Laws: punishment options matter

On this site, I have written a few posts on my thoughts about punishments for crimes.  In those posts, I expressed a skepticism about the current acceptance of imprisonment as the primary choice for punishment.   In particular, I am skeptical of long term imprisonment lasting more than several weeks.   While I have different complaints about this approach, I think I can summarize my objection as a needing more justification for removing an individual from participation in society.

To me it is unsatisfactory to exclude someone from participation in society because it denies the individual the ability to maintain relevance to society and denies society the benefits of his participation.  Among the benefits of continued participation is the ability to observe the natural healing processes of society.   I imagine a criminal justice system that reserves the sentencing of long term imprisonment or ruinous fines only for the purposes of protecting society or the offender from the high likelihood of future violent or destructive behaviors.   If there is some doubt that the convicted would commit new crimes, then imprisonment is not justified.   Even if imprisonment is justified on account to risk to public, the imprisonment should end as soon as that heightened risk abates even if it shorter in duration than what we currently impose as a punishment for the past crime.

I conjecture that there has been a consequence of replacing older options of public humiliation or corporal punishments with imprisonment.   While these older options involve some level of cruelty, they had a benefit of being brief.   The imposition of the punishment would be complete within a week, and often within a single day.   After that point, the person would return to society albeit with some short term degradation for healing.

Also, to the extent that punishment is a deterrent, that deterrent would be enhanced by the rapidity of the completion of the sentence.   To appreciate the impact of a long-term imprisonment we have to wait for that punishment to completed, and by that time most of us would have forgotten any details about the crime.

I am not convinced that long term imprisonment is less cruel than corporal punishments or public humiliation.  There is something inhumane about separating someone long-term from his community.  Such punishment denies that person the ability to maintain his social network for support, and it denies him the ability to grow and adapt to better contribute to his community.  When a long-sentenced person is release, he effectively faces a new punishment of adjusting to a society having the life-long disability of not being able to make up for the lost time in developing relationships or careers.   A more acute punishment is over quickly, allowing everyone to go on with their lives with very little disruption outside of the personal scars (physical or mental).

As I mentioned in earlier posts, the modern era provides us more sophisticated options for acute punishments.  We can medically supervise the punishments and provide post-punishment treatments to prevent permanent disability or disqualification from future activities.   As demonstrated in recent years with the Internet, we have new options for public humiliation, and we have the phenomena of instant background checking of anyone.   A mere record of a conviction may be sufficient punishment for many criminals.   Modern versions of acute punishments need not be barbaric.

There are several undesirable consequences of our exclusive reliance on imprisonment for punishing crimes.   We have an excessively large prison populations that are expensive to operate.   In addition the earlier mentioned denial of the individual inmate’s ability to maintain connection with his community, prisons force him into an artificial community of people who share no common community, and often do not even share the same nature of crime.   Another concerning consequence is that the nature of corralling individuals into close proximity over a long period of time inevitably produces unnatural cultures: one being the culture within the prison itself, and the second being a convict culture that they will carry with them after release.   The prison inevitably indoctrinates the prisoner into a distinct culture, often despite active programs to reform the inmates for return to free society.

For many (if not most) individual convictions, society would be better off with some alternative to imprisonment as a punishment.

Another consequence is within the laws themselves.   With only one method of punishment available for all but very minor crimes, we end up with an over-criminalized legal system even with the assumption that all of the laws are justified by current priorities.   Based on legislation or bureaucratic deliberation, we identify laws and regulations that qualify for enforcement, but the primary enforcement is imprisonment either as a primary punishment or a secondary one in the case of refusal to pay a fine.

I argue that many of the laws and regulations are redundant to the influencing effects of modern technology that makes the relevant justifications being available to everyone.   People can learn the information that justifies some preferred behavior and a sufficient number of them will follow that without the need for criminal deterrents.   Despite that, I do agree that in a modern large-scale civilization that there are many topics that do require some coordination of some conforming behaviors within large populations.

We do live in a complex civilization that does require intricate rules to be followed.   Such a complex civilization should be sophisticated enough to have more than just  one simplistic option for enforcing these rules: imprisonment.   It is mystifying to me that the only variables we allow for punishment are the duration of imprisonment and the choice of security level of the prison.

There are many different types of laws ranging from those that involve premeditated attempts at doing harm, to ignorance of the governing laws, to failing to cooperate with the government.   Despite that, all of the convictions get the same punishment that results in bring the various convicts to live in close proximity to other and in isolation of their original communities for long periods.

This system of governance inevitably results in over criminalizing because it equates so many unrelated violations of law into a single category of a crime requiring a prison sentence.   We may need these laws, and for argument’s sake I’ll grant that prison sentences are a valid form of punishment.  I question the need for all of these laws to require prison penalties.   I question the wisdom of equating any violation of such a wide range of laws to be a single category: an imprisonable convict.

Besides the above objections, the imprisonment constraint on sentencing options distorts law itself.  This is contrast to earlier options that provided laws to ability to distinguish different crimes by the type of punishment, each of which would be completed quickly and yet still be specific to the crime.  Now that there is just one option for sentencing, imprisonment, we have only one method to fit the punishment to the crime: setting the duration of the imprisonment.   The majority of crimes have sentences that last multiple years, and virtually no crimes are punished within just a few days.

Usually laws come with a range of options for sentencing, with wording such as “up to 5 years in prison”, but that still confronts the judge to weigh the magnitude of one crime against the magnitude of different unrelated crimes to come up with the right length of sentencing.   It may be more helpful if there were distinct forms of punishment for different crimes, each similarly punishing but in their own way.   The punishment fitting the crime is that the punishment itself is specific to the crime, instead of scaling the magnitude of the punishment to fit different crimes.

Given that there is only one option for punishment, we face constraints on the laws or regulations we can pass.   The laws will need to convince the legislative or bureaucratic peers of the justification for introducing the new reasons for punishment.   The overall burden of punishable-by-imprisonment laws will eventually overwhelm the population leading to large scale disobedience or rebellion.

If we are to continue to restrain our punishment options to imprisonment, one solution would be to cap the number of punishable laws.   In order to introduce a new law to address some new priority, the government should retire old no longer relevant laws with equal punishments.   This seems to be impossible because they face perpetual resistance from the appearance of condoning the behavior.   We have not found the rhetorical baseline that accepts that some behaviors are unlikely to return to objectionable levels when the law is removed.

From what I can tell, we have to accept all laws being perpetual.   The only laws our system can repeal are laws that are so obsolete as to be nearly impossible to violate, but that rarity of violation lessens any priority to spend any time repealing the law so they remain.

We are facing new challenges that are unique to the modern circumstances of available economies and technologies.   We need some way to identify and encourage optimal behaviors and discourage disruptive behaviors.   We cannot continue to add ever more ways to be sentenced to prison.  Eventually, everyone will be in prison, or deserving to be in one.   Only some arbitrary prosecutorial discretion will determine one what side of the fence a person will spend his time.

I propose that we need a whole new approach to criminal sentencing: one that restricts imprisonment only for cases of protecting against future dangers.   For crimes, we need non-prison options that sufficiently penalizes but very quickly so that people can go on with their legal participation in society.   In many cases, I believe, it is sufficient to merely record the conviction in a public record now that everyone can quickly check these results when encountering that person.   His economic community will sufficiently penalize his conviction.


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