The Nature of Crime and the Purpose of Punishment

Ever since Bernie Madoff was arrested, I have been struggling with the issue of criminal punishment: If we are going to pay for him to die in prison, what do we get in return?

With 2.1 million people currently incarcerated, the US has by far the largest prison population in the world. Keeping one out of every 100 Americans in prison, on parole or on probation cost the states $47 billion in 2008. These numbers not only make prison an important social institution, but beg the question: Is there a benefit that justifies the spending?

Punishment with a Purpose

Since the 1970s, when rehabilitation was abandoned as a goal of the criminal justice system, punishment has been based largely on the idea of retribution: We punish those who break the law because they deserve it. The state imposes suffering (supposedly) proportional to the amount of social harm a person has inflicted through his or her crime. Any incidental positive side effects – increased public safety or lower crime rates – are secondary to the goal of punishment itself.

But is mere retribution really enough to warrant the exorbitant maintenance costs of courts, prisons and jails? And considering the values on which American society is founded – democracy, liberty, freedom – should the government really mete out justice based on a modernized version of “an eye for an eye“? By inflicting suffering purely for the sake of suffering, the government loses the moral high ground and ends up looking almost as bad as the criminals it locks up.

From a utilitarian perspective, punishment is in itself is an evil – one that we should employ only if it serves a useful purpose. Rehabilitation as a penal ideology succumbed to data-based criticism that it simply did not work, so today’s utilitarians argue instead that the purpose of criminal punishment is to increase public safety by reducing crime. In essence, the argument holds that that sending a person to prison will (1) incapacitate him for a while, (2) discourage him from reoffending, and (3) deter others like him from committing crimes. Through incapacitation and deterrence, the utilitarian approach purports to give some return on our investment in the criminal justice system. The problem, unfortunately, is that it does not work that way.

Does it work?

William Furman was convicted of felony murder and sentenced to death in 1964, having killed in the process of committing a burglary. In 1972, however, the Supreme Court overturned his sentence and placed a de facto moratorium on the death penalty (Furman v. Georgia). In other words, Furman was given a second chance on life. Nonetheless, upon being paroled, he committed another burglary and was sentenced to 20 years in prison. If narrowly escaping the death penalty does not deter, what does?

The vast majority of criminals-to-be apparently do not carry out the cost-benefit analysis required for deterrence to work; similarly, the benefit of incapacitation is mitigated by a replacement effect – as long as there is a demand for drugs, for instance, someone will deal them. So, while incarceration has increased by 500 percent over the last three decades, the crime rate today is essentially the same as it was in 1970 (approx. 4,000 per 100,000). We spend an average of $29,000 a year per prisoner, and yet we do not seem to be any safer. It seems like a bad investment to me.

Addressing the Cause of Crime

These traditional approaches to criminal punishment have one thing in common: They approach crime from a band-aid perspective. But while we scratch our heads attempting to figure out what to do with those who have already caused social harm – lock them up, kill or rehabilitate them – several new crops of criminals are sown. Perhaps we should stop obsessing about reprimanding past harm and try to learn how to reduce crime and the need for punishment in the future?

To address the root of the problem we must understand what motivates crime. Why do people break the law? The Anglo-American criminal law has traditionally used a variety of mental-state requirements as proxies for “the guilty mind” – without further inquiry into the factors that produced that mind. We tend to assume that people who commit crimes are “bad people,” when in fact we cannot be sure that they are in any way worse than the rest of us.

I would argue that, under certain circumstances, most people are capable of criminal conduct. In the aftermath of Hurricane Katrina, for example, ordinary people turned into looters and thieves not necessarily because they had to, but because they could. One resident appeared on CNN carrying an armload of stolen sneakers and cheerfully exclaiming: “Katrina gave us new shoes.” More appalling instances of this phenomenon is the willingness of ordinary people to assist in mass murder during World War II and in places like Cambodia and Rwanda.

The Way Forward

If we accept the premise that all or most of us are capable of a “guilty mind,” we can dispel the view of criminals as a distinct group and instead focus on the dynamics that trigger this latent criminal propensity in some people. In that combination of triggering factors we might find an alternative to widespread incarceration that gives us a better return on our investment. Given that a majority of prison inmates are high-school dropouts, shifting funding from prisons to schools and community programs may be a good place to start. Though long-term goals are notoriously hard to pursue, we may ultimately not have a choice. No society is a utopia, and prisons will never entirely go out of style. Nonetheless, we cannot afford – fiscally or morally – to waste resources on a costly system that has failed to serve a purpose for a long time.

All of this said, and I still do not know what to do with Madoff.