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From bad to worse
Crime, incarceration, and the self-wounding of society
Jonathan Jacobs
This chapter discusses some of the morally most problematic features of incarceration in the forms it often takes in prisons in the United States and the United Kingdom. The main points of the analysis apply to other countries as well, though it is probably the case that, at present, the issues are most pronounced in the US and UK. That criminal sanction – and incarceration, in particular – is currently beset with numerous morally concerning features is familiar. What is meant to be new in the present approach is the way that the normative architecture of the issue is formulated.
By ‘normative architecture’ I mean the basic contours of the issue as a nexus of ethics, politics and moral psychology. In brief, the core elements of the view are this: while a liberal polity should not require specific virtues of its members or enforce some specific conception of how to live, it is also antithetical to the principles of a liberal polity for it to worsen or harm members in known, regular and avoidable ways. Current forms of incarceration often have such effects. They can be said to amount to a type of coercive corruption in ways that raise doubts about their legitimacy. The discussion explains the motivation for that formulation and elaborates the main content and implications of the view.
At the outset we should note that the analysis is not intended as part of an argument for abolishing incarceration as a form of criminal sanction. Nor is it meant as part of a larger argument against punishment as a criminal justice institution in a liberal polity. Parts of the view could be used in the service of such views but that is not my purpose. I would hope that, even supposing that liberal polities can be justified in punishing and in employing incarceration as a form of punishment, the analysis supplies strong reasons for concluding that many current practices are of doubtful legitimacy and they merit urgent reconsideration on account of the nature, scale and severity of the problem.
The discussion is divided into three sections. The first explicates a claim about the relation of mutual support between a liberal legal/political order on the one hand, and civil society on the other. That relation is important because the values and principles distinctive of a liberal polity shape the normative issues in quite specific ways. The second section examines morally objectionable features of contemporary incarceration, especially in the US and the UK. The third section considers ways in which certain features of incarceration damage civil society in general, not just prisoners.
The problems discussed are broader even than the wide scope I indicate for them. There is a growing literature studying the ways in which society overall – from the socioeconomic conditions of people’s lives to issues concerning criminalization, law enforcement and legal representation – may be accountable for some of the worst aspects of contemporary incarceration. For example, Craig Haney’s Reforming Punishment: Psychological Limits to the Pains of Punishment includes a good deal of discussion of the ways in which issues of poverty, race and education in society more broadly are criminogenic and aggravate the ills of incarceration by hugely increasing the numbers of people imprisoned (see Haney, 2006, esp. Chapters 4 and 5). The problems are not confined behind prison walls. As Alice Ristroph writes, ‘an account of criminal responsibility must not rest with attributions of responsibility for individual criminal acts; it must address collective responsibility for the criminal law itself’ (Ristroph, 2011: 109). Even if we do not believe that poverty and unrelieved grim prospects are sufficient excusing conditions or justifications for criminal conduct, we should acknowledge that the issues cannot be adequately understood simply in terms of individual offenders’ behaviour. That much is clear whatever one’s larger view of just how criminal justice should be understood in relation to justice more comprehensively understood.
The question of whether the former should be assimilated to the latter, or whether it concerns specific principles and issues that are formulable independent of a larger, broader conception of justice is a complex, important question. Also, it seems clear that for many people the opportunity to lead a law-abiding life with a real chance of being elevated out of poverty and out of criminogenic conditions is poor. Here we only gesture toward the complex question of how social conditions and the politics of criminalization and law enforcement shape crime, criminal justice and prison populations. The concerns of the present discussion merit focused attention, though it is true that they are connected in important ways with numerous other, and wider, issues.
The political/legal order as a crucial context
It is both conceptually and ethically important that we are addressing issues concerning punishment in the context of the liberal polity. It is conceptually important because extensive individual rights and liberties are crucial to the liberal polity. Given the liberal order’s preservation and protection of a wide scope for individual freedom, an individual’s specific interests and concerns, and what he or she is like, are not a proper, direct concern of the state. The liberal state does not require virtue and does not require people to have specific states of character. Yet, a liberal order can only be sustained if people have certain attitudes and dispositions. In the absence of effective concern with certain values and principles, the liberal order will be vulnerable and weakened. The state permits considerable breadth with regard to how people come to have the relevant attitudes and dispositions but we will see the significance of them as the discussion proceeds.
In fact, the liberal polity can accommodate different ideas about why it is important to endorse that kind of political/legal order. Some persons might have a commitment to the relevant values and principles because they believe that there are no objectively justifiable conceptions of a well-lived life and, thus, the state should preserve freedom for people to pursue the sorts of lives they wish, as long as they do not harm other persons or violate their rights. Others might be committed to the liberal order because they believe that there are objectively best kinds of lives but the state should not exercise coercive power in requiring people to lead their lives in those ways. Another possible endorsement of liberalism could be the understanding of how intolerance, dogmatism and repression ruin lives and the resulting appreciation of liberalism’s commitment to minimizing the role of such phenomena in politics. Still others might be committed to liberalism because they believe that the exercise of one’s own rational agency is necessary for leading a life both desirable and worthwhile, a deeply gratifying and flourishing life. That commitment to liberalism is supported by the belief that a genuinely happy life requires the agent’s own causality, thus the state should impose upon people minimally in regard to how they lead their lives.
In recent and contemporary political theorizing, diverse conceptions of what underwrites the liberal polity have been developed (Galston, 2002; Rawls, 1971; Sen, 2011; Rasmussen and Den Uyl, 2005). Moreover, it may be that one of the distinctive features of a liberal polity is that it can accommodate a measure of disagreement about exactly what form it should take and about the best justifying reasons for it. To require that there should be some single, specific basis of commitment to a political order could itself take an illiberal form. A liberal polity can tolerate a measure of disagreement over at least some matters regarding even basic institutional arrangements and policies.
There is an important relation between (i) the political/legal order and (ii) civil society. The political/legal order is a matter of formal institutional arrangements, legal requirements and permissions. This includes official institutional practices and officially defined responsibilities, roles and procedures of justice. Civil society is the complex, overall sphere of voluntary activities and associations that people undertake in contexts that are not determined by requirements issuing from the state. In the US for example, civil society comprises a great deal of economic activity, leisure and cultural life, religious life, philanthropy, education and other kinds of activity. There are laws requiring people to attend school for a certain number of years, and the state regulates significant aspects of banking, finance and commercial activity, as well as providing extensive infrastructure. However, the economy remains largely a market economy and, for instance, there are all sorts of options with regard to education, what kind to pursue, where and to what level.
There is vibrant, open civil society in the UK, too, despite the state’s larger role in various departments of life (such as health care). Though the state has significant roles in various aspects of people’s lives in the US and the UK, there is no question that civil society in these countries is more open, dynamic and pluralistic than it is in Saudi Arabia, North Korea and the People’s Republic of China. The role of the market in the economy of China is striking, but it is clear that (i) the Chinese Communist Party exercises control over departments of life that are open in the US and UK, and (ii) even in the economic sphere mainland China practises something rather like state-capitalism rather than permitting a more genuinely open market as the basic arrangement.
What is so significant about the relation between the liberal order and civil society? It is that the liberal order makes possible civil society (in the institutional, formal sense) and participation in civil society can provide people with reasons to want to preserve (or extend the freedoms of) the liberal order. Enjoying the freedoms of participation in civil society can motivate acknowledgement of the value of the liberal rule of law. Elected representative government and democratic process are crucial elements of a liberal order. But the daily business of living occurs in the context of civil society. That is the setting in which freedoms are enjoyed in what we might call a routine way, many of them likely to be taken for granted by people living in a liberal polity. However, there is nothing automatic or given about them. In the absence of certain political-legal institutional arrangements, and in the absence of certain attitudes and habits, those freedoms may be neither valued nor understood.
It was noted that a liberal polity does not require people to have specific virtues. Yet the preservation of that order does depend on what I shall call a ‘civil disposition’. By that I mean a reliable, durable combination of trust and trustworthiness, the absence of which renders the kinds of interactions and associations constitutive of civil society far less possible. Trust and trustworthiness make possible a complex metabolism of voluntary interactions without everyone needing to first undertake an examination of whether the persons with whom they are interacting can be expected to act in good faith. Whether the issue is making a purchase in a grocery store, organizing a sports league for neighbourhood children, raising funds for the community hospital, renting office space or one of countless other undertakings, it can be a largely routine matter because people have a more or less civil disposition. When renting office space one might have a lawyer read the fine print on the lease. When raising funds for the hospital it is prudent to be sure that someone with a record of handling other people’s money responsibly has responsibility for the funds. A civil disposition does not altogether eliminate the need for checking credentials, due diligence or being legalistically fastidious. Nonetheless, the vast range of activities people undertake in civil society on a voluntary basis and with a general presumption of confidence depend upon the prevalence of a civil disposition.
A civil disposition is relevant to the present issue in a twofold way. First, the sort of harm done to many prisoners undermines or impedes a civil disposition on their part, making it more difficult to re-enter and participate in civil society successfully. Second, there is a deficit of civil disposition on the part of many members of free society. That results in additional obstacles to ex-prisoner re-entry, including the attitude that, even after completing sentence, a former prisoner is still to be regarded as a criminal. That can deepen ex-prisoners’ demoralization and alienation, the effects of which can last beyond release from prison, complicating the effort to reintegrate into free society. There is further discussion of this matter below.
The relationship between the liberal order and civil society is important in another respect. I remarked that the liberal order is weakened by the absence of certain broadly shared values and concerns. To have genuine, extensive freedoms people need to be willing to tolerate at least some kinds of conduct and ways of life they might find objectionable or obnoxious. They need to restrain themselves from imposing their values upon others through explicit political means such as legislation or other, more informal but still powerful means (consider how a newspaper’s editorial slant and radio programmes and social media can be employed with such purposes in view). The pluralism of a liberal order depends upon acknowledging a distinction between something being offensive or objectionable and it being genuinely harmful to other persons and their interests and welfare, and it requires toleration of some degree of the former.
At the same time, pluralism needs the support of some widely shared valuative commitments and concerns, many of them reflected in the criminal law. While, inevitably, there are disagreements over what is to be criminalized in a liberal polity, there will almost certainly be strong agreement on the propriety of criminalizing certain types of conduct because of how they impose upon freedoms and cause harm. The disagreements occur against a background of broad, stable agreement on many matters. As Andrew von Hirsch has commented:
That dissensus exists in modern societies on some legal and ethical issues is undeniable: witness the ongoing debates about abortion and drug use … . However, if we turn our attention to the core areas with which the criminal law should deal – the prohibition of victimizing acts of force, theft, and fraud; and the enforcement of certain basic duties of citizenship such as the payment of taxes and the preservation of the environment – there appears to be a greater degree of agreement.
(von Hirsch, 1996: 105)
In a society under a liberal rule of law it is likely that the great majority of citizens will not only be law-abiding, they will be law-abiding because they find many of the action types that have been criminalized abhorrent. ‘Most of us comply with the law most of the time, not because we rationally weigh our fear of the consequences of detection against the benefits of the crime, but because to commit the crime is simply unthinkable to us’ (Braithwaite, 1989: 81).
Regarding some conduct such as the use of certain drugs, pornography and prostitution there may be persistent disagreements (though with shifting constituencies of support and opposition) and their legal status in a particular society may be different at different times. In the US, for example, attitudes regarding same-sex marriage have changed dramatically in recent years. Attitudes regarding certain types of drug use are leading to a reconsideration of laws criminalizing possession and use of marijuana. Some people may feel as strongly about these matters as they do about murder or larceny. Still, even they are likely to recognize that there is a difference between types of conduct that must be criminalized in order for life in the society to be anything but terrifyingly precarious, and types of conduct that are not so utterly unacceptable.
Taking the liberal rule of law seriously involves recognizing that one may disagree with some matters of law but still see that such disagreement is not a basis for flouting the law or for regarding obedience to law as discretionary.
In such instances, what the law says to those who dissent from the stand it takes is not simply and unqualifiedly that the conduct in question is wrong, but rather that this is now the community’s authoritative view. Even if they dissent from its content, they have an obligation as members of the community to accept its authority—to obey the law, even if they are not persuaded by its content, unless and until they can secure a change in it through the normal political process.
(Duff, 2001: 65)
Taking that obligation seriously is related in an important way to a civil disposition. It is an important form of the restraint mentioned above. We may need to accept the obligation to obey at least some laws we do not endorse; we may need to refrain from criminalizing some types of conduct we regard as unacceptable. At any given time there will be some emotionally charged, divisive issues, but the fact that those divided by them seek to get their way through the political process attests to the shared sense of the legitimacy of the state’s institutions.
The border between what is regarded as clearly and always morally wrong and what is a matter of currently prevailing norms regarding right and wrong is at least somewhat porous. A society’s view of where the border is to be drawn can change over time (consider slavery in the US and women’s suffrage in the UK and US). In any case, one aspect of a liberal state’s legitimacy is that criminalization and criminal sanction are, at least in general, recognized as morally intelligible. By ‘morally intelligible’ I mean that the reasons for prohibiting and punishing the conduct in question can be recognized as relevant to the well-orderedness of society and welfare of its members and in a way that is fair. If new laws were to apply retroactively or if strict liability was extended dramatically to range across many kinds of outcomes for which people clearly were not responsible, those would fail the test of moral intelligibility. It is crucial that decisions concerning criminalization are not arbitr...
