Prison Reform

Ken’s post about crime provoked an interesting comment from Yehudit. Ken suggested, seriously, that prisoners all be kept in solitary confinement. Yehudit correctly noted that this would essentially make them all into mental cases, if they weren’t already. Instead, she pointed to a very interesting organization called the Human Kindness Foundation. I am re-posting this link because I hope more people will read it.

This organization’s site notes the atrocious conditions prevailing in our prisons:

Prisoners currently sleep on floors, in tents, in converted broom closets and gymnasiums, or in double or triple bunks in cells that were designed for one inmate. For the most part, prisons are barbaric, terrifying places … .

Approximately 240,000 brutal rapes occur in our prison system each year. Most of the victims are young, nonviolent male inmates, many of them teenaged first offenders. They are traumatized beyond imagination.

Contrary to political sloganeering, we are not soft on criminals. We are irresponsibly vicious.

They offer some practical proposals, most importantly, separating violent from nonviolent offenders. However, since most of these proposals are couched in terms of forgiveness and compassion, and restorative rather than retributive justice, they have zero political chance of widespread adoption. The mere fact that it is called “Human Kindness” would prevent most people from paying any attention to it.

To state it bluntly, to the typical suburban American, prison inmates are human garbage, period.

This has been my life-long observation. Since I have become a lawyer it has become even clearer, based in particular on (attempted) discussions about protecting the rights of the accused or similar legal pro bono work. If you want to bring genuine hatred to the eyes of otherwise mild-mannered ordinary American, let him or her know you have, as a lawyer, ever done anything to assist prisoners, or even to help people accused of crimes. To do so means you are helping “them”. Get a few beers in a guy, and tell him you got some wrongfully obtained evidence excluded in a criminal prosecution, and the accused was acquitted. He may not say much, but watch his eyes, watch his whole demeanor clench up.

My follow-up observation is that the typical suburban American will therefore not accept any program for prisons which is premised in any way on conferring any kindness or benefit on the prisoner. Our ordinary Joe or Jane sees prisons as places of punishment, and the more horrible they are, so long as the guards and other non-prisoners are safe, the better. The way the human garbage is to be treated is simple. It is to be warehoused somewhere out of sight and out of mind away from the typical suburban American and his family. This warehousing is to be done for the minimum possible dollar cost. The fact that nonviolent people are brutalized and destroyed for life in prisons is met with a shrug, or a “f*ck ’em”.

Proof of this is scarcely needed. The prison rape statistics have been well-known to the American public for as long as I can remember. This well-known and ongoing atrocity is treated as a joke. It is not that no one cares, it is that nothing is too harsh for criminals, so it is their problem and even accepted as part of the price of imprisonment.

This attitude is not going to change. It is deeply-rooted. Jacksonian Americans place little value on the lives of people who are not part of the folk community, and zero value on the lives of its enemies.

The absolute and even brutal distinction drawn between the members of the community and outsiders has had massive implications in American life. Throughout most of American history the Jacksonian community was one from which many Americans were automatically and absolutely excluded: Indians, Mexicans, Asians, African Americans, obvious sexual deviants and recent immigrants of non-Protestant heritage have all felt the sting.

While race and religion are not the barriers they once were to inclusion in the folk community, there is still a certain code of conduct which is demanded. “Those who violate or reject the code—criminals, irresponsible parents, drug addicts—have not benefited from the softening of the Jacksonian color line.” The effect of political correctness, which disapproves of such views, merely means they are not spoken aloud in places where they will be disapproved of. But such attitudes have not gone away. Prisoners are in the worst position, since by their actions and consequent status as prisoners they have voluntarily repudiated their membership in the folk community.

The only way that the typical suburban American voter will change his views is if his own safety and advantage is made the focus of any reform effort. He needs to be told the plain truth that his safety is diminished by our current practices. He needs to be told that his family is in greater danger if prisoners are not provided with some opportunity to get out of prison and function in society. He needs to be told that he is paying a lot of money for something that does not work. He needs to be told that none of this is about being soft on crime or making prison anything other than hard, harsh punishment.

The problem with would-be prison reformers is that they are typically motivated by compassion, and think that more than a tiny minority of other people will ever respond to an appeal couched in these terms. They are wasting their time appealing to the pity or kindness of the American voter. When it comes to convicts, there is not going to be any pity or kindness from a large majority.

Appeal to the American voter’s self-interest. Appeal to his safety and his family’s safety. Appeal to his wallet, to his practicality about what “works” and what does not.

Only a discussion on that basis will help us mitigate the hideous moral and practical mess we have created with our current prison system.

(Update: Jonathan reminds me of this article about successful prison reform in New York.)

25 thoughts on “Prison Reform”

  1. Excellent post. I agree that humanitarian prison reform is a political nonstarter for a large number of Americans.

    Bernard Kerik’s reforms in the NYC prison system, which are discussed in the City Journal article you cited in your comment, may represent the most politically viable route to real improvement.

  2. As one of your hard hearted suburbanites, let me say that, rightly or wrongly, I assume that anyone who ends up in prison, with one exception I will deal with later, did not do so as a result of their first encounter with the criminal justice system. They wil have been caught plenty of times before and have received whatever human kindness the criminal justice system provides in their previous encounters. Now they’ve entered the system one too many times and they are getting what they deserve for not cleaning up their act and playing by the rules.

    The one exception I would make is for victimless crimes. Drug use and distribution, gambling, and prostitution are not activities that should be cloging the criminal justice system with people whose lives have sunk so low that they engage in such behaviours. Too often the prosecution and persecution of people who engage in these behaviours leads them to then engage in serious criminal activities such as robbery, burglary and violent crimes. Leave them alone with their misery except for sufficient regulation to assure that their activities are conducted with some human decency.

  3. “they are getting what they deserve”

    “240,000 brutal rapes occur in our prison system each year”


    No. They are getting an anarchic, violent, dysfunctional environment which destroys the lives of the least dangerous and most vulnerable inmates.

    Conservatives and libertarians need to see the prison system as what it is — probably the most expensive, destructive, wasteful and counterproductive government agency we have. Prisons are factories which turn moderately dysfunctional people into violent, irreparable sociopaths.

    And you are paying for it out of your own pocket.

  4. Not only that, the perpetrators of all those assaults in prison aren’t getting what they deserve either.

    These are the people that terrorize and attack people for fun. We see them in schoolyards, we see them in prisons, and we see them in powerful positions in corrupt dictatorships, and the inescapable fact of the matter is that they enjoy the suffering of their victims and find their fear entertaining.

    Giving them what they want most in prison, a steady supply of captive, helpless victims to enjoy themselves with, is hardly a way to punish them for their misdeeds on the outside, or to deter their counterparts who have not yet brought themselves to the attention of the authorities.

    Now I think keeping them separated can work – give them regular human contact with the staff, not other prisoners, give them something worthwhile to read or study, and they’ll make out okay. They’ll get the sentence that they’re supposed to get, a stay that is unpleasant enough to be a deterrent and a punishment without actually being dangerous. Other methods, such as those linked to in the comments, might work better; I’m open to suggestions.

    But what we have now isn’t working at all, and decent citizens who can’t afford to move out of their crime-infested neighborhoods are paying the price most of all.

  5. The City Journal article shows a process that worked. One part of it was aggressive punishment of inmates who commit violent crimes in prison. They get a new sentence on top of the old one. It worked in New York, apparently.

  6. The part that bothers me is that those prison rapes will eventually be paid for in AIDS treatments, ramifying through the whole of society. And when you consider that a lot of the rapees are in for anti-puritanical crimes, and are receiving via the disease what amounts to a death sentence for possession of weed or crack, it just makes no sense. Even if you want punition in order to root out anyone anywhere having a good time, what is the point of dispersing infection and death back into the parent society?

  7. You forgot one motive of your average citizen. It isn’t sheer vindictiveness towards the “other”, it’s also fear and resentment. People who were adults during the Sixties and Seventies remember how progressives tried to de-criminalize crime. They remember how the crime rate skyrocketed, how grand-standing lawyers like William Kunstler argued that “society” was guilty, not the vicious killers he made his name with. Why would anyone want to go back to that?

  8. Thanks to all of you for the links – I think they help give us perspective. It does seem to me that one of the best arguments for capital punishment is as a weapon against the predator in jail.

    And we could all do well to remember that some of us were probably impulsive jerks at 18 and likely to be awfully close to the line a few times. When I was that age, middle class kids got counseling and lower class kids got sent to the reformatory.

    The prisoners I taught said you could always tell the guys that had been sent over from Huntsville – they spent the whole time looking behind their backs to see who had a shiv. It took them a while to calm down. (And one of my students disappeared, dropped from class, because he had engaged in a fight – he was sent to Huntsville. They kept the minimum security minimum security that way.)

    They couldn’t learn anything until they were looking in front of them and not behind. But then, they did learn and one thing was how to get along with one another (the seating was, by their choice, not by race or at least not completely so). It wasn’t idyllic but it was, as Lex observes, practical as well as humane. (High recidivism rates don’t help anyone.)

  9. “And we could all do well to remember that some of us were probably impulsive jerks at 18 and likely to be awfully close to the line a few times.”

    Don’t lump me or the vast majority of us in this category, its a cop out. I never contemplated committing violent crimes as a youth, never. Neither did any of my friends. The implication that “it could have happened to any of us” is nonsense. No small part of the reason for never wanting to do anything that would end in prison was the knowledge of what goes on there. This is a tremendous deterent for non-criminals to stay that way.

    I am perfectly willing to give second chances, especially for young non-violent offenders, and especially for people who did nothing other than possess or sell small amounts of illegal drugs. But what distinguishes criminals from those who made a “mistake of youth” is a state of mind and the company they keep. As long as criminals keep hanging out with criminals, they will continue to think and act like criminals. For all intents and purposes they will be “human garbage”, until they decide to stop predating their fellow man and using violence and theft as a means to support themselves and in many cases to entertain themselves. Reagrdless of the desperation of the situation they are in, these are still choices that are made through free will.

    I think the war on drugs is a huge part of this mess. It has clogged our prisons with non-violent offenders making it much more difficult to police the legitimate “human garbage” causing so many problems. The unfortunate reality of sending these non-violent offenders to jail is that it converts them into criminals 1) because once you have a prison record its (rightfully) difficult to get a job and become integrated into society and 2) it puts these people in an environment where they must make friends with other criminals for normal human comtact as well as protection from other predator inmates. If they aren’t criminals when they get to prison, they will be when they leave.

    I have little interest in making prisons more humane or comfortable. I AM in favor of only sending those that are already hardened, violent criminals there and leaving them there at least until they are old enough not to be violent any more, or until they rot. For these people, they can victimize each other all day long, I don’t really care.

    For the young, non-violent offenders we should 1) stop sending these people to prison for drug offenses or minor stuff like shop-lifting or check fraud, 2) If we do send them to prison, keep them away from the hardened criminals so they won’t become hardened criminals themselves.

    Martha Stewart didn’t go to real prison, I’m sure we can come up with a similar place for non-violent first offenders where we can actually reform them. Part of that program should include showing them exactly what awaits them in the real prison, if they choose to go there.

    Just to wrap this up, lets be clear about who we are talking about when we refer to violent, hardened criminals (human garbage). These are the very small percentage of the population who, regardless of how they got that way, spend their lives wreaking havok on their fellow man. Some of them enjoy the misery of others, some have so little control over their emotional urges that they can erupt into violence at any time, others have decided that violent theft is their best mode of making a living. Then there are those whose sexual urges drive them to commit un-speakable acts, on un-willing victims. My personal opinion is that none of these groups can be reformed, they are defects of a combination of nature and nurture and have no use to society, other than to destroy it.

    The job of the justice system is to permanently separate these people from society. But we should also keep those that are in danger of becoming members of this group from being exposed to them in prison.

  10. Not everyone in prison is guilty. DNA testing has revealed some wrongful murder and rape convictions. Doubless more are still undiscovered. How many wrongful convictions have there been for crimes that aren’t investigated so carefully, or for which badly represented innocent defendants were browbeaten into confessions? It’s probably a large number, given the size of the prison population. Whatever one thinks of violent criminals, the falsely convicted deserve more consideration than they get now. Nonviolent criminals, many of whom are guilty of behavior that IMO should not be illegal, also deserve better treatment.

    Indeed it isn’t clear to me why even violent criminals shouldn’t be treated more fairly. The current system in most places, in which the worst inmates effectively control the prisons, is a boon for the gangsters and psychopaths. Reforms like Kerik’s make treatment of inmates less arbitrary, punish victimizers and remove much of the payoff for violence. Prison remains an unpleasant place, but at least prisoners shouldn’t be punished for being weak or rewarded for being predatory.

  11. DS writes: “they can victimize each other all day long, I don’t really care.” “…permanently separate these people …”

    Except it is never permanent. With very few exceptions prison sentences come to an end some day. And then the prisoner walks out the front door of the prison into the free open world where you and your family live. And if that prisoner has been living in conditions of extreme brutality for years, he is unsuited to function there.

    Changing the way we do things now, from my perspecitve, is not about making prisons nice places to be. Prisons are and should be primarily places of punishment.

    The Sanity Inspector raises a good point. Anybody who wants to try to clean up this mess gets lumped in with the old “it’s society’s fault” crowd. I have no use for those people either. This shows that we need to get a new vocabluary and a new consensus to deal with this problem. The old views of the “reformers” were a failure, but letting the prisonw we are paying for be anarchic and bureaucratic at the same time means we are paying our hard-earned tax money to make our society more brutal and dangerous than it needs to be. Chuck Colson’s Prison Fellowshipis a good program, but it is a volunteer program. Such things should be encouraged. But, in the meantime, institutional changes like the ones Kerik instituted do not rely on good will, and citizens should demand them. Creative thinkers who have studied prisons, like John DiIulio have laid out suggested programs which could mitigate the downside without being “soft on criminals”.

    We need a conservative perspective on this which is hard-nosed and practical. Anything which smacks of conferring a benefit on the criminal would be a political loser. The focus has to be on reducing costs and improving safety for law-abiding people.

  12. A lawyer who helps to get evidence excluded that proves his clients guilt, resulting in a guilty criminal’s release back into society to perpetrate again, wishes to be looked upon by his fellow citizens, whom he or she has put in harms way by his or her actions, with anything other than contempt?

    I suppose we should congratulate the lawyer. We’re much too afraid of being his client’s next victim, however, to feel grateful.

  13. The state has to prove guilt, Craig. The state also has to comply with the Constitution in the investigation and prosecution of crimes, Craig.

    A defense lawyer is there to make the state prove its case with legally obtained evidence.

    If you ever get arrested, and prosecuted, you will get to enjoy being under a very heavy boot indeed. Don’t think it can’t happen. Cops and prosecutors are not always error free in their work, or free of vindictiveness, or the desire to close a file and lock up someone plausible-looking, or any other human failing.

    Freedom mean nothing if it does not have institutional reality. Constitutional rights which defend us from being arbitrarily locked up by the state have a way of disappearing if no one is there to make the state play by the rules.

    Have all the contempt you want.

    My contempt is directed to an attitude you display, which is to assume that a guy who is being prosecuted is guilty. I didn’t say it. You assumed it.

    Being arrested, being held in prison, being prosecuted only happens to “them”, is that it? Maybe not.

    If you are ever in handcuffs in Cook County, I have some lawyers names for you. It will probably be too late once you have been ingested by the system and are wearing the yellow jumpsuit, by then you are one more hog in the slaughterhouse. But the guys I know are good, and they will do what they can for ya.

  14. One thing I would add to this conversation is that the modern suburbanite also tends to go to church and that pathway to his heart should not be ignored. Here’s a thought experiment for you (wrote it in my own blog here) Imagine a Catholic religious order that, instead of vestments, fruitcakes, or inkjet cartridges, decided to bid on a prison contract. Since the Church has had outright armies (examples: knights Templar and Malta) in the past there’s obviously no theological difficulty.

    Let’s make the further assumption that they actually do it as right as they do hospitals and schools. What would that prison look like? What would recidivism rates be like? What would the rape rate be like? What would the escape rate be like? I suspect that the “screw-’em” and “hurt them harder” impulse would run smack into their Church wiring.

    Now let’s step back from the thought experiment and ask your average middle-class suburban Catholic what would be wrong in putting those kind of reforms in the current secular system? The obvious counter is to denigrate their own faith and say that preachers and priests have no business running a prison. But why is that? That’s as realistic as saying that they have no business running a bakery or a home for runaways where they lock the doors at night.

    The uncovered part of this article is that rehabilitation has been tried and discredited by way too many wooly headed thinkers who made the problem worse instead of better. Too many prisoners while away their time filing lawsuits to get more cable channels and those of us who don’t have cable TV because it costs too much resent paying for prison cable.

    Any new reform effort has to come from a sector of society that wasn’t discredited in the previous round of softening (and there have been several rounds of this back and forth in US history). Why not churches?

  15. Lex.
    I understand and agree with you: innocent people do end up in court and defense lawyers provide a valuable service, not only to their clients but to society as a whole. I did assume that you were referring to evidence that proved your client’s guilt. I erred. However, do you deny that, had that evidence proved your client’s guilt, you would have acted in the same way?

    Furthermore, I stated that we should both congragulate you and be grateful for your actions, even if they do set a guilty man free back into society. My only point is that asking for thanks from the society that such actions endanger, is asking too much.

    If I am ever in handcuffs, in Chicago or elsewhere, I shall endeavor to be innocent, by not having committed a crime, so that evidence proving my guilt, however procured by the State, will not show up in court.

  16. “…had that evidence proved your client’s guilt, you would have acted in the same way?” If it had been illegally obtained, and I could keep it out, I’d keep it out. If I’m defense counsel, I’m there to make them play by the rules, and it’s up to them to prove their case with evidence that is obtained legally. These are after Constitutional rights we are talkinga bout. The Founders placed these limits on the state for a reason.

    But I purposely left that open when I wrote the post.

    I hope you are never in handcuffs, and I’m sure there will be a big mistake going on if you ever are. But people end up in the iron clutch of the system for all kinds of reasons. Prosecutors with ambitions for higher office come to mind. Or just lipping off to a cop … .

    And, in any case, the system cannot be perfect and the optimum number of errors cannot be zero, and some people who don’t belong there will end up in prison even when the system is working well.

    Prisons should be hard, unpleasant places which are still safe and orderly. That is difficult to do but it is achievable. That way, even the few people who don’t belong there will at least not have their lives destroyed. And the ones who come out after serving their time will be better suited to restart their lives, hopefully in some more useful fashion.

  17. Well, DS, if you had no violence fantasies when you were in HS, you are much better human than i am…

    It seems to me that there is a problem with the notion of “victimless crime”. DS makes a really important point in categorizing “non-violent offenders” rather than trying to categorically state that some crimes are victimless. In Ken’s thread, Chris pointed out that many of the victimless crimes involve abbrogation of responsibility, and that children, other dependents, friends etc. are victimized. So the de-criminalization of selling small amounts of drugs is a non-starter for me. OK, alcohol abuse can lead to more violent behavior, and nicotine addiction is not illegal. But i don’t buy that all the negative effects of drug sales stem from their being illegal.

    But selling small amounts of substance is non-violent in the sense that DS was using the term. One of the best suggestions in the Human Kindness Foundation article linked by Yehudit was sequestering the violent inmates. Kerick also paid them special attention, with more searches and additions to their sentences.

    This notion seems really key to me. Have a non-violent section of prisons, and allow even initially violent criminals to escape to there if they control themselves. Because in many ways, that’s really what we want out of rehabilitation, isn’t it? That the violent learn that it is worth controlling their violence. The lesson could come from faith, from spirituality, from following the example of someone else’s kindness. But just this finding out that you can control yourself to avoid going to a worse place… in some cases, would it not be enough?

    Matya no Baka!

  18. One thing the author has right is the anger he refers to. The public sees a justice system that is badly disfunctional. Jury selection procedures seek the dumbest, most uninformed, the ones who should be seen as the least desirable jurors. The Miranda and exclusionary rules place unconstitutional, yes uncostitutional burdens on the prosecution. In order to convict, police and prosecutors have to compensate somehow, so you get “testilying”. All of this has been discussed in a fine book called Justice Overruled by Burton Katz.

    Yes, prisoners should be safe and secure in their persons from violence and abuse. When the system is reformed to be more functional, to convict the guilty, to remove them from society for a longer period of time, and to execute those who commit premeditated murder, or who abduct and forcibly rape women or children, then perhaps the rage the author notes will abate.

  19. I just looked into the Human Kindness Foundation and its Prison-Ashram Project. They mention changing policy with regard to drug offenses. They advocate decriminalization, not, they say, legalization.

    I’m not sure I understand the difference. How does decriminalization not equal legalization?

  20. Theodore Dalrymple’s essay AGAINST drug legalization should also be read, since these arguments should be engaged by the majority around here (including to some degree, myself) who favor ending the current legal regime regarding drugs. Dalrymple’s arguments suggest that at minimum, an incremental approach should be used.

  21. I recently served on a jury, and we convicted a young man of fleeing from a police officer and endangering other people in a high speed chase. But as I think about it–4 years seems a little steep, sentencing-wise. Just seems like things are out of whack with our system.

    Post-modern prison experiment:
    Indeed, the entire city of Fallujah will virtually become a 300,000-person open-air detention center. It will be accessible only through checkpoints and will be a guaranteed car bomb-free zone since the biometrically catalogued inhabitants will not be allowed to possess private vehicles.
    Politically, Fallujah II as a postmodern concentration camp can only become a public relations disaster for the United States. Militarily, the failure of Fallujah II is illustrated by the fact that after a month of fighting, the city is still a contested war zone – so dangerous that the citizens of Fallujah have not yet been allowed to return. Five weeks on, the military and political goals of Fallujah II have not been met.
    December 13, 2004 Plenty of Strategy, Just No Exit
    by Mark Rothschild

  22. they get what they did. if they broke the law, you what they all should be sentece without being feed, they are wasting are tax money, when it could have gone to our education.

  23. i don’t think prisons should be a punishment but a sort of redeeming rehabilitation to those who have commited serious crimes…i don’t think that the treatment prisoners get (no matter on which corner of the globe you are talking about…) is anywhere near humane and morally just…yes there are the falsely accused and the nonviolent offenders but more importantely you have truly mentally troubled people that need help and not MORE violence…prison violence is totally unacceptable whether prisoner to prisoner, or official to prisoner…for, to me violence just breeds more violence…i say we should introduce programs to help redeem these people…for instance they could contribute to society by creating art or pieces of writing if they seek education and degrees not achieved once in prison…those nonviolent offenders could go out and contribute with environmental projects and community service…it boosts our ailing earth as well as boosting their morals and esteems once they feel they have rediscovered the potentials of productivity…


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