The American Way Of Punishment

A few weeks ago, David Cole reviewed Robert A. Ferguson’s Inferno: An Anatomy of American Punishment:

“Inferno” ranges widely to offer a fascinating “anatomy of American punishment,” drawing on such diverse sources as Kant, Ursula K. Le Guin and Jack Henry Abbott, among many others. (In one of Le Guin’s stories, Ferguson writes, a utopian society “depends for its happiness on one innocent desperate child imprisoned in horribly cramped, filthy conditions at the center of its city.”) Ferguson surmises that people have a drive to punish, that we are generally unable to understand the pain and suffering of others, and that America’s traditions support an especially virulent “logic of severity.”

Richard Posner found much to agree and disagree with in the book. He believes that the “only realistic solution to deplorable prison conditions is to reduce the number of prisoners”:

Sentences even for serious crimes are too long.

A bank robber, convicted of his latest bank robbery at the age of thirty, may find himself sentenced to life in prison. Yet like other crime that is violent or potentially so (many bank robberies are committed by unarmed criminals who hand the teller a threatening note, or brandish a fake gun, yet even robbery by note frightens bank employees and customers and can end in a dangerous high-speed chase), bank robbery tends to be a young man’s crime, one that criminals age out of. Our thirty-year-old bank robber will be unlikely to commit bank robberies, or for that matter other serious crimes (he may have no aptitude for criminal activity other than robbery), after he turns fifty. Then the only possible social benefit from imprisoning him for the rest of his life will be to deter others from committing bank robberies. But if we bear in mind that potential bank robbers, like most violent criminals, tend not to be intelligent or imaginative, and often have serious problems of impulse control, we may wonder whether the incremental deterrent effect of threatening a potential bank robber with a sentence of more than fifteen or twenty years will be great enough to offset the direct and indirect costs that the much longer sentence will impose on the criminal justice system.

Burnout is a general characteristic of a career in crime; and it is not limited to violent crimes. Often a criminal will realize after having served several prison sentences that crime really doesn’t pay, and he will either find lawful work or live on welfare, charity, and cadging from relatives and friends, in lieu of continuing a life of crime.

Likewise, Balko observes that “crime statistics show that arrest rates peak at around age 20, then quickly drop in the decades that follow“:

One easy way to ensure that criminals re-offend is to make it as difficult as possible for them to integrate into society upon their release — be it through registries, restrictions on where they can live and work or parole programs that keep them buried in fines and chained with restrictions.

The [National Association of Criminal Defense Lawyers] recommends specific policy changes to address these problems. But the more important message from this report is to get people thinking about the very idea of redemption. One NACDL suggestion, for example, is to make criminal records less public, which would make it more difficult for employers to discriminate against ex-prisoners. That’s also the thinking behind the “ban the box” movement, which is trying to get prohibitions on putting the criminal history question on job applications.

But here’s a more radical thought: Maybe we start to see, say, a couple of drug convictions not as a reason to dismiss a job applicant out of hand but as an opportunity to display humanity — perhaps to give that person extra consideration.