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July 14, 2007

Criminal "Justice"

Julian Sanchez writes:

It's frequently noted that a perverse consequence of our prison system is that we end up placing petty criminals in an intensive training program for serious crime. But more than that, we reinforce their identity as criminals.

And that right there is the pithiest case against our system of criminal justice that I've about ever read.

Look: Incarceration can serve a valuable purpose in segregating dangerous individuals from the wider society. That incarceration should be handled humanely and wisely, of course, but it has a purpose. For the millions and millions of non-violent offenders, though, it serves a very different purpose. It abandons them to a realm where violence, and threats, and intimidation, serve as your only security. And so those characteristics are honed, and amplified. It renders them unfit for many jobs, and less marriageable. Abuse and rape at the hands of other prisoners and prison guards can leave the inmate psychologically damaged and deeply rageful.

This is what our system of justice does: It takes the unlawful and makes them more violent. It takes criminals and makes them worse, reducing their future options, encouraging them to become more physically brutal, cultivating their marginalization from society. Such is the irony of the politics of crime in this country. We are so afraid of violent criminals that we force our politicians to continually worsen their punishment, condemning them to prisons that have been shown to make inmates more violent.

Feel safer?

July 14, 2007 | Permalink


What you said.

Posted by: NBarnes | Jul 14, 2007 6:00:41 AM

Foucault pointed this out. What's so curious in the history of the prison is that even though its stated purposes - the minimization of recidivism, the lessening of delinquency, the humane treatment of incarcerated bodies - show the prison to be a failure, and even though people through the ages (beginning early in the 19th c.) had shown the prison to be a failure on precisely those same terms, the solution is always more and better prisons.

At some point, Foucault asked, we have to wonder whether the stated purposes of the prison are the purpose of the institution at all. (he suggested that the creation of delinquency, as an aspect of human character rather than a challenge to social structures of power, was the purpose, for what that's worth.) Regardless of that question, the modern criminal justice system is an abomination.

Posted by: DivGuy | Jul 14, 2007 8:18:36 AM

Umm... Isn't this essentially the scooter libby argument?

Posted by: soullite | Jul 14, 2007 9:28:31 AM

To be more honest, I'm sorry. But non-violent crime can be dangerous to society. White collar criminals who ruin lives are a danger to society. They deserve to suffer in prison with the lower classes. Just because their crimes are "non-violent" doesn't mean they deserve a pass. They've ruined far more lives and damaged society far worse than even the most successful serial killer.

Posted by: soullite | Jul 14, 2007 9:30:34 AM

Among the "millions of non-violent offenders" who enter the penal archipelago, there's what, 1000 who are comparable to Scooter Libby? And of them, the vast majority don't enter into the prison system everyone else does - they go to minimum-security prisons. and they usually don't find the felony on their record to be as disabling for future economic possibilities.

What Ezra was talking about, and what I don't understand why you didn't comprehend, is the non-violent drug offenders who make up the vast majority of non-violent offenders in the system, and who are typically thrown into the larger prison population, and who are typically poor and find themselves with few to no options on release.

Libby is a bizarre tangent to this argument.

Posted by: DivGuy | Jul 14, 2007 9:47:02 AM

You'd be better off just removing the abuses from the system. If you stopped putting the police into special units when they got arrested, that would help as they would have to suffer like everyone else. If you mandated that video camera's existed EVERYWHERE inside prisons, and made prison guards and the state LIABLE for rape, then you'd see prison rape all but disappear overnight.

The answer isn't to give wealthy people a free pass, like Ezra seems to think it is.

Posted by: soullite | Jul 14, 2007 9:48:43 AM

divguy, then maybe it's time we start sending them to real prison. I'm sorry, but I don't trust the Democratic party or people like Ezra NOT to protect the wealthy any more than they already do. Until they rebuild that kind of trust, you're not going to be able to convince anyone that this is a good idea. As you pointed out, we already take too light a hand against some of these people as it is. I doubt you'd find any law worded so that only non-violent drug offenders get to get off. I'm pretty sure that congressmen will word it vaguely enough so that THEY never have to go to prison. For the record, I don't think we should seperate people based on the severity of the crime. In theory, it creates a just system. In practice, it creates safe havens for wealthy criminals while even non-violent poor people go to maximum security.

Divguy, I know the examples he used. People always use the most sympathetic examples they can find, but that's usually to cover up their own agenda. This is a matter of trust, and I don't really trust Ezra not to look out for the best interests of his socio-economic class after the immigration debate. I don't trust a whole lot of liberal bloggers after that.

Posted by: soullite | Jul 14, 2007 9:53:15 AM

What in the name of crap are you talking about? Ezra ever mentioned Libby, he never mentioned a different justice system for the wealthy, he certainly never advocated for it.

Again the "millions of non-violent offenders", on whose behalf Ezra is appealing, are almost all drug offenders, almost all marginalized and poor. You are reading something in his post that is simply not there.

And I must say that "putting video cameras everywhere in prisons" sounds like an incredibly bad idea. You are falling into the same trap - advocating that to fix the prison system, we need more, better, and more invasive prisons.

Posted by: DivGuy | Jul 14, 2007 9:53:18 AM

But, as you said, the wealthy already game the system. The wealthy already aren't suffering at the hands of the prison system.

Advocating for reform on behalf of non-violent offenders is simply not going to do much of anything for those very few white-collar criminals who actually receive jail time- they've already got the system beat. Ezra's advocacy has just about nothing to do with white-collar crime.

I agree that the entire criminal justice system needs to be overhauled, and I agree that the effects of economic power on the justice system are an abomination. But I don't see the clear connection here at all.

And, again, I don't think that throwing white-collar criminals in with violent offenders is a solution because, again, the prison itself is the problem.

Posted by: DivGuy | Jul 14, 2007 9:57:23 AM

The communnity has to decide what the purpose of the justice system is. Is it to punish offenders, or to reduce crime? Kudos to Julian and Ezra for noting that the two aren't at all the same or even especially correlated.

Posted by: kth | Jul 14, 2007 10:06:44 AM

DivGuy, then you put a stop to that. You don't cheer about it from the sidelines and then use it as an excuse to make life even easier on them. People like you are the biggest problem in this country, because you think it's impossible to hold people to account for their actions. It isn't. It just takes a willingness to go further than the Democratic party is willing to go. To play a harder game then they have EVER shown a willingness to play in my lifetime. I can't trust people to stand up to others when they haven't even been willing to stand up for themselves.

DivGuy, why should we trust that congress would do anything like this well before we've cleaned up the corruption so endemic to our system? I don't think good acts can be achieved under this system as it currently stands, and will not support anything created by it. Corrupt parliaments can only produce corrupt legislation. When the Democratic party elects someone personally strong enough to stand up to these people, then I'd understand believing that prison reform can be achieved in a way that wouldn't make the system more corrupt. Until then, talk like this just sounds naive. Anything that you could get would do more harm than good, and you wouldn't likely be able to pass anything else for generations.

Posted by: soullite | Jul 14, 2007 10:15:07 AM

To put it more succinctly, all of these problems are the result of corruption. Focus on the corruption and you will solve most of these problems. Try solving these problems one at a time in a corrupt system and you will be buried by those with more powerful interests.

Posted by: soullite | Jul 14, 2007 10:17:31 AM

fuck em all. throw em all in jail and then throw away the key. Let them all rape, mutilate and kill each other.

i dont give a fuck

Posted by: joe blow | Jul 14, 2007 11:08:14 AM


I'm going to put this as clearly as I can: you have completely missed the point of what Ezra and DivGuy wrote. Completely. You're arguing against something else entirely.

joe blow,

Yes, we're all aware of your unfortunate lack of redeeming characteristics.

Posted by: Stephen | Jul 14, 2007 11:36:46 AM

Hot bed for cop haters...too.

Posted by: has_te | Jul 14, 2007 12:38:03 PM

How many here...just wondering ....
have actually ever BEEN in the can?
Point taken?

Posted by: has_te | Jul 14, 2007 12:40:59 PM

I think the worst consequence of the prison system is that it provides a mask for the failures of the social safety net. That's to say, it's considered just about acceptable to provide healthcare and training to those inside; or, more cynically, there's a certain section of Americans that is only comfortable with providing services to black folks when they're wearing prison uniforms, and in an environment with all the negative influences discussed above.

But, as you said, the wealthy already game the system. The wealthy already aren't suffering at the hands of the prison system.

It will be interesting to see what happens to Conrad Black. Had he not renounced his Canadian citizenship, he'd likely be off to a Canadian minimum-security jail. But unless severe strings are pulled, he's not only likely to serve in a US medium-security facility (foreigners don't get access to 'Club Fed') and be deported with an exclusion order, but is also barred from regaining a Canadian passport, and prohibited from entering the country of his birth.

Posted by: pseudonymous in nc | Jul 14, 2007 1:44:08 PM

The issue isn't the white collar criminals, who certainly do need to be punished as an example for those who might be tempted to imitate them. They never go to the vicious high-security prisons, so they don't belong in this argument. What Ezra's talking about is low-level drug offenders who get imprisoned under our insane drug laws, some of whom then become much more serious offenders. At best, this is a waste of resources; at worst, this creates new violent criminals and devastates communities. It's truly a dreadful policy. Check out Lawyers, Guns and Money for a lot more discussion of this. By the way, per Foucault, I think the real goal is for society to have a group of people upon whom it can act out its rage. See the excellent book, "A Rage to Punish."

Posted by: beckya57 | Jul 14, 2007 2:54:10 PM

DivGuy and Becky
"At some point, Foucault asked, we have to wonder whether the stated purposes of the prison are the purpose of the institution at all."

"By the way, per Foucault, I think the real goal is for society to have a group of people upon whom it can act out its rage."

Broadening out from prison a but, this is the most interesting question raised by Foucault for me -- to what extent can we describe institutions as acting intentionally? We can say of course that its leadership or those within it have individual goals that they express through the prison, but I don't think that's what either of you are talking about, primarily -- Foucault said that power is "intentional but non-subjective." And of course we can, like economists, describe institutional incentives that produce behavior of certain types and point out that those incentives don't always correspond to the institution's stated goals -- e.g. we could say that military planners have financial incentives to foment conflict, doctors in fee for service systems have financial incentives to produce the predicate for more health care, wardens and for profit prisons have incentives to create the predicate for more incarceration. But it seems to me that's not quite what you or he mean when you say that the "purpose" of prison is other than its stated goals. Rather it seems to me that you and he mean that prisons satisfy the broader desires and "needs" of the culture or the power structure itsef. You can certainly explain the behavior and consequences of prisons (or asylums, or health care, or the military) in that way, but I am just not sure that there is a completely satisfying account of the mechanism by which those institutions respond to those desires and needs.


Posted by: RW | Jul 14, 2007 3:20:57 PM

The study linked to is ingenious and persuasive. I would like to see someone compare recidivism rates in institutions that don't use as much risk segregation. That might help tease out whether it is the low-risk offenders' association with the high risk offender in high security institutions, or the greater dehumanization and loss of liberty that comes with being placed in a high security environment. If the "low-risk-high-risk" offenders he described (those just above the threshold of the high risk placements) had comparable rates of recidivism in mixed populations but a lower security environment, that might show that it is the association with more hardened offenders, and not the intensity of the prison environment, that is doing the damage.

Of course, if the issue is the scale of incarceration rather than its intensity, all of this is off-set by incapacitation effects. One problem with a lot of the incapacitation research -- for utilitarians anyway -- is that it doesn't take subtract out the crime in prison itself. Professor Sharkey of Boalt, who lurks behind a Yale Law Journal pay wall:

Studies of the effect of incarceration on crime rates usually ignore crime within prisons. See, e.g., Steve Levitt, The Effect of Prison Population Size On Crime Rates: Evidence from Prison Overcrowding Litigation (National Bureau of Economic Research Working Paper No. 5119, 1995); William Spelman, Criminal Incapacitation (1994); Franklin E. Zimring & Gordon Hawkins, The Scale of Imprisonment (1991) [hereinafter Imprisonment]; Thomas B. Marvell & Carlisle E. Moody, Jr., Prison Population Growth and Crime Reduction, 10 J. Quantitative Criminology 109 (1994). Crimes committed within the prison walls, if explicitly acknowledged in a utilitarian analysis of incapacitation, would reduce the calculated social benefit of crimes averted in society.

But even if the incapacitation effect fully swamped the brutalization effects and produced a lower crime rate, that doesn't necessarily tell us whether its worth the negative subjective experience of prison. What would be wrong with the design of a study sought to get at this problem by asking how much time in prison the subject would you do to avoid being the victim of:

1. A residential burglary
2. A burglary of a motor vehicle
3. An armed robbery
4. A sexual assault
5. A maiming assault
6. An assault that resulted in a temporary injury
7. A fraud that wiped out your life-savings
8. An enslaving drug addiction
9. A perjury undertaken to cover up the leak of your wife's CIA status (just kidding)

Of course one problem is that most people will weigh the risk of being assalted or sexually assaulted in prison as one of the primary reasons to want to avoid it, which could result in double counting if you subtracted crime in prison from the overall incapacitation effect. But if you told people to assume they wouldn't be the victim of such an attack, you would be subtracting out not merely the negative experience of the attack, but also the negative experience of the fear of the attack. So you might ask people to assume a risk of such an attack comparable to the rates at which they actually occur -- say 8%:

How would you all answer?

Posted by: RW | Jul 14, 2007 4:01:54 PM

Bad link. Try

Posted by: RW | Jul 14, 2007 4:03:15 PM

joe blow: Do you self-describe as Christian?

Posted by: NBarnes | Jul 14, 2007 4:49:29 PM

"joe blow: Do you self-describe as Christian?"

Hell no. Why do you ask.

Posted by: joe blow | Jul 14, 2007 5:11:35 PM

There's nothing stopping Ezra or any of you liberal pussies from contacting prisoners via mail (check your local prison website) and offering them a place to stay, job, etc after their release. If you are so worried about their rehabilitation, then step up to the fucking plate instead of stealing money out of my pocket to fund your social utopia experiments.

But none of you do that, because deep down you want to keep "those people" at arms length and sit down and drink your cappucino at Starbucks and pat yourselves on the back about what a great humanitarian you are.


Posted by: joe blow | Jul 14, 2007 5:15:01 PM

RW, most people view prison in terms of retributive justice that is justified on a utilitarian basis, if it is, only on a very broad level. But if you wanted to try to do a utilitarian analysis of the kind you have in mind, I suppose your questions might get you what you want.

Joe, I'd much rather steal money out of your pocket than do it myself. Sorry if that bothers you.

Wait, no I'm not.

Posted by: Sanpete | Jul 14, 2007 5:35:15 PM

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