At the beginning of this series, I described the role that prison reform (or lack thereof) played in my introduction to criminal justice. Over the decades, I’ve watched as our crime rate has fallen while our incarcerated population has skyrocketed. Most of us live our lives without thinking about all of those incarcerated inmates and the conditions under which they live. Occasionally, something crosses our newsfeed that reminds us of those conditions.
Historian Heather Thompson’s remarkable book on the 1971 Attica uprising, Blood In the Water, was one of those “can’t look away” moments for me. How the book came about and her fight to access historical records is a fascinating story on its own. The conditions that led to the uprising, long unaddressed by prison officials, are stunning. Even more shocking is what happened when the State Police breached the prison to quell the uprising, showing brutality and killing both inmates and hostages. The political motivations (and racial animosity) of then-governor Nelson Rockefeller and his team are stunning.
You may be thinking, come on John, that was 50 years ago. That’s true, but just last week, a Senate subcommittee led by Senator Jon Ossoff held a hearing regarding conditions at the U.S. Penitentiary in Atlanta. Reports of rats (solved by stray cats coming in through open doors), contraband, fights (including among staff), corruption, and lack of support facilities were rampant. Senator Ossoff summarized the situation as follows:
The evidence the Subcommittee has secured to date reveals stunning long-term failures of federal prison administration that likely contributed to loss of life; jeopardized the health and safety of inmates and staff; and undermined public safety and civil rights in the State of Georgia and the Southeast Region of the United States.
Perhaps the Atlanta penitentiary is an outlier. But I’m doubtful. The reason we have made such little progress on prison conditions over five decades is because we’ve never been clear on what we want correctional institutions to accomplish. Here they sit at the the end of the criminal justice funnel, accepting what we send them. But what do we want them to do?
Answering that question requires us to dive into the topic of philosophies of punishment. We’ll begin with Cesare Beccaria, 18th century Italian jurist. Considered one of the founders of the field of criminology, Beccaria argued that punishment should serve the goal of supporting the broader social contract. That punishment should always be proportional and communicate certainty, not severity, of punishment. Committed to the rational approaches of his day, he decried brutal punishments. The purpose, rather, was to restore the offender to society.
I want to explore four different philosophies of punishment: Retribution, Rehabilitation, Incapacitation, and Restoration. The last one is closest to what Beccaria argued for 400 years ago.
Retribution: This approach assumes that it is society’s interest to inflict some harm on a prisoner. Losing freedom of movement, ability to see family, structured environment, harsh conditions, and perpetual surveillance by officers of the state is the price one pays. As they say, “if you can’t do the time, don’t do the crime”. In its most extreme form, it celebrates “an eye for an eye”. In part, this is based on assumptions of general deterrence. If the potential criminal knows he might face these harsh conditions, he will be dissuaded from committing the crime, or so the theory goes. In reality, there is little evidence that deterrence works1 — many crimes are not rational, occur in the moment without long-term considerations, and are disproportionately committed by young men with an unfinished cerebral cortex. If you want to see when retribution raises its head, listen to the critics when someone observes that there is no air conditioning in prisons in the Southwest, or concerns over lack of entertainment, or worries about Covid spreading among incarcerated people. Invariably, the response is some form of “we shouldn’t coddle prisoners” because prison conditions are supposed to be punishment in and of themselves.
Rehabilitation: My students were always big fans of rehabilitation. Recognizing that inmates suffer from drug or alcohol dependency, they support measures to get them sober. Observing mental health challenges, they want them to get counseling. Lacking solid educational opportunities, they hope that prisoners can earn a GED and beyond. In the absence of a solid work history, we can get them jobs while incarcerated that will make their later transition smoother.2 This approach deserves credit for seeing the inmate as a person3 and for having a future orientation beyond the current sentence. The problem for rehabilitation is not its intent, but its execution. We have never really funded social service, mental health, and educational programming at the level that would be necessary to really make demonstrable change in most inmates. In addition, that programming that does exist still operates in a heavily controlled and controlling environment, which runs counter to successful functioning.
Incapacitation: This to me is the least morally defensible approach. It is the essence of the “lock him up” chants at political events. It assumes that prisons are personnel warehouses where we keep “the bad people” to make the rest of us feel safe. Such an approach to simply “get people off the street” is a never ending cycle. It encourages law and order politicians to want longer sentences with lessened likelihood of parole. It is based on my Doc Ock problem of assuming “people like that” shouldn’t be in the general public. And while doing so, this focus on warehousing provides economic stability to rural towns where many prisons are housed.4
Restoration: I’m sorry to say that it has only been in the last decade that I’ve gotten my head around the promise of restorative justice. This approach was inaugurated by Howard Zehr, a sociologist (now retired) from Eastern Mennonite University in the 1970s. He argues 1) that crime is a violation of people and relationships, 2) violations create obligations and responsibilities, and 3) restorative justice seeks to heal and put right the wrongs. Anything short of that misses the opportunity to pursue true justice. In my restorative justice class, we also read No Future Without Forgiveness by Desmond Tutu and After the Crime by Susan Miller, a book of case studies regarding victim-offender restoration. Tutu explained how the South African Truth and Reconciliation Commission would have failed if the goal was simply to punish those responsible for Apartheid.5 Adopting the principle of ubuntu, or recognizing common humanity, they were able to chart a new path. The Miller book told stories of how offenders accepted responsibility for their actions, acknowledged the harm done, and pledged to make some restitution. Some cases were more successful than others depending upon the attitudes of the participants, but it still painted a picture of what might be possible. The offenders still had to serve the balance of their sentences, but healing of the various parties represented important steps toward restoration. Two-thirds of the way through my restorative justice class the students were convinced of the value of restorative justice. They just couldn’t figure out how to get from our system based on retribution and incapacitation toward a new model. I wound up giving them a final assignment to imagine life on a moon base where they couldn’t build prisons or send people home.6 Restorative justice was the only choice. They still struggled to get away from the current model even though they wanted to.
Four centuries later, we’re still struggling with the approaches raised by Beccaria. At the interpersonal level — if we know the person incarcerated — we desire restoration and rehabilitation. In the abstract level — talking about criminals in general — we prefer incapacitation and retribution.
The four philosophies of punishment I’ve briefly laid out are largely incompatible. But they don’t happen by accident. We have intentionally chosen some over others or relied on simply maintaining the status quo. The question becomes whether or not we are sufficiently committed to reform a correctional system that could actually accomplish our desired social goals.
Another important book I read as an undergraduate was Deterrence by Franklin Zimring and Gordon Hawkins. I’ve never forgotten this imaginary interaction shared in the book: A man comes across another man standing on the street corner continually snapping his fingers. “What are you doing?” asks the first man. “Keeping the tigers away”, is the response. “There are no tigers within a thousand miles of here”, says the first man. “See it works!” replies the second.
There is a great deal of literature documenting that the jobs inside don’t translate well outside and that the jobs done inside serve to offset the prison budget through the use of nearly-unpaid labor.
The Stanford prison experiment, in spite of recent challenges to its validity, underscored the role of dehumanization in the prison experience. People are numbers, not names, and go through the humiliation events of what Erving Goffman called Total Institutions.
Listen to the response when someone considers closing a facility and transferring inmates somewhere else.
My students had no idea about Apartheid as the TRC operated several years before they were born.
If you aren’t watching “For All Mankind” on Apple TV+, you’re missing out. Space race, moon bases, and a trip to Mars.
I'm a huge fan of restitution, but now I want to grow more familiar with the larger package of restoration that you write about here. This, in my view, is the opposite of what we have--an obsession with incapacitation.
The Atlanta Penitentiary situation, I think, has another layer. Stories that focus on federal ineptitude--maybe especially when they are well-founded--enable the privatized prison system, which is run according to the reprehensible ethical structures of corporate profit. I just wanted to add that layer of context.