I Fought the Law and the Law Won.
(VANCOUVER ISLAND) For some obscure reason, the tropical paradise of the independent Republic of the Seychelles, a nation and archipelago of 115 islands in the Indian Ocean to the east of Kenya and north of Madagascar, has the highest rate of incarceration per capita in the world. Of course everyone knows that the United States of America holds the silver medal, incarcerating more than 700 people per 100,000. An exact figure is hard to come by because of the disorganisation and enormity of the prison-industrial complex. There are many levels of government and private lock-ups in the system, with little or no coordination among them, and each having its own reporting system. But suffice it to say that, if you are American, you are likely to know someone who has a family member who is a long or short-term guest of the city, county, state, or federal government, or a private contractor.
Although various hypotheses have been offered for this quirk of American society, nothing persuasive has emerged, beyond the obvious fact that a failed “war on drugs” is a contributing factor. Theorists have asked what the Seychelles and the USA have in common that could explain their anomalous numbers, but the differences between the tiny island nation and the enormous and powerful US are so vast that there is no basis for comparison. Other attempts have been made to explain the anomaly by looking at Canada, usually a fruitful exercise as the countries are culturally and geographically so similar. No luck there, however. The US has some 10 times the rate of incarceration of that of its northern neighbour.
This clearly out of control inclination to lock people up at such a frantic pace brings up some very fundamental questions regarding crime and punishment. Without getting too Dostoyevsky on ourselves, it is worth asking some meta questions. Let’s go beyond whether incarceration is a suitable punishment for non-violent offenders. Let’s go beyond whether longer sentences are more just. Let’s even go beyond whether incarceration is the best form of response to the conviction of a criminal. Let’s get right down to the very bottom and ask: Why do we punish people at all?
The usual answer to the question of why we punish is that punishment is a deterrent to crime. Knowing that one runs the risk of punishment, one is less likely to commit a crime, goes the theory; increase the penalty and you increase the deterrent effect. That straightforward calculation is usually sufficient to satisfy most of us. So whenever we see an increase in crime or a sudden wave of particular types of criminal activity, the cry goes forth: Increase the sentences! Too bad it simply doesn’t work in real life the way it does on paper. A simple indication that the reasoning may be flawed is that the US imposes far greater punishments (in terms of length of incarceration) for similar crimes than does Canada and yet their crime rate is also much higher. It appears as though there is some deterrence attached to incarceration, but the direct relationship of deterrence to crime is not linear and it reaches a point of diminishing returns.
At this point it is usual to bring out the anecdotes concerning the British predilection for hanging even petty criminals in the 18th and early 19th Centuries, where pickpockets worked the crowds at the hanging of pickpockets. Needless to say, The United Kingdom and every other western developed Nation has long since abolished capital punishment while we wait for the United States of America to join the community of developed countries. The main practical reason for the abolition is the obvious fact that even the most severe penalty of all has failed to deter even minor crimes. That the abolition of the death penalty was also sought in most jurisdictions on moral and ethical grounds would probably not have much effect on the current US Congress.
That severe penalties are not statistically deterrents to crime has been demonstrated time and again has not led to any serious overhaul of the US criminal justice system. America is fond of the death penalty, even though it doesn’t do what supposedly justifies its existence. Longer and longer sentences under increasingly brutal conditions clearly hasn’t done the job either; the incarceration rate keeps increasing. The cynical (and probably accurate) observation here would be that the private prison lobby is working the halls of government and the golf courses of Virginia assiduously to keep the conviction and sentencing rates high and those efforts keep a large number of US citizens behind bars.
So is the prison industry entirely to blame for the lopsided numbers of citizens in stir? Well probably not, although they can certainly take some of the credit. The rest of the answer though, lies elsewhere.
Among the other answers to the question of why we punish at all is the original justification for incarceration in North America. And that is that the punishment is supposed to teach criminals the error of their ways and turn them into law-abiding productive citizens. The government/private enterprise that locks people up is called the department of corrections. The notion here is that, like spanking a child, the state will correct misbehaviour. The places in which prisoners are locked up for increasingly lengthy terms are called penitentiaries. These places were ostensibly designed with intention of creating an atmosphere in which a criminal could reflect upon his sins and become penitent. After a suitable stretch with little to do but contemplate his sins and, presumably, pray for forgiveness, the prisoner may be declared rehabilitated and prepared to re-enter society, a chastened and reformed citizen.
The truth however is quite different. If we were to look honestly at any argument for longer sentences for crimes, we would be hard pressed to find a senator or congressman framing the argument as a need for additional time to reflect and repent. Whenever we see a rise in crime and the knee-jerk response of demands that more people be locked up and for longer periods of time, how often does the notion of reflection, or of penitence, or even rehabilitation come up?
No, the truth is that we punish people because we want to hurt people out of vengeance for what they have done to us as a society and specifically to any victims of their crimes. This is known as retributive justice and it is the easiest to understand and describe but it is by far the hardest to justify. Simply put we see retribution as a way of balancing the scales; we don’t want someone harming us without seeing them harmed in some way in return. That has been a fundamental aspect of codified justice systems since the first comprehensive, written code, the Babylonian Code of Hammurabi, was enacted in Mesopotamia in about 1754 BCE.
Famous for its “eye for an eye” legislation, what people often don’t understand is that Hammurabi wasn’t demanding severe punishment for a transgression; on the contrary, he was demanding that his people, when seeking retributive justice, take no more vengeance than he prescribed. Since that Babylonian code made no distinction in terms of punishment between an eye having been lost through the negligence or accident of another on the one hand and the loss of an eye as the result of a deliberate act on the other, it is clear that deterrence wasn’t the justification for the penalty. Hammurabi included the retributive aspects of his code for the specific reason of restricting the level of retribution his subjects were allowed to take; he knew that, left to their own devices, people are inclined to hit back much harder than they were hit in the first place.
And this, we can see, is the reason behind the anomalously vast prison population in the United States. Exodus 21:24 and Mathew 5:38 both reference the “eye for an eye, a tooth for a tooth” notions of retribution. And in Mathew, the quote is mentioned specifically so that it can be rejected and replaced with “turn the other cheek”. Nevertheless, the United States, being a crypto-theocracy that more and more overtly carries out policy according to an evangelical Christian interpretation of cherry picked portions of the bible, embraces that sense of retribution in its culture. But increasingly, they interpret the “eye for an eye” injunction as meaning “no less than an eye for an eye” despite the historical fact that even 4,000 years ago, justice demanded no more than an eye for an eye.
A radical overhaul of the criminal justice system of the US is long overdue. The rationale for incarceration, the balance between the severity of a crime and the length of the sentence, and the justification for meting out harsh penalties for victimless and non-violent crimes all need to be thoroughly examined. But truth be told, the climate of hostility, hatred, and violence in the United States at the moment is hardly conducive to such an endeavour.