Be it enacted, and it is hereby enacted, by the representatives
of the freemen of the state of Vermont, that whosoever shall commit
burglary, by breaking up any dwelling house, or shop, wherein goods,
wares and merchandize are kept; or shall rob any person in the field
or highway, such person so offending, shall for the first offence
be branded on the forehead with the capital letter B; on a hot iron,
and have one of his ears nailed to a post and cut off; and also
be whipped on the naked body fifteen stripes. And for the second
offence, such person shall be branded as aforesaid, and have his
other ear nailed and cut off as aforesaid, and be whipped on the
naked body twenty five stripes. And if such person shall commit
the like offence a third time, he shall be put to death, as being
incorrigible (1779). 1
The pillory, cropping and whipping, have a most unfortunate tendency--hardening
the individual and when set at liberty he is prepared for the perpetuation
of every crime--it excludes the offender from society...(1858).
2
...I have found that mild and humane treatment has the best effect.
No human being can be reformed by brutal treatment, and those means
resorted to that have a tendency to impress the mind of the unfortunate
convict that the punishment is more to gratify the brutal passions
of those inflicting it than to discharge a solmn duty, or to reform
the subject, it is evident has a tendency to harden the heart and
implant within it feelings of revenge (circa 1844) .3
Don’t we just need to “get tough” and give
longer sentences? The unnamed "keeper" who penned
this last quote was indeed observant, not only of the pointlessness
of harsh punishment, but also of the sadistic motives of those who
inflict it. Can we take it a step farther and say those who advocate
it as well? And can we say that our society has strong sadistic
aspects? I believe so.
There’s a common belief that our problem is “slap-on-the-wrist”
sentences. Timothy Flanagan, Ph.D., Professor of Criminal Justice
at Sam Houston State University, summarizes:
The view that dominates policy debates and neighborhood discussions
and punishment...is that more, longer, and tougher correctional
sanctions are needed to deter offenders from drug use and crime.
In [R.A.] Posner’s view, “with even stiffer penalties
and greater resources devoted to police and prosecutors, we could
undoubtedly make a minor dent in the existing crime rate.”
(4 page 77)
On average, this just can’t be true for two reasons. One
is that the United States "...uses incarceration as a response
to crime at a higher rate than any other nation."
(5 page 11) In data collected in the 1991
and 1992, the U.S. had 455 people incarcerated for every 100,000
population, 46% more than South Africa, nearly 10 times as many
as the Netherlands, thirteen times as many as Japan. Even China
had only a fourth as many. (6) Number two
is that the United States uses long-term imprisonment more often
than other democracies. (5) Sentences as
long as five years are rare in other countries and generally considered
excessive.
Overall, the problem is not length of sentence, but how, when,
and how consistently the sentence is applied. Public opinion polls
demonstrate just how misinformed, or wrongly motivated, we are as
a whole. A large majority believe the courts are too lenient, while
only a third express concern about disregard of defendants’
rights. (It is fascinating, however, that those who live in neighborhoods
where crime is increasing are more likely to acknowledge concern
for the rights of defendants.) On the other hand, a large majority
are opposed to plea bargaining, which I also see as counter-productive
when used as standard operating procedure in criminal cases. I suspect
that majority’s reasons are narrower than mine, which I believe
are spelled out in the story of Mr. Chainsaw.
Punishment, particularly incarceration, exists for four main reasons:
Deterrence, incapacitation, rehabilitation, and retribution. Of
these, slightly more than half of the American public believes retribution
should be the most important factor in sentencing, 2.5 times as
many as believe rehabilitation is the most important consideration,
and twice as many as those who name deterrence and those who name
incapacitation combined. Attitudes are more sanguine toward juveniles,
but even here only 50% name rehabilitation as most important. Not
surprisingly, the more educated the respondent, the more likely
he or she is to name rehabilitation, and the less likely to name
retribution. The tendency to favor retribution over rehabilitation
has been an upward trend over the last few decades.(4)
By acting in calculated hostility against offenders, we get several
psychological rewards that most of us are probably not consciously
aware of:
We relieve some of our rage over our apparent helplessness,
rage because of the humiliation of feeling afraid on our own streets
and even in our homes;
We get to satisfy our own uncivilized urges,
unleashing indirectly
the thief, killer, and rapist that lurks inside;
But we also get to think well of ourselves at the same time. I'm
an upright person; if I have a thief, killer, and rapist inside
me, they've been under tight control since early childhood. I'm
only advocating just punishment for those who don't exercise that
control;
And we get to indulge in “projective identification.”
I'm the good guy. Those other people are totally bad, so I must
be totally good. (i.e., we project all of our bad stuff
onto them, identifying them as the sole owners for what we can’t
stand to face in ourselves.
I propose that these factors underlie much of the popularity of
the “get tough” approach. We’re mad as hell,
to coin a cliche, acting on that anger makes us feel good, powerlessness
against
crime threatens to imasculate our society, and getting tough proves
that we’ve got balls (9) after all.
So, we don’t give a hoot if getting tough really alleviates
or aggravates the problem in the long run. Give us the immediate
feel-good. The
unfortunate and unfounded belief that “nothing works”
to reform criminal behavior, discussed in some detail in the chapter
on rehabilitation, is cited as a justification for this attitude.
Rather than a justification, it’s actually a rationalization,
i.e., a means of giving the appearance of rationality to the irrational.
The
proof of this is right before our eyes, if we only choose to
see it:
We invest more in prisons and imprisonment than other industrialized
nations, yet we have the worst crime problem;
For several decades we’ve been building more and more prisons,
passing more mandatory sentences, cutting parole possibilities,
with no appreciable decrease in the crime problem;
Prisons that do nothing but warehouse or “punish” criminals
actually serve as “crime schools,” a term you’ve
probably heard before;
Surviving in prison usually demands thinking and behaving in ways
that make the prisoner less capable of functioning in society than
before.
Prison life: The upside-down society
To illustrate a point, see if you can explain the following scenario:
Max and Spike are having a discussion, a difference of
opinion, we might say. It seems fairly calm and civilized. The subject
matter is benign enough, at least on the surface. It involves Max
having been away for a while, and the fact that he’s not dressing
as sharply since his return. Just when an observor might think the
discussion was ready to end, Max calls Spike “sir,”
and Spike responds by pulling a knife and stabbing Max. Why?
Isn’t “sir” a term of respect? Was Spike angry
because he and Max had been friends, and this formality implied
that the friendship was over? Not really that simple. To make it
more intriguing, let’s say that Spike isn’t so crazy
as to lash out in lethal violence over a mere snub. Then why? It
defies all normal logic, right?
Unless you’re in a society turned upside down, it does.
Consider this: The locale is a prison compound. Max just came back
from a week in solitary, aka “The Hole.” Max and Spike
were discussing how the authorities became aware of Max’s
scheme to get into the laundry after hours to give his prison garb
a particularly thorough pressing. Prisoners are required to address
male security officers as sir. When Max calls Spike sir, he’s
equating him with a security officer, that is, implying that he
is an informer, commonly called a rat. Allowing this comment to
go unpunished would be a tacit agreement that it could be true,
and this could be so hazardous for Spike that only a potentially
lethal response would make an adequate objection. In some prison
societies, even conversing in too friendly a manner with “the
hacks” or “the screws” can label a prisoner as
someone not to be trusted, perhaps even someone to be eliminated
should the opportunity arise.
If this little parable isn’t upside-down enough already,
consider this: The most likely way for this incident to end “happily”
is that Max survives his wound, gets out of the hospital, whereupon
he, the “victim,” apologizes to the man who inflicted
the wound. Max has learned that Spike is not the informer type,
and not to be trifled with, and recognizes in retrospect that his
insult was a worse sin than the stabbling.
It’s important to recognize that neither Max nor Spike made
these rules. They may possibly disapprove of them, even hate them,
but that’s prison society. At least, that’s the kind
of society that prevails in the typical “warehouse”
prison. Systems and cultures take on a life of their own, so that
individuals do not shape them so much as they are shaped by them.
In any event, whoever or whatever you choose to “blame”
for prison society being the way it is, it should be self evident
that it hardly can be described as preparing a prisoner for a productive
life in harmony with the law-respecting “free world.”
Please let me add, however, that many of the old stereotypes about
physical, mental, and moral deterioration of convicts over time
have not been supported by research. (11)
It would be foolish, however, to jump to the conclusion that long-term
imprisonment has no effect on the imprisoned, for several reasons.
For one, there are monumental methodological problems with this
kind of research. It’s impossible to come up with a control
group, i.e., a sample of people who are matched on important variables
with a sample of new convicts, but who are not imprisoned. And looking
at a group of convicts over time, seeking to measure changes, is
complicated by the fact that as the research progresses, they are
not only in prison longer, but have also grown older. For another,
the research tends to focus on the presence or absence of physical
and mental infirmities, and self-reports of attitudes, not on subtler
changes, such as a convict’s expectations of himself and the
world around him. Still another reason for taking this research
with a grain of salt is that much of it was conducted in societies
such as Germany, with populations different from our own, and prisons
different from ours.
But to my notion, there are two other considerations that are especially
compelling.
One is that in prison, an individual is given a form of security.
He may worry about his family on the outside, and, initially at
least, his survival on the inside, but he is relieved of any doubts
about meeting his own basic needs. Those who were heavy abusers
of drugs and alcohol previously now have their consumption, if
not
eliminated, at least drastically reduced. The man who tended to
ignore his physical health, couldn’t get or didn’t
bother with healthcare, and may have regularly stayed awake for
36 hours
at a stretch, is required to maintain at least some minimal
level of health and to be in bed, if not asleep, for somewhere
around
eight hours. All else being equal, one would expect the typical
convict to thrive under such circumstances. The fact that
there is not a major improvement, mentally, physically,
morally, means logically that all else is not equal. Those
positive changes can’t occur because of the counteracting negative
effects of incarceration, especially, living in a prison society.
If the convict later returns to circumstances approximately as unhealthy
as before, it’s only reasonable to expect that his resilience
and coping mechanisms will be even less adequate than previously.
The other consideration is expressed well in this quote from Hans
Toch: “The inmate at the end of his sentence...may have to
digest problems such as those of significant others who are no longer
significant, neighborhoods that have become unfamiliar, and strange
(if any) job prospects.” (12) I.e.,
facing circumstances less favorable to survival, and more conducive
to criminality, than before. And, unfortunately, perhaps less prepared
than before.
The education system in reverse
Is there a word that’s the opposite of remedial? Like, a reading
class that would decrease your reading ability. If so, that word
applies to the educational effect of imprisonment too much of the
time. As I’ve been trying to hammer home, prison may be an
opportunity for a convict to learn new criminal skills. I can speak
from experience: It was in the “Crossbars Resort” that
I learned how I could pick up some pocket money relatively safely
through a short-change gimmick, and some innovative techniques for
smuggling across international borders, to name just a couple of
topics. I could also have learned how to convert an automatic rifle
to a machine gun, or how to produce some illegal drugs, if those
had been my interests.
As an example of a wasted education, though, I decided to give
up all this criminal crap before I put any of this training to work!
But back to our typical releasee: He walks out possibly knowing
some new criminal crafts, and he’s had to practice living
skills completely out of sync from what normal society demands.
Now, as Hans Toch explains, he goes out to a strange world, in most
cases with fewer resources than before his imprisonment.
He may have one change of clothes, a hundred dollars or so, and
a bus ticket.
To make matters worse, our newly freed subject may be considerably
more predisposed to violence than ever before, and isn’t
it violent crime we fear most? Quoting Toch:
The victim may be caught in a double bind, because he
is reluctant to use violence and feels incapable of it, and also
because of double messages in the system. He knows that inmates
and staff respect a man who fights, but that violence brings punishment
and can affect one’s chances for parole . . . . Where the
victim does use violence, it often far from the deliberate deployment
of manly force portrayed by myths. Much more frequently, the picture
is of a man at the end of a rope pushed an inch too far. The man
is fearful, tense, and resourceless; he feels pressed beyond endurance
and trapped. His controls snap, he breaks down and explodes . .
. (12, pp 210-211)
What makes matters even worse is that prison society strongly
discourages discussion in place of violence. “Expressing your
feelings,” which people in my profession value highly, and
for good reasons, is likely to be taken as a sign of weakness by
the predators in a prison setting. In most incarcerated populations,
revealing much of your inner self could instantly make you a target,
and once you are targeted the only “expression of feelings”
you’d want to risk would be a strong threat. If this failed,
you’d have only two choices: Accept a miserable existence,
forced to submit to homosexual rape, to surrender belongings, to
act as a servant to the more aggressive convicts, or alternatively,
lash out violently. Sometimes the latter might consist of a punch
to the other’s guy’s face or gut, perhaps followed by
a stay in solitary, maybe a couple of days for you and a couple
of weeks for the other guy if he’s got a bad record. Hopefully
this teaches him that pushing you too far is a losing proposition,
even if he “wins” a fight. There are circumstances,
however, in which a punch just isn’t what the situation demands,
and a man who didn’t resort to violence previously, even in
the course of criminal activities, feels obligated to crack someone’s
skull with a chair.
You can make the point that, logically, this should teach the intended
victim in this scenario that prison is not the place for him, that
“going straight” is the path to follow, regardless of
how many new barriers he finds in that road. And sometimes it does.
But the end result may be quite different. This person may leave
prison with a cynicism and bitterness that grow when he sees his
situation in the free world as hopeless. Or, even if he leaves with
the best of intentions, he may find those intentions seriously challenged
by the kind of circumstances we’ve been discussing. He’s
discovered a demon in himself he never knew before, a demon called
violence, and he learned it could be his friend. When he again feels
at the end of his rope and pushed an inch too far, he may call on
the demon to rescue him. This time, the target won’t be a
predatory fellow prisoner; it may be you.
That’s the bargain you’ve gotten for your $19,000 a
year.
In spite of all of the miseducation provided by prison, it’s
important to keep in mind that there are many who successfully become
non-offenders once the gate slams behind them. With some changes
in attitude and policy, we could increase that number substantially.
The most important attitude change, in my opinion, is to stop demonizing
everyone who has ever been convicted of any
felony, to give the former offender some acceptable options, and
stop acting as though we are “coddling” him by giving
him the necessary tools to lead a constructive life at peace with
society.
So we stop locking them up?
No, it’s not that simple. In trying to show you how prison
works, or rather, why it doesn’t work, I’m not suggesting
that we eliminate incarceration. I am suggesting that we fix it.
We fix how we employ prison sentences; I believe the story
of Mr. Chainsaw dramatizes the kind of change that’s needed
and why. And I am suggesting we work to change how prisons operate.
More isn’t better. It’s the certainty of a prison sentence,
how quickly it is imposed after an offender has been arrested, tried,
and convicted, and the extent to which losing his freedom is cognitively
linked to his misdeeds, that determines how effectively incarceration
can serve as effective punishment and deterrent. Working to ensure
greater certainty, timeliness, and cognitive linkage, of a prison
sentence should be one of our highest priorities.
I’m also urging, as strongly as I know how, that we change
the ways in which prisons affect their inhabitants. If we’re
going to call them “correctional institutions” it only
makes sense to do everything reasonable to assure that most inmates
are more “correct” when they leave than when they came
in. That is, unless our society as a whole has a pathological need
to maintain a scapegoat class, to spend our money just to demonstrate
how tough, and thoroughly pissed off, we can act. If that’s
our goal, then how is our society different from the caricature
bad-guy criminal?
A few final words on the subject. Prison shouldn’t be the
just the booby prize in the famous plea bargain game. Neither should
it be our knee jerk reaction, our first choice, in dealing with
offenders, nor the last choice we make after criminality has become
thoroughly entrenched. For most offenders, other interventions should
be tried first, interventions comprised of well designed, serious
efforts to encourage personal growth in the right direction. When
it is established that such efforts are not likely to have the desired
effect, incarceration is probably the best option. In comparison
to what we typically do now, that incarceration should be brief
and intensive in the majority of cases. Intensive, not brutal.
Eighteen months in an institution with firm, fair rules, run by
well-trained professionals and not by gangs, where the inmate spends
time working hard in serious “re-education” programs,
will do infinitely more good for society’s benefit, than the
same inmate spending ten years floundering in a crime school dominated
by thugs. Thugs in prison uniforms, and thugs in security officer
uniforms.
Unfortunately, there will always be some who must be kept away from
society much longer, some even for life. It can be reasonably argued
that there are even those whose actions have forfeited their own
lives. Better intervention, earlier, can help reduce the numbers
of these.
Crime has become so endemic in American society, and we spend so
much trying to cure it, with so little to show for it, that some
creative, courageous innovation is in order.
And you don’t really want to cut off anyone’s
ears, do you?
NOTES
1. Haworth Press (1985). On the punishment of burglary and robbery.
Journal of Offender Counseling Services and Rehabilitation, Vol.
10, 1 & 2, p. 47.
2. A Georgia Senate committee. Haworth Press (1985). On punishment
in Georgia. Journal of Offender Counseling, Services, & Rehabilitation,
Vol. 10 1&2, p. 49.
3. Keeper's report to the Board of Inspectors of the New Jersey
Prison, recounting conditions, changes, and observations subsequent
to his arrival on November 10, 1843. Haworth Press (1985). Keeper's
report. Journal of Offender Counseling, Services & Rehabilitation,
Vol 10, 1 & 2. pp. 20-21.
4. Flanagan, T. (1996). Reform or punish: American’s views
of the correctional system. In Flanatan, T., & Longmire, D.
(Eds.) Americans view crime and justice: A national public opinion
survey, pp 75-92. Thousand OaKS, CA: Sage Publications.
5. Flanagan, T. (1995). An American portrait of long-term imprisonment.
In Flanagan, T. (Ed.) Long-term imprisonment: Policy, science, and
correctional practice, pp 2-21. Thousand Oaks, CA: Sage Publications.
6. You could protest that China has many fewer people in prison
because it simply shoots so many criminals. But do they shoot 3/4
of people convicted of crimes? And aren't their prisons supposed
to be full of political prisoners?
7. Myers, L. (1996). Views of the criminal courts. In Flanagan,
T., & Longmire, D., (Eds.) Americans view crime and justice:
A national public opinion survey, pp 46-61. Thousand Oaks, CA: Sage
Publications.
8. Gerber, J., & Engelhardt-Greer, S. (1996). Just and painful:
Attitudes toward sentencing criminals. In Flanagan, T., & Longmire,
D., (Eds.) Americans view crime and justice: A national public opinion
survey, pp 46-61. Thousand Oaks, CA: Sage Publications.
9. Oops! I don’t mean to get sexist with this metaphor,
and certainly not to imply that gutsiness is a solely male attribute.
So far there are no gender-neutral terms for potent, imasculate,
or having balls that are in common use. Increasingly I hear women
refer to having the ovaries to do whatever. Progress, in my opinion.
10 . In prison, even a small symbol of status can be very important.
Something as simple as wrinkle-free clothes with a sharp crease
in the pants may send a message like “I’m special, not
just another con at the bottom of society, I know my way around,
I’ve got friends. Respect me, and certainly, don’t mess
with me.”
11. For example, see numerous chapters in Flanagan, Timothy (ed.)
(1995). Long-Term Imprisonment:Policy, Sciency, and Correctional
Practice. Thousand Oaks, CA: Sage Publications.
12. Toch, Hans (1995) The good old days in the joint.” Chapter
in T. Flanagan, 1995, above.
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