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The Point of Prisons

Officer Derek Chauvin became infamous for the violence he perpetuated against George Floyd. The Black American’s death, while pinned under the knee of a white cop, launched nation-wide protests in 2020 and led to a 21-year sentence for Chauvin. Despite electing to go to federal prison instead of state prison for safety reasons, Derek Chauvin was stabbed on Friday, November 24th. As of November 26th, his survival seems likely, but the incident nonetheless bookends a story of government failure. First, violence was enacted by Chauvin as an agent of the state, and then violence was enacted against Chauvin while in federal custody. It also fits the arc of a national conversation about prison reform, both in terms of the sheer number of people incarcerated (over 2 million) and the conditions inside.

America must wrestle with questions about for-profit prisons, solitary confinement, prison understaffing, three strikes laws, felony murder, and racial bias in sentencing. But it is also worthwhile to take a step back and ask, not just how can we do prisons better, but what are we trying to do with prisons in the first place? For philosophers, this concerns our theory of punishment – the justification for the state inflicting harm, limiting freedoms, and revoking rights in response to acts it deems pernicious.

Imprisonment asserts the government’s right to exercise extreme and harmful power over people as long as certain conditions hold, especially being guilty of a crime. (The coercive power of the state is, in fact, employed well before incarceration, as the entire preceding legal process is also required.) This does not mean the situation cannot be justified. But given the scale of the harm, it behooves the government, and legal theorists, to have a good answer to the question: “Why are you forcibly detaining 2 million of your own people”?

Broadly speaking, there are two major goals we could have for our prison system. The first is the resolution of a societal problem, namely crime. (Although the more cynical among us might also point to poverty, unemployment, and homelessness as social problems that prisons help to “solve”.) The second is Justice – capital letter and all. The idea here is that imprisonment gives the guilty their due, balancing the scales of Lady Justice or signaling moral condemnation in some more metaphysical sense. These two major goals correspond with consequentialist and retributivist theories of punishment respectively (the author has previously discussed these in the context of environmental crimes).

People can of course hold onto each of these goals simultaneously, and our current system is not a pure reflection of either one, but a chimera of both theories, inherited historical practices, and political convenience. The challenge is that consequentialist and retributivist theories of punishment paint a very different picture of what prisons should be.

Perhaps most significantly is that the consequentialist is not necessarily committed to prisons and punishment at all. Classic consequentialist defenses of imprisonment are that it deters crimes, takes dangerous people off the street, and can help to reform criminals. These are all arguments for the way punishment can prevent crime. The consequentialist, however, can also argue that crime prevention is better served by increased non-punitive resources, such as improving education and investing in anti-poverty programs. Put differently, the consequentialist is interested in whether prison represents the best way to address crime in a particular context and, depending on the answer, adjusts social policy accordingly.

Consequentialists also need not be committed to making the prison experience miserable for the incarcerated. If evidence demonstrated that harsher environments or longer sentences served as a better deterrent or improved rehabilitation, this would provide the bones of a potential consequentialist argument – although current evidence does not support this. If instead the aim is simply to remove dangerous people from positions where they can cause harm, then there is no reason prison should involve additional suffering beyond captivity. In fact, consequentialist reasoning seems to dictate that we should minimize inmates’ suffering as much as possible while pursuing our greater societal ends.

For retributivism, by contrast, suffering is the point. Modern society has placed certain constraints on what is an acceptable punishment, but the core idea of retributivism is often still an eye for an eye – albeit understood in terms of years in prison. Retributivist theories also pay attention to individuals in a way that consequentialist approaches, which are focused on larger social goals, do not. In this way, retributivism can also be responsive to the desires of victims or their families in seeing justice done and scratching an emotional itch for resolution.

Not only do retributivism and consequentialist theories of punishment arrive at vastly different answers as to what imprisonment is for, but the core of each approach can represent a deep moral failing from the other perspective. To the retributivist, who wants to give the guilty their due, the social tinkering of the consequentialist neglects considerations of justice and desert altogether. To the consequentialist, the mysterious moral calculus of retributivism smacks of vindictiveness and Old Testament brutality.

As we have seen, retributivist and consequentialist approaches can sometimes be brought into alignment. For example, the consequentialist may like imprisonment because it isolates dangerous criminals, and the retributivist may like imprisonment because it’s miserable for the guilty party. However, this alignment is very dependent on the facts on the ground. As the evidence shifts, and the consequentialist begins to doubt the effectiveness of long sentences as grounds for rehabilitation or deterrence, so too does their image of what prison should be change. It is optimistic to assume that there is an account of what prison is for that conveniently fits the different goals of both consequentialist and retributivist approaches to punishment.

However, not all aspects of the prison system need to be beholden to the overarching theory of punishment. For example, the retributivist may agree that once the state has taken someone into custody via imprisonment, then they have a responsibility to ensure their safety from other prisoners. There are also features of the criminal justice system that attach to neither theory of punishment. For example, restorative justice (see a previous discussion in The Prindle Post) seeks to make whole both the victim and the perpetrator of crimes and can be paired with either consequentialist approaches or retributivist approaches.

Certainly there is a good deal of shared ground for broad aspects of criminal justice reform, including that cops should not kneel on people for 9½ minutes, that prisons should be adequately staffed, and that inmates should not be getting stabbed. And then there are more contentious questions about which crimes deserve prosecution, when minors should be charged as adults, and what kind of evidence warrants the death penalty. Answering the tough questions and deciding hard cases requires genuine, sustained reflection about what precisely we want our criminal justice system to do and what exactly we hope to accomplish. As it stands, current design remains at odds with stated purpose.

Re-Thinking Mass Incarceration: COVID-19 in Jails and Prisons

photogaph of barbed wire around prison building

More people per capita are incarcerated in the United States than in any other country in the world—698 out of every 100,000 people are currently incarcerated. Many jails and prisons in the United States are overcrowded. This means that the number of people they have detained exceeds their safe carrying capacity both in terms of space and resources. As the COVID-19 threat intensifies, people across the planet are being strongly encouraged, and in some cases ordered, to stay at home and to practice social distancing. This advice is impossible to follow in a jail or a prison, especially one that is overcrowded. At the time of this writing, hundreds of inmates and prison staff have tested positive for COVID-19.

Conditions in jail and prison are far from ideal for preventing and responding to infectious disease. To fight the spread, people are being asked to wash their hands regularly. Detention facilities are often set up in such a way that regular hand washing is not easy. In many institutions, hand sanitizer is considered contraband because of its high alcohol content. Inmates found in possession of it face disciplinary action. The same bathrooms are used by many people, and toilet paper and tissue are limited. To complicate matters, healthcare services in detention facilities are often shorthanded and of poor quality. These elements of detention environments create extremely unsafe conditions not only for incarcerated people, but also for staff at those institutions.

In response to these concerns, authorities at both state and federal levels have ordered the release of incarcerated individuals. On March 27th, Attorney General William Barr directed the Federal Bureau of Prisons to release some of their prisoners that are sick or elderly, depending on the nature of their crimes and their record of behavior while incarcerated. He asked federal prisons to consider whether confinement at home might be the best option for these prisoners.

State systems are also taking steps to reduce the number of prisoners at their facilities. For example, in Utah, prison officials are expected to release at least 80 inmates by Thursday, April 2nd. They are focusing their attention on people whose parole or release dates were set to take place in the next few months.

The COVID-19 crisis in United States detention facilities highlights a troubling fact about the criminal justice system in the United States. Across the country, 555,000 people are detained in prison who have been arrested but not convicted of any crime. What’s more, 25% of people in jails are being held for low-level offenses like jaywalking or sitting on the sidewalk. The average cost of bail in the United States is $10,000, and those who remain in jail until their trials are people who cannot afford to pay that bail. In the current context, the result is that poor people who are arrested but who have not yet had their day in court are forced to remain in an environment in which social distancing is impossible. Many of these people may well be innocent of the crime for which they are accused.

Some states are taking preventative action to reduce the number of people being held in jail during the COVID-19 emergency. For example, in the case of misdemeanors, officers across the country are being asked to give citations rather than make physical arrests.

Critics of the decision to release inmates argue that, at the very least, victims of accused or convicted persons should be made aware of the release before it happens. After all, in at least some cases, the released individuals might pose a threat to the person they victimized. Some argue that victims have a right to secure conditions in which they feel safe before inmates are released. One ready response to those that have these concerns is that most of the people who are being selected for early release are non-violent offenders, or offenders who for reasons such as age or infirmity are unlikely to perpetrate a violent crime upon release.

Many applaud the decision to release incarcerated individuals but are concerned that the process isn’t moving anywhere near quickly enough to prevent the spread. The delay that notification of victims would cause could make the situation much worse.

Others are concerned that release of convicted criminals and those arrested under suspicion of committing a crime is a miscarriage of justice and may constitute a significant threat to public safety. A pandemic doesn’t nullify the crimes that were committed, and criminals shouldn’t get off easy because we’re going through an international emergency.

In response, some argue that this line of thought expresses a purely retributivist attitude toward criminal punishment. This attitude is tremendously common in the United States, but there are good reasons to think that it is misguided. In an ideal world, our response to criminal behavior shouldn’t simply be to put offenders in prison and throw away the key; instead it should be guided by more holistic and evidence-based considerations about what would be best both for the offender and for society at large. People who commit crimes are still human beings deserving of moral consideration and concern.

People who commit crimes do so with full awareness that there might be legal consequences. That said, the decision to commit a crime does not translate into a decision to be locked up in close quarters with people who carry a deadly infectious disease. No person deserves that; it’s inhumane. If all goes well, we’ll deal with the spread of COVID-19 in jails and prisons as best we can. Going forward, we are morally obligated to take preventative and proactive measures for dealing with this kind of thing in the future, knowing full well that prison populations are hotbeds for the spread of infectious disease.

Finally, our response to COVID-19 highlights something significant about criminal justice policy in this country—mass incarceration is not a practical necessity. There are steps that we can take to incarcerate fewer individuals. We know this because we are currently taking those very steps. This pandemic has the potential to teach us many lessons. With any luck, it will cause our culture to be more reflective about our incarceration practices.

Angola Prison and the Ethics of Prison Labor

Photograph of the entrance to the Louisiana State Penitentiary, showing a stop sign and a guard station along with a sign naming the institution and the warden Burl Cain

Walking through Louisiana State Penitentiary, one might feel as though they have traveled back to the early 19th century. Instead of wasting their days away in a cell, inmates (most of whom are black) line massive farm fields harvesting wheat, corn, soybeans, milo, and cotton. Prison guards (most of whom are white) patrol the fields on horseback, prepared to subdue an unruly inmate, or worse, an organized strike. Most hauntingly, there’s a good chance that many of the prisoners working this field are descended from the slaves who worked it when it was a private plantation in the 19th century. It was during this period of private ownership that the land got its nickname, “Angola,” after the African nation where many of its slaves hailed from. Centuries later, Angola Prison is now the largest maximum-security prison in the United States, and rigorously employs inmate labor.

Conditions of prison labor at Angola are known to be particularly brutal. Once called the “Alcatraz of the South” and the “Bloodiest Prison in America,” there have been multiple alleged cases of prisoner maltreatment and torture. In the 1930s, 31 prisoners slit their Achilles tendons to protest brutal working conditions. More recently, however, allegations of slavery in court have been inmates’ primary method of resistance. Social justice organizations such as the American Civil Liberties Union have attacked indications of slave labor such as inmates working for as little as two cents an hour, and punishments for not working being as severe as solitary confinement. Additionally, organizations have challenged Angola Prison on allegations of inmates being denied healthcare and being forced to live in unsanitary conditions.

However, despite its seeming brutality, prison labor at Angola may be doing more to benefit inmates than to harm them. This is thanks to rehabilitative reforms made to prison operations by former warden Burl Cain. Upon taking over the prison, Cain stated that his number one priority was “moral rehabilitation” of inmates in order to reduce in-prison violence. He did this by two means: religion and labor. Religion is obvious at Angola, with Christian churches scattering the prison grounds, and services being held daily. Holding more people who are serving life sentences than Alabama, Arkansas, Mississippi, Tennessee, and Texas combined, Cain’s objective by imposing religion is to give inmates at Angola hope for their futures and motivation to behave properly. As for labor, Cain holds a similar objective. At Angola, work is intended to give inmates a day-to-day purpose by fostering skills and achievement. The type of work administered is not limited solely to the fields, however. Inmates are also encouraged to do work at the prison learning trades such as automotive technology, culinary arts, and plumbing. Those serving life sentences learn and teach these skills to inmates who have the possibility of parole, thus sustaining what is one of Louisiana’s largest vocational institutions. While using religion and labor as means to achieving “moral rehabilitation” may be controversial, the results speak for themselves: the number of assaults in the prison has decreased from 1,346 in 1992 to just 343 in 2014.

Yet, despite the potential benefits provided to inmates at Angola, serious ethical pitfalls still exist. The most obvious of these pitfalls is the fact that inmates have no choice whether they work or not. This is where the argument over prison labor slips into slavery. The Thirteenth Amendment reads, “neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” While explicitly lawful, America’s history of harsh incarceration practices, such as mandatory minimums and severe sentencing for drug offenses, would point to prison labor being an unethical practice. Louisiana laws are especially tough on crime. For example, the mandatory minimum sentence for second degree murder in Louisiana is life without parole, and a Louisiana citizen can be sentenced up to 10 years for writing a worthless check. Harsh sentencing laws such as these in combination with other factors contribute to Louisiana having the highest state incarceration rate in the U.S., and therefore the highest incarceration rate in the world. Because incarceration is sometimes unfair, particularly in Louisiana, enforcing labor while incarcerated could be considered slavery.

Additionally, the fact cannot be ignored that statistically, there are innocent men living and working in Angola. There have been as many as 850 exonerations in the U.S. since the late 1980s, and it is estimated that approximately one percent of America’s incarcerated population is innocent. Applied to Angola Prison, which holds about 5,000 prisoners as of 2010, this means that as many as 50 men working Angola’s fields did not commit the offenses for which they are serving time. Furthermore, the practice of prison labor falls under even more scrutiny when it is used for capital gain. In the U.S., it has become an increasingly popular practice for prisoners to be outsourced to factories and call centers of private businesses for the businesses’ profit. These “private prisons” accounted for approximately 18% of federal prisoners in 2015, and corporations as large as Victoria’s Secret and Starbucks are guilty of employing inmate labor to work for well below minimum wage. While Louisiana has continued to expand the legal rights of private prisons in the state, Angola appears to be the exception to this. Angola is almost entirely self-sustaining, with prisoners processing and consuming the goods they produce.

While Angola’s version of inmate labor may seem inhumane on the surface, there are some very real benefits to prisoners who take advantage of some of the programs it has to offer. That being said, Angola still cannot escape many of the moral shortcomings that are carried with inmate labor. Inmate labor is a slippery slope into slavery, and slavery is the last thing the U.S. should be tampering with given its place in the nation’s history. However, there is also the challenge of making the lives of prisoners serving life sentences meaningful again, and Angola at least appears to be taking steps to address that challenge. Regardless, the practice of inmate labor is riddled with ethical complexities, many of which can be solved at the source by re-evaluating the reasons a person should be incarcerated.

 

Aging and Blaming in the Criminal Justice System

Photograph of a long hall of cells with light and a dome at the end

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.


A recent study in the medical journal The Lancet suggests that, if trends hold, 50% of babies born today will live to be over 100 years old.  Though long life is typically thought of as a good thing, some of our ordinary practices may need to change to track philosophical and practical challenges posed by longer life spans.  In particular, we need to reflect on whether our attitudes about blame and punishment need to be adjusted. For example, last year, John “Sonny” Franzese was released from an American prison at the age of 100.  Franzese was sentenced to fifty years for a bank robbery. The unique challenges and philosophical questions posed by extreme old age cast the moral permissibility of incarcerating the elderly into question.

Arguably, we need to think critically about duration of punishment. The criminal justice system in The United States relies heavily on retributivism as a justification for sentencing.  The concept of blame is central to a philosophy of retributivist justice. As an act of retribution, criminals are often given multiple life sentences or are sentenced to a number of years in prison that far exceeds the amount of time that criminal could reasonably expect to be alive. There is room for debate concerning the usefulness of blame as a moral concept.  Supposing, however, that blame is an important evaluative attitude in our moral lives, there is good reason for reflection on whether and under what conditions other moral considerations are more important than whether an agent is morally blameworthy. As lifespans increase, a life sentence becomes a still more serious proposition. At what point, if any, does respect for human dignity outweigh our retributivist concerns to ensure that a blameworthy agent is held responsible for their actions?

Intuitively, regardless of the nature of the crime, there are some upper limits to how long it is appropriate to punish someone.  For example, in his paper Divine Evil, David Lewis points out that it could never be just to punish a person infinitely for a finite crime.  Of course, in the context of the paper, Lewis is arguing that an omnibenevolent God couldn’t sentence a person to an eternity of torment in hell for a finite sin, but the main point here holds.  If human beings were immortal, it would be unjust to hold them in prison forever with no chance of release as punishment for a single crime or series of crimes.  That suggests that there is a time at which continuing to punish a blameworthy person is no longer morally justified. Some countries, like Portugal, Norway, and Spain, don’t sentence convicted criminals to life in prison at all.  In many other European nations, a life sentence always includes the possibility of parole. The understanding seems to be that a life sentence without the possibility of parole is a human rights violation. Even if the United States does not come around to thinking about the issue in this way, as human lifespans continue to get longer, it’s important to identify the point at which punishment is no longer morally permissible.

For retributivism to be justified, our assessments of blame must be apt.  For our judgments of blameworthiness to be apt, it must be the case that we are blaming one and the same person who engaged in the wrongdoing for which they are being blamed.  Increased lifespans muddy the waters of identity judgment. An extremely elderly person may have little to no psychological continuity with the being they were when they engaged in wrongdoing.  In his paper The Makropulos Case: Reflections on the Tedium of Immortality, Bernard Williams argues that if a being were immortal, or even if that being were to live an exceptionally long life, that being would either become extremely bored or would change so much that they would no longer be justified in judging future experiences as their own experiences.  Living a flourishing human life is a matter of setting goals and completing projects.  The kinds of goals we set goes a long way to establishing who we are as people. If we continue to set goals of the same type, Williams argues, we will inevitably get bored.  If we set different goals, we will eventually become totally different people, unrecognizable to our former selves.

Aging criminals aren’t immortal, but as human lifespans continue to increase, it may well be the case that they resemble their former selves in very few respects.  If this is the case, it is far from clear that our identity judgments are justified or that our assessments of blameworthiness are apt. This recognition should also cause us to reevaluate our goals when it comes to punishment.  As prisoners age, should our philosophy of punishment still be retributivism?

If blame is a useful moral concept, it is, at least in part, because a moral community that makes use of blame has a mechanism for encouraging bad actors to change their behavior in the future.  To successfully bring about this change in behavior, it is important that the behavior in question is a salient thread in the life narrative of the wrongdoer. Once enough time has past such that this is no longer true, it’s possible that continuing to blame a wrongdoer no longer serves this important social function in our moral community.

A Requiem of Retribution at a Black Mass: Whitey Bulger and Prisoner Welfare

"554T9816" by Cliff licensed under CC BY 2.0 (Via Flickr).

On October 31, 2018, crime boss Whitey Bulger was found beaten to death in a West Virginia prison. Bulger was infamous for racketeering, committing murder, and evading capture for 16 years. His place on the FBI’s most wanted list was second only to Osama Bin Laden. He was finally captured in 2011 at the age of 81. He was convicted for his crimes and sentenced to two consecutive life sentences, but served only six years before more than one fellow inmate beat him to death with a padlock stuffed inside a sock. Bulger was infamous for his crimes and was reasonably well known among the population at large.  He was the motivation for Jack Nicholson’s character in Martin Scorsese’s The Departed and his life story was told in the 2015 film Black Mass starring Johnny Depp as Bulger.

Continue reading “A Requiem of Retribution at a Black Mass: Whitey Bulger and Prisoner Welfare”

California Debates Parole for a Member of the Manson Family

On the night of August 9, 1969, several young people crept into the Los Angeles home of Leno and Rosemary LaBianca.  At the behest of cult leader Charles Manson, they stabbed the couple to death. Cult member Leslie Van Houten stabbed Rosemary LaBianca fourteen times. The group wrote messages on the wall in the victims’ blood. After she played her part in the murder, Van Houten took a shower, put on one of Rosemary LaBianca’s dresses, and ate some food from the refrigerator.

Continue reading “California Debates Parole for a Member of the Manson Family”

Does America Believe in Rehabilitation for the Incarcerated?

A low-angle photo of barbed wire at a prison.

Michelle Jones wasn’t the only applicant to be rejected from Harvard University this year. However, hers is in many ways a special case. While she was initially accepted by the history department of Harvard’s Graduate School of Arts and Sciences, her acceptance was ultimately overturned by Harvard’s administration. This move was in connection to the most interesting part of her case: Ms. Jones was only released in August of this year from the Indiana Women’s Prison after serving 20 years of a 50-year sentence for homicide. Although the legal system considered her sentence to be served in full, Harvard University—an elite academic institution—considered her past conviction as grounds for rejection. What does this say about the notion of reform and rehabilitation in the United States?

Continue reading “Does America Believe in Rehabilitation for the Incarcerated?”

Should Minors Stay in Adult Prisons?

In many states, minors charged with certain crimes can be tried as adults. Although some of the minors who enter the system are convicted of serious crimes, many are charged with non-violent offenses. The argument for trying minors as adults is that it ensures public safety – however, research shows the opposite. In Jessica Lahey’s article in The Atlantic, the issues with trying and housing minors as adults are laid out. Is it really ethical, and even for the societal good, to try and imprison any minor as an adult?

Federal laws prohibit the housing of juveniles alongside adult prisoners, but many states do it anyway. This housing situation causes minors to be far more likely to be sexually abused and suffer violence from inmates and staff alike. The National Inmate Survey states that 1.8% of 16 and 17 year olds imprisoned with adults have suffered sexual abuse in prison, and 75% of those cases have been victimized by staff. This information alone is enough to question the morality of imprisoning a minor as an adult. In order to comply with federal laws that say minors must be housed in a separate section than regular adult inmates, many states transfer their juvenile prisoners out of the state. This causes the minor to potentially lose access to visits from friends and family, and also contact with his or her lawyer. Losing contact or access to a lawyer – a right guaranteed in the constitution – puts the minor at risk for being unable to report any abuses and in an even more disempowered position. They also lose the emotional support provided by friends and family, which makes the prison experience easier from a psychological standpoint. This lack of contact creates psychological stress and trauma that affects minors very dramatically. Minors imprisoned in adult prisons also are unable to participate the rehabilitative programs provided in the juvenile system, which offer vocational training, counseling, and education that makes re-entering society as an adult simpler. In fact, minors who are tried and imprisoned as adults are 34 times more likely to re-offend; this begs the question of whether trying minors as adults offers any benefit to public safety at all.

Denying certain minors the services their peers receive may be unethical, as it arguably sets up a certain group for failure or selects a certain group to be more likely to suffer stress and trauma. While certain minors commit very serious crimes that warrant consideration, non-violent offenders who are tried as adults should be allowed the same services as their peers, and offered a chance at rehabilitation. The juvenile justice system was created for a reason, and therefore should be utilized in the vast majority of circumstances.

Alternatives to Incarceration: The Impact of Prison on the Black Community

Bruce Western’s introductory video to Ta-Nehisi Coates’ article in the Atlantic titled “The Black Family in the Age of Mass Incarceration” highlights startling statistics concerning the still booming rate of incarceration in the United States. Between the years of 1940 and 1980, every 100 in 100,000 Americans were incarcerated. Continue reading “Alternatives to Incarceration: The Impact of Prison on the Black Community”

Guam’s Chemical Castration: A Just Punishment?

Recently, Guam’s Legislature passed a bill 8-7 requiring the chemical castration of convicted sex offenders before being released on parole. The Chemical Castration for Sex Offenders is a 48-month pilot program allowing for convicted sex offenders and pedophiles scheduled to be released in the next six months to undergo the castration process one week before their release, on the prisoner’s dime. These prisoners will then be monitored for progress through the remainder of the program.

Continue reading “Guam’s Chemical Castration: A Just Punishment?”