Pragmatic Penalty – The Purpose of Prison

I’ve been thinking about prisons lately, which I promise has nothing to do with my recent completion of OITNB Season 4. Specifically, I’ve been thinking about what prisons should be like. To assess this we’re obviously also going to need to know what prisons are for. If we don’t have a purpose in mind, we can’t design something that fulfils it. So, there are two questions:

1: What should be the purpose of a penal system?

2: How can this purpose best be met?

As is invariably the case, most arguments that purport to be about 2 are actually about 1, and will be stymied to a considerable degree by the superficially appropriate but covertly meaningless deployment of narrowly 2-centric rhetoric. I like to be upfront about being meaningless, so I’d much rather talk about 1. In the interests of brevity (and of masking my own inability to support my nonsense with practical suggestions), I’ll leave 2 to the imagination for now. So, the question at hand is that concerning the basic, driving objective of the penal system. Simply put, what should prisons actually be doing?

Obviously, the general aim is something along the lines of “to interact with criminal activity in a way that contributes to overall social good”. That’s far too basic to act as any sort of guiding principle –  we need to take a step closer and look at some more detailed ideas. Four spring to mind: (a) that the penal system should rehabilitate offenders, (b) that it should punish them, (c) that it should protect the law-abiding public, and (d) that it should deter potential offenders. Of these, (a) and (c) stand out to me as obviously important, (d) as speciously so, and (b) as pointless. Allow me to explain.

Rehabilitation is the ideal outcome. If a penal system can take in offenders and put out ‘good’ citizens (according to whatever qualifies for ‘good’ in a given culture), then it has succeeded. Not only has a negative influence on society been removed, a positive one has been introduced. That’s as good as it gets within the realm of the plausible. Of course, only a die-hard optimist would believe that rehabilitation is always feasible under current circumstances (I’m leaving the door open here for future developments that would doubtless have their own ethical demons). There is a good possibility that some people, for reasons either innate or acquired, will simply never be a safe, benign fit into general society. Thus, there are cases where (c) has to be invoked not merely as part of the process of (a), but as an endgame unto itself. I believe this is sometimes termed “incapacitation” in penology. In other words, an optimal prison network cannot be designed solely for rehabilitation – it must also be able to protect society from individuals for whom this is not an option. This is true even relative to the clearly absurd claim that all lawbreakers are fundamentally, irreparably dangerous and unfit for cohabitation with regular citizens.

Sort it out, Piscatella.

As far as deterrence goes, my issue is not that the principle itself is meaningless. It is hard to believe that a desire not to go to prison has no impact on the incidence of criminal activity. My concern is that the extent to which it can reasonably be leveraged may well be fulfilled without any active measures being taken towards this end. Any kind of prison, even an exceptionally welcoming one, is going to entail some kind of forced loss of liberty for its inmates, at least for as long as the targeted denial of freedom remains the defining penal mechanism. If (a) is to be achieved, there will presumably be mandatory elements imposed for this purpose, elements which, whilst not expressly punitive in nature, are unlikely to be particularly enjoyable in the traditional sense. If (c) is to be achieved, inmates will have to be separated from their known environment and relocated into a new, uncertain one, populated entirely with criminals. These inherent features alone should provide ample deterrence for anybody who is essentially comfortable in life. People whose basic needs are being consistently met and who are cognitively and psychologically ‘normal’ are very easy to deter. They have no pressing reasons to engage in criminality, and they have reason to fear any drastic change in their lifestyle (such as incarceration).

What this leaves is everyone else – the people whose basic needs are not being met, or whose mental state is divergent from the norm such that they are predisposed, for whatever reason, towards actions that are criminalised by their society. Note that this covers whole swathes of very ordinary people – people who feel they have no choice but to break the law, people who are acting ‘in the heat of the moment’ without thinking, people who do not believe that they can be caught (or simply do not care), etc. Any attempts to make the concept of prison even less appealing are unlikely to have an effect on these groups, and will come at additional expense in practical and/or ethical terms. The idea that the occurrence of crime is simply a rational function of costs and benefits, risks and rewards, and nothing else is woefully deficient in its theory of mind. I appreciate that nobody really suggests anything so rudimentary, and I do not wish to imply in any way that these sorts of rational features are not important in crime prevention. Active deterrence strategies outside of the penal system may well be quite valuable (for example, demonstrations of the efficacy of law enforcement, or reminders that common minor offences are still treated as crime). Nonetheless, my main point remains – as far as the nature of prisons is concerned, the people who will be significantly affected by increasing the possible costs and risks of crime are already accounted for by virtue of features incumbent in any kind of prison.

Notionally relevant. Really I just like Piranesi.

This leads nicely on to the concept of punishment. I don’t know how many people there are who declare outright that the justice system’s role in society is to make the lives of criminals worse (or to take them away entirely), but there are certainly a great many who believe, openly or otherwise, in punishing the guilty for punishment’s sake. I do not. The idea that somebody who has caused suffering deserves suffering in turn seems to be instinctively present in humans, but it’s a trap. It’s one of those little kinks in human nature that consistently interferes with our potential for better things. This line of thought isn’t simply an artefact of my general woolly liberalness, although that may well be where I first plucked it. It can be expressed purely in cold, non-bleeding heart terms. Doing so only requires us to ask the age-old question: “What’s the point?”.

First, we can reject the idea that retributive justice or lex talionis is somehow an intrinsically valid fact of the universe, a doctrine of natural law that we are simply obliged to follow, reason be damned. Punishment is not autotelic. If we are going to introduce suffering into the world, it must be justified by a compelling end external to itself. I simply don’t see one insofar as prison is concerned.

There seems to be a pervasive idea that hurting wrongdoers somehow makes good, at least partially, for whatever wrong they have done – that if no action is taken in this direction, then the criminal has “gotten away with it”, even if they are flawlessly processed according to the actual goals of the penal system. This, too, is a trap. Suffering, perhaps regrettably, is not a zero-sum game and cannot be treated as such. Any attempts to counteract past negative sensation by creating more in the present only adds to the sum. A deliberately punitive approach offers nothing from a utilitarian perspective, unless there’s some unique benefit that I’m yet to consider. As described above, I don’t believe that harsher punishments are likely to make for more effective deterrents. It’s possible that this would change if the punishment aspect of the equation were pushed to absurd, nightmarish extremes, but this option, being ridiculous, doesn’t come into consideration. The other possibility that comes to mind is the claim that exacting a measure of vengeance brings some satisfaction to the aggrieved parties, thereby introducing some positive emotion into the world alongside the negative. Aside from my concern that this is probably not the side of human nature to which civic policy should be trying to appeal, I have serious doubts about the positive effects on wellbeing that revenge and its pursuit would need to possess for this to make any sense at all. The crux of the matter is as I put it earlier – suffering is not zero-sum. Adding to one side does not remove it from another. It just adds.

The Mighty Bosch.

So, let’s summarise. The penal system wants to rehabilitate wherever it is possible, and to defang indefinitely wherever it is not. It does not need specifically to deter, and it should not want specifically to punish.

These priorities point in some fairly apparent directions as far as implementation is concerned, but going from principles to practice is inevitably a messy transition, even when it’s all just for fun (as it is here). We have to take already-fallible reasoning, then try and imagine how it might be made to withstand constant duress from all the additional complications that the real world can muster. When talking about government policy, those complications are legion. In an ideal world, I envision prisons as being either abnormally well-secured adult educational facilities (for the purposes of rehabilitation), or humane facilities for the detention of the non-rehabilitable. As you might imagine, the specifics of this, let alone the specifics of attempting to realise it, are sizeable topics unto themselves, so for today I’ll spare you the details and (more importantly) spare myself the effort of having to contrive them. That, with the usual disclaimer of my probable idiocy, is all for now.

The Therapist, 1937 by Rene Magritte

The End.

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