Thoughts on Criminal Justice

December 1998
My first encounter with the idea that prisons might be a bad idea was in reading Michel Foucault’s Discipline and Punish (1975). He spoke of alternatives or substitutes for prisons, and also for factories, schools, barracks, and hospitals, all of which he said resembled prisons. But he said not one word about what such alternatives might be, and his style struck me as pretentious. So I didn’t pay much attention.

I believed, of course, that we ought to have been devoting much more time and money to alleviating poverty, educating children and adults, providing decent homes and medical care, training people for enjoyable jobs, treating the mentally ill and those addicted to drugs. I believed that we in America were wrong to allow people to live in horrible conditions, to supply everyone with guns, and then to address crime after it happened. But I didn’t think much about the way in which we addressed it.

And I understood that the “big government” objection to doing anything decent was a cover since every study ever done showed that it cost more to reduce crime through prison than through any type of social service.

I did have some general, vague, and ill-informed complaints with our approach to punishment. I rejected the common demand for vengeance and the philosophical demand for justice (a.k.a. vengeance) as barbaric and counterproductive. I was disgusted by the fact that our government supported crime victims in believing that they could be helped by seeing criminals suffer. I opposed the death penalty because there was no evidence that it deterred crime, saved money, or helped to civilize anyone. The whole idea of vengeance seemed to conflict with reducing crime in many ways. Those “mentally incompetent” often couldn’t be confined for society’s protection, and couldn’t be given the help they needed if they were confined. Restitution was never made to victims or communities, because those who ought to have been making it were locked away as monsters.

I didn’t yet understand the degree to which prison trains those monsters to be monsters, and teaches people to see society as an enemy and themselves as wrongly treated. Nor was I aware how little evidence there is that prison (not just the death penalty) deters crime. I wasn’t aware how unlikely recidivism is in many cases, or how small a percentage of prisoners had been convicted of violent crimes. I didn’t know how large a percentage of prisoners were mentally ill or addicted to drugs. Nor did I have much idea what went on in prisons, how torturous imprisonment is, how solitary confinement produces insanity, how common rape and murder are in our prisons. Nor did I know anything about our recently developed private prison industry, an industry without the competition of the free-market, but also without the accountability or financial stability of the government. We now build unneeded prisons in the hopes that prisoners can be found to make them profitable. And the prisoners are cheap laborers. A good way to make money in the U.S. now is to shut down a factory, wait for poverty and alcoholism to lead to crime, and employ prisoners. By this means the savvy exec. can distinguish himself or herself by engaging in the moral equivalent of slavery without any of the unpleasant P.R.

I was unaware, as well, of the extent of the increase in imprisonment in the U.S. in recent years, and of the degree to which those in other countries regard us as cruel and backward, not just because of our attitudes toward the poor, toward sex, toward drugs, or toward religion, but because of our attitudes toward crime. I had no idea of the absurdly high percentage of arrests that lead to convictions in this country. We elect our prosecutors and judges, and allow them to accept campaign contributions. We convict by the decision of juries, though our entire justice system has by now been designed to minimize juries’ weaknesses. We allow prosecutors to make financial payments to cooperative witnesses. And we all seem to be happier with a questionable conviction than without one.

There are alternatives to prisons. Foucault said nothing about them, but others have. One of the best books I’ve read about prisons, and the one which goes farthest toward suggesting how they could be minimized (not eliminated) is A Sin Against the Future; Imprisonment in the World, (1998), by Vivien Stern. Early in the book she writes:

“They are not sure what prisons are meant to do: is it to lock people up, make people better, stop them getting worse, teach them a trade, give them psychiatric treatment or make them suffer? In poorer countries these dilemmas are sharper. Prisoners have to be fed and cared for, whilst outside on the street fellow citizens may be dying of hunger or lack of medical care. . . .

” . . . Also, imprisonment is a prime focus for human rights abuses. One set of human beings is under the control of another, dependent on them for food, the opportunity to perform their bodily functions, access to the outside world, work, exercise. When someone dies behind the high prison walls cover-up is easy; asking questions is hard.

“Is imprisonment effective at least in doing what it sets out to do, protecting society from crime? Unfortunately not. Locking up a dangerous violent person will prevent that person causing injury or doing harm to others in society whilst locked up. But many of those in prison are not dangerous or violent. Most will leave prison in due course and live once again in society. Their stay in prison will probably leave them more prone to crime and will have damaged those elements that bond people to society, such as relationships with family and friends, the chance of a place to live and a job, the chance of being respected and esteemed by others.

“There is no doubt that the problems of imprisonment are many and its effectiveness is at best dubious. . . . For poor countries there is no logic at all in a punishment system based on rendering people unproductive so that the state has to take on the responsibility for feeding them. Yet they all do it. In fact, the use of imprisonment is high and rising throughout the world.”

Imprisonment is highest, and rising the fastest, in the United States. In Russia it is decreasing, and reliable numbers cannot be obtained for China. No other country is anywhere close to the U.S. in rate of imprisonment in proportion to population. Stern documents that most penal reform reports by governments around the world “begin by questioning the efficacy of the institution of prison itself.” And she questions the idea that the recent increase in incarceration in the U.S. has reduced crime outside of prisons, either by deterrence or by temporarily removing potential recidivists from society. She goes on to suggest that mass incarceration will increase crime by the destruction it does to families and communities.

Stern also cites studies showing that Americans are less intent on massive incarceration than are their elected representatives. The cowardly appeals of “hard on crime” politicians to the basest instincts of the majority may actually be appealing to a minority. The parallel with the Republican Congress’s recent impeachment of Bill Clinton, regardless of what the public might want, is striking.

In suggesting alternatives to prison, Stern cites examples from New Zealand, Vermont, Quebec, Africa, and India. The U.S. could drastically reduce its prison population by treating drug use as a medical, rather than a criminal, problem. It could go further by learning from some of the examples Stern cites in which greater use is made of probation and community service, greater emphasis is placed on restitution and answerability to victims. In New Zealand an offender and his or her family sit down with a victim and family and moderators to arrive at a punishment acceptable to all, including an apology. This is not the U.S. version of victim involvement in which restitution and apology play no part but the victim (who has no knowledge of the offender’s psychology) recommends a length of prison sentence and seeks to play on the emotions of the jury. As Stern puts it:

“With prison the victim is not healed. The victim is forgotten. The community breach is not healed – but widened – and society has become more dangerous.”

Clearly there is something flawed in the idea that we can reduce crime by temporarily removing people from society, if while they are removed they are trained to be more serious criminals and in fact allowed to commit crimes against each other, and if nothing is done for the wellbeing of those damaged by the removal of these people. But there are two reasons why many Americans want to proceed in this way nonetheless. One is the desire for vengeance. Let more crime victims be produced, this thinking goes, as long as the current ones can be made to feel overwhelming hatred for those who abused them. The other reason, one which I think Stern may underestimate and which may be less in some countries, is a belief in the deterrent power of prison.

In his 1993 book Crime and Punishment in American History, Lawrence M. Friedman writes on the topic of whether our penal system reduces crime:

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