The fundamental problem with prison time, as Mill notes, is that its severity is hard to imagine. After all, many of us frequently find that what with one thing and another we have spent the whole day indoors, and we don't find that we have really suffered for it. It is hard to imagine quite how it must be to be confined to a small space and narrow routine for periods of years, or even until death. There is no great drama to focus on. No particularly terrible things happen. Just more of the nothing. Attempting to multiply our feelings about spending one day indoors does not really get us there.
A punishment that is hard to imagine will not work very well. First, people contemplating breaking the law will not be especially deterred by dread of the punishment. In particular, though the concept of prison as an institution may be somewhat daunting, it is hard to contemplate the difference in severity of spending different lengths of time in one. Duration is a rather abstract dimension, and the difference between 5 years and 10 years, especially the cumulative difference, is hard to imagine. Thus, contrary to the influential 'law and economics' perspective, people are not able respond rationally to the schedule of prison time sentences for different crimes by making cost-benefit calculations for their actions that incorporate the 'price' of punishment. Nor do increases in sentences have the deterrent effect one might expect (so sending armed robbers to prison for 40 years instead of 10 doesn't much reduce the incidence of armed robbery).
A punishment that is hard to imagine will also fail to satisfy the moral outrage of those who have been wronged. If a child is run down by a drunk driver, not only the parents but the society as a whole demands a severe punishment. Though a criminal justice system cannot be run on populist grounds in particular cases (that would just be mob rule), in order for justice to be seen to be done it does need to respond to popular demands and perceptions. Thus, even though the professionals staffing the justice system may understand the severity of prison time as a punishment, their judgement may be superseded by the pressures of popular opinion. This is most evident where populist politics is integrated into the justice system, such as in America where judges and prosecutors are often directly elected.
Where prison is the only severe punishment available, and length of time the only measure of severity, one will naturally find that very long sentences will be handed out in such cases. On an impartial view of the matter, the severity of the punishment often seems quite disproportionate. And yet the victims and those who sympathize with them often remain dissatisfied. After all, aren't some prisons like hotels, with TVs and private bathrooms no less! To many people even 10 years confinement to such a place hardly seems a just punishment for driving over an innocent child.
This dissatisfaction lies behind the dismaying popularity of inhumane prison conditions, seen most clearly in the pervasiveness of sly jokes and official winking about prison violence and rape. One can understand this phenomenon as a reaction to the imaginative shortcomings of simple prison time as a punishment. If prisons are understood as places of physical and sexual violence, then a prison sentence takes on a much more dramatic character that is easier to imagine for both potential criminals (deterrence) and victims of crime (retribution).
But this is a very dissatisfactory fix. In effect the punishment of prison time comes in two parts. The term of imprisonment that society's justice institutions decide is right and proper. And an additional corporal punishment component outsourced to the most vicious and violent thugs in the relevant prison community to determine and administer. That corporal punishment regime is out of society’s control, but remains our responsibility. It falls most heavily upon the weakest and most vulnerable prisoners, not the most wicked, and makes society into torturers by proxy.
Two criminal justice functions unrelated to punishment are also relevant to thinking about prison: rehabilitation and security. The rehabilitation argument is a humanitarian one. Dysfunctional people commit crimes, including terrible crimes, but many of them can be made better. Prison time appears to offer a way to impose rehabilitation on criminals, since they are a captive audience. This was an important argument by 19th century liberals for proposing prison as the best form of punishment and thus the only legitimate one. (Hence the rather optimistic terminology of 'correctional facilities' and 'penitentiaries'.)
Yet rehabilitation as an aim fits poorly with the punishment emphasis, as is clear from the generally high re-offending rates of ex-convicts in many countries (particularly the ones that use prison the most).
It is possible for those who genuinely want to make a change in their lives and are willing to work to change their character and tackle problems like drug addiction to use their time in prison productively if they are provided with adequate support and counseling, during and after their sentence. But most prison systems do not provide that support because they are dominated by a righteousness ethic of punishing bad moral agents rather than a social-work ethic of helping to mend broken people.
In addition, the very circumstances of prison - long term isolation from the rest of society, from positive relationships such as family and friends, and from positive responsibilities like regular work - do not favor rehabilitation. Convicts' lives are likely to be more dominated by the prison community they are living in than the values of the normal society to which they are supposed to be re-oriented. Thus it is not surprising that many people who spend significant time in prison seem to become further acculturated in criminal values and attitudes and actually emerge less willing and able to function normally in society. Others are traumatized by the experience of merely surviving in such a community.
At least prison should be justifiable in terms of security? While it is true that, so long as they are locked up, criminals can't prey on society, the question of security always requires some attention to costs and benefits, to proportionality. After all, if security were our only concern we would have police on every corner; people with genetic markers for schizophrenia or psychopathy would be committed to institutions from childhood; and people found guilty of attempted murder would go to prison for as long as murderers. An excessive focus on security undermines the freedoms we want to protect, as well as principles we want to uphold, like fairness.
Even if someone has committed a serious crime and deserves to be punished severely, that does not necessarily mean that they present a danger we need to be protected from. Corporate fraudsters for example can be made safe relatively easily by removing their rights to manage companies. Likewise even those who commit very serious violent crimes may not be particularly dangerous; for example women who kill abusive husbands do not go around killing other people.
Quite often, people are sentenced to prison for the worst thing they have ever done, and not for being dangerous kinds of people. Thus, little to no security benefits for society are achieved from their stay in prison. Of course there are people whose character can be said to be criminal, and who do present a risk to society for as long as they are free, but these are a small minority of those who are now sent to prison. The way we use prison now assumes that all convicts are criminal characters, which is not only false, but a very inefficient way of trying to achieve security.
ReformWe should recognize the failures of our moral imagination that lead us to overuse prison time as a punishment. Because prison is such a severe punishment, excessive use of it is unjust. Millions of people are serving unjustifiably long sentences in living tombs as a result of our inability to take prison seriously. Our criminal justice systems should be much more restrained in their use of prison as punishment, and much more insulated from popular demands for excessive sentences. Society at large has a responsibility to think harder about how very severe a punishment prison is, and to support such reforms. A more generous and rigorous approach to rehabilitation, perhaps incorporating forms of restorative justice, seems particularly important for a society that wants to call itself civilized.
Let me go even further however. Prison time is so bad a punishment that even ‘barbaric’ alternatives like flogging and execution may often be more effective and more humane. Many people would automatically say that such punishments are inhumane. But the very reason for this reaction - that such punishments are extremely unpleasant to contemplate - is actually their advantage over prison.
Flogging is barbaric and ugly. Yet that in itself does not mean it is cruel or inhumane or otherwise unfit as a punishment. Punishments, by definition, are supposed to be very unpleasant. Considered less emotively, flogging has advantages that measure up well against prison time, especially longer prison sentences (of more than a few months). Its drama makes it much easier to imagine, indeed to over-imagine, and so it should work better than prison as a deterrent. For the same reason, it also seems better able to satisfy legitimate demands for retribution by those who have been wronged. Seeing someone strapped to a frame and having their skin ripped from their body seems to me to convincingly satisfy the requirement that justice be seen to be done, in a way that prison cannot. Yet, unlike prison, achieving this effect doesn't require that large chunks of a person's life be thrown away, together with their relationships and mental well-being. Thus, exactly because of its barbarism, flogging seems a more efficient punishment because the total suffering it inflicts is less. In my view, that makes it more humane.
Execution seems to me an appropriate punishment for very severe crimes, such as certain kinds of sadistic murder. I do not suppose judicial executions are a particularly persuasive deterrent to the people who commit such crimes (indeed it is very hard to understand how such people look at the world). Nonetheless they seem an appropriate retributive punishment. Such crimes are almost the definition of evil and undoubtedly merit a very severe punishment. Furthermore, in such cases society has a legitimate fear of the perpetrators ever again being allowed to live freely amongst them, and a legitimate distrust of claims about successful rehabilitation.
Yet I do not think that even sadistic murderers deserve any punishment more severe than execution. I do not believe that the perpetrators deserve to be locked away forever in a living tomb, often in solitary confinement for their own protection. While long-term prisoners do have a considerably shorter life-expectancy than the rest of us, that still allows for several decades of monotonous hopelessness before a miserable, unmourned death. I follow Mill here in considering that death is not the worst of all things that can happen to a person, and that merely allowing someone's continued existence is not mercy. A truly humane approach to punishment must consider the severity of the punishment from the convict's perspective, the undramatic but unrelenting mental suffering that a life sentence means.
Let me conclude by reconsidering what we mean by a 'humane' punishment. It seems to me that prison time is a humane punishment in one particular respect. It is humane to those who impose it. Because prison time appears to consist of removing pleasures rather than inflicting suffering, societies find it all too easy to choose as a punishment for their troublemakers. Furthermore, because it is difficult to imagine how awful it must be to be deprived for years on end of all the things that make life desirable or valuable, societies do not feel any great moral compunction about employing it liberally. It is therefore the perfect punishment for a society too cowardly to face up to the moral responsibilities that come with inflicting punishment.
Punishment takes place within a moral relationship: punishers should be alive to their moral responsibility for deliberately inflicting pain and suffering on another human being. That is why true punishment has a tragic element - it is always carried out with some regret, even when it is just. Indeed, it is because punishment is an awful thing to do to someone that we are pushed to carefully consider in every case whether it is morally justified and proportional. The risk posed by ‘humane’ punishments like prison is that they can be imposed with little regret. And when the act of punishment becomes so easy the decision to punish itself is no longer treated with the moral seriousness it deserves. The result is that the way society punishes wrongdoers and troublemakers will no longer reflect a considered judgement about what justice requires.
Consider the debate about judicial executions in America. Because execution is generally acknowledged as a severe punishment, its proper application is considered a momentous responsibility. Not only are the few hundred death penalty cases much more carefully prosecuted by the state (on average), but a number of NGOs concern themselves entirely with investigating and scrutinizing whether justice has been done. Indeed, the conscience of a civilized society deserves no less. Yet it is striking that the more than 100,000 people sentenced to decades of suffering in US prisons do not receive such careful attention to the justice of their cases. Sending large numbers of people to prison for a very long time does not seem to stir America's conscience in the same way as a 'real punishment' like execution. It should.
*JS Mill "Speech In Favour of Capital Punishment", UK Parliament, 1868
Peter Moskos 'In Defense of Flogging'
This essay has also been published in the New English Review (Feb 2013)