American Injustice: Part 8 of 10

Based on the book Unfair: The New Science of Criminal Injustice by Adam Benforado.
For more detailed information, read the book.

Punishment Alternatives

It was at Eastern State Penitentiary in Philadelphia, Pennsylvania, in 1929 that punishment of prisoners was revolutionized from brutal physical punishments designed to inflict cruel suffering to solitary confinement where a prisoner could reflect, feel remorse and penitence (hence, penitentiary) and be rehabilitated. It was considered an enlightened form of correction. We now know that solitary confinement longer than a few days is perhaps the most inhumane form of punishment because it causes severe mental and emotional damage.

Because we humans are social animals, absence of human contact produces profound physical and mental consequences, including depression, self mutilation, suicide, anxiety, cognitive impairment, agitation, paranoia, hallucinations, irrational anger, obsessive revengeful thoughts, and inability to interact socially. It also produces chronic headaches, trembling, sweaty palms, extreme dizziness, heart palpitations, pain, increased over sensitivity to stimuli, and difficulty with eating, digesting and sleeping. Prisoners who have experienced both solitary confinement and torture say solitary is worse. Solitary confinement is also more insidious than torture because the prisoner, the suffering and the damage are hidden and, thus, easier to ignore. We are the only Western country that still uses solitary confinement.

Whether we use historical punishments or “enlightened” punishments, Americans seem to be enamored with punishment. The United States today has more people behind bars and in “correctional supervision” than any other nation. We incarcerate approximately 700 persons for every one-hundred thousand population. We have more black males locked up than were enslaved in 1850. We incarcerate people for relatively minor offenses, such as drug possession and writing bad checks. We imprison 70 percent of those convicted of a crime compared to 10 percent in the Netherlands and Germany. We hand out much longer sentences than elsewhere in the world – three times longer than most countries. For example, shoplifting nine children’s video tapes has resulted in a sentence of fifty years to life because of three prior burglaries.

We began to reduce our prison population in 2009 by reducing mandatory minimum sentences, expanding opportunities for clemency, reducing severe penalties for minor, non-violent drug offenses, diverting more offenders to treatment programs, eliminating automatic triggers for parole violations, and reducing three-strikes rules for minor offenses. However, progress is still quite small. We still do not understand how ineffective our punishments are.

Far too many people believe the answer to crime is increased punishment, especially incarceration. They think prisons are humane, punishments are deserved and our justice system makes us safer. They are wrong.

Thinking that prisoners deserve whatever punishment they receive because they “chose” to commit a crime ignores the situational factors that lead to crime and the systemic flaws in our judicial system. We ignore the prevalence of crime in prison, including rape, although it has nothing to do with any crimes committed outside of prison. Prison rape victims are disproportionately nonviolent offenders, young, physically small, and mentally ill. Solitary confinement is administered for such minor “offenses” as showing up on a list of gang members, getting a prohibited tattoo, or throwing food or feces.

An increase in imprisonment has coincided with a significant decrease in crime over the last twenty years. However, that does not prove a cause and effect. Improved policing tactics and economic factors have played a large role in crime reduction. And recidivism has not decreased from about forty percent. Evidently incarceration has not rehabilitated most convicts. Many other countries have also seen a reduction in crime in spite of much less incarceration than the US.

In order for a stiff prison sentence to deter criminal activity, the criminal would have to make complex cost/benefit calculations, including the likelihood of being caught, the probability of being convicted, the penalty range for the crime, the severity of the judge assigned to the case, the conditions of the prison assigned, and how it would feel to be locked up, and then compare that with the imagined benefits of the crime. Research shows that people are very poor at estimating the severity of punishment. People rate a fine plus community service as a less severe penalty than a fine alone because they average the two penalties rather than think of them as additive. Because we adapt to almost any circumstance we experience, ten years in prison is not twice as unpleasant as five years or ten times as unpleasant as one year. Becoming institutionalized before being released greatly reduces any deterrent effect.

Punishment is an effective deterrent only when it is almost certain and almost immediate. That is not how our justice system works, Conviction rates for burglary in the US are only 69 percent. Trials can take many months to several years to complete. We need to stop working toward long sentences and work toward increasing police presence, probability of arrest and speedy trials.

The brutality of prisons does not keep us safe. We incarcerate more than 13 million people a year, and 95 percent of them will be released eventually. Prisons often teach criminals to be better criminals and more violent criminals with more criminal connections. Those who have been in solitary confinement are especially likely to be violent and to re-offend. When punishment is seen as unfair, the person has less respect for the law.

Incarceration is very expensive. US prisons cost us $60 billion a year. One year in a New Jersey prison costs more than a year at Princeton. Supermax prisons cost two to three times as much as other prisons to build and maintain. Education of our children is far less costly and far more effective.

There are alternatives. Norway, Germany and the Netherlands focus their prisons on rehabilitation and resocialization. Each prison cell has a flat-screen TV, shower, refrigerator, and desk. The prison has workshops, sport facilities, a library, chapel, and school. Inmates do communal cooking, wear their own clothes and lock their own cells when they are working or studying. Positive reinforcement is used far more often than harsh punishment. Solitary confinement is rare and short (hours to a few days). When released into the community, prisoners regain full citizen rights to vote and receive government benefits. Norway has a recidivism rate of only 20 percent after two years. Only one percent of German prisoners fail to report back to prison after being given a home leave.

We must completely revise our view of prisons and the role of punishment for correcting bad behavior. What we are doing is not effective. We must stop focusing on punishment for retribution and start focusing on reducing crime through offender rehabilitation and reintegration into society as safe, productive citizens.

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