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.