This essay argues that the philosophies of punishment justifying judicially sanctioned imprisonment, corporal punishment and the death penalty may appear coherent in themselves, but are contradictory when relied upon as a whole or in combination. These philosophies fail to justify and legitimate the social realities of contemporary technologies of punishment.
Weisberg alludes to a paradox involving the United States when he asserts that ‘the wealthiest and most powerful free-market democracy imprisons such an anomalously high percentage of its population at a time when crime itself is not one of the nation’s pressing social problems.’
Globally, an estimated 10 million people languish in prisons worldwide with a further estimate of 3.2 million of incarcerated individuals who have yet to face trial. (Amnesty International, 2018).
This observation on the prevalence of prisons as the States’ choice of pain delivery may be coupled with the argument that prisons and even punishment such as the death penalty are applied in a discriminatory way, reserved especially for certain ethnic groups that come for disadvantaged socio-economic segments of society.
Angela Davis, professor of history of consciousness at the University of California notes that during her career as an anti-prison activist, she witnessed ”the population of US prisons increase with such rapidity that many people in Black, Latino and Native American Communities now have a far greater chance of going to prison than of getting a decent education.” ( Davis, p. 10)
Davis poses a deeply disturbing question on the State’s reliance on prisons, calling into question the very philosophies of punishment invoked by policy and law makers to justify the continuing use of prisons and the death penalty:
“The question of whether the prison has become an obsolete institution has become especially urgent in light of the fact that more than two million people ( out of a world total of nine million) now inhabit US prisons , jails, youth facilities and immigrant detention centers.
Are we willing to relegate even larger numbers of people from racially oppressed communities to an isolated existence marked by authoritarian regimes , violence disease and technologies of seclusion that produce severe mental instability?” ( Davis, p.10)
Anthony Ray Hinton, who spent 30 years on death row for a crime he never committed had this say:
”My only crime was being born black, or being born black in Alabama.
I was guilty.
Hell, as far as the police and the prosecutor and the judge and even my own defense attorney were concerned, I was born guilty.
Black, poor, without a father most of my life, one of 10 children – it was actually pretty amazing I had made it to the age of 29 without a noose around my neck.
But justice is a funny thing, and in Alabama, justice isn’t blind. She knows the color of your skin, your education level and how much money you have in the bank.
The unwavering reliance by both liberal democracies and iliberal States on the use of prisons and the death penalty require a review of the current penal policies on incarceration;
Is incarceration justified by the longstanding theories of retribution, deterrence and rehabilitation?
Have prisons contributed significantly to falling crime rates and safer societies?
Additionally, do theories on punishment justify the social realities of what takes place within prisons, the effect it has on inmates and society as a whole?
The Retributivists’ justifications for the infliction of punishment, instrumentalized in the form of prisons
The origins of the Retributivist principle can be traced to the Enlightenment philosopher, Emmanuel Kant ( 1724-1804). Carrabine notes that ‘for Kant the duty to punish was a categorical imperative that restored the moral equilibrium – a view that led him famously to declare that even on the dissolution of society ‘ the last murderer remaining in prison must first be executed’ (Carrabine, p.301 citing Walker , 1991, p.77)
Kant was a critique of Utilitarian justifications ‘which use offenders merely as means rather than fully recognizing their humanity so that even the innocent can be deliberately punished if it is expedient to do so” ( Carrabine, p.301)
Regardless of the success or failure of achieving such objectives, Retributivists such as Michael Moore argue that ‘we have a duty to punish according to retributivist principles’ (Weisberg 2012, p.1225) . Moore argues:
‘Within the set of conditions constituting intelligible reasons to punish, the retributivist asserts, desert is sufficient, i.e., no other of these conditions is necessary. Of course other conditions outside the set of conditions constituting intelligible reasons to punish may also wbe necessary to a just punishment, such as the condition that the punishment not violate any non-forfeited rights of an offender.’ (Weisberg 2012, p.1225).
Kant’s legacy may arguably be in the introduction of a ‘crucial distinction between what would be good to do on the grounds of utility and what we have a right to do”'( Carrabine , p.301).
Carribine argues that ‘missing this important distinction between desire and duty reveals the illiberal consequences that can flow from utilitarian reasoning ….when the individual is sacrificed for the general welfare of the many , with torture being the most controversial example.’ ( Carribine, p. 301).
Such ‘illiberal consequences’ of utilitarian thinking devoid of normative moral safeguards were manifested in arguments posited by apologists for torture in places such as Guantanamo Bay post 9/11.
Alex Adams notes:
”Apologists for torture often either posit utilitarian arguments
such as the “ticking bomb” defense of torture, which claims that torture is
acceptable in certain conditions, or they claim that torture is not acceptable,
but that the interrogation techniques used in the secret archipelago of war
on terror black site prisons are not forms of torture and can thereby be condoned.”(Adams p.245)
Such subjective assessments by State officials such as the CIA on what kinds of conduct constitute torture are largely unchecked by moral and ethical considerations underpinning respect for human dignity and rights. Rather, the impetus for the reliance on torture is the ostensibly ‘pragmatic benefit ‘ derived from the saving lives. Popular Culture’s role in contributing to such Utilitarian thinking is evident:
”Cultural productions such as Fox’s televisual drama 24 (2001–14), James Barrington’s novels Overkill (2004) and Pandemic (2005), Gregor Jordan’s movie Unthinkable (2011), and Frank Miller’s graphic novel Holy Terror (2011), for example, all narrate ticking bomb scenarios in which it is demonstrated that torture can solve problems: when a bomb is ticking, torturing the terrorist responsible for it in order to prevent its detonation is
represented as a morally acceptable, militarily effective, and intellectually
rational tactic for saving innocent lives.” (Adams p.247)
In contrast to such consequentialist views, a deontological concept of punishment epitomizing the retributivist view is grounded in a normative ethical position that may appear intuitively right to many;
We punish because justice demands that violations of the law be addressed;
yet a conceptualization of punishment that fails to take into account other contextual factors such as the effects of institutionalization on an offender, and the effects of corporal and capital punishment and its greater impact on the rest of society is arguably shortsighted.
It is submitted that the impact of Judicially sanctioned punishment is not limited to its effect on the incarcerated offender, but resonates in the community from which the offender hails.
Amnesty International, for instance, recognizes that ‘the high economic and human costs of harsh policies are forcing their reconsideration across the (United States) which has increasingly resorted to overly punitive approaches to immigration law enforcement.
Amnesty argues that ‘imprisoning migrants with minor or no criminal records before deporting them often affects people seeking to reunite with their families in the US or fleeing persecution.’ (Amnesty International, 2014).
The injustice associated with the operation of immigration prisons in liberal democracies such the United States is explored by Emily Kassie,writing for The Guardian. Kassie writes:
”Children sleeping on floors, changing other children’s diapers. Families torn apart at the border. Migrants crammed into fetid detention centers. These have become familiar sights as people fleeing gang violence, domestic abuse and poverty arrive on the southern border of the United States.
Many will join more than 52,000 immigrants confined in jails, prisons, tents and other forms of detention – most of them for profit.” (Emily Kassie, The Guardian 2019)
The migrants including asylum seeker, legal migrant and their children detained in such prisons for sometime years suffer alleged sexual and physical violence (Kassie, The Guardian 2019) and are treated no differently from common criminals.
From a purely Retributivist view, it is morally and ethically impossible to justify the incarceration of thousands of migrant children and their families in the absence of any harmful conduct justifying imprisonment.
From a consequentialist or utlitarian view, however, the incarceration of thousands of illegal migrants in the US poses financial and economic gains in the form of lucrative contracts for stake holders associated with the US Immigration and Customs Enforcement (ICE). Kassie,writing for the Guardian notes
‘While the population of people in detention has grown, so has the government budget to fund the beds to hold them. Billions of American taxpayer dollars are now allocated to support a system where for-profit companies hold the vast majority of immigrants.
In fiscal year 2018, private prison companies like CoreCivic and GEO Group derived 25% and 20% of their profits respectively from Ice, which is now their biggest client. In the same year, Ice spent over $250m on contracts with GEO Group and another $60m with CoreCivic” (Kassie, The Guardian)
Relying on a hybrid of Retributivist and Consequentialist approaches
Kenneth Avio considers but rejects a ‘hybrid retributivism inspired by Rawls and H.L.A. Hart, an adherence to a strong deontic duty to punish but positing that criminal law can be consequentialist in its overall purpose—to threaten punishment so as to deter—but retributive in meting out punishment for individual acts.’ (Weisberg 2012, p.1235).
Conceptually, such a perspective could result in a paradoxical approach to the justifications for punishment, since a retributivist stance would reject the ‘intentional punishment of the innocent as well as disproportionate penalties, whereas, ‘deterrence advocates would recommend disproportionately high punishments to compensate for the uncertainty of apprehension and prosecution’ (Weisberg 2012, p.1235), a view that would be rejected by retributivists.
The difficulty in conceptualizing punishment that is mediated through institutions like prisons and the death penalty is that theoretical justifications for punishment very often remain as abstract ideas, detached from the realities of places of pain infliction and brutality.
As Garland asserts, ‘modern, liberal democratic states and civilized, squeamish moderns would rather avoid the sights, sounds, and smells of the body in pain. So we eliminate them where that is possible and we hide them behind the scenes when it is not.’ (Garland 2011, p.767).
As Garland notes ‘Criminal offenders are “deprived of their liberty”; capital offenders are “sentenced to death”; killing a body is “carrying out a sentence.” There is a careful avoidance of any suggestion that bodily pain and physical suffering are intrinsic elements of legal punishment.’ (Garland 2011, p.768).
Punishment instrumentalized through deprivation of liberty, physical pain and death of the human body is presumably efficient in achieving it desired ends of retribution or deterrence.
Garland, however, reminds us of the detrimental effects of prison, ‘the palpably physical, bodily aspects of being forcibly held in a prison,’ which juridical bodies neglect when ‘suspending the rights’ of an offender by depriving him or her of his liberty while in prison. ( Garland 2011, p.769).
Gresham Sykes’ ethnography of a maximum security prison, in Society of Captives, ‘ describes the “pains of imprisonment” as consisting of physical and sexual deprivation; undernourishment; limited access to health care and hygiene; the pervasive odor of urine, disinfectant, and stale food; the noxious and threatening proximity of other bodies; the claustrophobic pressure of confinement and crowding; and the endemic hazard of physical violence, whether by guards of by other inmate.’ ( Garland 2011, p.769).
Phenomenologically speaking, individual offenders consciously react in a myriad of ways to such prisons conditions and may not respond to his or her prison term in ways that correspond to our idealistic conceptions of deterrence or rehabilitation. This is especially since, incarceration of offenders does not merely entail deprivation of one’s liberty.
Justice Anthony Scalia’s dissenting opinion in Brown v Plata 2011 Supreme Court of the US envisions other fundamental rights of an incarcerated offender that may be violated, specifically, the Eighth Amendment entitlement to respect for one’s basic bodily needs:
‘[T]he law and the Constitution demand recognition of certain other rights. … To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care.”
”A prison’s failure to provide sustenance for inmates “may actually produce physical torture or a lingering death.” . . . Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized society (Brown v. Plata, Opinion of the Court, 13).’ ( Garland 2011, p.771)
Alex Adams, Guantanamo Boy (2009) and the Task of Critique, The Lion and the Unicorn, Volume 40, Number 3, September 2016, pp. 245-261
Davis, Angela, ‘Are Prisons Obsolete?’, Seven Stories Press, NY, 2003.
‘Detention and Inprisonment’ Amnesty International 2018 Online: https://www.amnesty.org/en/what-we-do/detention/
DETAINED: How the US built the world’s largest immigrant detention system, The Guardian , 24 September 2019.
Weisberg, Robert (2012) ‘Reality-challenged philosophies of punishment’, Marquette Law Review, Vol.95(4), p.1203-1252
Garland, David (2011) ‘The Problem of the Body in Modern State Punishment’, Social Research, Vol. 78, No. 3, pp. 767-798.
”How I got 30 years on death row for someone else’s crime”, The Guardian, 27 April 2018.