South-Carolina is now the only US State where HIV-positive prisoners are segregated in separate housing units with unequal program opportunities, inferior mental health care and fewer work options.
There’s absolutely no reason to do that, unless you want to maintain the reign of sexual terror that is still widespread in US prisons. AIDS is almost exclusively transmitted by way of sexual intercourse and needles. Segregating HIV-positive prisoners makes it easier for prison rapists to pursue their hobby. If you don’t know who’s positive and who’s not, you’ll think twice about raping someone. In the “HIV wards”, since they contain only HIV-positive prisoners, there’s also no more reason to refrain from rape.
Things like this make it hard to believe that legislators and prison authorities are not intent on making prison as horrible as possible.
I’ve already cited one example of human rights measurement gone wrong because of the exclusion of the prison inmate population: violent crime rates seem to go down in many countries, but a lot of the decrease only happens because surveys and databases exclude the crimes that take place inside of prisons. Crime may not have gone down at all; perhaps a lot of it has just been moved to the prisons.
I’ll now add a few other examples of distortions in human rights measurement caused by the exclusion of the prisoner population. The cases I’ll cite result in distortions because the exclusion of the prison population is the exclusion of a non-representative sample of the total population. For example, it’s well-known that African-Americans make up a disproportionate share of the inmate population in the U.S. Becky Pettit, a University of Washington sociologist, argues in her book “Invisible Men” that we shouldn’t take for granted some of the indicators of black progress in the U.S.:
For example, without adjusting for prisoners, the high-school completion gap between white and black men has fallen by more than 50% since 1980 … After adjusting … the gap has barely closed and has been constant since the late 1980s. (source)
We see similar results when counting or better recounting voter turnout numbers, employment rates etc.
It should be rather easy to include prisoners in most of these measurements – certainly compared to the homeless, illegal immigrants and citizens of dictatorships. The fact that we almost systematically exclude them is testimony to our attitude towards prisoners: they are excluded from society, and they literally don’t count.
More posts in this series are here.
African Americans get, on average, a raw deal from the criminal justice system in the US. They get arrested more often, in part because of racial profiling; when they end up in court, they face racially biased juries; and when it’s time to sentence them, they receive harsher penalties and join an already overrepresented group in the prison system (African Americans are more likely to spend time in jail and when they do they spend more time in jail). Some more evidence:
Here’s a study showing that the racial composition of juries affects trial outcomes and conviction rates:
This article examines the impact of jury racial composition on trial outcomes using a data set of felony trials in Florida between 2000 and 2010. We use a research design that exploits day-to-day variation in the composition of the jury pool to isolate quasi-random variation in the composition of the seated jury, finding evidence that (i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants, and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. The impact of jury race is much greater than what a simple correlation of the race of the seated jury and conviction rates would suggest. These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool. (source)
Whether or not someone is convicted has a lot to do with the luck of the draw or with the success of prosecutors or defendants wishing to remove people from juries. This raises obvious concerns about the fairness of criminal justice.
Here are the study’s results in the form of a drawing:
African Americans receive longer sentences because prosecutors are, on average, more likely to charge them with crimes that require minimum sentences:
This study provides robust evidence that black arrestees in the federal system—particularly black men—experience moderately but significantly worse case outcomes than do white defendants arrested for the same crimes and with the same criminal history. Most of that disparity appears to be introduced at the initial charging stage … [C]ompared to white men, black men face charges that are on average about seven to ten percent more severe on various severity scales, and are more than twice as likely to face charges carrying mandatory minimum sentences. These disparities persist after charge bargaining and, ultimately, are a major contributor to the large black-white disparities in prison sentence length. (source)
An example of racial profiling: a study of New York City’s stop-and-frisk program has revealed that
out of all ethnicities stopped, white people had the highest chance of having committed a crime, despite being proportionally the least searched. (source)
My dismissal of capital punishment on moral grounds shouldn’t be understood as implying that this type of punishment is the worst possible one or that I’m ready to accept any other sentence in order to avoid executions. Life imprisonment without parole (LIWOP), for example, is often advanced as a good alternative to capital punishment and a means to convince people to drop their demand for that sentence. That makes LIWOP seem almost benign, which it isn’t. It’s particularly cruel, for reasons I discuss below.
That is why I tend not to argue as follows: capital punishment is bad because there is a less cruel punishment available – LIWOP – that does much of the things capital punishment is supposed to be doing (incapacitation, deterrence etc.). I argue instead that there are other reasons, beside overreach, not to use capital punishment. However, this post is not about those reasons, but rather about the reasons why we should also not use LIWOP.
Of course, “death is different” and capital punishment is particularly cruel. But LIWOP is also cruel, albeit mostly for other reasons. In one respect, it’s cruelty is similar to that of capital punishment. It’s irrevocable. The absence of parole means that “life” really is “life”. Of course, there’s often the possibility of clemency or appeal. But given the general “tough on crime” mentality among politicians and prosecutors, clemency for LIWOP cases is very unlikely, as are possible extensions of the right to appeal.
We also see, in the U.S. for instance, that clemency is more likely to be granted in capital cases than in cases of LIWOP since LIWOP is supposed to be ”so much less cruel” (although also in capital cases the frequency of clemency is going down, most likely for the same “tough on crime” reason). Also, appeal procedures are much more developed in capital cases than in LIWOP cases. And when there is a successful appeal in a LIWOP case – for example because of new evidence of errors in the handling of the case - then these new elements are much less likely to be considered important enough to review the sentence, again because LIWOP is so much less “cruel”. Some people even argue that it is better to get a death sentence in the U.S. than LIWOP, because the appeals possibilities and clemency success rates are much higher. Especially innocent defendants have a much higher chance of getting their names cleared and escaping their sentence when they are convicted to die. Talking about irony.
Why does irrevocability make LIWOP particularly cruel? Some people say that LIWOP is a death sentence without an execution date. That in itself, however, may not make LIWOP cruel – you could say that all human beings are under a death sentence without an execution date, by the simple fact of human mortality. Still, LIWOP is a sentence to die in prison. It removes any prospect of change, rehabilitation or redemption. Whatever the prisoner does during his sentence, nothing is going to make any difference. Society tells these people that whatever they do, however much they try to redeem themselves, society’s not going to care. It’s not a sentence without an execution date, it’s an execution without a date: we basically tell these people that their lives are over. And we show this by withholding recreational and educational opportunities. Those resources, we say, are limited and better spent on prisoners who will get out some day. So that makes redemption not only useless but also impossible. It’s a self-fulfilling prophecy: we believe that they are irredeemable, and hence we treat them in such a way that they become irredeemable. If you don’t think that’s cruel, check your moral compass.
Opponents of capital punishment such as myself have to issue a mea culpa here. Our opposition has undoubtedly forced many more people into LIWOP. The number of LIWOP cases in the U.S. has risen dramatically, while the number of executions has fallen. One in every 35 prisoners in the U.S. is currently serving LIWOP (that’s about 41,000 people). This is the perverse and counterproductive result of well-intentioned activism. (See here for more counterproductive human rights policies). And it’s likely to become even more perverse: LIWOP cases, which tend to become more numerous as an alternative to capital punishment, don’t offer the same resources in terms of legal representation as capital cases, because people think there is less at stake, even when that’s clearly not true. Hence, a higher risk of miscarriages of justice, which are then harder to put right because of the lower probability of clemency and the less developed appeals procedures that also result from the idea that less is at stake.
So, what’s the solution? Well, obviously life with the possibility of parole. An argument in favor of LIWOP when compared to LIWP is that LIWOP is necessary for reasons of incapacitation. That is indeed a worthy goal of criminal punishment – if not the only goal -and some people do indeed deserve to be incapacitated for a very long time, perhaps even permanently. However, LIWP can also produce permanent incapacitation – by withholding parole when necessary – and can do it better because it can limit it to those prisoners for whom it can be shown, on an ongoing basis, that they are still dangerous. LIWOP means taking a decision about dangerousness once and for all, and then forgetting about the prisoner. The problem is that you can’t, at the moment of sentencing, make the decision that someone is going to be dangerous for the rest of his or her life. We simply don’t have the knowledge for such decisions. Psychology and psychiatry are not advanced enough yet, and will probably never be. Dangerousness has to be monitored continuously. People do change, except of course when the prison regime is such that they don’t get the opportunity or when the sentence is such that they don’t get the incentive.
And existing problems with parole (incompetent or lenient parole boards) are not a sufficient reason to favor LIWOP over LIWP. They are a reason to do something about those problems.
- Supreme Court Sides With Kids Sentenced to Life in Prison (criminaljustice.change.org)
“[T]hree-strike laws” impose a life sentence on persons who have been convicted of three or more serious crimes. However, the definition of serious crimes depends on the each state. In most states, all three must be violent crimes. But in some states, this is not the case. California law mandates the life sentence for any third felony conviction so long as the first two were deemed “violent” or “serious.” Moreover, an individual can receive multiple strikes from a single incident, leading to unexpected life sentences.
In Rummel v. Estelle, the Supreme Court upheld a life sentence with the possibility of parole for William James Rummel for a felony fraud crime amounting to $120.75. On his third offense, Rummel refused to return money received as payment for unsatisfactory repairs of an air conditioning unit, resulting with a life sentence. In Lockyer v. Andrade, Leandro Andrade received a mandatory sentence of 25 to life for stealing a total of nine videotapes at two different K-mart stores. (source)
The practice of hiring “body doubles” or “stand-ins” is well-documented by official Chinese media. In 2009, a hospital president who caused a deadly traffic accident hired an employee’s father to “confess” and serve as his stand-in. A company chairman is currently charged with allegedly arranging criminal substitutes for the executives of two other companies. In another case, after hitting and killing a motorcyclist, a man driving without a license hired a substitute for roughly $8,000. The owner of a demolition company that illegally demolished a home earlier this year hired a destitute man, who made his living scavenging in the rubble of razed homes, and promised him $31 for each day the “body double” spent in jail. In China, the practice is so common that there is even a term for it: ding zui. Ding means “substitute,” and zui means “crime”; in other words, “substitute criminal.”
[T]he state of Texas … sentenced Willie James Sauls last week for … the crime of stealing a purse. Sauls was sentenced to 45 years in prison. The prosecutors in the case justified the long sentence by pointing out that Sauls has prior convictions and that he “already had chances to address the issues with his behavior.” And with that, they decided this purse snatcher should be locked in prison until he’s 82.
Also in Texas, in 2010, Larry Dayries stole a tuna sandwich from Whole Foods while wielding a knife. He had prior convictions for burglary and theft, so the sandwich incident landed him a 70-year sentence. Larry will be 111 at the end of his sentence.
Down the road in Mississippi, Anthony Crutcher is serving a 60-year sentence for selling $40 worth of cocaine. Anthony was sentenced under Mississippi’s habitual offender laws; his two prior convictions were also nonviolent, minor drug crimes. Anthony is due out of prison a month after his 101st birthday. (source)
That should deter potential criminals. Except that is doesn’t:
A 2003 review of the research on sentence severity and crime rates concluded that “sentencing severity has no effect on the level of crime in society.” And in 2005, researchers at California’s nonpartisan Legislative Analyst’s Office concluded that the state’s notoriously punitive three strikes law, which will send a third-time felony offender to prison for 25 years to life even for a nonviolent offense, has no clear effect on crime rates in the state. (source)
No. It’s not because you have committed a crime that you lose all your rights. The severity of criminal punishment should remain within certain bounds, and the need to be tough on crime doesn’t give you permission to do whatever it takes to be tough on crime. Most laws will never be respected in all cases anyway. A fetishistic attitude towards law enforcement isn’t helpful or necessary. Reasonably good enforcement is good enough. Convicting or deterring the marginal criminal is not a benefit that outweighs the harm done to the rights of criminals by the systematic imposition of extreme punishment (and extreme punishment has to be systematic if it is to have the required deterrent effect; punishing only one criminal in an extreme way won’t do any good, and some say that even systematic punishment has no deterrent effect).
Again, no, and for the same reasons as those given above. Lex talionis is unacceptable. Human rights are not conditional upon respect for the law, and the fact that punishment inevitably leads to some rights restrictions doesn’t imply that criminals lose all their rights.
3. But if criminals, by being criminals, don’t forfeit their human rights, how can one justify punishments such a incarceration or monetary fines which incontestably violate criminals’ human rights?
Those punishments can be justified, not as violations of rights but as limitations of rights. We need to limit the rights of criminals in order to stop them or deter them from violating the rights of others. In this respect, criminals are not treated differently from someone who yells “FIRE” in a crowd.
4. Is it justified to impose more severe punishments for the same type of crime on people who are more difficult to deter?
No again. Like the need to deter or stop crime doesn’t trump the human rights of criminals, it also doesn’t trump the rule regarding equality before the law.
A number of crimes are also human rights violations, so crime rates can tell us something about the degree of respect for human rights. Unfortunately, as in most cases of rights measurement, crime measurement is difficult. I won’t discuss the usual difficulties here – underreporting by victims or relatives, lack of evidence, corrupt or inefficient police departments etc. Instead, I want to mention one particularly interesting problem that is seldom mentioned but possibly fatal for crime rate statistics: most reductions in crime rates are not really reductions, especially not those reductions that come about as a result of tougher law enforcement and higher incarceration rates. When we imprison criminals, rather than bringing crimes rates down, we just move the crime from society towards the prisons:
the figures that suggest that violence has been disappearing in the United States contain a blind spot so large that to cite them uncritically, as the major papers do, is to collude in an epic con. Uncounted in the official tallies are the hundreds of thousands of crimes that take place in the country’s prison system, a vast and growing residential network whose forsaken tenants increasingly bear the brunt of America’s propensity for anger and violence.
Crime has not fallen in the United States—it’s been shifted. Just as Wall Street connived with regulators to transfer financial risk from spendthrift banks to careless home buyers, so have federal, state, and local legislatures succeeded in rerouting criminal risk away from urban centers and concentrating it in a proliferating web of hyperhells. (source, source)
And there’s no way to correct for this and adjust overall crime rate statistics because quality statistics on crime rates inside prison are even harder to get than statistics on “normal” crime rates – given the quasi lawlessness of prison life.
[P]arole commissioners tacked on five more years to the sentence of Dwayne Kennedy [not in the image above] — for using a contraband cell phone in prison. Kennedy, who has been incarcerated since 1990, wasn’t using the phone to order a hit on someone on the outside or to organize a drug ring. He was excitedly calling his family to let them know that he had been granted parole and was being released.
Kennedy willingly admitted his choice to use the phone was “just stupid,” but his excitement at the prospect of going home got the best of him. Still, the parole board revoked his parole grant after the cell phone was found. Thanks to a 2008 ballot measure, he must spend another five years behind bars until he can go before the parole board again. Kennedy’s parole commissioners were all too eager to enforce the measure, claiming his eagerness to violate the prison’s cell phone ban makes him an “unreasonable risk of danger to society.”
For the last seven years, Kennedy has displayed good behavior behind bars. He also has a job and stable home waiting for him upon his release, two major factors that greatly reduce the likelihood he will reoffend and return to prison. But never mind those details. As the L.A. Times points out, prison officials would rather spend $250,000 from taxpayers over the course of the next five years to keep Kennedy locked up, clinging to fear-driven tough on crime policies that have made California this incarceration-loving country’s prime example of egregiously overcrowded prisons. (source)
(source, where you can find an interactive version of the map with precise country data)
Another version is here:
(source, where you can also find an interactive version of the map with precise country data)
Those numbers seem to be a bit low, in my opinion. Probably they only include the officially recognized cases and governments that incarcerate journalists aren’t eager to admit that they do. A related map is here. More human rights maps here.
Two horrible cases of government officials treating people unjustly and then making them pay for it:
According to the Las Cruces Sun-News, “A Las Cruces woman has been charged $1,122 by a local hospital for a forcible body cavity search ordered by the Metro Narcotics Agency that did not turn up any illegal substances.” The search was conducted pursuant to a search warrant, based on what the police said was “‘credible information from a reliable source’ that the woman was concealing up to an ounce of heroin”…
Fortunately, a story a couple of days later relates that the county did indeed pay — which I think they’d have to do, since I see no legal basis for holding the woman responsible for a procedure that she didn’t seek and didn’t benefit from. The involvement of a lawyer, though, suggests that it took some work and expense to get the county to pay, work and expense that the woman shouldn’t have been put through (even assuming the search itself was justified). (source)
The Arizona Department of Corrections is charging people money to visit their loved ones in prison. … New legislation allows the department to impose a $25 fee on adults who wish to visit inmates at any of the 15 prison complexes that house state prisoners. The one-time “background check fee” for visitors, believed to be the first of its kind in the nation, has angered prisoner advocacy groups and family members of inmates, who in many cases already shoulder the expense of traveling long distances to the remote areas where many prisons are located.
An Arizona official confirmed that these “background check fees” will not actually pay for background checks, but are instead intended to make up part of the state deficit. This policy not only places an unfair burden on those who wish to visit prisoners, but is bad for public safety. According to the ACLU’s David Fathi: We know that one of the best things you can do if you want people to go straight and lead a law-abiding life when they get out of prison is to continue family contact while they’re in prison…Talk about penny-wise and pound-foolish. (source)
[T]he effects of [the] change in the imprisonment rate [in the U.S.] … have been concentrated among those most likely to form fragile families: poor and minority men with little schooling. Imprisonment diminishes the earnings of adult men, compromises their health, reduces familial resources, and contributes to family breakup. It also adds to the deficits of poor children, thus ensuring that the effects of imprisonment on inequality are transferred intergenerationally. … Because having a parent go to prison is now so common for poor, minority children and so negatively affects them, the authors argue that mass imprisonment may increase future racial and class inequality — and may even lead to more crime in the long term, thereby undoing any benefits of the prison boom. U.S. crime policy has thus, in the name of public safety, produced more vulnerable families and reduced the life chances of their children. (source, source)
This is an example of a self-defeating human rights policy: in an attempt to improve the protection of security rights and property rights of a population, a policy of increased incarceration rates has an adverse effect on the rights of the incarcerated, their families and children, and possibly even society at large (as increased inequality resulting from high incarceration rates among society’s most vulnerable groups will perhaps lead to more crime – although we can’t assume that increasing poverty and inequality will automatically provoke those who are impoverished because of incarceration to resort to crime).
Marijuana use by black residents of Washington DC is only slightly higher than among white residents. Given that blacks are slightly more numerous in DC than whites, we should – if criminal justice were fair – also see only slightly more blacks arrested for marijuana use. Surprise, surprise: that’s not the case. In 2007, 91 percent of those arrested for marijuana were black. Adjusting for population, African-Americans are eight times more likely to be arrested.
(source, source, the drawing makes it look like blacks are more than 11 times more likely to get arrested – 8*11=91 – but that doesn’t take into account the fact that blacks are slightly more numerous in DC – hence the correct number is 8 times)
A similar pattern for Chicago (where whites are more numerous than blacks):
(source, click image to enlarge)
And this is the case for many if not all types of crimes. The racial distribution of inmates in U.S. prisons is highly negative for black Americans. Whereas they only make up 12% of the total U.S. population, they represent more than 40% of all inmates. It’s obvious from the case of cannabis that this difference isn’t due to a higher level of involvement in crime. I wonder, could racial profiling perhaps explain something? Actually, I don’t wonder…
Comedian Jonathan May-Bowles was yesterday sentenced to six weeks in jail for throwing a shaving-foam pie at Rupert Murdoch whilst the media tycoon was giving evidence at the Commons Culture, Media and Sport Committee. Better known as “Jonnie Marbles”, May-Bowles was also ordered to pay £250 costs and a £15 victim fine after pleading guilty to one count of common assault and another count of causing harassment, alarm or distress … Of those six weeks, Jonnie will serve three. …
Jonnie’s sentence was handed down by the same judge who gave policeman Marcus Ballard 150 hours unpaid work for pushing a teenager through a shop window. She also gave James Allen QC a 12-month supervision for beating his wife over an uncooked dinner. She let off TSG Sergeant Delroy Smellie over hitting G20 protester Nicola Fisher across the face and whacking her in the legs with a baton.
As argued by Jonnie’s lawyer in court “slapstick and pie throwing is a recognised form of protest.” No injury was caused — nor was there any intent to cause it — and there was limited damage to the suit. (source)
Colorism is prejudice of or discrimination against other people based on skin color. The concept is different from racism because it’s usually used to describe discrimination within a certain race or ethnic group, based on the tone of skin color, rather than discrimination of an entire race or ethnic group. In general, this means that lighter skin tones are preferred and darker skin is considered less desirable. Lighter-skinned members of a certain race or ethnic group can discriminate against members with darker tones within the same group, but colorism more often means a general social preference for lighter skins.
One cause of colorism may be a traditional and historical preference for light and an abhorrence of darkness, light being good and godly, dark being evil and scary. However, I won’t explore the causes and just limit myself to some examples. There’s the one I mentioned some time ago, and then there’s this one:
Villanova researchers studied more than 12,000 cases of African-American women imprisoned in North Carolina and found that women with lighter skin tones received more-lenient sentences and served less time than women with darker skin tones. The researchers found that light-skinned women were sentenced to approximately 12 percent less time behind bars than their darker-skinned counterparts. Women with light skin also served 11 percent less time than darker women.
The study took into account the type of crimes the women committed and each woman’s criminal history to generate apples-to-apples comparisons. The work builds on previous studies by Stanford University, the University of Colorado at Boulder and other institutions, which have examined how “black-looking” features and skin tone can impact black men in the criminal-justice arena. …
Part of the reason may simply come down to how pretty jurors consider a defendant to be, and that being light-skinned and thin (also a factor studied in the research) are seen as more attractive. (source)
More on discrimination in incarceration is here.
Criminal punishment, even in our non-medieval and so-called Enlightened societies, is the deliberate, intentional and organized imposition of harm on those we believe to be guilty of a crime. That remains the case even if we assume that those who are punished are in general guilty and that all necessary preconditions for criminal punishment are present (for example, that people are punished only after a fair trial, conducted by those authorized to conduct it; or that only those people aware of the moral significance of their actions are punished).
Given this imposition of harm, it’s important to be able to justify our systems of criminal punishment. Usually, but not always, the justifications people offer invoke the need to protect the rights of victims – actual or potential – but it’s far from certain that any justification can withstand even superficial criticism. Let’s look at the different justifications in turn. I think we can distinguish at least 5 common types of justification:
I’ll first offer a more or less neutral description of these different justifications, before criticizing them.
Justifications of criminal punishment
The system of criminal punishment is justified because it is an expressive affirmation of shared values within a community (in other words, it’s a form of signaling). This affirmation serves to internalize shared values. When the members of the community have successfully internalized the shared values of the community, it’s assumed that crime will occur less frequently.
According to this second type of justification, criminal punishment is justified when it can be shown that the threat and practice of punishment is necessary for the prevention of future crimes, not through internalization of the norms expressed in punishment, but through fear of punishment. Punishment is supposed to reduce the prevalence of crime because it works as a threat. It’s assumed that most rational people who perceive this threat engage in risk analysis, weigh the possible costs and benefits of an intended crime, and conclude that the costs outweigh the benefits (the cost evaluation is a combination of likelihood of the threat – i.e. enforcement – plus severity of the threat). As a result, people reduce their willingness to carry out the crime.
Unlike internalization (1) and deterrence (2), this third type of justification does not aim at a general prevention or decrease in crime. Criminal punishment is justified because it prevents a particular criminal from engaging in future crimes. Prevention occurs because it’s believed to be possible to change the criminal’s propensity for crime through rehabilitative efforts within the penal system.
This fourth type of justification also doesn’t aim at a general prevention or decrease of crime. Punishment is justified because it prevents a particular criminal from engaging in future crimes, not by way of rehabilitation but by way of incapacitation, which means either incarceration or execution.
Criminal punishment is justified because criminals deserve to be punished in a certain way.
Justifications 1 to 4 are consequentialist in nature: punishment is justified because of the good consequences that result from it, or because of the bad consequence that would result from our failure to punish. They all assume that punishment can prevent crime and hence protect victims – real or possible victims. Justification 5 is of a more deontological nature: punishment is a good in itself in the sense that it is required by justice irrespective of the likely consequences.
Contradictions between justifications
Notice how these different justifications may be incompatible.
Contradiction between (3) and (5)
Rehabilitation (3) means, by definition, flexible sentencing. Penal officials and judges need to have discretion, otherwise they can’t differentiate between successfully rehabilitated prisoners and others. Such discretion typically invokes anger among those who adopt a retributivist justification (5). Retributivism focuses on just desert in sentencing: a criminal should get the sentence he or she deserves, and usually this means a sentence that is in some way proportional to the gravity of the crime and to the harm done to the victim and to society. That is why retributivists demand uniformity in sentencing, and sometimes even mandatory sentencing. The discretion inherent in rehabilitation provokes feelings of unfairness among retributivists.
Contradiction between (4) and (5)
But also incapacitation (4) is often at odds with retributivism (5). For example, incapacitation in the form of incarceration may be less than what the criminal is supposed to deserve. Perhaps the criminal deserves to die according to the retributivist.
Contradiction between (2) and (5)
Retribution (5) can be incompatible with deterrence (2) because effective deterrence may require punishment that is more severe than the punishment that the criminal deserves. For example, there’s no reason why those who believe in deterrence should reject capital punishment for petty theft if it can be shown that such a punishment effectively deters this crime and that the benefits of deterrence outweigh the harm done by the execution. Something more is required to reject such a punishment, and that’s where retribution comes in. Retributivists would claim that petty thieves don’t deserve to die.
Contradiction between (3) and (4)
And a last example of a contradiction between different types of justification of criminal punishment: incapacitation (4) may make rehabilitation (3) more difficult. After all, it’s not obvious that prison is the best locus for rehabilitation. On the contrary, it’s often argued that prison is a school for criminals. Rehabilitation may then require a sentence such as a fine or GPS tracking.
A scale of decreasing ambition
We can view justifications 1 to 5 as being on a scale from most to least ambitious.
Internalization (1) is obviously the most ambitious since it promises moral education of the citizenry and moral compliance with the law. The obvious problem here is that the desired outcome is highly uncertain, perhaps even utopian. It’s not sure that this uncertain objective justifies the very real harm imposed by criminal punishment.
Deterrence (2) is somewhat less ambitious since it discards the educational function of punishment as highly unlikely and aims instead at grudging compliance based on fear (as opposed to moral compliance based on conviction). Still, it’s relatively ambitious since it expects a society wide reduction in crime resulting from fear and rational risk analysis on the part of potential criminals. The data have shown that deterrence as well is overambitious.
Rehabilitation (3) in turn discards some of the unrealistic assumptions of deterrence (2), such as rationality on the part of future criminals and strict enforcement of the law, and tries to avoid some of the counterintuitive consequences of deterrence (2), such as the tendency to increase the severity of punishments resulting from the need to tip the scale in the risk analysis of criminals. It also tries to avoid the immoral instrumentalization inherent in deterrence. Moreover, it’s not clear that deterrence works, empirically.
Rehabilitation (3) is less ambitious than internalization or deterrence because it focuses on preventing only certain particular criminals from engaging in further crimes. There’s no society wide ambition anymore. However, the success of rehabilitative efforts during the past decades, as measured by reductions in recidivism, is mixed, to say the least. It’s correct to say that most criminologists have become somewhat disenchanted with rehabilitation. And there’s also some doubt about the morality of some rehabilitation techniques (especially those that have been lampooned in A Clockwork Orange). Which is why many have scaled back their ambitions even more and now focus on incapacitation (4).
Let’s limit our discussion of incapacitation (4) to incarceration, since capital punishment is fraught with many other problems that have been widely discussed before on this blog. The problem with incapacitation is that it doesn’t have a clear boundary. Taken by itself, incapacitation theory could justify life imprisonment for petty crimes. In fact, the whole tough on crime philosophy can be seen as an exaggeration of incapacitation theory following the perceived failure of rehabilitation.
This lack of a boundary in incapacitation theory (4) has led people to fall back on perhaps the oldest and least ambitious justification of criminal punishment, namely retribution (5). Retribution can be seen as a type of justification of criminal punishment that is entirely without ambition: punishment is inflicted for its own sake, not for the possible benefits it can produce. Criminals should be punished because it’s the right thing to do and because they deserve it, not because some aim or purpose can be served by it. This element of desert allows us to avoid both punishment that is viewed as being too severe – as in incapacitation (4) and deterrence (2) – and punishment that is viewed as being too lenient – as in rehabilitation (3).
Retributivism in fact abandons the pretense that punishment has a purpose, that it can achieve a desired objective and that no other, less severe means are available for this objective. However, retributivism isn’t a solid justification of criminal punishment either. It has proven to be impossible to know what exactly it is that the guilty deserve. Lex talionis is the easy answer, but it’s no longer a convincing one in modern societies. Proportionality is the difficult answer: severity in punishment should be proportional to the gravity of the offense. That’s the difficult answer because it leaves us with a system that is inherently imprecise and arbitrary. An infinite number of punishments are consistent with this justification. Hence it’s not really a justification at all.
So, where does this leave us? It seems like criminal punishment is not justifiable. And indeed, there’s a long tradition in philosophy that views punishment as nothing more than rationalized anger, revenge and domination. Michel Foucault for example has analyzed criminal punishment as a cogwheel in the continuation of social power relations. The fact that there are so many African Americans in U.S. prisons and in execution statistics can be viewed as a symptom of continued racist domination. Nietzsche has described criminal punishment as being motivated solely by a deep natural desire to punish, subordinate and coerce. And indeed, if you want to punish someone for a crime, you first need to establish control over the would-be punishee. All systems of criminal punishment seems to be doomed to failure if there isn’t a prior system of control. This would indicate that there is already a prior system of control operating in society before criminal punishment takes effect, which in turn seems to indicate that systems of criminal punishment are merely the strong arm of deeper systems of control.
On the other hand, it seems difficult for anyone who’s serious about human rights to simply abandon criminal punishment. Without criminal punishment, we in fact expect victims of crime to either fend for themselves or undergo their suffering and rights violations. Neither outcome would be just.
The boom in incarceration rates in the U.S., following the War on Drugs and other sentencing reforms inspired by the “tough on crime” ideology, has had devastating effects on the rights of the incarcerated – many of whom are in prison for deeds that resulted in little or no harm to anyone – but also on the rights of their family members, none of whom did anything wrong. These rights violations have fallen disproportionally on an already disadvantaged group of American society, namely African-Americans. And it’s their children who suffer along:
- 1 in 40 white children born in 1978 and 1 in 25 white children born in 1990 had a parent imprisoned;
- 1 in 7 black children born in 1978 and 1 in 4 black children born in 1990 had a parent imprisoned;
- inequality in the risk of parental imprisonment between white children of college-educated parents and all other children is growing; and
- by age 14, 50.5% of black children born in 1990 to high school dropouts had a father imprisoned. (source, source)
Children especially are placed at considerable risk by policies of incarceration. Incarcerated men are less likely to contribute financially or otherwise to their families and their children’s education. The same is true even in the case of formerly incarcerated men, because of their inferior earnings. Hence, the effects of incarceration place children at a significant economic disadvantage, which is punishment without a crime, worthy only of a dictatorship.
The U.S. Department of Justice recently released its first-ever estimate of the number of inmates who are sexually abused in America each year. According to the department’s data, which are based on nationwide surveys of prison and jail inmates as well as young people in juvenile detention centers, at least 216,600 inmates were victimized in 2008 alone. Contrary to popular belief, most of the perpetrators were not other prisoners but staff members—corrections officials whose job it is to keep inmates safe. On average, each victim was abused between three and five times over the course of the year. The vast majority were too fearful of reprisals to seek help or file a formal complaint. (source)
Given the incarceration statistics for the U.S. – more than 2 million U.S. citizens are in jail – this means that one in 10 inmates is sexually abused in prison. Approximately half of all sexual abuse in detention is committed by staff, not by inmates (source).
There’s a clear discrepancy between poverty rates for blacks and whites in the U.S. (as between races in many other countries):
The question is to what extent racism is to blame. I mentioned here, here and here that some of the irrational and self-destructive behavior of a lot of poor people causes many to believe that the poor are themselves to blame for their poverty and that one shouldn’t look for external reasons such as racism.
If you finish high school and keep a job without having children before marriage, you will almost certainly not be poor. Period. I have repeatedly felt the air go out of the room upon putting this to black audiences. No one of any political stripe can deny it. It is human truth on view. In 2004, the poverty rate among blacks who followed that formula was less than 6 percent, as opposed to the overall rate of 24.7 percent. Even after hearing the earnest musings about employers who are less interested in people with names like Tomika, no one can gainsay the simple truth of that advice. Crucially, neither bigotry nor even structural racism can explain why an individual does not live up to it. (source)
Opinions like this are very common:
But are these opinions correct? Is it true that “neither bigotry nor even structural racism” can explain why an individual does not make a few simple choices that will drastically improve her life?
At first sight, it does seem that a few simply rational decisions about life will allow you to escape or avoid poverty. But on closer inspection that’s just begging the question: if things are so simple, why don’t people make those choices? Hell, it’s so simple that it should be obvious even to the stupidest among the poor! But if it’s not stupidity that causes people to fail to take the advice of finishing high school and not having children early, and not bigotry or racism, then what?
[The] insistence that the failure of so many blacks to avoid the perils that come with not finishing high school and getting pregnant before marriage cannot be explained by structure or bigotry is too outrageous to let pass with no reply. In fact they can be easily explained by structure. …
The school systems in black neighborhoods are underfunded and undeniably worse on average than those in white neighborhoods. The quality of the school, its teachers and leadership has a direct influence on graduation rates. Sex ed and access to contraceptives are also far worse in black communities. The public health failures come well before this for many black youth. The failure to provide adequate health care and nutrition to black adolescents has been linked to the behavioral and learning disabilities so prevalent in black schools. The diagnosis of a learning disability is one of the biggest predictors of eventually dropping out of school, particularly in poor urban schools. (source)
And having more trouble finding a job because you’re name sounds black obviously has an impact on your prosperity, also for your children. And growing up in a poor family has consequences for your adult prosperity. When we look at incarceration rates by race, and assume – wrongly – that there’s no racism in play, what do you think it does to a child having to grow up without a father?
This means that there’s one less parent to earn an income, one less parent to instill the sort of discipline all children need to graduate school and avoid unplanned pregnancies. Even if the incarceration only lasts briefly, it still means that once the parent is out of jail he or she will find it much harder find employment. (source)
More posts in this series are here.
- “Depressing Because It Is So Persuasive” Ctd (andrewsullivan.theatlantic.com)
- “Depressing Because It Is So Persuasive” (andrewsullivan.theatlantic.com)
- Those Who Broke it Can’t Always Fix It (theatlantic.com)
- “”Race, Wrongs, And Remedies”" and related posts (advicegoddess.com)
- Letters: The Causes of Poverty, and the Cures (nytimes.com)
Although inmate labor is helping budgets in many corners of state government, the savings are the largest in corrections departments themselves, which have cut billions of dollars in recent years and are under constant pressure to reduce the roughly $29,000 a year that it costs to incarcerate the average inmate in the United States.
Senator John Ensign, Republican of Nevada, introduced a bill last month to require all low-security prisoners to work 50 hours a week. Creating a national prison labor force has been a goal since he went to Congress in 1995, but it makes even more sense in this economy, he said. (source, source)
It’s well-known that African-Americans make up a disproportionate part of the U.S. prison population. Racists of course have an easy explanation for this, but what is the real explanation? Part of it is probably racial profiling and bias among jury members. Another part of the explanation can be poverty, unemployment and lower education, burdens from which African-Americans also suffer disproportionately. And although crime has many possible causes, there’s some evidence that at least some types of property crime go up during recessions. This indicates that there’s a link between crime and poverty, something which in turn can explain different arrest ratios across races given the different poverty rates across races.
There’s an interesting paper here studying the effects of both labor market conditions and asset poverty on the property crimes involvement of American males. It turns out that poverty and labor market outcomes account for as much as 90% of the arrest rates ratio. More on racism and crime. More Banksy.
- Human Rights Facts (206): Race and Consumer Behavior (filipspagnoli.wordpress.com)
- Discrimination is the well-documented cause of race disparity in prison (seattletimes.nwsource.com)
Capital punishment is usually defended on the basis of a theory of deterrence or retribution, but another common argument is incapacitation: killing criminals guarantees that they cannot commit further crimes. It’s likely that this argument plays an important role in many decisions to impose capital punishment, since members of juries may fear, mistakenly, that life imprisonment without parole actually means something like “on average 10 years in prison” (see here).
The obvious counter-argument is that life imprisonment, when it really means “life”, is equally incapacitating. True, say the proponents of capital punishment, but criminals may kill when in prison. In particular, they may kill fellow inmates. OK, so let’s do a thought experiment. Imagine that we don’t use the death penalty for murder, but incarcerate murderers for life, together with only fellow murderers. The only killing they can do is of their fellow incarcerated murderers.
Would that kind of killing be objectionable to proponents of capital punishment? I think it shouldn’t be, since the victims of this kind of killing would also have been killed under a regime of capital punishment. Maybe opponents would object that this system doesn’t treat all murderers the same: some get killed, others not. However, I fail to see what difference it makes to a murderer if she is killed by fellow inmates rather than by the state, or if she is killed while others aren’t. She’ll be dead, and in no position to complain about others being still alive. (And don’t tell me murder by the state is preferable because it’s more “humane“). Moreover, our existing regimes of capital punishment don’t manage to kill all murderers either. And finally, non-murderers can also kill while in prison. Should we execute them preemptively?
For opponents of capital punishment, it does make a huge difference whether murderers are killed by the state or by their colleagues: murder by the state means the instrumentalization of human beings, whereas murders between inmates are regrettable and to be avoided, but not more or less than murders in general.
More on capital punishment here.
- Why I don’t believe in the death penalty (psychologytoday.com)
- Capital Punishment is Unnecessary (socyberty.com)
- The death penalty should be abolished (seattletimes.nwsource.com)
- Stevens’ Powerful Anti-Death-Penalty Views (time.com)
- Op-Ed Columnist: Broken Beyond Repair (nytimes.com)
Using data obtained from the United States Sentencing Commission’s records, we examine whether there exists any gender-based bias in criminal sentencing decisions. … Our results indicate that women receive more lenient sentences even after controlling for circumstances such as the severity of the offense and past criminal history. …
Studies of federal prison sentences consistently find unexplained racial and gender disparities in the length of sentence and in the probability of receiving jail time and departures from the Sentencing Guidelines. These disparities disfavor blacks, Hispanics, and men. A problem with interpreting these studies is that the source of the disparities remains unidentified. The gravest concern is that sentencing disparities are the result of prejudice, but other explanations have not been ruled out. For example, wealth and quality of legal counsel are poorly controlled for and are undoubtedly correlated with race. …
The findings regarding gender in the case of serious offenses are quite striking: the greater the proportion of female judges in a district, the lower the gender disparity for that district. I interpret this as evidence of a paternalistic bias among male judges that favors women. (source)
- Defendant’s gender affects length of sentence (sciencedaily.com)
Employers often use background checks before deciding to hire someone. For example, they may check the criminal record of job candidates, their credit scores, health history etc. It’s somewhat understandable although not always acceptable that they are reluctant to hire someone who has been in jail, has been sick for a long time, or has proven to be undisciplined by not paying her bills.
Let’s focus on ex-convicts for the moment. These people have a hard time as it is, sometimes even for no good reason because they shouldn’t have been incarcerated in the first place (I argued here that many countries, and especially the U.S., put too many people in jail). So, allowing employers to use criminal background checks can force ex-convicts into a vicious circle: unable to find a job, they may be forced to go back to crime.
Furthermore, there’s a racial aspect to all of this: in the U.S., African Americans are more likely to be ex-convicts. According to some, this racial discrepancy is precisely the reason to allow criminal background checks. If employers aren’t allowed to check individual candidates, they will resort to statistical discrimination: they know that blacks are more likely to have a criminal record and so they won’t hire any blacks at all, just to be safe.
However, if you espouse this argument in favor of background checks, you essentially want to make things better for one disadvantaged group – blacks, who are generally disadvantaged in employment, see here – by making things worse for an even more disadvantaged group, namely ex-convicts. And that’s assuming that employers will hire more black people if they can use criminal background checks; but assuming that means assuming there’s no racism. Helping a disadvantaged group by harming an even more disadvantaged group is plainly absurd, and you can only fail to see that it’s absurd if you have an overriding fear of government regulation. Regulation should be kept in check but not at any price. I think in this case regulating businesses and outlawing background checks is the appropriate thing to do.
Let’s turn briefly to another type of background check: credit scores.
[M]illions of Americans, as a direct consequence of looking for work, have lower credit scores. … The use of credit checks in employment decisions should be banned. It is a form of discrimination against the poor — the codification and enforcement of class barriers. It is therefore a form of discrimination against those groups more likely to be poor. (source)
It seems there’s a
growing tendency of HR departments to check the credit scores of potential employees apparently deeming this data to be an important predictor of employee behavior. This creates a Catch-22 scenario for the unemployed where you can’t improve your credit score unless you get a job and you can’t get a job until you improve your credit score. (source)
Apart from the obvious fact that credit scores seem to be a type of knowledge that is much less useful for an employer compared to a criminal record – if your house burned down and your credit score is low as a result, does that make you a bad employee? – there’s a real issue for the poor here. They shouldn’t be discriminated against just for being poor. It’s not just a lack of conscientiousness or discipline that can lower your credit score. Back luck and poverty won’t help either. Some say the free market and competition will take care of this: employers stupid enough not to hire good poor people simply because they have a credit problem will lose out. Their competitors who don’t engage in credit checks will hire them, and those businesses will acquire a commercial advantage. I don’t know. Seems awfully optimistic to me.
By the way, all this is another reason to make unemployment insurance more generous:
I’d rather see our energy focused on longer-term, more generous unemployment benefits that might keep some people from trashing their credit while they look for a job. (source)
- Are Businesses That Use Background Checks in Hiring Guilty of Discrimination? (race.change.org)
- Background Checks in Hiring: Discrimination or Due Diligence? (blogs.wsj.com)
- EEOC: Employers can’t refuse to hire convicts (hotair.com)
- How Job Screening Can Become Discrimination (abcnews.go.com)
Overt manifestations of racial or other types of group-based hate, prejudice or discrimination are relatively rare these days because they have become increasingly unacceptable. However, the racist or prejudiced ideas that form the basis of such overt manifestations aren’t necessarily less common than they used to be. Or perhaps the word “idea” is too strong. “Unconscious biases” or even “instincts” may be more appropriate terms. “Instincts” in this context is a term used to link contemporary racism and prejudice to lingering aspects of early human evolution encouraging distrust of other groups as a survival strategy.
Indeed, certain psychological experiments have shown how easy it is to induce people to hateful behavior towards members of other groups, even people who self-describe as strongly anti-prejudice. There have also been some notorious cases of the effect of hate propaganda on people’s behavior.
On the other hand, there are some indicators that suggest a decrease in the levels of racism, and there are theories that say that it should decrease. However, other data suggest that “unconscious biases” are still very strong:
[T]his Article proposes and tests a new hypothesis called Biased Evidence Hypothesis. Biased Evidence Hypothesis posits that when racial stereotypes are activated, jurors automatically and unintentionally evaluate ambiguous trial evidence in racially biased ways. Because racial stereotypes in the legal context often involve stereotypes of African-Americans and other minority group members as aggressive criminals, Biased Evidence Hypothesis, if confirmed, could help explain the continued racial disparities that plague the American criminal justice system.
To test Biased Evidence Hypothesis, we designed an empirical study that tested how mock-jurors judge trial evidence. As part of an “evidence slideshow” in an armed robbery case, we showed half of the study participants a security camera photo of a dark-skinned perpetrator and the other half of the participants an otherwise identical photo of a lighter-skinned perpetrator. We then presented participants with evidence from the trial, and asked them to judge how much each piece of evidence tended to indicate whether the defendant was guilty or not guilty. The results of the study supported Biased Evidence Hypothesis and indicated that participants who saw a photo of a dark-skinned perpetrator judged subsequent evidence as more supportive of a guilty verdict compared to participants who saw a photo of a lighter-skinned perpetrator. (source)
Maybe racism hasn’t decreased but has just become more difficult to spot, including for the racists themselves. Swastikas and KKK hoods aren’t so common anymore, and instead we have to look for unconscious biases, implicit racism or even unintentional racism.
- “Implicit Bias May Make Evenhanded Application of New Immigration Law Impossible, Psychologist Says – SB1070″ and related posts (hispanictips.com)
- Dreaming, Racism and the Unconscious (psychologytoday.com)
The human right issues created by incarceration are evident, I think: locking people up means taking away a number if not most of their liberties, most obviously their freedom of movement, freedom to work, political freedom in some cases, and privacy. Other rights violations are also common, even in the prisons in rich countries such as the U.S.:
- juvenile incarceration
- the substandard conditions in which many prisoners are kept (Federal prisons in the U.S. hold 60% more prisoners than they were designed for)
- the forced and unpaid labor prisoner often perform
- the common occurrence of prison rape (see here and here).
Some people clearly deserve to be put in jail, and often that is what is required in order to protect the human rights of their (possible) victims.
However, I mentioned before that the “tough on crime” policies enacted in the U.S. and the resulting explosion in the numbers of U.S. citizens who are in prison (the U.S. has one of the highest incarceration rates in the world) go beyond what is required for public safety and the rights of victims. The causes of this explosion are numerous.
- There’s the war on drugs, of course, which leads to excessively tough penalties, sometimes even for victimless crimes (the illegal sale of prescription painkillers for instance). Some of the penalties for drug “crimes” are tougher than the sentences for violent crimes.
- There are other acts that are in essence victimless and need not be criminalized, and yet result in incarceration in the U.S. (e.g. importing rare orchids).
- Sentences in the U.S. are too long. Many crimes come with mandatory minimum sentences, taking away judges’ discretion and their ability to take into account the specific circumstances of a crime. “Three strikes and you’re out” lead to life sentences for sometimes trivial crimes.
- Some laws, especially laws regulating the conduct of businesses – are so vague that people have a hard time steering away from crime.
- Prosecutors are often allowed to slice up a crime into a series of different crimes, each coming with a minimum sentence.
- Parole conditions have been toughened, and people are regularly put back in jail for non-criminal violations of these parole conditions.
The cause of all this is probably the race to the top going on between politicians who are all promising to be tougher on crime than the next guy. Some judges in the U.S. are elected and engage in the same kind of bidding.
The question is: what are the benefits of this toughness, and what are the costs? Regarding the benefits, the homicide rate has been going down in the U.S., but it has since two centuries and it’s not clear that the tough policies introduced during the last decades have contributed much to the decline.
Bert Useem of Purdue University and Anne Piehl of Rutgers University estimate that a 10% increase in the number of people behind bars would reduce crime by only 0.5%. In the states that currently lock up the most people, imprisoning more would actually increase crime, they believe. Some inmates emerge from prison as more accomplished criminals. And raising the incarceration rate means locking up people who are, on average, less dangerous than the ones already behind bars. (source)
Regarding the costs: the prison system in the U.S. is extremely expensive, sucking away funds that could be used much more productively elsewhere, particularly on policies protecting human rights such as education. It’s also money that can’t be spent on better crime detection and better policing. It’s well-known that swift justice and high “catch rates” deter more crime than harsh penalties. If you want to be tough on crime, you shouldn’t necessarily choose the option of putting a lot of people away for a long time. And questioning the high incarceration rates in the U.S. doesn’t mean you’re weak on law and order.
High numbers of inmates also reduce the chances of rehabilitation: more prisoners means relatively less prisoners who can take advantage of the limited resources dedicated to vocational training and other activities that make it more likely that prisoners can become normal and non-reoffending members of society once they get out. Together with the phenomenon of prison as a “school for criminals”, this is likely to create a perverse effect: being tough on crime can actually increase crime. People should think hard on the way in which they choose to be tough on crime, and should consider if some crimes need to be crimes at all.
- The Limits Of Locking People Up (andrewsullivan.theatlantic.com)
- Too many laws, too many prisoners (economist.com)
- Goodbye Prisons; Hello GPS? (blogs.wsj.com)
Sacramento resident Calvin Ward says his life has been upended since he was jailed twice as Calvin Phillips, a white man 4 inches shorter than he. Calvin Ward is nearly 6 feet tall and African American. Calvin Phillips, according to records, is about 4 inches shorter and Caucasian.
But Sacramento County seems to think the two Calvins are the same person, and that has become a major problem for Ward. Twice last year, Ward was wrongly jailed under the name Calvin Phillips, and as a result his modest upholstering business has been decimated, he claims in a civil rights lawsuit. …
Ward’s problems began in June, when city police arrested him for riding a bicycle under the influence of alcohol. At the county jail, Ward pointed out that his paperwork erroneously identified him as Calvin Phillips, even though he had presented a driver’s license that listed his true name. Deputies “ignored his protestations,” the suit says, and he spent two days in jail.
In July, he appeared in court and found that no charges had been filed against him in the matter, according to the complaint. But he was arrested again, on allegations that he had violated probation in another case. Deputies handcuffed him and took him to jail under the name Calvin Phillips.
Ward remained in jail for an additional three days, after which a judge recognized the case of mistaken identity and ordered him released. By that time, the suit alleges, Ward’s upholstery business was in shambles, as he had missed appointments with a major client who then dropped him and refused to recommend him to others.
Ward has no criminal record, only a misdemeanor and a traffic offense, both of which occurred years ago, records show.
Ward, 59, said he is trying to rebuild his business but has had to take temporary jobs to pay bills. He applied for a position with the U.S. census, he said, but was rejected when his alter ego’s name popped up during a background check. He said he now is getting bills intended for Phillips from the county revenue department. (source)
A 19-year-old from Littleton, Colorado has been arrested for failing to promptly return a DVD to the local public library.
Henson says the $30 DVD was accidentally packed and taken when the family moved. After an overdue notice and bill were not returned, the city sent Henson two court summons, which he did not receive because they were mailed to the family’s former address. After Henson failed to respond to the second summons, authorities issued an arrest warrant.
At a traffic stop on Interstate 70, Henson was arrested by a state trooper for a failure to respond to the court summons.
The city’s policy is to pursue items worth more than $30. The DVD, “House of Flying Daggers,” is valued by the city to be worth $31.45, though it ultimately cost the Henson family much more.
KMGH in Denver reports that the Littleton city attorney has discussed the issue with the family and agreed to reimburse them for all court and arrest related costs. Aaron’s permanent record will also be cleared of the arrest.
And the DVD? It has been returned–just a little late. (source)
Contrary to right-wing rhetoric and popular belief (examples here and here), there isn’t much of a correlation between Latino immigration in the U.S. and crime rates. That’s something I discussed before, but I want to revisit the subject because there’s an interesting new article about it here confirming my claims (to make it even more interesting: it’s from a conservative magazine).
Nearly all of the most heavily Latino cities have low or even extremely low crime rates, and virtually none have rates much above the national average. Eighty percent Latino El Paso has the lowest homicide and robbery rates of any major city in the continental United States. This is not what we would expect to find if Hispanics had crime rates far higher than whites. Individual cities may certainly have anomalously low crime rates for a variety of reasons, but the overall trend of crime rates compared to ethnicity seems unmistakable.
Maybe we should assume that the numbers are bit too rosy because of the tendency of illegal immigrants to underreport crime (although the article tries to correct for underreporting by comparing homicides – almost no underreporting – to overall crime). Also, the likelihood of underreporting by illegal immigrants can be offset by a possibly equal effect of criminal restraint on the part of illegal immigrants: for the same reasons that they underreport crime – fear of contacting the authorities and being identified as illegal immigrants – they stay out of trouble with the police and try to act decently.
However, if we look at it from another side, we see that incarceration data show somewhat higher levels for Hispanics or immigrants (although most Hispanics are American-born, the vast majority still comes from a relatively recent immigrant background):
the age-adjusted Hispanic incarceration rate is somewhat above the white rate—perhaps 15 percent higher on average. (source)
Still, one can’t simply conclude from this that crime is more rampant among Hispanics or immigrants. It’s still possible that instead of higher criminality we simply witness the result of harsher treatment of those sections of the population by the judicial system. Also, incarceration rates are inflated because many immigrants are in jail not because of ordinary crimes, but because of infractions of immigration law; you should exclude the latter if you want to compare Hispanic and white criminality (unless you consider infractions of immigration law as essentially equivalent to ordinary crime, which is not altogether insane; but the point of this post is to examine the claim that there are more ordinary criminals among Hispanic immigrants than among [longtime] citizens).
In addition, you should correct incarceration rates for age and gender: in general, most criminals are young men, and it happens to be the case that most immigrants are also young men. So the likelihood that immigrants end up in prison is – slightly – higher compared to the general population, not because they’re Hispanics but because they are young men. Any other, non-immigration related influx of young men in a certain area – e.g. military demobilization or a huge construction project – would have an effect on crime. (If you don’t correct for this, you’re making a common statistical mistake: see here for other examples of the “omitted variable bias”).
Finally, immigrants are relatively poor and there is a link between poverty and crime. So that can also explain the higher incarceration rate for immigrants. If you link the higher probability of poor people engaging in crime with the fact that poor people have lower quality legal representation, you have a double explanation. So, again, if Hispanics do end up in jail more often, perhaps it’s because they’re relatively poor, not because they are Hispanics and somehow racially prone to crime.
All this is limited to the U.S. People can still make the case that immigration in other countries promotes crime, but that case is made harder by the false claims about the U.S. (At least in France there’s no proof of the share of immigrants in the population having a significant impact on crime rates). These false claims are always based on anecdotes, and you’ll always be able to find criminals with foreign sounding names in order to whip up a frenzy against immigration, thereby satisfying your racist hunger and building a political following of ill-informed voters. Again a clear demonstration of the usefulness of statistical analysis in human rights issues and the danger of anecdotal reasoning.
Bonus paper here. Quote:
We examine whether the improvement in immigrants’ relative incarceration rates over the last three decades is linked to increased deportation, immigrant self-selection, or deterrence. Our evidence suggests that deportation does not drive the results. Rather, the process of migration selects individuals who either have lower criminal propensities or are more responsive to deterrent effects than the average native. Immigrants who were already in the country reduced their relative institutionalization probability over the decades; and the newly arrived immigrants in the 1980s and 1990s seem to be particularly unlikely to be involved in criminal activity.
More on migration.
I often discuss the human rights implications of incarceration: prison rape, overpopulation in prisons, juvenile incarceration, racism in incarceration rates, the social cost of incarceration, voting rights for felons and other related issues regularly make an appearance here.
Here are two other fine quotes admonishing the violence that occurs in prisons, even in so-called developed countries, and the high incarceration rates in the U.S.:
Prison will always be prison: Every society has to live with some level of institutional violence in the worlds it builds to confine its most dangerous elements, and there’s an inherent cruelty to incarceration that cannot be refined away. But there has to be a limit, as well. And what Americans have learned to tolerate (or rather, ignore) inside the walls of jails and prisons ought to churn our stomachs, shock our consciences, and produce not only outrage, but action. Ross Douthat (source)
Sentences in the United States are eight times longer than those handed out in Europe, Justice Kennedy said. California has 185,000 people in prison at a cost of $32,500 each per year, he said. He urged voters and elected officials to compare taxpayer spending on prisons with spending on elementary education. Justice Kennedy took special aim at the three-strikes law, which puts people behind bars for 25 years to life if they commit a third felony, even a nonviolent one. The law’s sponsor, he said, is the correctional officers’ union, “and that is sick.” (source)
Some prison statistics here (not only for the U.S.).
One of the many outrageous interventions by Maricopa county sheriff Joe Arpaio, the anti-illegal immigration zealot who thinks he’s just America’s “toughest sheriff”. It’s the story of a woman who, while 9-months pregnant, was detained after a traffic stop on suspicion of being in the country illegally:
The very same night of her arrest, Chacon went into labor and found herself afraid and alone, being rushed to a local hospital with her hands and legs chained in shackles.
Once she reached the hospital, nurses repeatedly begged the Sheriff’s staff to allow them to unchain the mother, but they refused and Chacon was forced to give birth while still shackled to the bed. At one point, the nurse asked for them to release her so that she could be escorted to the bathroom for a urinalysis, but even that request was denied. But the worst came once Chacon gave birth to her baby girl.
Still chained to the bed, Arpaio’s police staff refused to allow Chacon to hold her newborn baby and then warned her that if no one came to pick up the child within 72 hours, she would be turned over into state custody. (source, source)
From the Marginal Revolution:
“I’m really scared of what could happen, because I bought property here,” said Sofia, who asked that her last name be withheld because she is still hunting for a new job. “If I can’t pay it off, I was told I could end up in debtors’ prison.”
With Dubai’s economy in free fall, newspapers have reported that more than 3,000 cars sit abandoned in the parking lot at the Dubai Airport, left by fleeing, debt-ridden foreigners (who could in fact be imprisoned if they failed to pay their bills). Some are said to have maxed-out credit cards inside and notes of apology taped to the windshield.
Debtors account for about forty percent of the Dubai prison population.
Quite ironic now that Dubai itself can’t repay its debts. Wrongful imprisonment is of course not a problem limited to Dubai: see here, here, here and here. Other rights violations in Dubai. More absurd human rights violations.
- 12% of juveniles in U.S. prisons are sexually abused each year, compared to “only” 4% of adult prisoners. Juveniles are three times more likely to be abused. No surprise that there’s a lot more rape going on in prisons than in the outside world, but the numbers are still scary: 0.3% of US non-prisoners report rape each year, versus a world median of roughly 0.05%. 60,500 adults are victims of rape or sexual misconduct in prisons each year.
- Prison rapes are perpetrated by fellow inmates or prison staff. 10.8% of males and 4.7% of females reported sexual activity with facility staff. 9.1% of females and 2.0% of males reported unwanted sexual activity with other youth.
- The US is world champion in incarceration rates: it has 0.7% of its population in prison, vs a world median of roughly 0.1%. (source)
Some more information related to racism in employment in the U.S. (see this previous post on racism in employment decisions, employment rates, education levels and poverty levels). This study shows that black men without a criminal record are less likely to be called back for a job interview than white men with a criminal record:
These data were collected during an experiment in which different testers applied for the same jobs advertised in newspapers. The testers had fake credentials that made them equivalent in terms of education, job experience, and so on. The testers were either black and white. Some testers from each group were instructed to indicate that they had a past non-criminal drug possession offense. The data would undoubtedly have shown an even more dismal picture had the testers faked a record for a property or violent crime.
Whites with a criminal record are more than 3 times more likely to get a callback than blacks with a criminal record. If you combine this blatant discrimination in employment decisions with the racially disproportionate rates of incarceration in the U.S., you have a recipe for economic exclusion of blacks. More on the stupidity of U.S. prison policy here, here and here. More on racism here.
The degree of civilization in a society can be judged by entering its prisons. Fyodor Dostoevsky
No matter how much we agree that putting people in prison is often necessary, we shouldn’t forget that in doing so we limit their human rights. Such limits are not impossible in the system of human rights, but should be kept to a minimum necessary for the protection of other rights or the rights of others. Hence, arbitrary arrest, or arrest for “crimes” which do not violate other people’s rights – such as political “crimes”, speech “crimes” etc. - is unacceptable. Moreover, in those cases in which imprisonment is an acceptable measure in view of the protection of the rights of others, there’s no reason to accept prison conditions that add human rights violations to the human rights limitations already inherent in the fact of incarceration itself.
Inhumane prison conditions are often the result of the general poverty of a country. A poor country will have poor prisons. But poverty doesn’t explain everything, as is shown by the problems in some of the prisons in relatively wealthy countries. Prisoners are often viewed as subhuman, deserving not only imprisonment but imprisonment under any condition. However, such a view is self-defeating: bad prison conditions create subhuman behavior. The ripple effects of bad prison conditions do not stop at the prison walls; they reach every corner of society. Not a lot of imagination is required to see what happens when prisoners leave the hell holes that are used as prisons in some countries. Or better, if they leave. If they leave, it’s often in a coffin, or at best with their mental and physical health destroyed.
More on prison conditions here (on overpopulation in prisons), here (prison conditions in Iran), here (prison rape), here (again on overpopulation), here (solitary confinement), here (juvenile incarceration). Here are some statistics. And here’s an collection of images on prison conditions, past and present:
(source, read the full horror story about this prison ship, used by the British during the American Revolutionary War)
Other collections of human rights images are here.
The number of people per 100.000 citizens who are incarcerated, 2012 data:
All democracies arrest people without a charge or conviction, but they only do so for very short periods of time, usually a very limited number of days. Also, when a charge is filed, democracies want to have a court case as soon as possible. Detention on remand, as it is called, is confinement in a house of detention prior to treatment of a case in court. Generally, this type of detention is imposed, if a person is suspected of a serious crime and if he/she is prone to escape, to tamper with the evidence, to commit further crimes etc. Democracies also want to keep this detention on remand as short as possible, because there is always the risk that an innocent person is imprisoned.
In a well-functioning judicial system, there can be no excessively long detention without a charge or detention on remand. We do not want to incarcerate innocent people. Without a time limit – usually expressed in number of days – detention without charge or detention on remand would be arbitrary arrest. And arbitrary arrest is typical of tyranny. An arbitrary arrest is an arrest of a person without evidence of this person’s involvement in a crime. If there is such evidence, then there can be no problem presenting this evidence within a very short delay, after which the person can be formally charged and a court case can be decide on guilt or innocence, also within relatively short delays. A long delay between an arrest and a formal charge or between an arrest and a court decision on guilt or innocence, would create an injustice if it turns out that the person in question is innocent. The harm done by this possible injustice can be limited is the time frames are short. All this is part of treating people fairly and doing justice.
Unfortunately, the U.S., still a beacon of democracy and the rule of law, has decided that its war on terror forces it to imitate dictatorships and to detain people, in Guantanamo and other places, without a warrant, without a charge, without a fair trial and conviction, and for indefinite periods. Let’s hope the new administration will close these prisons soon and, if there is evidence, formally charge the inmates.
The government in the U.K., not having an equivalent of Guantanamo, has simply decided to change the period:
The practice of locking children in prisons, especially adult prisons, has devastating effects on them. They mix with criminal adults and they tend to follow inappropriate role models. It just makes them worse people.
Article 10 of the International Covenant on Civil and Political Rights states:
Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status. (source)
But even putting them in special child detention centers or so-called “corrective facilities” makes it difficult for these children to get a proper education, to learn appropriate social skills and to receive the special kind of support that only a family can provide. Of course, their families are often part of the problem. Prison guards are no teachers, no matter how well they try (and in many countries, they don’t). Some of these children undoubtedly have to be kept off the streets, but other, non-custodial options must be possible.
However, the fact is that many children are in prison, not because they have committed a crime, but because their parents are in prison (maybe the children were born in prison) or because their parents entered the country illegally. Maybe they did commit some kind of crime, but not one severe enough to have them locked up. They are locked up because their government didn’t provide the funds necessary for adequate guidance and support.
In Detention, by Christopher van Wyk
He fell from the ninth floor
He hanged himself
He slipped on a piece of soap while washing
He hanged himself
He slipped on a piece of soap while washing
He fell from the ninth floor
He hanged himself while washing
He slipped from the ninth floor
He hung from the ninth floor
He slipped on the ninth floor while washing
He fell from a piece of soap while slipping
He hung from the ninth floor
He washed from the ninth floor while slipping
He hung from a piece of soap while washing.