Should conservatives and libertarians treat prison reform as a question of government spending, or should they ground their solutions within a comprehensive philosophy of human dignity that attends to the real consequences of crime?
The Left has long monopolized the debate on prison reform and the much-needed overhaul of our criminal justice system. But times are changing. Conservatives and libertarians are now at the forefront of that debate, addressing both the abhorrent conditions in prisons and the overcriminalization that compounds the problem by threatening to punish the most innocuous of infractions. Even Edwin Meese—hardly a shrinking violet—has emphasized that the law has become “nothing more than [a] convenient tool for the exercise of government power to make sociological changes or to try to change social behavior.” Indeed, the progressive attempt to reshape society has transformed our prisons into miserable breeding grounds for recidivism and the degradation of human dignity.
It is, however, the costliness of prisons that has been emphasized in recent editorial opinions. Richard Viguerie, for example, has suggested that conservatives “recognize the entre criminal justice system is another government spending program.” Similarly, Jamie Fellner recently argued that the imprisonment of the aged is unjustified, not only because it is merciless, but because “[k]eeping the elderly and infirm in prison is extraordinarily costly.” These commentators, among others, propose reform from an economically-minded, utilitarian perspective.
We should be careful, however, to avoid an exclusively utilitarian approach to prison reform. Making government less costly and more effective is a worthy goal, but insufficient by itself. Utilitarianism fails to attend to the underlying problems of our depersonalized legal system. It fails to recognize the further harm that our institutions perpetrate upon victims, offenders, and their families. And it fails to appreciate the final end of public justice.
Instead, we need a humane approach to prison reform. We need to recognize the individualized harm and the social disruption that crime causes, as well as the concomitant obligations that offenders impose upon themselves to take responsibility for their actions and to “right their wrongs.” Our humane approach must recognize that man does not exist in some atomistic fashion, but is, by nature, a social animal who requires interconnectedness with others to flourish. Criminal acts disrupt the attainment of this ideal state of affairs.
We must adopt something of a phenomenological approach to the reality of crime, considering the position of the actual victim and tempering the fiction of the State qua “injured party.” Heretofore, prisons have been an essential part of the public response to perceived public offenses. A murderer, for example, is not sent to prison simply because he has taken an innocent life, but because he has shown utter disregard for the positive prescripts of the law, offended public sensibilities as to what is “right” and “wrong,” and demonstrated contempt for the inherent value of human life. While approaching crime in this manner is not unjust, it is incomplete.
Admittedly, wrongdoers upset the “balance of [social] advantages between the criminal and the law-abiding,” as John Finnis proposed. And the political community deserves some form of satisfaction for that transgression. But a criminal’s selfish and wrongful exercise of free choice also affects his victims, and their families, on a much more intimate level. The law should aspire to address these particularized instances of injustice. Yet, as the system exists today, such resolution is frequently impossible.
Human beings are inherently dignified and, consequently, possess certain rights. Government exists only to preserve these rights and ensure a free space within which individuals might exercise them. In the context of criminal justice, offenders have a right to be treated as subjects, to be punished according to their moral desert, that is, in proportion to their offenses. Moreover, they should be permitted, and encouraged, to “repair” the harm they have caused. Victims, and their families, have a right to be made whole, to have the wrong committed against them made “right.” Insofar as the State incarcerates wrongdoers for interminable periods according to arbitrary mandatory guidelines and in ghastly conditions, or punishes the perpetrators of victimless “crimes” to the same degree as those who have truly harmed others, then the State has failed to respect the dignity and rights of all those implicated in any instance of crime. More often than not, prison becomes a punishment beyond what is deserved.
If we were to adopt a humane approach to criminal justice, prisons, as well as many other institutions, would be transformed. In dealing with offenders, the State’s first priority would be financial restitution, or the public enforcement of an offender’s obligation to repair his victims to the status quo ante. When offenders are indigent, or monetary damages are insufficient, the State—either through its own means or vis-à-vis other non-governmental institutions—would facilitate non-monetary reparation, or even some form of reconciliation. When incarceration is the only option, it would no longer be an end unto itself, but a means towards a greater goal of metanoia, or change in character. Criminals would be guided to internalize shared norms of community and to deepen their appreciation for the consequences of their actions. While this might require some investment on the front end in building the requisite “infrastructure,” it would ideally save taxpayer dollars in the long term.
But we would not stop there. A truly humane approach to prison reform would require the comprehensive reform of the entire criminal justice system. We would stop sending non-violent offenders to federal penitentiaries. And we would certainly abandon mandatory sentencing guidelines. Legislators would be pressured to exercise restraint in the crafting of penal codes, and subsidiarity would have wrongdoers punished at the local level, and outside of prison, when effective and practicable. Such changes would immediately improve the conditions of our prisons and ease the overcrowding which has overwhelmed the system.
This humane approach should not be misunderstood. Prisons need to exist and criminals should still suffer punishment. Incarceration should hardly be a pleasant experience. Unfortunately, some individuals are seemingly incapable of rehabilitation and predisposed to criminality. We need prisons to handle the punishment of such offenders. Furthermore, as I have previously suggested, capital punishment may also be defensible, if not a requirement of justice, in certain limited instances. The ultimate goal of reform should not be to create utopia, or to “immanentize the escathon,” but simply to reaffirm the value of practical reason in the administration of criminal justice.
Financial considerations are valid, but should be ancillary to our aspiration for humane institutions that treat all men as dignified. Utilitarianism neglects the necessary philosophical groundwork for truly effective reform. Smaller government need not be accomplished simply through the slashing of the budget. As Edwin Meese said, “government must perform its public safety functions within a framework of liberty and justice.” This framework of liberty and justice, I submit, requires that we attend to the inherent dignity of human persons, and the real consequences of crime. The men that we imprison are men, not animals. If we forget that, or forget this framework, any attempt at reform will fail.
Ryan Mulvey lives and works in the Washington, DC area. He holds a BA in history and political science from the University of San Diego, and a MA (Philosophy) and JD from Boston University. Mr. Mulvey can be contacted at rpmulvey@gmail.com
The cost argument is more compelling because why pay to house America’s delinquents when you can just sell the service to some company to do it for you? Let the liberals rub their hands about the poor widdle human beings, there’s gold to be had in that human suffering. Also, it’s more compelling because the private prison industry has money and the liberals whining about the poor widdle humans in prison don’t.
P.S. Prison reform’s also not gonna happen on any level because prisons are rape factories by design. What’s the deal with all this latin gibberish? You’re thinking way too much about it. People are supposed to be afraid of getting their asses (literally) destroyed so as to keep them out of it. For the rest, well, re-offenders exist to make money so we’re back to the primary argument. See? No latin required.
“More often than not, prison becomes a punishment beyond what is deserved.”
How do we know that’s what’s going on? I’m highly sympathetic to your arguments, but they depend upon an empirical point that I’m not sure you adequately address. How do we know that we’re locking up too many people for too long?
Let us suppose that an individual is convicted of a crime and sentenced to 10 years in prison. My argument is that during those 10 years, the convict must be treated with the dignity due an human person. Insofar as prison conditions destroy his dignity, his punishment is more severe than what he deserves.
It is not simply a matter of the length of incarceration. Sentencing requires the exercise of practical reason. I think it’s rather difficult to determine ex ante what to do. Obviously, there’s a tension, and at some point we have to have manageable guidelines for equitable administration of the law.
I don’t think anybody can seriously doubt that overcrowding is happening and that it is creating adverse conditions. I don’t think anybody can doubt that correctional officers have a tendency towards abusive and cruel behavior. And I don’t think anybody can doubt that the sexual and physical violence amongst inmates, especially since the beginning of the Drug War, is real. So, while there is an “empirical” question, I think the answer is obvious enough that it doesn’t need to be doubted.
I don’t. “More often than not?” 51% of the American prison population is locked up for longer than they deserve? None of your “I don’t thinks” convincingly supports that claim. We’re not just talking federal, but state prisons now.
I’m on your side, but come on. Without defining “desert” in more precise terms and explaining which people are being locked up inconsistently with that definition, that’s a bald, unreasoned claim. Which “victimless” crimes would you decline to punish? Which guidelines are “arbitrary”?
Yes, I’m asking for specifics. I think that’s fair, given that you’re talking about reforming the entire criminal justice system.
Thanks for the overcrim shout-out BTW. I like a lot of what I read here, but I’m just playing devil’s advocate.
Your concerns are valid, Evan. But you cannot expect an exhaustive exploration of prison reform, let alone the moral philosophy of crime and punishment, in this sort of format. This is an opinion article, and not a research paper.
I don’t think it is fair to expect me, or any other author writing on this subject at the general level, to provide you, for example, with a line-by-line commentary on the Federal Sentencing Guidelines. I’m not trying to provide a complete and final solution, but to start a conversation. Discussing the specifics of reform can be distinguished from the discussion of whether it is needed.
“More often than not, prison becomes a punishment beyond what is deserved.” You keep referring to this line as if it deals exclusively with sentence length. It doesn’t. It refers to the proportionality of punishment. This might include sentence length, but it covers other things, too. The proper criticism should be: “51% of the American prison population received more punishment than they deserve?”
I’m always glad to give a “shout-out” to the folks at legal department at Heritage. You all do good work.