Saturday, 6 December 2014

Why Prison is Unfit for Civilised Society

Prison time is a very severe punishment. JS Mill likened it to being consigned to a living tomb. Any society that employs it should do so with care and restraint. Yet we do not. Partly because we think that prison is a humane punishment, it is drastically over-used in many countries, to the point of cruelty. Aside from failing in humanity, prison does not even perform well at the specific functions generally asked of a criminal justice system, namely, deterrence, retribution, security, and rehabilitation. We need to reconsider our over-reliance on prison, and whether other types of punishment - even corporal and capital punishment - may sometimes be more effective and humane.

I. The Problem

The fundamental problem with prison time, as Mill noted, 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 an entire 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 1 year and 5 years, especially the cumulative difference, is hard to imagine.

This rather undermines the logic of the influential 'law and economics' approach, particularly popular in America, which supposes that people commit crimes based on a rational calculation of the risk and severity of punishment set against their likely gains. If you are dissatisfied with the amount of crime in your society, the solution is to ramp up prosecutions and prison sentences (up to the point where the social costs of deterrence exceed the costs of further crime). This approach has the virtue of treating lawbreakers as rational individuals like ourselves, rather than as members of a strange and dangerous sub-human species. But it assumes that we can accurately foresee and compare the benefits and costs that crime would bring us.

Second, 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 well be superseded by the pressures of popular opinion. This is most evident where populist politics is integrated directly into the justice system, such as by the election of judges and prosecutors in America.

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. On an impartial view of the matter, the severity of the punishment often seems quite disproportionate. Yet even so the victims and those who sympathize with them 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 lawbreakers, 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 counselling, 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 guys 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 favour 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.

Can prison at least be justified by the security it provides? It is true that prisoners can't prey on society so long as they are locked up. So in this limited sense, prison works. But that is not enough to justify the way we use it. Prison has costs that must be weighed against this benefit. There is the obvious opportunity cost to society - the nursing care for the elderly, the subsidised child-care for the poor, and so on that we must give up to pay the bills for locking all those people into dark little boxes for years and years. There are the prison officers whose working lives would otherwise have been spent contributing to society in another, perhaps more satisfying way. There is the economic and emotional suffering of the families who lose their providers and loved ones. And there is the dreary colourless psychological suffering of the prisoners themselves and the years and relationships lost to them. Security is important, yes, but for the end to justify the means, the means themselves have to be necessary and proportionate to achieving that end.

Even if someone has committed a serious crime and there is general agreement that they deserve to be punished severely, that does not necessarily mean that they present a danger society needs 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 very 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 some people whose violent character really does present an unacceptable risk to society. But these are a small minority of those who are now sent to prison. The way we use prison assumes that all convicts are criminal characters, which is not only false, but a very inefficient way of trying to achieve security.

Don't be misled by the cold-bloodedness of the term. An inefficient criminal justice system is one that inflicts unnecessary and hence unjustified suffering. This is the very definition of cruelty.

II. Reform

We 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 an offence to justice that should arouse our moral indignation. 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 reconsider how and why we punish, and its centrality in the way our institutions are organised. A more generous and rigorous approach to rehabilitation incorporating at least some elements of restorative justice seems particularly important for a society that wants to call itself civilized.

Restorative justice sees crime as a problem for society to solve together rather than a person to be punished by the state. Crime hurts, justice should heal. Most lawbreakers are people who need mending, not further marginalisation. Most victims – and a great deal of crime has no victim but the state – would be more satisfied in the long run to be a part of a process of restitution and atonement than to be observers of a government run retribution programme. It seems eminently more fitting and more constructive for the fraudster who embezzled old people's life savings to be sentenced to work two days a week in a nursing home rather than to increase the amount of suffering in the world and redirect public funds from the care of the elderly by sending him to prison.

Moreover, if we are interested in the moral rehabilitation of lawbreakers then we need to encourage them to reflect on the wrongness of what they have done and the harms they have inflicted on others, as restorative justice sets out to do. In contrast, the punishment approach attempts to teach respect for others through the strange device of inflicting suffering on those who did wrong. Thus, the prisoner is directed to reflect on his imprudence not his moral failure, to regret his crime only because it has brought such harms upon himself. Prison thus functions in the same amoral way that hell does in some religions.

I recognise that a fully restorative justice system is a political non-starter. The drive for retribution has become so entrenched in the moral psychology of modern societies that we are unlikely to give it up any time soon. Even Mill endorsed it. So let me return to challenging the justification for prison as punishment in its own terms and raise the stakes. Even if you believe that the judicious infliction of suffering is required by justice and is an effective means of deterring crime you should still reject prison because there are better options available.

Prison time is so awful a punishment that even ‘barbaric' alternatives like flogging and execution may often be more effective and more humane. Many people would automatically deny this. But the very reason for this reaction - that such punishments are extremely unpleasant to contemplate - is actually their advantage over prison.

Flogging is brutal 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. Prison time is a form of psychological torture. Considered less emotively, flogging has advantages that measure up well against prison, especially longer sentences (of more than a few months), as argued for example by Peter Moskos. 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, flogging also seems better able to satisfy 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 these effects 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 the revulsion it inspires, we can expect flogging to be a more efficient punishment because the total suffering it inflicts is less. That makes it less cruel - more humane.

Execution is an even more dramatic punishment that may be justified by very severe crimes, such as sadistic murder. I do not suppose the threat of judicial execution is 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 it seems a fitting and proportionate punishment. Such crimes are almost the definition of evil and on the retributive view 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 they 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 thing 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. If we are too cowardly to execute them ourselves, we should at least allow such prisoners to end their suffering by ending their own lives, as the euthanasia rights activist Philip Nitschke has argued in a recent essay.

III. Prison Makes Punishment Too Easy  

If this is so, how did we ever come to think of prison as 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 we recognise that 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 is no longer treated with the moral seriousness it requires. The result is that the way society punishes wrongdoers and troublemakers no longer reflects a considered judgement about what justice requires.

Consider the debate about judicial execution 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 the public's conscience in the same way as a 'real punishment' like execution. It should.

This is the revised text of an essay of mine from a few years back, recently republished in The Critique and on ABC.


  1. I consider myself to be humane. The thought of flogging is entirely repulsive – yet this essay intrigues. Prison is barbaric because, not only of the wasted life, but also of the kind of supplementary fear and mayhem visited by some prisoners upon others. The idea of prisoner choice between incarceration and flogging is worth considering. Let us suppose some sort of equity between time served and strokes of the “cat.” A twenty year sentence might be shortened one year for each ten strokes. A convict might volunteer to receive his strokes at any time, but no more than ten at a time, with ample space for recovery between. (Values here are tentative because of my ignorance of flogging effects.) He, or she, can slowly earn the way back to free society with pain and suffering.

    As for execution, a space of time, say ten years, should pass before it is carried out, leaving time for appeals and discovery of innocence. Then it should occur immediately. Also it should be more humane than strapping one down and filling veins with poison. Placing the condemned in a bariatric chamber and pumping out the air would be preferable. Painless unconsciousness precedes death.

  2. You want to keep in mind that;
    a: many career criminals, gang members for example, don't really mind prison all that much; they are accustomed to it; have many friends there; have all their needs met; besides all the basics, sex and drugs are often said to be more readily available "in" than "out".
    b: many of these same criminals would cheerfully (be proud of!) floggings, and resume their nefarious careers as soon as able.
    Having said that, there are indeed thousands of inmates who don't really require high (expensive) security.
    This is important: they cannot be separated out on the basis of their offense. Many murderers, for example, are basically one-crime perpetrators and perfectly harmless thereafter, while there are shoplifters who would cut your throat for a quarter.
    You can verify all this with any corrections officer.

  3. I question whether criminals would really choose flogging over prison time, mainly because prison is a relatively pleasant lifestyle for most people who find themselves there. There is a refusal among liberals to accept that shelter, warmth, free nutritious food and access to gym and free education are what most poor people on the outside can only ever obtain through working hard and not committing crime. While I agree that most can't really comprehend the difference in severity between a 5 and 10 year sentence, I think criminals could more easily comprehend being forced to sit in a dank, cold hole eating bread and water once a day in the dark. Shorten the sentencing by all means, but at least make them suffer, make them really think twice before committing another crime.

    1. Clearly, you have never spent any time in prison, have no idea what you are talking about and are one of those "failures of imagination" of which the author of this article speaks. Prison is no more "shelter" than being locked in a closet is shelter; the food is not nutritious; the vast majority of prisons have neither gyms (currently used for additional housing, meaningful exercise or education of any kind, let alone "free" education. Prison is not a deterrence; for the overwhelming majority, it robs the individual of the chance to live as anything but a criminal. It will turn a mere social misfit (drug user, for instance) into a criminal, and being stuck there guarantees that the prisoner will lose his home, job (if he or she has one) and almost all possessions. It also guarantees despair, depression and the losses of both hope and humanity. Next time, do your homework before sticking your foot in your mouth.

    2. Anon 22:43;
      you are projecting your feelings onto the inmates. Some of them certainly share your horror, but many simply do not. Despair is certainly not guaranteed, as humans are adaptable, and many feel quite at home behind bars. I speak here from much first-hand observation, not ideology, but if you don't credit me, you can watch many "behind the walls" shows on cable TV and see for yourself.

    3. Every inmate I have ever talked to about this describes the prison experience as horrific. I am told it is full of rape and violence... I have a difficult time imagining any prisoners who would be content with that lifestyle. And certainly no one who would choose it over freedom. Perhaps you could elaborate to aid my understanding of your perspective?

      As for televised programs, I'm pretty sure they can be thrown out as they cannot accurately portray the prison lifestyle, yes? No more than another reality tv show does. Unless you were referring to a documentary or exposse?

  4. Criminals can be rehabilitated but not by the current psych based ideology.

    Second Chance Program [Criminal Rehabilitation]
    Rehabilitating 800 inmates at a time in one program. 99% on drugs. Recidivism rate is 10%. [see video]

  5. The notion that death isn't the worst thing and long prison sentences are in fact worse is a good argument against the death penalty. Indeed, when we add the fact that the inevitable errors of justice are undoable when the death sentence is applied, and the fact that in practice death sentences are more expensive to litigate and apply than long prison sentences, that ought to be decisive. It is only the misunderstanding of this by the populace, and their desire for retributive justice, that enables the death sentence to persist in the weirdly warped USA when the civilised world has now almost entirely eschewed it. Flogging is going to kill, or permanently damage, a few people by mistake, so we'd better eschew that too.

    A more interesting question is whether people with long prison sentences should be permitted to ask for death instead.

    You don't mention community punishments. I don't know why. They are widely used, even in the weirdly warped USA. Many people say they are rather effective.

    1. I don't really know much about community punishments, but simply from the name I infer it involves punishing many for the actions of the few? Simply because it lowers crime rates does not mean that it is ok. To take rights from law abiding citizens because they live in the midst of criminals is hardly moral.Let alone legal.

    2. A community punishment is being made to do unpaid labour for the benefit of the community, such as cleaning graffiti or street sweeping. It isn't punishing the community. Maybe you have a different name for it in the USA.

  6. Does "everyone" *really* "deserve a second chance"? Do psychos like James Whatshisname in Aurora? These are mad dogs and should be shot down like such.

    On the other hand, I would definitely support:
    (1) More restitution-based punishment. That is, if you steal or damage someone's property, you pay for it.
    (2) No prison at all for non-violent crimes. This includes all consensual vice.

  7. Interesting ideas about punishment, as it might serve to "satisfy moral outrage". We could follow this track I am sure and apply our imaginations to create all manner of punishments both psychological and physical, public and private. But why?
    I am not convinced punishment has been shown to lower criminal acts, its efficacy is uncertain at best.
    Which leaves us punishing to satisfy our "moral outrage".
    Does that really work , does it satisfy, really?
    We hit back at those who offend us , can we even call that a moral act ?
    Who is to say that some "offenders" are not just hitting back at a world that deeply offends their souls, consciously or not.

    I have felt more "satisfaction" when I have been able to tell the offender what I thought of their acts, how it impacted on me, how I felt and to have them apologize or at least break down in tears.

    Our trials and justice system are so rational, clinical and well ordered no-one has the chance to simply rage at the offender. No we make rational decisions to lock them up well away from the rest of us who are left seething with unexpressed rage.

    1. Yes, the all too human instinct for retributive punishment certainly has barbarous aspects. But that is in itself a strong argument for using a bureaucratic judicial process to administer punishment, since without such a legitimate monopoly by the state on truth determining and proportionality in punishment that primitive urge for retribution can easily get out of control (i.e. social contract theory 101).

      I agree that restorative justice, which I think you are alluding to, should also be considered.

  8. It's too bad we don't have Australia anymore. That's the best solution, send out of society and let them fend on their own.

    1. ... and end up creating one of the most civilised and prosperous societies in the world. Funny ol' outcome that...

  9. Much of society treat their pets better than we do prisoners. We think of someone who cages their animal for hours and only minimally feeds or exercises them as cruel and heartless. Our dogs may do their job on the carpet and we scold them,but then try to teach them another way. It may take several times before their behavior is corrected,but with love and attention most do learn.
    Punishment can be dealt with in so many other ways than longer prison sentences, but it is easier to say " Take them away,lock them up and keep them away from me."
    Prisoners committed to years away from family are not the only ones punished. The mothers, fathers, wives, children and others suffer this torture also. What have we done?
    Many crimes in our world today stem from drugs,alcohol and
    child abuse. Until we find a way to eliminate these or rehabilitate those who suffer from them we will never be free from crime. It will only increase.
    Longer sentences mean we will need more prisons and there will be less deterrence.

  10. Will Thomas Rodham be responding to any of the points raised by commenters?

    1. Normally I do. But the comments on this post so far generally seem more about expressing opinions about the topic than directly engaging with the argument I presented.

    2. Very well...

      Thomas Rodham said: "Execution seems to me an appropriate punishment for very severe crimes, such as certain kinds of sadistic murder (for instance, Anders Breivik)."

      There are two main problems with the idea of execution.

      Firstly, there is no compensation for innocent people who have been wrongly executed.

      Secondly, where and how do we determine which crimes are worthy of execution? The heinousness of crimes vary infinitely, yet somewhere on that line we are supposed to mark a point and say, "Crimes this heinous and worse warrant the death penalty."

      Also consider that the heinousness of a crime is partly dependent on what's going on in the minds of the victim and the perpetrator. We can't know what the victim was thinking as they died, and we're unlikely to be able to get an honest answer from the perpetrator.

      "...Furthermore, in such cases, society has a legitimate fear of the perpetrators ever being allowed to operate freely amongst them, and a legitimate distrust of claims about successful rehabilitation."

      Both of which can be met by imprisonment; which, incidentally has the happy benefit of allowing an innocent person to be released.

    3. I'm not so sure that your points really engage with and challenge my argument, but here's an explicit response.

      1. Innocent people get sent to prison for life too. Their suffering is also irreversible and wrong. Miscarriages of justice are tremendous wrongs but they are not specific to death penalty cases. It is unacceptable to sentence people to prison now, and get around to figuring out whether they are really guilty later. Experience has shown that the post-trial justice review processes are ad hoc and unreliable. The emphasis has to be on getting the initial trial right, but this is true whatever forms of punishment are used.

      2. The usual way a democracy makes decisions about justice. Public debate and legislative process.

      3. The awfulness of a crime and the motivations of the perpetrator are exactly what courts of law try to determine. Your argument here is again not specific to death penalty cases but would apply generally against the juridical process. (You also seem to contradict yourself, since your next point is that such sadistic murderers can be identified as an enduring threat and imprisoned for life.)

      4. I argued that life prison terms impose greater suffering than death. Thus, while it is true that putting dangerous people in prison for life will ensure the safety of civilians (if not necessarily the safety of other prison inmates), my argument is that prison is not the most humane way of achieving that result.

  11. I served 6 months in a county jail and I didn't feel rehabilitated, in fact I felt like I had to be rehabilitated from being in jail when I got out. You would be surprised at how many people learn to lie, cheat and steal to get ahead and make up for the time jail took from them.... the "system" doesn't work at all. Jail is nothing more than a revolving door.

  12. I believe that the system should be changed to more severe punishments. If someone takes a persons life and they are guilty the penalty should be death. an eye for an eye should be used in most cases.

    1. How ghastly.

      Is there any account of justice behind this other than some sense of symmetry? How would you work out what symmetry requires? e.g. What happens to people who have killed more than one person? Or to people who cheat on their tax return?

  13. Do you have official credentials, or are you just a self proclaimed philosopher?

    1. Yes. Though not on anything related to this subject. However, since this is not a technical piece, I believe that my arguments here can stand on their own merits.

    2. You give no empirical evidence for your argument, you have made a string of blithe assumptions:

      "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."

      Where is the empirical evidence that flogging has advantages that measure up well to prison over time? This is just pure conjecture. Read discipline and punishment by Foucault and you will see that these arguments have been fully explored before. In fact (as his argument goes) it was a combination of massive public sentiment and bureaucratic movements that started to see the phasing out of such barbaric torture.

      If you had done some research you would see that the literature shows that capital and corporeal punishment have no deterrent effects. What's more it is so often the poor who don't have the capital who face the punishment.

      The quotation I selected from your article is full of words like it 'seems' and generic hedging. It's a shame you rightly condemn the prison and then wrongly pronounce your own twisted brand of retribution. The state can not claim that torture and death is abhorrent in one breath, and then execute and terminate life in the next.

      Finally, to paraphrase Nietzsche, do not trust anyone who in the impulse to punish is strong. Remember, punishment is not metaphysics, it is real, we can see and discern its results and effects - it would be foolish not to build our arguments on the existing penal literature. Even if you want to break away from it, you first need to understand what you are trying to break away from, what others have said. In that way you can make a meaningful addition to the discourse, and not a pseudo-intellectual, middle-class whim of an argument.

    3. I would treat this comment more respectfully if you had taken the trouble to read my argument more carefully and express yourself more civilly. (Should people who believe Foucault was an empirical social scientist - and miss-spell the title of his book - really go around calling other people pseudo-intellectuals?)

      But anyway, I'm just a philosopher, not a proper social scientist. My argument is conjectural as you point out. It is open to empirical refutation on various points. In particular, while the social psychological mechanisms I identify seem plausible, how they work and interact with other social mechanisms in the real world - I.e. their real causal significance - is speculative. For example, would re-introducing the barbarism of corporal punishment into a modern civilized society reduce our excessive impulse to punish people (as I conjecture), or would we soon become inured to its horror as we became inured to the horror of incarceration in the first place.

      Unfortunately, you yourself don't provide such a refutation. Indeed, you yourself argue in the very casual empirical way that you condemn(except that you have the self-confidence not to hedge your assertions). You dislike the idea of corporal/capital punishment and so you say my argument for it is merely conjectural i.e. based on assumptions you don't share. But you approve of my argument against prison which is equally conjectural, because its conclusion fits your prejudices. I'm pretty sure that what counts as an 'informed' argument to you is one that confirms what you already believe.

    4. No, there is not any kind of 'confirmation bias' going on here with my argument, the empirical evidence supports the harmful and pernicious effects of the prison, which you so rightly denounced(see Liebling, 1992; Sykes' classic 'Society of Captives' 1958 for example). So, to spell this out, I support your conjectural denouncement of the prison because it matches up to the evidence. Whereas I question your leap of faith to corporal/capital punishments because it is not supported in the same way. So, you claiming that I just took what I wanted (i.e. what suited my tastes) from your argument is a little ill-informed and quite presumptuous.

      I apologize if my tone was aggressive in places, I got a bit of a 'higher-than-mighty' vibe from your article that I felt I was responding to, which immediately seemed a long way from any expertise in its topic. But I don't mean to be acerbic here. I feel your attention to my miss-spelling is a bit of a semantic diversion to my argument and is one reason why comments sections so easily degenerate.

      I enjoy conjectural pondering as much as anyone, but this drifts into territory where it seems blind and oblivious to someone who has spent a long-time exploring. But to reiterate my point, which I highlighted in the first message, when it comes to the prison let's be interesting and original and learn from what others have written before us. And lets refrain from placing one pernicious evil (prison) with another (cap/corp punishment). Less we reproduce and repeat the disasters of history (and modernity).

      I think, to quote Zizek, “Philosophy does not solve problems...The duty of philosophy is not to solve problems, but to redefine problems, to show how what we experience as a problem is a false problem." I think this is my problem with your writing. You are a self-proclaiming philosopher, but you're too quick to jump past the question, and on to solutions that I don't feel are very well thought out at and are fundamentally, thoroughly unconvincing. Again, to paraphrase Nietzsche, philosophy is about rumination.

      Now if you are honest, you might take something from what I have written? And in some ways it would make you a better writer, I'm convinced of that in fact! If not, please feel free to tell me I am wrong but don't be bitter and resentful. I would certainly be open to reading one of your (better) articles if you can send me a link? Maybe to something that you have published academically or self-published?

      I hope that you can at least ascend above picking apart spelling and semantics (especially given the miniscule nature of these comments boxes!) and see that you have some pertinent things to say, but like everyone, from some angles it has weaknesses. If you insist on the truths of this article, and trying to rebut each of my points in a numerical basis you will become the broken clock: for remember, even that is right twice a day.

  14. Hi, this is the first time I've come across this site but I have found the debate interesting.
    I have two groups of people that need addressing: the minor offender who lost a job/been denied a job subject to a criminal check and the people I know who've done time in prison for more serious things.
    I belong in the first group as I was in trouble for not paying a train fare coz I was stranded late at night and eventually the company took me to court and it counts as a conviction. I was offered a job with a housing group to clean the estate and was denied it once my CRB check came through. I explained it was a one-off and that I'd paid off the fine received a long time before but to no avail.
    Ive been unemployed since and applying for countless jobs debating whether to tell them on the application forms if they ask or keep quiet to not ruin my chance of work.
    The 2nd group is those who I know personally who have longer criminal records and are deemed unfit for work.
    Some are addicts who steal shoplift and deal drugs to pay for their own habit and have cash left over and are on benefit for unfitness for work ie addiction. This second group have been let out of jail with nothing to go to. "The day you get out of prison is when the real sentence begins" as former fraudster doug hartman once said in his book.

    1. Cheers!

      The criminalisation of people (rather than merely certain acts) is another excessive, and often ridiculous, aspect of contemporary punishment. It is a 'humane' version of being branded, but has even less justification than that practise did.

      With regard to your second group of frequent offenders, I think that the rest of us do have the right to be protected from them. But that doesn't mean that punishment (of any kind) would be deserved or effective. Especially for those stealing to pay for an addiction, treating it as a public health problem and helping them manage their addiction (even giving them the drugs they want) seems most sensible.

  15. People have a crazy urge to find the "one true answer" and defend it against all comers. The philosophy of prisons has been a particularly glaring example of this. Branches of thought on this topic seem to center on the the thinkers choice of one of the three purposes of prison (separation, punishment and rehabilitation) to the exclusion of the others.

    It seems that all three are to be considered in any sentencing, and that in most cases the best mix of them could be achieved without prison.

    As usual, it's a case where the existence of ideology is more damaging than the choice of ideology. As long as people tie their identity to ideas, were stuck with this kind of thing.

  16. The public demands vengeance, prison, murder, etc. There is no reason to take the public's demands into consideration when forming your own philosophy. My own philosophy is that anything past the point of deflecting attack is wrong. Punishment is wrong. You are allowed to invalidate the wishes of the masses.

    1. Moral theory trumps politics, eh?

      I have some sympathy with that approach - it is after all a strong tradition in political philosophy since Plato. Yet I think it has at least two problems.

      1. It assumes that one can apply ideal principles of justice directly to the real world. I'm not sure that's realistic. For example, punishment may always be necessary as a disciplinary resource for maintaining any regime of law, order and stability. (Even Rawls thought criminals in his realistic utopia deserved punishment.)

      2. This kind of purely intellectual approach assumes that practical legitimacy follows from the truth of one's theory rather than from political success. It is the perspective of the philosopher king, rather than the philosopher citizen. If you are not a philosopher king, then, if you want people to live by your moral theory, you have to try to persuade them rather than command them. That requires taking their views into consideration.

  17. I am still struggling to get work and have not bothered with putting my convictions on job application forms but to no avail, there's so many applying for the same jobs these days no matter how poorly paid they are.
    I see some of my old friends from time to time and one of them has recently been sent back to jail for breach of his licence conditions. Whilst I doubt he would say prison was great, i'm sure he finds it no bother to cope with and has none fo the stresses of the outside to deal with such as money for bills, paying rent etc, he was living at his mums and had no gf or children so thats not a concern.
    If you're a young single man these days with no future, then why not be a criminal?

    1. You go beyond the scope of my original article. If it is really the case that some people find society's punishments more attractive than its opportunities, then that is a much greater indictment of that society than anything I have to say about prison.

    2. I have found a bit of part-time and casual labouring and factory work recently but not sure this will last long as its through employment agencies who are notoriously unreliable where I live.
      I feel no better off financially than unemployment and these friends Ive previously mentionbed can make almost a weeks salary to me in a few hours of activity and do it daily so there's no disincentive for them to commit crimes as they've no chance of a job anyway. I do get on well with them but I sometimes feel that they're having things better than me and don't have all the responsibilites that I have.

  18. Prison work costs companies a fraction of what minimum wage workers cost. Even running the prison is a very profitable business. As long as there is money to be made on lots of loaded prisons, we will see a lot of people being sent to them.

  19. I appreciate the insights, but am concerned about the lack of consideration given to the false convictions and imprisonment so clearly illustrated by DNA exonerations in recent years. The circumstance of the innocent that are inevitably trapped within the penal system must also be discussed.

    1. See my earlier comment. I don't see the relevance of standards of proof. Prison is a dreadful punishment in itself, and we shouldn't inflict it on anyone unless we are very sure of their guilt. We shouldn't treat it like a warehouse, where we leave people to rot waiting for us to get around to figuring out whether they are really guilty or not.