• I don't understand the analysis here. For some reason, anti-regulatory pro-business laissez-faire ideology is supposed to be connected in so direct a way to the American enthusiasm for incarceration, that it can be seriously proposed that a downturn in the economy will result in changes in the theory of criminal punishment, not because we can't afford to imprison as extensively as we do now, but for some less immediate cultural reason, which after two readings I'm not sure I can specify. (My puzzlement is made worse by the fact that free market ideology is used to explain both why people defend prisons as good for economic development and attack prisons on NIMBY grounds.)

• It is true, of course, that recession is bringing about a crisis in prison funding, as can be seen most clearly at this stage in California. I do not see any sign, however, that the change is in attitudes about whether we should imprison large numbers of people, but only in our ability to fulfill our appetite for incarceration given the cost. If you had public opinion data, or indeed any species of evidence to present in support of your conclusions, it would have been welcome.

• This draft is definitely an attempt to address the problems with the first draft, and it constitutes progress. What it needs next is some factual support, and some analytic clarification.

The Persistence of Prisons: An Exposition of Economic Foundations

Introduction

Brief Examination of Justifications for Imprisonment

The Only True Goal

How Did We Get Here?

Our Economic Theory's Social Stigmatization

Perceived Functional Benefits of Prisons

• LCP63DWinterSpring2000P257.pdf: Rethinking Welfare Rights, Journal of Law and Contemporary Problems, Duke University

• This is all very well, but there isn't the slightest chance on earth of its happening. The reasons are many; the enterprise of imprisoning a significant fraction of the young men at the bottom of our social structure has created incumbent beneficiaries through the "prison-industrial complex," and the attitude of the electorate is not going to grow less prison-minded as economic conditions grow harsher and crime rates rise.

• Given that you know the medium-term likelihood of the only sensible reform is zero, what comes next? That's really where you need to take the revision.

Who Belongs In Prison?

-- By KeithEdelman - 27 Feb 2009

Overview

Human imprisonment is a very and costly endeavor. To warrant such an undertaking, our system’s goals, justifications and effectiveness must be properly analyzed. Here, a brief explanation of retribution, deterrence, incapacitation and rehabilitation theories is followed by an examination of their soundness and applicability in our current system. In light of the results, a new principle is formulated and a solution proposed.

Traditional justifications and goals

Brief Explanation

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. Imprisonment is also deemed proper. Kant claimed a thief “must yield his powers to the state to be used in penal labour, into a condition of slavery.”

Prison is also credited with deterring future criminal behavior. One form relies on rational-actor theory. It is believed that humans will incorporate the costs of imprisonment into their efficiency calculations that determine conduct. Alternatively, imprisonment is sometimes 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.

Some support imprisonment on the theory of incapacitation. 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 will be 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.

How are we doing?

Our current structure must be able to survive an examination its effectiveness in fulfilling these goals. Furthermore, the theories themselves must be sound.

Retribution theory assumes the “criminal” is indeed guilty of a crime. “[[http://faculty.msmary.edu/Conway/PHIL%20400x/Kant%20Retributive%20Theory.pdf][[P]unishment]] … must in all cases be imposed only because the individual on whom it is inflicted has committed a crime.” This, in turn, requires a reliable method of fact 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.

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?

Effective operant conditioning requires the stimulus be consistently paired with the undesired behavior. But imprisonment is neither consistently nor immediately paired with the criminal behavior. A myriad of factors (often power and wealth) can eliminate the “proper” application of the stimulus. This might actually encourage humans to behave in other undesired ways.

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. The rehabilitative effect of our current prison system, however, is questionable at best. For instance, in 1997, 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.

So who belongs?

We should focus on a goal often cited but rarely achieved: bettering our society. Retribution should yield to social improvement. Morally, it seems questionable to hurt fellow citizens rather than help them. Practically, it makes little sense.

If deterrence is likely impossible, what role does prison serve? Caging humans is not likely to rehabilitate. Incapacitation only applies to the few incapable of positive change. In light of these conclusions, I propose a new theory: the only human beings who “belong” in prison are those who, even with full rehabilitative efforts, will only do harm.

Proposal

Every “criminal” should be entitled to full rehabilitation services. Proper drug programs, education, healthcare, therapy, etc. should be fairly afforded prior to imprisonment. If at the end of a comprehensive, rehabilitative effort a few individuals will still only do harm, there is no alternative but to place them in the custody of the state.

This structure would help, not hurt fellow citizens. This proposal does not rely on the troublesome rational-actor model. Rather, economically speaking, it would shrink the market of potential transgressors. Moreover, an installation of full rehabilitative programs coupled with a slash in prisons will likely reduce costs.

Conclusion

Our criminal justice system should maximize social improvement and minimize deprivation of liberty. Rehabilitation, which does not require imprisonment, is the ultimate goal. If this is not possible, prison is the last resort; such limited confinement is properly supported by a moral and utilitarian necessity to incapacitate. As such, our criminal justice system should afford every individual a right to full rehabilitative efforts. Only the few incapable of positive change “belong” in prison. To do otherwise would harm us all.