently, the legislature will not become involved in remedying problems of the U.S. penal system. Furthermore, the majorities of incarcerated persons comes from lower social classes and have little power to demand change.

  • This is an odd conclusion. Prison reform is noticeably being forced on the states precisely because of the fiscal crisis, which is leaving them in such stark want of money that the fortune it costs them to house non-violent inmates is now unaffordable. You can see it in California most clearly, at the moment, but the crisis will overcome everyone who went for "three strikes" and other prison-builders dream provisions in the 1990s.

The Answer

The legislature and the electorate may ignore the injustices that accompany human imprisonment, but this does not mean that lawyers must turn a blind eye. Advocacy, a fundamental principle of lawyering, is what prisoners across the country need at this very moment. On small scales, lawyers, by effectively representing and counseling their clients, can work to reduce the number of unfairly imprisoned and the unduly prosecuted. On larger scales, lawyers have the power through independent research, interviews and investigations to identify the most prevalent problems within the structure of our current prison system. These studies can then lead to litigation, academic publication, lobbying and eventually legislation.

  • Have these things not been happening in the past? And what has been their effect?

While it may seem just to sentence a mass murderer to life in prison, can the same be said for a 14 year old boy who stabs his stepbrother during horseplay? Lawyers, who feel there may be injustice in this sentencing, possess the limited power to make sure another child’s entire life isn’t taken from him. Using their words to cause human action, lawyers are equipped with the skills and knowledge to help these inmates.

  • But we've gone from systemic criticism of punishment to a discussion of lawyers' response to individual (and, in your example, exceedingly infrequent) injustices. I can't tell whether you are associating the efforts of these lawyers with retail rather than wholesale efforts at reform, or whether that's an unintended reduction in the analytic scope.


Our criminal justice system should maximize social improvement and minimize deprivation of liberty. If there are in fact problems associated with how imprisonment is used as a means of bettering society, it will be lawyers who bring about reform. The U.S. penal system and the public disregard for the rights of prisoners will not change overnight. Reliance upon the legislature to bring change is illogical. There are only a few individuals capable of affecting how imprisonment is used in our society; they are lawyers and it is time for them to step up.

  • Step up by means that don't involve legislative change? Is this a statement answering the question I asked above? If so, and if I believe that there's no way retail change can deal effectively with these problems, are you and I fated to lose hope?

  • As I've indicated, I think this revision is an excellent start in dealing with Keith's first draft, which too easily assumed away political difficulties, but I think its analysis is hard to follow on some crucial points.


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Attachments Attachments

  Attachment Action Size Date Who Comment
pdf LCP63DWinterSpring2000P257.pdf props, move 309.9 K 19 Apr 2009 - 18:09 KeithEdelman Rethinking Welfare Rights, Journal of Law and Contemporary Problems, Duke University
r3 - 08 Jan 2010 - 22:28:42 - IanSullivan
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