In my last post, I stumbled upon a notion that USA’s approach to crime is to treat it like political dissent. The post made two points about the confusion of crime and politics. One concerned our disapproval of foreign governments for punishing political dissent with imprisonment. The other concerned our preference for imprisonment for punishing crimes, and our forbidding of other forms of punishment. I wonder if it is not ourselves who are confused.
My argument in my last post concerned recent years when USA has had a huge influence on the world. A good part of that influence concerns the exporting of USA’s governing ideals to other countries. One of those ideals was our bill of rights and one of those rights was the right to not endure cruel and unusual punishments. The eighth amendment forbid most other forms of punishment leaving imprisonment and fines as the only options.
This was not our innovation. This was a widespread reaction against the excesses of the earlier ages. The excessive punishments involved dismemberment, disfigurement, and other injuries resulting in a lifetime of pain and disability, if not death. By the time of the our constitution, most of these punishments had already been forbidden but this amendment made sure they would never come back.
There were less barbaric forms of punishment involving temporary pain or embarrassment that had little or no long term debilitating effects. These included punishments such as public shaming by being placed in stocks, or public caning or whipping that would result in painful injuries that eventually would heal. These punishment that inflicted only temporary physical or psychological pain also became forbidden as cruel or unusual.
The result is that we are left with only the two options of imprisonment and fines as forms of punishment for a conviction of a crime.
Imprisonment as a punishment for a crime is a relatively recent innovation (or at least in terms of popularity). In older ages, authorities used imprisonment primarily as a way to isolate political dissidents from society. Imprisonment was a political remedy, not a criminal remedy. In criminal cases, authorities used imprisonment only to keep an accused captive while waiting for a trial and even then there needed to be a risk the accused would flee. The time a criminal would spend in jail would be limited to the period to reach a trial date. The punishment for a crime would have been some infliction of psychological or physical pain that matched the crime.
Today, we declare as torture virtually all types of government-sanctioned infliction of psychological or physical pain. Some forms of ancient torture were horrendous. These include the atrocities of dismemberment, slow death by suffocation or exposure, branding, or other injuries resulting in permanent disfigurement and disabilities.
However, many treatments we consider to be tortures do not result in permanent injuries or death. In recent years, we have argued about the practice of water-boarding that provokes the body’s drowning response with caution to prevent actual drowning. This is a temporary torture that does not have lasting injury to the body or mind, except for the memory of the dreadfulness of the experience. The debate of this practice was largely on whether this is an acceptable form of interrogation for someone who has not been convicted of a crime. Absent a conviction of a crime, a person should not be subjected to this kind of punishment. We disapprove of the use of torture to extract information in an interrogation situation.
For the sake of this argument, I assume water-boarding is torture in the context of interrogation. For this post, I am wondering about whether this form of punishment could be acceptable punishment for a conviction of committing a crime. I am not sure what crime would fit this particular form of punishment, but I assume there may be one. Water-boarding may be an alternative to imprisonment as form of punishment following a conviction.
There are many other types of punishments that inflict temporary pains that people would generally want to avoid. The pains are temporary in the sense that the person recovers in a reasonably short period of time. Even if the wounds would take a few weeks to heal, the person could re-enter society in some productive capacity in a very short time. Water-boarding is an example that appears to offer a very short recovery without any need for physical healing.
When inflicted after a conviction, cruel or tortuous procedures may be options for punishment. These punishments do not result in permanent damage. Yet, we forbid their practice as being cruel and unusual.
Because we can not use these forms of punishment, we are left with no other option than fines and imprisonment. I am directing my thinking on imprisonment. I am questioning whether imprisonment is a valid form of punishment for crime.
Arguments about the validity of punishment usually consider whether the punishment deters crime or whether it prevents recidivism. For this post, I am considering a different question of appropriateness. Even if imprisonment does deter crime and convinces the convict to not return to criminal behavior, it may not be an appropriate form of punishment for a crime.
My objection concerns the distinction of crime and politics. Imprisonment isolates the individual from society, often for very long periods of time. This isolation necessarily severs the ties between the imprisoned and the greater society. At the end of long prison terms, the freed prisoner is an alien to the society he is reintroduced into. This process seems more appropriate for political purposes of maintaining order in society by separating dissenting or rebellious voices from society.
Our culture condemns the imprisonment for political purposes. We value free speech, and in particular the freedom of political speech even if that may later lead to instability. The free speech rights embodied in the first amendment of the US constitution ought to condemn imprisonment. Imprisonment is the tool that regulates, restrains, and often prevents free speech. Imprisonment isolates the individual from society. The imprisoned individual can not participate in society.
My impression is that the core principle underlying the concept of free speech is the freedom of individuals to participate in society. Speech includes much more than political speech. We participate in society by communicating, often very mundane messages involved in daily commerce or very personal messages to build relationships. Imprisonment prevents all interaction with free society. Imprisonment is a political punishment. Even if imprisonment has some criminal benefits of deterrence and prevention of recidivism, it may not be an appropriate punishment for crime because it violates the principles for free speech and association with others.
An appropriate punishment for crime is one that does not impact a person’s right to participate in society. We need to balance the need to punish for a crime with the need to return the punished back into society as soon as possible. Imprisonment specifically prevents the prompt return to society. In recent decades, many punishments involve extraordinarily long sentences of multiple decades for relatively minor transgressions such as drug possession or some financial fraud (white collar crime). These crimes do require a punishment, but transforming criminals into political prisoners is the wrong way to impose a punishment.
Criminal punishments should be brief in time so the person can return to society and continue his life within his social community. In this sense, I think the medieval approaches to criminal punishments had some merit. The punishments were quick with the intention of a quick return to society. In the linked article, the tithing system meant that the accusers were well-known to the accused and together they formed a community. A quick punishment can facilitate an immediate resumption participate in society although perhaps initially in some limited capacity as his wounds heal. The criminal punishment never had have a political motivation.
Medieval practices for prompt punishments sought ways to inflict the most pain or discomfort with as little time and effort as possible. Many of their forms of punishment are rightfully condemned as unacceptably brutal, but even these have some justification as the quickest way to inflict severe punishment in a short period of time. Their more primitive technology was limited to options that frequently resulted in permanent disfigurement or disability. However, many frequently administered punishments probably were more mild in having only temporary pains that healed quickly. A few lashings may leave severe scars with pains that last for many weeks, but those will eventually heal. The public shaming exemplified by stocks or pillory posts may involve some insults with lasting shame. After the punishment, the person can return to society reasonably unscathed.
The medieval punishments were primitive and that primitive nature exaggerated the consequences we find unacceptable. However, there is merit to the notion of a quick punishment involving a brief period of shame and pain. Today’s technologies allow us better options for such punishments. Our better understanding of medicine and physiology can be more precise about applying punishments with minimal risk of long term damage. We can monitor the body to be sure that we are not exceeding thresholds that could cause lasting injuries.
Such punishments involve one person inflicting painful treatments on another person. This is a definition of cruelty. Our forbidding of cruel punishments eliminates our options for inflicting quick punishments. We instead have to rely on long term imprisonment for punishment. Long term imprisonment has the same affect as when it is used on political dissidents: it isolates the person from the public. While imprisonment serves the explicit purpose (good or bad) of isolating political dissidents, this isolation is a side-effect of its use for criminal punishment. We use the restraining environment of prisons to impose a punishment and this coincidentally removes the person from society. Because there is little if any difference between intentions, imprisonment of criminals is indistinguishable from imprisonment of political dissidents. Imprisonment equates crimes with political opposition.
The medieval experience offers an alternative of treating the two populations different. Political opposition is assigned to prisons while criminals are assigned short but intense penalties. Although there were extreme abuses in medieval practices, the basic concepts can be relatively benign. Imprisonment for political purposes need not be any less comfortable than our prisons for convicted criminals. Intense punishments need not inflict lasting injuries, disfigurement, or disability. These were not always severe in medieval times even.
I want to make a point about violence. A short intense punishment involves some application of violence that we associate with cruelty. It seems to me that sometimes we treat violence (cruelty) and non-violence as distinct concepts. An analogy would be the difference between the 4 elements in ancient thinking. Violence and non-violence are as distinct as fire and water. Instead, I see it as a continuum of increasing violence at one end and decreasing violence at the other.
I see violence as a measure of time duration. Something that happens slowly is non-violent. A prison term of 30 years, for example, is a very slow punishment that can occur with relative comfort throughout the period. To achieve the same level of punishment in a shorter time, we will need to increase the discomfort (be more violent). For example, at one time we had prison terms that included a requirement for hard labor. The hard labor was more intense punishment so that more punishment was achieved in a period of time than what would be possible if no labor were required. We can continue to scale up the violence to obtain punishments in shorter periods of time.
There are options to obtain a punishment in a short period (say one day) that would be comparable to the punishment of 30 years in non-abusive imprisonment. To accomplish this result in such a short period of time, the punishment must be more violent, abusive, or cruel. The cruelty is a direct consequence of completing the punishment in a shorter time frame.
In my mind, a 30 year sentence in a comfortable prison is very cruel. 20 year old convict may live in a non-abusive environment but finally be released when he is 50. At that point, he has no career, not relationships (other than what he managed to maintain during prison), and no real connection to society. He certainly has no deep network of relationships that normally would occur if he had lived in society for those years. This is cruel even though he experienced no history of physical abuse.
Imprisonment of political dissenters has the explicit goal of imposing exactly this kind of cruelty: such punishment is successful on political terms when that person has no connection with society when he is released.
Back to my point about speed of accomplish some goal. The faster we want to achieve some goal, the more violence is required. I think about fire. The same amount of energy may be burned off slowly in a gentle fire may be the same energy released all at once in an explosion. The explosion is more violent but it is also completed very quickly. In contrast, a gentle flame for illumination may require years to release the same amount of energy.
In many areas of modern life, we accept more powerful tools as a way to save us time. We use power saws because they cut material faster than manual saws. The power saws are more violent, requiring more protection, and will often result in more waste (due to wider cuts), but we benefit from getting the job done faster, giving us more time to do other tasks or to get more cutting done in a period of time. Operating power equipment may be more dangerous. On occasion that danger may result in injury. But we still accept this danger for the benefit of faster progress.
Another analogy is our acceptance of automobiles over manual transportation (such as using pedal bicycles). The cars transport us further and faster. But this speed comes with the risk of accidents that can cause property damage and human (or animal) injury or death. Over time, we have become better in our design of cars and roads to minimize this risk, but even as we recognize there remain areas to improve safety, we still prefer to use motor vehicles for transport.
We welcome a speedy solution to just about any problem we face in modern life even when the speed comes at some risk of waste or injury. We minimize the risk with appropriate precautions, but the threat of this risk does not stop us from using the faster approach.
When it comes to criminal punishment, though, we dismiss the speedy solutions of short intense punishments because we classify these punishments as cruel. We instead limit ourselves to imprisonment that always provides a humane level of comfort for the imprisoned. This is very expensive because we need to build and maintain prison, and staff them with guards and other staff to provide food and other services.
To scale the punishment to fit the crime, our only option is to lengthen the prison term. This goal of making longer sentences for crimes that seem worse than others is what causes us to give out multiple-decade or even multiple century sentences. A robbery must have a longer prison term than an assault, and an armed robber must be punished with a longer term than a simple robbery. Eventually we end up with prison terms of many decades for a single criminal action.
Perhaps a robbery is sufficiently punished with a 5 year sentence, a similar punishment may also be obtained with a punishment of 20 lashes in one afternoon instead of any time in prison. Those lashes will be painful and may take time to heal. The healing may result in permanent scars. But in a few weeks or a couple months, the wounds would be healed. The punished can return to society (though nursing his wounds) the very next day. I imagine the prison scenario with a visit to the prison with 6 months left to his term. The crime that took just a few moments occurred 4.5 years. It is possible that the robbery victim has forgotten about it, or at least has moved on in life. Even the prisoner continues to serve time for an event that is remote. I then imagine the same criminal living freely for 4.5 years after receiving the 20 lashes. He has had the opportunity to resume his life and accumulate new experiences that make the punishment a distant memory.
Assuming that both punishments have the same outcome of a reformed criminal who will not commit a future crime, the prisoner who is suffering more after 4.5 years is the one still in prison. In fact, he will continue to suffer for years after his release as he struggles to reconnect with society, find employment, build a network of friends, etc. The alternative of the quick punishment did not have his life interrupted except for the temporary period degraded quality of life while recovering from the lashes.
Lashes are a medieval punishment. Modern technology offers similarly painful and immediate punishments that could have equally equivalent recovery methods. For example, the policing weapon of a taser inflicts a very quick and debilitating shock that is recovered quickly. Instead of 20 lashes, we could sentence someone to 10 tasing, one every hour over a work day. When the punishment is over, the person very likely can return to work the next day.
Alternatively, we can administer painful drugs that wear off in a few hours, or we use technologies to monitor the body to be sure we don’t cause permanent or lasting injury when we apply some other kind of intense punishment. These punishments are not pleasant and they seem cruel to our modern sensibilities. But they have the advantage of getting the punishment process completed as quickly as possible and returning the convict back into society with little loss due to absence.
We also have options that may take longer and thus involve less cruelty while still avoiding the prison sentence. In recent times, we have used GPS-monitored ankle bracelets to limit a person’s movement. I can imagine other devices such as collars or braces that would be publicly visible signs of being punished and may restrict movement but in a way that causes inconvenience instead of pain. These punishments will involve public shaming both from the visible sign of the punishment, and from the imposed limitations from doing what one normally would be able to do.
We can be creative with our punishments to find punishments that are comparable to the prison terms they replace. We need to allow ourselves the opportunity to consider these options in order to avoid the political result of separating the person from society.
My impression is that a punishment that is quick to administer and completes soon after the crime occurs will have a stronger effect as a deterrent and a stronger impact to discourage resuming criminal activity. I do not see much benefit from serving time many years or decades removed from the crime.
There is another benefit for a quick punishment followed by a quick recovery. Any judicial procedure is at risk for punishing the innocent. In recent times, I have read many stories of innocent people released from prison terms, sometimes after decades of incarceration. In these stories, we hear of attempt to apologize but there is nothing we can do to allow the older person to get back the lost opportunity of his younger years. We hear of attempts to compensate with some approximation of back-pay but that can not predict what kind of success he might have enjoyed if he never had been imprisoned in the first place.
If these same innocent people had undergone a faster but more intense punishment, a discovery 20 years later of his innocence would have less impact on his life. It would be easier to present a meaningful apology and compensation because this person has long since moved on with his life putting that brief punishment in distant memory much like another person moves on after recovering from an accidental injury.
Returning to my initial point, I feel that our criminal punishments are misguided because we end up treating criminals as political prisoners. We should reserve prisons for political isolation purposes only. Our own country does not permit imprisonment for political purposes, so we shouldn’t have prisons at all.
Our objections to foreign practices are misguided because they have justification for distinguishing crimes from political dissent. If we adopt criminal punishments that do not involve prisons, then we will have more in common with many of the countries we currently complain of violating human rights. Our understanding of human rights would be closer to theirs. Short intense punishments when done in a way that causes no lasting injury can be humane answers for acts of crimes.
Prisons are not appropriate for criminal punishments. Criminal punishments should involve some form of quickly administered humane-cruelty where any injuries heal quickly and the person has little absence from society. Forced and lengthy absence from society is a political punishment, not a criminal one.
USA can learn human rights from other countries, even if these lessons are rooted in more ancient history than the modern practice of imprisonment for criminal justice.