What is the purpose of incarceration?

What is the purpose of the prison system? Several of our posts have circled around this question, and I believe that it is critical not only to our discussion of the penal system, but to the character of our nation as well. Do we aim at punishment, justice, rehabilitation, deterrence or something else entirely? We should be judged not on how we treat our best, but on how we treat our worst. As Michelle Alexander describes in The New Jim Crow, we appear content to lock away and forget about millions of individuals; out of sight, out of mind. I would agree that punishment, justice, rehabilitation and deterrence should all be components of the penal system, but I would argue that our current system accomplished none of these goals.

Undoubtedly, there are many horrible crimes worthy of punishment. Rape, assault and murder all warrant severe repercussions. Yet, the majority of the people currently incarcerated in the United States are so for non-violent drug-related offenses. As Alexander describes, many of these offenses carry extremely harsh mandatory minimum sentences that often exceed the sentences for rape and murder. This harsh sentencing serves as a mechanism of the systematic repression of young black males who make up the majority of those incarcerated. The severity of drug-related sentences is typically justified and reinforced by the media imagery of the “criminalblackman” deserving of punishment. At the same time, there may be some drug-related offenses that do deserve punishment…or perhaps not. I do not have a definitive stance on what, exactly, drug-related sentences should be (if anything), but I am certain that the current sentencing rubric is unjust. Yes, we need punishment, but that punishment should be appropriate to the offense, and it should be combined with effective rehabilitation.

The word “rehabilitation” is often used in discussions about the criminal justice system. Yet, in our current system of mass incarceration, it seems that rehabilitation is rarely a factor at all. When they leave prison, most offenders find it impossible to re-enter society. They cannot find employment, they are often denied public housing, and they find themselves ostracized from mainstream society and even from their own communities. Furthermore, during the period of incarceration, there is little opportunity for work or education. Inmate education and/or work programs could provide a good basis for giving inmates the skills to succeed on the outside. However, these programs are often met with harsh criticism at a time when budgets are tight. We are not giving inmates the opportunity to succeed; we are simply perpetuating a culture of mass incarceration and racial and socioeconomic disenfranchisement.

Is the current penal system just? Do harsh sentences provide justice to the victims? Perhaps, but there are no victims of non-violent drug offenses. Rather, those committing the “offenses” are themselves victimized by the system of mass incarceration. Not only are the mandatory minimums for drug-related offenses excessive, but as Alexander explains, felons face a lifetime of marginalization even after their release. Indeed, there are some crimes, perhaps even some drug-related crimes, where a harsh sentence might provide justice to the victim. However, this is rarely the case. Destroying the life of a felon does not do justice to the victims. It seems that any notion of “justice” would involve efforts to prevent an offender from committing the same crime again, not simply by locking them away for a certain period of time, but by providing legitimate resources for rehabilitation. Our current criminal justice system fails this test egregiously.

Finally, rather than deterring crimes, the current penal system seems to cause it. The War on Drugs has turned scores of young black men into felons because of drug charges that should probably be misdemeanors or less. These harsh sentences do not deter crime. Alexander cites that a huge percentage of the American population uses or has used recreational drugs. Making these non-violent drug offenses into major felony charges only serves to turn young people (specifically young black men, but also others) into lifelong felons. Once convicted of an initial offense, these young people are then relegated to the world of the criminal underclass; they are removed and ostracized from mainstream society. Not only are first-time felons forced to become hardened criminals in prison (rather than rehabilitated), but also upon release they are denied jobs, housing and effective support mechanisms. What do we expect when we deny people the means by which to support themselves and their families? Eventually, many reoffend, oftentimes only by violating their parole. Furthermore, the cultural imagery that accompanies the War on Drugs portrays young black men as criminals, a characterization that we as a society have bought into. We get what we look for. We see young black men as criminals and we prosecute our laws as such. When we get the results that we have sought out (lots of young black men in prison), we use this as evidence that we have been right all along.

The criminal justice system provides us an opportunity to do great good. Yet, rather than do good our current system perpetuates a great injustice. If societies are judged by how they treat their “worst,” then we have serious cause for concern. We waste resources prosecuting and incarcerating people for non-violent drug crimes. Those resources would be better used to focus on rehabilitating serious violent offenders or to provide treatment and support to substance abusers. Instead, we have created a massive system of repression that helps neither those convicted nor the public as a whole. Who it does benefit are political and business elites who are able to concentrate money and power by creating a criminal underclass and perpetuating the War on Drugs. If we are to dismantle the current system of repression, we must engage in an honest discussion about what the aim of our criminal justice system should be.

The Image of a Criminal

Over the last week I spent a large portion of time visiting and working in New York City. This time in the city overlapped my reading of Michelle Alexander’s book The New Jim Crow and presented me with some experiences and thoughts that have sparked a further desire for discussion. The idea that Alexander develops that resonated with me the most while in New York was the image of a criminal. She explains how Reagan’s “War on Drugs” in 1982 coincided with a media campaign that promoted racial biases in reaction to crime (I mention this in my response to Chapter 3). These advertisements became a form of propaganda that in Alexander’s words “solidified in the public imagination the image of the black drug criminal” (102).

Stepping away from the drug war, I believe to a certain unfortunate extent Alexander is correct. Walking home after a few late evenings at the office this past week I was mindful of crime and keeping myself safe. When making these trips I began to recognize the types of people that I would naturally assume were less trust worthy. Grouping people in such a way was pre-conceived and not something I did consciously. Could it be that our society really does have an image of a criminal? If I caught myself doing this sub-consciously could people who occupy various roles in our justice system be doing the same? This makes me believe that the problems with the justice system in America could be deeper than systemic. They could, in fact be a result of a number of other factors inherently human.

In a past post Kai discussed the issue raised by Alexander that criminals are systematically disenfranchised after being released from prison through a denial of certain societal rights. If I have understood correctly, Kai is arguing that instead of choosing which rights to grant or deny prisoners we should defend a prisoners right to a second chance. I find this to be a simple, yet noble solution—if the prison system’s intention is to rehabilitate individuals so that they may make a positive contribution to future society we should we not offer them a second chance. Of course this is definitely not as straightforward as it seems. As Kai points out, we still need to negotiate a prisoner’s debt to society.

Working off of the “right to a second chance” proposal I would like to raise a concern in response that was born out of Alexander’s writing and my experiences over the weekend: as a society, are we denying certain groups of people a chance (i.e. a first chance) at all? Alexander raises a number of different Supreme Court rulings in her book that are evidence of this phenomenon. Whren v. United States allowed police officers to use fast judgment when determining whom to pursue in a drug investigation—many of these snap judgments are influence by stereotyping. McClesky v. Kemp ruled that racial bias in sentencing could not be challenged under the Fourteenth Amendment and Armstrong v. United States protected prosecutors from claims of racial bias. It has become a justice system where groups (primarily young African Americans) are not only denied a second chance, but also never given a chance to begin with. These racial groups are searched and profiled unjustifiably and then sentenced and prosecuted without protection from racial bias—a racial bias that is in many way unconscious and ingrained in members of society.

Certain beliefs, actions, and ideas that were introduced in the past have influenced generations as they have grown. In the drug war of the 1980’s racial bias was—as Alexander asserts—essentially inevitable because it became public consensus, constructed by politics and the media. Today that racial bias remains, presumably a shock wave of the drug war that has passed. Once a belief is developed in the mind of a generation it may never be completely removed. I believe this parallels the racial tensions of the American south, which are slowly dissipating as the older generations are replaced by younger ones. It seems plausible that the generation that experienced a propagandized drug war will be replaced by younger minds that will bring a non-biased perspective to the streets and the justice system of America. This coupled with some fundamental changes to the way the justice system (Supreme Court rulings) handles racial bias will need to occur to in order allow all individuals a first chance let alone the opportunity for a second.

Lawrence Brewer’s execution should indeed give us pause to consider our opposition to the death penalty. I agree that no crime warrants execution. That is, no criminal act causes us to forfeit our right to life. Although this assertion seems obvious to those of us who disagree with the death penalty, it remains contentious within our public discourse. After all, we already admit that committing a crime causes one to forfeit some rights. Otherwise, we would be unable to defend imprisonment, or any other restrictions or requirements currently placed on criminals. I believe that the right to life can be defended within the scope of universal human rights. However, universal human rights might prove to be equally contentious, if not more so, than the issue of the death penalty. So, I will offer an alternative justification for the right to life in the context of the criminal justice system.

The issue of what rights criminals forfeit extends beyond the death penalty, and seems salient to the problem of “mass incarceration” as a whole. In The New Jim Crow, Michelle Alexander describes how criminals (most of whom are young black men) are systematically disenfranchised, even after they are released from prison. They lose the right to vote and to serve on a jury, they are denied public housing and assistance, and they are often (legally) discriminated against by employers. Which rights can we rightfully deny criminals? It appears that one of the main issues with mass incarceration is that in our society criminals forfeit an unreasonable number of rights (the right to vote, to work, to housing, etc.), even for minor drug offenses. Rather than attempt to defend each of these rights individually, I believe they can be framed under a broader label: the right to a second chance. At first glance, the right to a second chance sounds rather “halmarky,” but, in fact, it has its roots in the foundation of the criminal justice system itself.

What is the purpose of the penal system? I believe that the purpose of incarceration, and the criminal justice system as a whole, is rehabilitation. Undoubtedly, justice, punishment and prevention factor into the equation as well, but at its core, the criminal system should aim at rehabilitation. This claim is not meant to argue against the idea that offenders should “pay their debt to society,” rather, it is meant to initiate a discussion about what, precisely, that debt is. The notion that felons can “pay” for their crime with some amount of jail time (or even the more lasting effects of mass incarceration) does not do justice to the crime or to the victim. By saying that a rapist has “paid” his or her debt to society by serving five, ten, or even twenty years seems to “value” that rape, and the suffering of the victim. No debt paid to society can undo the pain that a victim of rape continues to experience for the rest of their life, nor can it bring back a dead family member. Even a lifetime of hardship that a felon might face in the system of mass incarceration cannot change the past. The debt to society is not time served. The debt is rehabilitation. It is the commitment not only to never commit a crime again, but also to continue to contribute to society for the rest of one’s life. Yet, the need for felons to contribute to society is not simply their obligation, but it is their right as well. Criminals have the right to rehabilitation. They have the right to be put in a position to pay their debt to society, as well as to the dignity that that contribution entails. I will elaborate on this “right to dignity” in another post. As a result, no felon can forfeit their right to life, since to do so would be to forfeit their right to rehabilitation as well. Of course, responding to this rights claim is more difficult in the case of Lawrence Brewer or other obviously guilty violent criminals, but it is no less necessary.

Brewer’s crime is unforgivable, and it is understandable not to feel remorse at his passing. Nothing can excuse Brewer’s behavior. However, his crime does not invalidate his right to be rehabilitated. How we treat our worst is an indicator of our morals as a society. Thus, we must feel outrage at the death of Brewer just as we feel outrage at the death of Troy Davis (though perhaps in a different way). I have tried to articulate the foundations of an argument that the purpose of the justice system is rehabilitation. Moreover, rehabilitation is a right that every criminal is entitled to. This argument remains incomplete. I think the question of the purpose of the criminal justice system is extremely important, as is the question of which rights offenders forfeit. What debt is owed to society? What are our responsibilities as a community with regard to criminals? Are we all, in a way, responsible for their rehabilitation?

race and the death penalty

I was struck by our timing with this independent study. Just as we finalized our discussions and decision to go forward with the group study, the Troy Davis case entered - with such great force - the progressive public imagination. The progressive public imagination, we should underscore, because in reality the mainstream has had little interest in the case and indeed the problem of executing innocent people. That's plenty troubling.