On the Subject of Punishment

I was watching One Life to Live a few days ago. I thought that my neighborhood was rough! These people are absolutely amazing! First of all, I think that Llanview has the lowest per capita rate of obesity. I think this is due, in part to the fact that that town must have the highest murder rate in the nation. I think that people don’t eat alot because it’s difficult to run from a building that is about to blow up on a full stomach. The last time I watched, which was well over a year ago, I think that Tod was in jail. When I watched againa few days ago, he was in the poke again. I don’t think he’d always been there. I think that maybe they released him and he tried to kill someone else this time. Either way, I was awe-struck by how often the people of this one town seem to commit crimes. I shouldn’t say crimes. People in this town don’t jaywalk, they commit murder. It must pay in that place to be a prison guard. Which got me thinking about the whole prison system here. I live in California. And, since our state is in the hole for more money than God can think of, the subject of prisons and whose going (or who gets released) comes up quite often. Recently, former Manson girl (I guess she’s a little old to call her a “girl”), Susan Atkins, requested compassionate release due to the fact that she is sufffering from terminal brain cancer. The idea is, is that given her condition, she’s no longer a threat to the people of the state of California. Needless to say, she was denied. At least I think she was. Anyway, the question is, though, is there a point when a person is no longer a threat? That, and the idea the a person has been punished enough, which is what some who argued for Atkins’ release suggested. I was listening to the DVD commentary for the movie Pink Flamingos, and John Waters was talking about the Manson gang, who had, in part, influenced his earlier work. He said that it had been many years since the members who committed the murders, and that some had managed to realize what they had done and (and I’m making some conjecture here) were capable of living among normal people again. Waters asked how long is long enough? That is, is there a point where a person has been punished enough for their crimes? I think that John Waters’ questionis a good one. But I’ll add this: Is there a point when punishment becomes counterproductive? Our idea of putting people in prison is fundamentally connected to the idea of justice. It is just not only that a person be punished for what they’ve done, but also that they realize themselves . the harm that their actions caused to others. Oops, We’ve already hit our first wall. Justice has some degree of subjectivity, especially when it comes to the degree of remorse on the part of the perpetrator. Well, assuming that we can somehow figure out someone’s motivation or thought processes, let’s continue to look at the matter. First things first: We might ask what’s the purpose for the law? What’s the nature of the crime? And what amount of punishment is proportional to the crime and what the law allows? Also, we need to consider the motivation of the agent, as motivation often detrmines the degree of punishment. Ok, we’ve got some preliminary questions to juggle around. But, we need to remind ourselves that the idea of justice isn’t just punishment (unless you’re a fan of Thrasymachus, then it’s perfectly fine), but to remedy injury and to make the victim and agent whole. It’s to set things right morally as well as placing the bad guy in a time out with bars. So, given that the aim isn’t to inflict harm on those who do harm, we realize that we cannot exclude others from the moral universe on the grounds that they hurt other people. We are still morally obligated to them, and we, even when we are punishing them, owe them equal moral consideration. So, what then is the right punishment? And, more importantly, when are we inflicting moral harm on those we punish? But first, a brief history lesson on punishment in California. During the 1960s, President Lyndon Johnson enacted his “Great Society”, which was meant to improve the lives of the underclasses of society. In addition to civil rights legislation, care was to be taken to see that the lives of America’s underpriviledged would not end up… well… lousy and poor and enevitably in prison. The focus of the criminal justice system was rehabilitation. But, by the early1970s, many Americans began to think that Johnson’s”Great Society” had failed to deliver on its promises. Crime rates rose and the people demanded that the government do something to stem the rising tide of crime. The 1970s began the reverse of the policies stressing rehabilitation in favor of tougher sentencing for criminals. The goal was to keep criminals away from the publc for as long as possible, so the public began to demand longer prison sentences for offenders. In 1977, CA passed the Determinate Sentence Law, which instituted mandatory sentencing and increased the state’s prison population. The demand for toughter sentencing came to a fever pitch in the 1990s as the public saw the state unable or unwilling to get tough on violent crime. The public saw the state’s prison system as a “revolving door” through which violent “career” criminals were simply passed through and released to commit more crimes. Examples of laws passed during the 1990’s include Proposition 184, the “3 strikes and you’re out” law, which passed with an overwhelming 72% of the vote, and Megan’s Law, which aimed to keep sexual predators away from children (by the way, in the wake of Prop 184 and Megan’s law, California’s crime rate dropped by 44%). That’s my poly sci degree right there! So the aim of incarceration is twofold: 1) the punishment of criminals 2) protection of society Ok, but at what point can we say that those aims have been achieved? At what point does a punishment no longer fit the crime? At what point is punishment counterproductive? Under the rehabilitation model of punishment, the main objective of incarceration was that the prisoner learn 1) that their crime was “bad”, and 2) they should not only feel remorse, but learn from their crime(s). The prisoner is to be penitent for what he has done ( hence calling prisons “penitentiaries” or “reformatories”). The prisoner is releasable if he acknowledges his crime and shows (genuine) remorse for what he has done. He must be willing to change (reform) himself and lead a good, crime-free life as a moral, productive citizen. Nost of us would say that this is still a goal. We appreciate the fact when people own up to what they’ve done and acknowledge the harms that they have committed against their fellow citizens. The second aim of punishment, to protect the people from wrongdoers, especially those who are prone to recidivism, is important in that we cannot, even if a person says they are sorry for what they’ve done, continues to commit or shows a tendency to commit more crimes. But what about prisoners who are no longer a threat? What about a murderer who, because of an inoperable brain tumor, can no longer physically threaten (let alone carry out) a murder or other crimes? Is it fair to keep an elderly or infirm prisoner incarcerated even if we know that they are incapable of harming any other people? Perhaps it is not morally right for us to do so. Immanuel Kant, who is a fan of retributive justice including the death penalty, says that there is a poit when a punishment stops being fair (in proportion to the crime committed, of course). Punishment is to be just that. A punishment. If we say that we keep a prisoner behind bars because of some possible harm that he may do (or worse yet, we keep him past the point of being a danger to anyone), we have stopped punishing the criminal and slipped into a paternalistic view of the prisoner. In acting as a paernt, we are denying him his full ability to act as a free and rational (assuming that he is rational) moral agent. When we act paternalistically, we are denying the prisoner’s autonomy — his ability to act according to his own choices. He should be free to chose how he chooses to act, and deal with the consequences. If he is autonomous, he is free to exercise actions for which he is morally culpable. If we deny him of his autonomy, we use him as a mere means to our own ends, and deny him the opportunity to achieve his own ( this one isn’t that so far-fetched to many Californians, who often suspect that the reason why so many prisoners are denied their parole is to serve the ends of the prisons — which is a well-stocked prison is a great ws to generate a lot of $$$$). If we consider this from a more utilitarian view, we can easily see that the moral costs of keeping someone incarcerated beyond the point of usefulness is not only morally damaging, but psychologically harmful for the prisoner as well. Humans are social animals. In order for a human to properly function in society, he must have many and positive social contacts with other people. It doesn’t take a great deal of training to figure out that a prison isn’t the most psychologically enhancing environment for an individual to live. The longer a person spends in a psychologically damaging environment, the more psychologically damaged a person will be. If a person who spends too many years in prison is released, how well do you think that person will be psychologically? It seems that the less time that we can feasably sentence a person would be best. Second, it’s a fact that incarcerating people costs money. Prevention programs are often cheaper to manage and quite successful (that is, if they’re not suddenly underfunded due to budget cuts). Looking into alternative programs may be a good way to both save a buck and keep one less potentially damaged person from spending too much time in prison. Lastly, if we take a Rawlsian view of the matter, we can see where slipping behind Rawls’ “veil of ignorance” comes into play. Rawls says that, when we are thinking about what kind of system we should live under, we should forget what we know about ourselves. That is, we should forget our race, gender, economic status, etc. If we don’t know who we are, Rawls suggests, we are more likely to set up a social system (craeting a system that is just) that is beneficial to as many people as possible. Rawls says the aim is to extend as much freedom and opportunity to as many people as possible. According to this view, we should not want to keep prisoners incarcerated longer than is necessary on the grounds that we may, when the veil is lifted, be prisoners ourselves. Second, Rawls’ justice requires that we attempt to benefit the least among us. It’s difficult to argue that prisoners are not amoge the least among us. We should, instead of laying on the excessive punishments, extend the benefit of the doubt to the incarcerated, and give them many opportunities to gain a better footing in our society. Long, drawn-out, exesssive sentences are counter to a prisoner gaining any benefit in society. Maybe in Llanview, where jail cells do seem to be equipped with a revolving door, keeping Tod behind bars might be a good thing. But, I know that, if he’s not out by now, he’ll be out next week. Everyone will have forgotten that he’s a murder/rapist/all-around shady guy, and will welcome him back into the good graces of Llanview’s well-to-do. Maybe we should take a cue from the beautiful people, and give Susan a chance.

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