When Prisons Don’t Work

BY THEODORE RADVANYI

Imprisonment is a common form of punishmentforconvictedcriminalsaround theworld.Guiltyindividualsaresentenced to time in government-operated facilities to be detained for up to a lifetime. Rehabilitation and other forms of punishments have been in place around the world such as mandatory drug counselling, therapy, anger management, and community service work. An analysis ofimprisonmentasapunishmentand tool of justice is called for when constructive and rehabilitative practices can serve similar purposes with a possible societal net benefit. This article asks the question: underwhatcircumstancesisimprisonment an ineffectivepunishment?

In this discussion we will examine and deconstruct the idea of imprisonment as punishment in retributive justice, which is committed tothreeprinciples:

“(1) that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionatepunishment;

(2) that it is intrinsically morally good— goodwithoutreferencetoanyothergoods that might arise if some legitimate punisher gives them the punishment they deserve;and

(3) that it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers” (Walen and Dahan Katz).

Thereis notadefinitivepunishmentforall crimes. Imprisonment is common, but corporal punishment and rehabilitative approachesarealso inpracticearoundthe world. In a retributive sense, if we seek proportionality for crimes, we would want to reflect the exact suffering that the perpetratorhascaused upon thevictim.

Thebestwaytodothiswouldbetoreflect the exact action, but for extreme crimes, this is often cruel and may not even work. Ifa father were to killanotherman’ssonin cold blood, the wholly proportional punishment would be to reflect the same action upon the perpetrator: to kill the father’s son. Our idea of justice has now necessitatedthekillingofaninnocent,thus violating our third principle. In crimes against individuals, terrible punitive outcomes would occur with wholly proportional punishments in cases of sex crimes and other violent crimes. The proportional punishment is unclear when crimes are committed against organizationsormoreabstractcrimessuch as sedition. Fully proportional punishment can work for theft: to hold the individual accountable for all money stolen or value of things damaged is in practice as a lawsuit. So, we must abandon wholly proportional punishments for exceptionally terrible crimes, and instead, movetofindagenericallybadpunishment toconsiderifwewanttoutilizeretributive ideas.

In considering substitute punishments, let us examine the purpose of criminal punishmentasawhole.Alschulersuggests thatpunishmentcanservethreepurposes: to act as a disincentive for prospective criminals, punishment serves to promote social solidarity, and to ensure vigilantism, lynchings, and blood feuds do not arise (Alschuler 2003). Let us analyze these purposes:

1. As a disincentive: If the fear of punishment is enough to stop a person fromcommittingacrime,thenwehaveno fear of their criminality. This is to say the punishment is a satisfactory disincentive because the expected valueof a crime has a large enough negative utility from the possibilityofpunishment.Individualswho, despite punishment, commit the crime, must be punished to show the reality of punishmenttothosewhocanbescaredby it to lower the expected utility of crime, and to satisfy principle one. A problem revealsitselfwhenwelookintothosewho would still commit a crime despite fear of punishment: they can be desperate, uncaring, or opportunistic. Punishing the desperate (those for whom the act of committinga crimewhethercaughtornot stochastically dominates not committing that crime) is unfair, as there is a greater failureatplaythantheindividual’sdecision to commit the crime (e.g., begging on public transport in UK). When it comes to the desperate, using punitive measures instead of rehabilitative measures will do littletopreventcrimebecausethepossible benefit from crime was large enough to gamble on punishment, not that the prospective punishment was not severe enough.Punishingtheuncaringmeansthe punishment serves no disutility to the person, as they had resolved on committing a crime beforehand with full knowledge of the punishment (e.g., vigilantes, mass murderers). Opportunistic criminals have only committed the crime because they thought they could get away with it, that is, banking on the small negative expected utility (e.g., stealing a watch because its wearer is asleep). To effectively create a disincentive while preservingtheprincipleone,punishingthe uncaring and opportunistic criminals is sufficient. Using the same punishment for desperate criminals may further reduce expected utility of crimes,perhaps making some crimes no longer stochastically dominate non-crime, but it does not address underlying circumstances which make crime stochastically dominant (e.g., extremepoverty)

2. As an act of social solidarity: The enforcement of the law as punishment serves to promote moral and societal norms, condoning certain behaviours and promoting others in their place. Alschuler provides an example, if a man who would otherwise park his car legally moves to a neighbourhood where parking tickets are rarely given, his behaviour is likely to shift to park illegally. In the man’s old neighbourhood, people who park illegally are looked down upon, where here, one would be a fool not to park illegally. In terms of imprisonment, there are further questions. Rehabilitation as response to a crime is an admission of some societal failure,thatanotherpunishmentwouldbe ineffectiveatcausingthecriminalto cease the criminal behaviour, or that they are deserving of some help from the state.

Rehabilitation abandons some of our retributive principles, that instead of punishing we help those who have committed “paradigmatically serious crimes”, and it is wrong for the judicial system (as a legitimate punisher) to not punish a given criminal. But when rehabilitation is something that exists in our justice system, every criminal we imprison signals that said criminal is beyond help, and must be removed from society to both protect us from them, and satisfyourmoraldutytopunish.Ifwehave a criminalon ourhands, we must consider rehabilitation as an option so as to not sentence a person who could have been helped to thelabel of “unsavable”.

3.Prevention of vigilantism, blood feuds, and lynchings: This purpose, if we are to conceptualize it as a criterion, is only satisfied if we see empirical reduction in the number of vigilante justice incidents, blood feuds, and lynchings. This is not a moral or philosophical purpose, and as such,Ileavethetruthofthispurposeleave toanempiricalstudy.

Inretributivejustice,weseektosatisfyour moral duties, but we cannot abandon practical considerations in stopping crime before it happens by disincentive. Recidivism is one of the biggest problems retributive justice failsto address:if wedo not solve underlying circumstances, people will return to crime. If we seek to reduce recidivism, the most important type of crime to address in this circumstance is desperate crimes. If, before the crime, committing said crime stochastically dominates non-crime, then the circumstances will be the same after prison. Therefore, we must address the circumstances under which committing crime is a better life. Punishment may satisfythemoraldoctrinesofretributivism, but will do nothing in terms of legitimate crime prevention. This is where retributivism fails as praxis. Imprisonment for desperate criminals is not a fitting punishment because it does nothing to reduce incidence of crimes they commit. Rehabilitation as a punishment appears to be more effective because it would raise the stakes of the criminal’s lives- giving them more to lose from punishment, reducing expected utility from crime. Our punishmentistoforcetheindividuals,with guidance from the justice system, to improve(orideally, solve)theirunderlying circumstances which made crime stochasticallydominant.

For desperate criminals, there is no net benefit to society from their imprisonment. We avert thedamage from their crime for the duration of their sentence, signaling they are beyond help for that duration. When criminals leave prison, they would be worse off even if they seek to reintegrate to society: employers do not seek to hire criminals, and social stigmas makes life as a convict challenging. For imprisonment to be a good punishment for society, there must be a net gain in terms of utility from imprisoning an individual: the damage to society in terms of utility that the criminal would cause in freedom must be greater than the cost of their imprisonment. In terms of cost considerations, RAND finds that in the United States, “for every $1 investment in prison education programs there is a $4-5 dollar reduction in incarceration costs during the first three years post-release of a prisoner” (RAND Corporation).Thus,wecangainutilityfrom rehabilitating desperate criminals rather than solelyimprisoning them. Ifwepunish a high enough ratio of actually guilty uncaring and opportunistic criminals to those going unpunished, we can sufficiently establish the negative utility of crime while committing to rehabilitative practices. We must abandon parts of our retributive principles so we can use imprisonment effectively. Prison can reduce expected value of commiting crime, however, effective prevention requiresustotacklethe underlying causes of criminalbehaviour.

References

Alschuler, Albert W. (2003) ‘The Changing Purposes of Criminal Punishment: A Retrospective on the Past Century and Some Thoughts about the Next’, The University of Chicago Law Review, 70 (1), pp.1-22.

RAND Corporation (n.d.) Correctional Education.

Walen, Alec. (2014) ‘Retributive Justice’, The Stanford Encyclopedia of Philosophy, 18June.