Let’s assume that we punish criminals in order to “teach them a lesson”: by imposing pain, suffering or unpleasantness on the criminal we intend to make it clear that he or she has done wrong and that we “as a society” disapprove. This lesson in turn is supposed to prevent criminals from reoffending, and hence it is intended to enhance respect for society’s rules. Punished criminals may not always internalize society’s rules and change their mentalities or criminal convictions as a result of “the lesson”, but at least the unpleasantness of “the lesson” will deter them from acting on the basis of their mentalities and convictions. In short, criminal punishment is a means to achieve moral progress. Perhaps if we’re lucky we’ll achieve moral progress in the minds of people, but if we don’t we’ll certainly see moral progress in people’s actions. Or so the story goes.
This is perhaps the most widely shared view of criminal punishment, which is weird when you think of it. After all, one can very easily identify numerous problems with this view. First of all, we impose criminal punishment for the violation of a wide range of rules, many of which we would not or should not view as moral rules. Some of those rules are perhaps even immoral: for instance, the rule against the use of soft drugs can be and often is seen as immoral because it restricts personal freedom. The imposition of punishment for the violation of such immoral rules is a clear step backward from the point of view of morality. No progress there. (The same is true for merely a-moral rules).
Furthermore, one can argue that many of the punishments we impose even for moral rules are in fact brutalizing. Prison is a school for criminals and prison crime is rampant. To argue that imprisonment deters crime and makes the world more moral is to deny the facts of prison life. Prisoners often just become better criminals and make others better criminals, both inside prison and upon release.
And finally, there are certain psychological biases present in those who impose criminal punishment, and these biases also undermine the story of “the lesson”. For example:
In graduate school at the University of Wisconsin-Madison, I proctored law school exams to earn extra money. At the end of one exam, while I was collecting the final papers, I overheard two students discussing their answers on an essay question about sentencing. One said to the other: “I gave the rich guy a lesser sentence because I figured, since he had such a cushy life, it would take less punishment to get through to him.” … the perception that Black people have already had to cope with a great deal of pain — from racism, poverty, poor health, etc — and, as a result, have a greater pain threshold. In other words, they are less sensitive to pain because they’ve been hardened.
Efforts to parse out whether this effect is due to race specifically or perceptions of whether a person has lived a hard life suggest that it might be primarily the latter. But … we tend to homogenize the Black population and assume that all Black people face adversity. So, whether the phenomenon is caused by race or status gets pretty muddy pretty fast.
In any case, this is perfectly in line with the soon-to-be-lawyer I overheard at Wisconsin. He gave the “hardened criminal” a harsher sentence than the person convicted of a white-collar crime because he believed that a greater degree of suffering was required to make an impact. (source)
The unfair imposition of punishment as illustrated in this case and in many other real cases of punishment makes a joke of the story about moral progress resulting from the “lesson” of punishment. I’m not saying that fair punishment, deterrence or internalization of rules are impossible. What I’m saying is that we are usually too optimistic about these processes and that we shouldn’t view our current system of criminal punishment as a good driver of moral progress.
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.
You can’t tell by looking at someone whether he or she is living with HIV. That is, unless you catch a glimpse of a man who’s living with HIV in the state of Alabama’s prison system.
There are over 200 male prisoners living with HIV in Alabama. The Alabama Department of Corrections requires each of them to wear a white armband at all times, making their health status obvious to other inmates, prison staff, and visitors. The practice is a huge affront to prisoners’ privacy and confidentiality. (source)
Let’s list some of the other things that are wrong with this:
- Why on earth would anyone want to protect prison rapists? Or is it true that the modern day prison system is merely a sanitized front for the perpetuation of medieval punishment?
- Measures such as these nourish the stigma of HIV patients.
- They promote false beliefs about HIV transmission.
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)
As if the incarceration rate in the U.S. isn’t high enough already, the partial privatization of U.S. prisons creates some perverse incentives: the prison industry’s goal is to extract as much public money as possible by locking up the maximum number of people; this in turn fuels “tough on crime” policies and the insane war on drugs. Some examples:
The private prison industry was secretly involved in drafting Arizona’s harsh anti-immigrant law to boost demand for its immigrant detention centers. The Corrections Corporation of America has offered to help relieve the fiscal crises of 48 states by buying their prisons—provided the states sign a contract to keep them 90 percent full for the next twenty years, regardless of the crime rate. (source)
Not long after 11 September 2001, Steven Logan, the CEO of Cornell Companies (now part of the for-profit prison corporation GEO Group Inc) had good news for its shareholders. In a quarterly earnings call, Logan enthusiastically talked about tighter border control and a heightened focus on (immigrant) detention in the wake of the attacks. As he put it, “more people are gonna get caught. So I would say that’s a positive.” (source)
Note that more than 120,000 of America’s record 2 million prisoners are in private jails, plus a large number of illegal immigrants.
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.
Texas justice has rarely been kind to homosexuals. Take, for example, the case of Calvin Burdine, who was sentenced to death in 1984 for the murder of his male companion. Burdine’s court-appointed lawyer, when not dozing, referred to his client as a “fairy.” The prosecutor, meanwhile, demanded the death penalty by arguing that gays actually look forward to the rewards of prison life. “Sending a homosexual to the penitentiary,” he claimed, “certainly isn’t a very bad punishment for a homosexual.” Astonishingly, a federal appeals panel first upheld the verdict on the grounds that nothing in the law guarantees a defendant the right to a fully conscious attorney. Burdine eventually won a new trial, at which he was again convicted, but this time sentenced to life in prison — a veritable candy store, it was said, for a “pervert” like him. (source, source)
More in the annals of heartlessness.
While you might think of masturbation as a sort of last refuge for the incarcerated — a truly inalienable freedom, given the happy proximity of the sex organs — that is not the case. In fact, a number of state prisons regard jerking off as a rule infraction. … [Such restrictions are “well-entrenched” in the correctional environment [in the U.S.]. (source)
And probably elsewhere as well. The rules apply even when there’s no indecent exposure. In the 19th century, some U.S. prison officials even
chloroformed masturbators and implanted metal rings through their foreskins. (source)
These days, prison officials often turn a blind eye and don’t enforce the rules. But sometimes
prisoners do … get in trouble for engaging in autoerotic behavior. Early on the morning of May 16, 2000, in South Carolina’s Lieber Correctional Institution, Officer Patricia Sinkler saw inmate Freddie Williams “in the front entrance of the shower, curtains open, with his left hand propped up against the wall, turned sideways, making back and forth movements with his right hand on his penis,” according to a court document. Sinkler filed a disciplinary report recommending that Williams be charged with sexual misconduct, and he was brought before a hearing officer and convicted. Williams appealed multiple times, insisting he had not intentionally exposed himself; the officer had simply walked past when he was going at it. He lost and had to relinquish 240 good-time credits.
A similar case occurred in Florida in 2006: Broward County inmate Terry Lee Alexander was sitting alone on his bunk masturbating when a female deputy who was monitoring him from a central control room more than 100 feet away took exception to Alexander’s “blatant” exertions and wrote him up. Alexander was charged and convicted of exposure, with the jury determining that a cell is “a limited access public place.” The same deputy had also filed reports on seven other locked-up masturbators. When Alexander’s attorney asked the deputy in court if she had considered calling a SWAT team to halt his client’s activity, she replied, “I wish I had.” (source)
Whether all this means that prisoners – or the population in general – should have a legal right to masturbate, is another matter. Probably not I guess. Not every prohibition on government intrusion should necessarily be translated into a right. The right to privacy should be sufficient to protect the act of masturbation and a specific right to masturbate is superfluous. And yes, inmates shouldn’t lose their right to privacy just because they’re in prison, even if some limitations of that right are inevitable in their case.
Especially for the general population, a right to masturbate is utterly superfluous, since people normally enjoy enough privacy beyond the prison walls in order to be able to masturbate without government intrusion. Prisoners, however, may not always be granted enough privacy, as the cases cited above make clear. But instead of claiming a right to masturbate, inmates should insist on their right to privacy.
What about the right to be able to consume pornography? Again either for prisoners only or for the general population. For the latter, this right is covered by free speech. For the former, such a right would entail the additional right to be given pornography, as prisoners can’t go about procuring it themselves in the free speech marketplace. A prisoners’ right to pornography is not covered by free speech. However, I doubt it would be a good thing to have it. It may be good policy if prisons make porn available, but that doesn’t mean prisoners have a right to be given porn. Which doesn’t mean that prison officials have a right to take pornography away from prisoners once they have it. People don’t lose all their rights when they are incarcerated. And that includes private property.
In any case, taking away prisoners’ porn or their right to masturbate is likely to be counterproductive, as it will create unrest and lead to an increasing number of sexual predation cases among prisoners.
A fine infographic from the ACLU:
The oldest prisoner is 98 years old? Come on people. Nobody can claim with a straight face that this person is a serious threat. I’m sure he can be handled by those manly security guards in a normal US prison where he would find himself serving a sentence imposed on him after a regular trial.
More in this series here.
After the attack, [Gulnaz] hid what happened as long as she could. But soon she began vomiting in the mornings and showing signs of pregnancy. It was her attacker’s child.
In Afghanistan, this brought her not sympathy, but prosecution. Aged just 19, she was found guilty by the courts of sex outside of marriage — adultery — and sentenced to twelve years in jail.
Now inside Kabul’s Badam Bagh jail, she and her child are serving her sentence together.
Sitting with the baby in her lap, her face carefully covered, she explains the only choice she has that would end her incarceration.
The only way around the dishonor of rape, or adultery in the eyes of Afghans, is to marry her attacker. This will, in the eyes of some, give her child a family and restore her honor.
Incredibly, this is something that Gulnaz is willing to do. …
We found Gulnaz’s convicted rapist in a jail across town. While he denied raping her, he agreed that she would likely be killed if she gets out of jail. But he insists that it will be her family, not his, that will kill her, “out of shame.” (source)
Last year, … in Morocco, a judge ordered a 16-year-old girl named Amina Filali to marry the man who raped her. She committed suicide in March, prompting widespread outrage and condemnation of article 475, which allows a rapist to marry his victim in order to escape jail. (source)
More absurd human rights violations here.
[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)
A former Texas inmate who cooked the final meals for hundreds of condemned prisoners on death row has offered to resume the practice at no cost to the state now that officials have disallowed last requests.
Brian Price, author of Meals to Die For, a cookbook about his former duties, now runs a restaurant in east Texas. He said the move by prison officials was “cold-hearted”. “I am offering to prepare, and/or pay for, all of the last meal requests from this day forward,” he said. “Taxpayers will be out of nothing.”
Officials who oversee the US’s busiest death chamber stopped providing special final meals last week after a state senator complained about an extensive request from a man being executed for his role in a notorious hate crime.
The prison agency decided condemned prisoners would instead get the same dinner other inmates. (source)
I’m sure this is going solve the United States’ fiscal problem overnight. While they’re at it, why not force people to buy their own poison as well? I’m sure that’s even more expensive than food. That said, I never quite understood the reasoning behind this whole last meal business. They get a last meal, but not a last fuck, or a last visit to the opera. What’s so important about food? Perhaps food is a symbol of everything that pleasurable in life, and we want to make people feel even worse about dying. No, I guess not. Rather than making the executed feel worse we want to make the executioners feel better and more humane.
UPDATE: It seems that nothing is as popular as a bad idea:
[O]fficials stopped serving lunch on the weekends in some prisons as a way to cut food-service costs. About 23,000 inmates in 36 prisons are eating two meals a day on Saturdays and Sundays instead of three. A meal the system calls brunch is usually served between 5 and 7 a.m., followed by dinner between 4 and 6:30 p.m.
The meal reductions are part of an effort to trim $2.8 million in food-related expenses from the 2011 fiscal year budget of the Texas Department of Criminal Justice, the state prison agency. Other cuts the agency has made to its food service include replacing carton milk with powdered milk and using sliced bread instead of hamburger and hot dog buns.
State Senator John Whitmire, a Democrat and chairman of the Senate Criminal Justice Committee whose outrage over last meals on death row led to the end of the practice last month, said the reductions were not a major concern to him. “If they don’t like the menu,” he said, “don’t come there in the first place.” (source)
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).
Following up on a previous post, here’s one additional example of things human rights defenders normally reject but still feel forced to accept as the better one of two terrible options: in some cases, life in prison seems to be better than freedom.
Life goes on for inmates … They adapt to prison. They are able to acquire privileges through good behavior. They enjoy recreational opportunities, a social life, and family visits. They receive food, shelter, and medical care at state expense. By contrast, research on life after even relatively short stays in prison suggests that ex-inmates typically face extraordinary, long-term challenges to reintegration and a return to the level of well-being they enjoyed before prison. … [A] study [finds] that black men survive longer inside prison than outside it. (source, source, source)
None of this means that it’s good to keep people in prison – and yet, given our failure to guarantee human rights for minorities, ex-inmates and poor people, being in prison does have certain advantages. This should go some way to explaining this bizarre story:
Unemployed and without health insurance, [a] man in North Carolina has himself arrested in order to receive treatment. … It was not perhaps the most obvious way of getting a bad back, arthritis and a dodgy foot seen to. But if you’re unemployed in North Carolina with no health insurance, there is no obvious way.
So on 9 June James Verone left his Gastonia home, took a ride to a bank and carried out a robbery. Well, sort of.
What he did was hand the clerk a note that said: “This is a bank robbery, please only give me one dollar.” Then, as he later told the local NBC news station, he calmly sat in the corner of the bank having told the clerk: “I’ll be sitting right over there in the chair waiting for the police.” …
He told the paper he had lost his job after 17 years as a Coca-Cola delivery man, and with it his health insurance. He was in increasing pain from slipped discs, arthritic joints, a gammy foot and a growth on his chest.
Since being in the jail he has attained his goal: he has been seen by nurses and an appointment with a doctor is booked. (source)
It’s a sorry state of affairs that people want to be in prison because being in prison is better than their life outside.
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.
In case you were wondering why there are so many people in jail in the U.S.:
When 18-year-old Tyell Morton put a blow-up sex doll in a bathroom stall on the last day of school [in Indianapolis], he didn’t expect school officials to call a bomb squad or that he’d be facing up to eight years in prison and a possible felony record. … [S]ecurity footage showed a person in a hooded sweatshirt and gloves entering the school with a package and leaving five minutes later without it. … Administrators feared explosives, so they locked down the school and called police. K9 dogs and a bomb squad searched the building before finding the sex doll. … “Their reaction is understandable, but use the school disciplinary process. Don’t try to label the kid a felon for the rest of his life.” (source)
More absurd human rights violations here.
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).
Thomas Silverstein, who has been described as America’s “most isolated man,” has been held in an extreme form of solitary confinement under a “no human contact” order for 28 years. Originally imprisoned for armed robbery at the age of 19, Silverstein is serving life without parole for killing two fellow inmates (whom he says were threatening his life) and a prison guard, and has been buried in the depths of the federal prison system since 1983. …
Silverstein [has been held] in a series of what constitute the most secure and isolated housing in the federal prison system: in the notorious USP Atlanta in a windowless underground “side pocket” cell that measured 6 x 7 feet (“almost exactly the size of a standard king mattress,”); at Leavenworth in an isolated basement cell dubbed the “Silverstein Suite”; on “Range 13″ at ADX Florence, where the only other prisoner was Ramzi Yusef; and finally in ADX’s D-Unit, where he can hear the sounds of other prisoners living in neighboring cells, though he still never sees them.at Marion, the supermax prototype; at
The following is from Tommy Silverstein’s description of his life at USP Atlanta:
The cell was so small that I could stand in one place and touch both walls simultaneously. The ceiling was so low that I could reach up and touch the hot light fixture.
My bed took up the length of the cell, and there was no other furniture at all … The walls were solid steel and painted all white.
I was permitted to wear underwear, but I was given no other clothing. …
During my first year in the side pocket cell I was completely isolated from the outside world and had no way to occupy my time. I was not allowed to have any social visits, telephone privileges, or reading materials except a bible. I was not allowed to have a television, radio, or tape player. I could speak to no one and their was virtually nothing on which to focus my attention.
I was not only isolated, but also disoriented in the side pocket. This was exacerbated by the fact that I wasn’t allowed to have a wristwatch or clock. In addition, the bright, artificial lights remained on in the cell constantly, increasing my disorientation and making it difficult to sleep. Not only were they constantly illuminated, but those lights buzzed incessantly. The buzzing noise was maddening, as there often were no other sounds at all. This may sound like a small thing, but it was my entire world.
Due to the unchanging bright artificial lights and not having a wristwatch or clock, I couldn’t tell if it was day or night. Frequently, I would fall asleep and when I woke up I would not know if I had slept for five minutes or five hours, and would have no idea of what day or time of day it was.
I tried to measure the passing of days by counting food trays. Without being able to keep track of time, though, sometimes I thought the officers had left me and were never coming back. I thought they were gone for days, and I was going to starve. It’s likely they were only gone for a few hours, but I had no way to know. (source)
This post isn’t about maps in the geographical sense, as is normally the case in this blog series about human rights maps. Still, I think it’s interesting to have a look at the topography of the death penalty, given that few among us actually know a lot about the actual practice of an execution (it’s not done in public anymore, at least not in most parts of the world).
How nice of them to separate the two families. Let’s just hope that they won’t think that having a bigger room means having to use it more often.
An interesting setup is this one from Japan:
This is the execution room in the Tokyo Detention House. Notice the three buttons in the second picture, placed on the wall in a room adjacent to the actual execution room. The setup is designed in such a way that the executioner doesn’t have to come face-to-face with the convict. Moreover, the three buttons have to be pressed simultaneously by three officers, but only one button actually opens the trapdoor (red square on the floor, below the hook in the ceiling). None of the officers is told which button is the live one that will cause the prisoner’s death.
The red square on the white floor marks the spot in the windowless room where convicts stand with the noose around their neck, before a trapdoor opens below them and they plunge to their deaths. The noose is hung from the hook in the ceiling just above the trapdoor. I suppose the rings in the wall and floor are for restraining the prisoner temporarily.
Below is a floor plan of the execution room in the prison at Terre Haute, Indiana:
If you look carefully, you’ll notice that the viewing rooms have toilet facilities. I’m sure there’s a good reason for that.
Below is the hanging room in the Washington State Penitentiary (also called the Walla Walla State Penitentiary):
The curious thing here is that the viewing area seems to be positioned at a height that makes it possible to see the face of the convict after the drop. That’s not something I understand, or want to understand.
Between 1991 and 1998, Lucinda Devlin photographed in different penitentiaries in the U.S. She called the resulting series The Omega Suites, alluding to the final letter of the Greek alphabet as a metaphor for the finality of execution. The series includes numerous photographs of execution chambers. Here are a few:
Notice the air filter just above the chair. I imagine the rubber on the floor is there to protect the executioners. The same room viewed from the executioner’s booth (notice the large switch):
Some more from the same series:
There’s also this innovative approach in China.
- Japan opens up death chamber to media for first time (alternet.org)
- Human Rights Maps (116): Life Without Parole For U.S. Teenagers (filipspagnoli.wordpress.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)
Currently, over 2,500 prisoners sit behind bars in the US without the possibility of parole for crimes committed while they were children.
In May 2010, the Supreme Court ruled that the 8th Amendment‘s ban on cruel and unusual punishment means juvenile offenders who haven’t been convicted of murder shouldn’t be sentenced to life in prison without any chance of parole.
(source, click image to enlarge)
- Judges Weigh Fairnes of Juvenile Life Without Parole (blogs.wsj.com)
- Florida Drags its Heels on Juvenile Lifers (criminaljustice.change.org)
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)
I know that the worst thing about crime is what happens to the victims of crimes, not what happens to convicted criminals. Still, I want to focus on the latter for a moment. Criminal punishment is almost always a limitation of the criminal’s human rights, so it is a legitimate area of concern, although perhaps not the most important one. Whether we put criminals in prison, kill them, flog them, cut off their hands or put their names and addresses on the internet, we limit some or even many of their human rights.
So, if we want to maintain a system of criminal punishment, and if we agree that people don’t lose their human rights simply because they commit a crime, then we have to formulate a justification of the limits we impose on the rights of criminals. When are such limits justified, and when are they arbitrary, excessive or dictatorial? I believe criminal punishment is morally justified if, and only if, at least the following 8 conditions are met simultaneously:
1. Criminal punishment is necessary for the protection of the rights of others
A particular punishment, involving very specific limitations of the rights of the convicted criminal, has to be necessary for the protection of the rights of others. No other goal can be served by criminal punishment, and no other means or punishments, less harmful to the rights of the criminal have the same effect on the rights of others.
Criminal punishment not intended to protect the rights of others is therefore unacceptable, as is criminal punishment which imposes harm on the criminal that goes beyond what is necessary for the protection of the rights of others. For example, putting someone in prison because she has a certain opinion, is unacceptable because this punishment doesn’t protect the rights of others. And putting someone in prison because she steals a newspaper is also unacceptable because this punishment goes beyond what is necessary to protect the property rights of others. Rights protection in this case can be achieved by other means which are less harmful to the rights of the criminal (a fine for instance).
So both the type of punishment and its severity have to be taken into account when judging whether the punishment is morally justified. Simple retribution, proportionality or lex talionis can, in some cases, satisfy this first condition of morally justified punishment, but only by accident. In many cases, you will not deliver a morally justified punishment when you think only in terms of retribution, proportionality or lex talionis because you won’t automatically consider the effect of the punishment on the rights of others.
For example, take the case of a jealous artist vandalizing the work of a rival. Lex talionis would recommend that the vandals art be also vandalized. However, this punishment may be proportional and adequate retribution, and the vandal will undoubtedly suffer from it like he made his rival suffer, but no one’s rights are protected in this way. On the contrary, if the vandal is a good artist the punishment may even violate the rights of large numbers of people.
A punishment should be designed in such a way that it protects the rights of the victims and possible victims of the criminal who is about to be punished. This is the case when incarceration of a sexual maniac will protect the rights of his victim (although not retroactively) and of possible future victims, and such a punishment does seem to be what is required while avoiding the imposition of excessive harm on the maniac. In other words, there isn’t a more lenient sentence available which would offer the same protections to the rights of others while imposing less restrictions on the rights of the maniac. And neither is the punishment too severe for the purpose it serves, namely the protection of the rights of others.
But these “others” are not only the victims or possible victims of the criminal. Punishment is also signaling: by showing possible maniacs what happens to actual maniacs, we want to deter crime. Deterrence, like punishment, also protects the rights of others, “others” meaning here not the victims or possible victims of an actual criminal but the possible victims of a possible criminal. There is room for deterrence, but only when the deterrent effect is real, in other words when it really helps to protect the rights of others. We should be careful with deterrence, because deterrence means the instrumentalization of human beings. When there is doubt about a deterrence effect, and when at the same time the proposed punishment is very harsh, we should avoid designing the punishment with deterrence in mind. For example, if a very high fine for shoplifting has been shown empirically to deter a high percentage of possible shoplifters, then it would be morally justified to impose such a high fine on a specific shoplifter, even if a much lower fine would suffice to protect the rights of the actual and possible victims of this specific shoplifter. So this is an exception to the rule stated a moment ago.
On the other hand, if it can be shown empirically that the deterrent effect of capital punishment is doubtful, then we should not impose that punishment on a specific criminal, except when it is necessary to protect the rights of the actual and possible victims of that specific criminal. But when is this necessary? Often if not always we can find a more lenient sentence which will offer the same protections to the rights of actual and possible victims of an actual criminal, while imposing less restrictions on the rights of the criminal (e.g. life without parole).
2. The criminal acted with free will
We should assume that people generally have free will. There doesn’t seem to be room for moral responsibility or criminal culpability without this assumption. There can’t be criminals in a world in which everything is governed by “blind” cause and effect. People have free will when they have the capacity to choose a course of action from among a set of alternatives. If a criminal’s will and choice of action are not decided by himself, we can hardly say that he’s responsible for his actions. Only if he could have acted differently can he be held responsible for his actual actions. Imagine a brainwashed spy being sent abroad by his totalitarian government in order to kill political opponents. This person couldn’t have acted differently and didn’t have the capacity to choose from among different courses of action. Hence he can’t be held responsible for his actions.
We should start from the general assumption that people normally act on the basis of free will, but if we find that this assumption doesn’t hold in a particular case, then either criminal punishment is not justified or the punishment should be less severe. People can be determined to will certain ends without having been brainwashed. A drug addict for example suffers from a compulsive and controlling desire and has lost his free will. Addiction impairs the will. If he acts on the basis of this compulsive desire and commits a crime along the way, it’s common to take the absence of free will into account when determining the severity of the punishment. Both external manipulation of our psychology and internal compulsions can force us to do things we don’t desire or choose to do, and they can even force us to desire or choose things we wouldn’t freely desire or choose. (Hypnosis can also be an example). In either case, we are not culpable, or at least the level of our culpability is reduced.
3. The criminal did not act because of “force majeure”
Force majeure is a term for an action that is caused by events or circumstances beyond the control of the agent. For example, someone kills another person because he was instructed to do so by gunmen holding his children hostage. Sometimes, there are external constraints on the range of options we have, and things beyond our control can force us to act (or not act) in a certain way.
This condition should be distinguished from free will. It’s not because some external causes force you to act in a certain way that you lose your free will. You act in a certain way but at the same time you don’t have to want to act in that way.
4. The criminal was aware of alternative courses of action and of the moral significance of those alternatives
For example, if a criminal was convinced that he had no alternative and had to commit the crime, then he may not be culpable, even if in reality there were alternatives. Imagine the same case of the father being forced to kill by gunmen holding his children hostage. Maybe there was an easy and safe way for the police to free the children. However, if the father was unaware of this and executed the demands of the gunmen without contacting the police, then he shouldn’t be found guilty of a crime.
However, the father may have been culpably unaware: reasonable people can agree that he should and could have been aware of the possibility to involve the police, but he failed to do everything possible to examine the alternatives. In that case, he should be found guilty.
5. The criminal acted with intent
If the consequences of an action were not intended by the agent, then either he is not culpable or his culpability is diminished. This 5th condition should be distinguished from free will: an action can be undertaken with free will but without intending all the consequences that occur. A woman who is not acting compulsively (who is not addicted for example), who is not forced by external powers to desire things she would normally not desire or to do things she doesn’t want to do, and who reasonably reflected on possible alternatives, acts in a chosen way. To her surprise, her actions lead to someone’s death. She didn’t intend this outcome, and hence she’s not culpable, or at least her culpability is reduced.
6. The criminal caused the crime
There should be no doubt about the causal link between the criminal’s actions and the crime. Let’s elaborate the previous example: the woman caused the death by hitting the victim with her car. The victim didn’t violate any traffic rules for pedestrians. The woman wasn’t speeding compulsively. She wasn’t under hypnosis or forced to hit the victim by gunmen threatening her children. And she wasn’t culpably unaware of the risk of driving a car in that particular street. Moreover, there’s some medical doubt as to the actual cause of death. It seems that the pedestrian was suffering from a heart condition and a heart attack caused the pedestrian to stumble on the road. Hence the woman driver isn’t culpable.
7. The criminal is found guilty after a fair trial
Only if the rules on the fairness of criminal trials are respected can we impose criminal punishment. A person accused of a crime should be able to use a defense lawyer to guarantee that the judge takes all the 6 previous preconditions into account when sentencing. The trial should be public so that we can all see that criminal punishment is imposed fairly. Etc.
8. The criminal is found guilty on the basis of proper laws
The laws which the criminal is supposed to have violated should be universal laws. In other words, they shouldn’t be targeted at the criminal specifically. The rule of law imposes this restriction. Laws that are not equally applicable to all, including the legislators, are not proper laws, but simply a disguised form of the rule of man. Other rules of legislation should also be respected (no retroactive laws etc.).
If both judges and legislators keep these 8 points in mind when deciding the type and severity of the punishment that has to be imposed for a particular crime and on a particular criminal, then we will, in all likelihood, be able to avoid some of the worst injustices in our current criminal justice system. We won’t have overpopulated prisons, we won’t incarcerate people for silly offenses or lock them up for years and years for a crime that merely requires a few months, and we won’t use capital punishment as often as we do now.
- Saudi ‘faces spine-op punishment’ (bbc.co.uk)
- Homeless Man Freed Early After 13-Year Prison Stint For Stealing Food (homelessness.change.org)
- Bailiffs should visit offenders’ homes to make them pay for their crimes, Louise Casey says (telegraph.co.uk)
- What is a Civil Penalty? (brainz.org)
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)
A man was jailed by a Kemerovo region court on Thursday for assaulting a Gypsy fortune teller [not in the picture] who predicted that he would be jailed, the Investigative Committee said.
Gennady Osipovich tried to kill the unidentified female fortune teller, who told him she saw a “state-owned house” — a Russian euphemism for jail — in his future, the committee said in a statement on its web site.
The woman managed to escape, but Osipovich stabbed to death two unidentified witnesses of the assault, which took place in October. He was sentenced to 22 years in a maximum-security prison. (source)
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.).
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.
I’ve mentioned in a previous post how some numbers or stats can make a problem appear much bigger than it really is (the case in the previous post was about the numbers of suicides in a particular company). The error – or fraud, depending on the motivation – lies in the absence of a comparison with a “normal” number (in the previous post, people failed to compare the number of suicides in the company with the total number of suicides in the country, which made them leap to conclusions about “company stress”, “hyper-capitalism”, “worker exploitation” etc.).
The error is, in other words, absence of context and of distance from the “fait divers”. I’ve now come across a similar example, cited by Aleks Jakulin here. As you know, one of the favorite controversies (some would say nontroversies) of the American right wing is the fate of the prisoners at Guantanamo. President Obama has vowed to close the prison, and either release those who cannot be charged or tranfer them to prisons on the mainland. Many conservatives fear that releasing them would endanger America (some even believe that locking them away in supermax prisons on the mainland is a risk not worth taking). Even those who can’t be charged with a crime, they say, may be a threat in the future. I won’t deal with the perverse nature of this kind of reasoning, except to say that it would justify arbitrary and indefinite detention of large groups of “risky” people.
What I want to deal with here is one of the “facts” that conservatives cite in order to substantiate their fears: recidivism by former Guantanamo detainees.
Pentagon officials have not released updated statistics on recidivism, but the unclassified report from April says 74 individuals, or 14 percent of former detainees, have turned to or are suspected of having turned to terrorism activity since their release.
Of the more than 530 detainees released from the prison between 2002 and last spring, 27 were confirmed to have engaged in terrorist activities and 47 were suspected of participating in a terrorist act, according to Pentagon statistics cited in the spring report. (source)
Such and other stats are ostentatiously displayed and repeated by partisan mouthpieces as a means to scare the s*** out of us, and keep possibly innocent people in jail. The problem is that the levels of recidivism cited above, are way below normal levels of recidivism:
I read the following headline in a local newspaper recently:
Most prisoners escape from their cells
My first reaction was: Christ! What’s the world coming to! We can’t keep the majority of prisoners inside? It turned out that what they wanted to say was that prisoners, when they escape, do so from their cell, most of the time. Other prisoners escape from the workshop, while being transported etc. That looks much better already.
More serious posts in this series are here.