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Title: When Prisons Enable Crime Author: Nathan Goodman Date: March 29th, 2016 Language: en Topics: prison, crime, punishment Source: https://c4ss.org/content/44276
The dominant belief in our society is that prisons are a necessary tool
to fight crime. Prisons are often thought to counter crime in at least
three ways:
perceived cost of committing a crime, thus creating incentives not to
commit crimes.
society, prisons prevent them from victimizing members of the general
public.
might emerge as better, more productive, more peaceful citizens upon
release.
Even most critics of mass incarceration believe that prisons are
necessary and important to serve at least the first two functions, at
least for some crimes. While many people recognize that imprisonment is
an unjust response to victimless crimes such as drug use, they may see
incarceration as necessary in order to deter and incapacitate violent
criminals.
Most people’s intuitions about the necessity of incarceration are shaped
by status quo bias and a failure to imagine alternative modes of
governance. However, they’re also shaped by an accurate understanding
that human beings can achieve their ends through peaceful cooperative
means or through coercive and predatory means. The coercive means are
socially destructive, but may offer some people an easier way to achieve
their goals. If people are not innately good, but instead are often
selfish and opportunistic, then incentives should be put in place to
deter destructive and predatory actions. Offenders, particularly repeat
offenders, may have displayed proclivities towards predatory and violent
behavior that presents an ongoing threat to others, and incapacitating
them may be desirable. Prisons may provide both incentives that deter
crime and a technology to incapacitate criminals.
However, while prisons can serve these functions, they may also enable
and promote crime. Those who examine only incarceration’s effectiveness
at deterring aggression and incapacitating aggressors are examining the
benefits, but they also should consider the costs. Not merely the fiscal
costs, but the costs in terms of crime created rather than deterred. The
costs of enabling people to engage in the same predatory behaviors that
we want a legal system to prevent.
Prison guards are given extraordinary power over prisoners. They monitor
prisoners, control their access to goods and services, and literally
hold them captive, unable to flee them. In a free society, most people
have the ability to exit relationships. This ability to leave a
situation when it becomes intolerable creates incentives that constrain
abuse. A restaurant that continually serves poisoned food to its guests
is unlikely to stay in business very long because customers have the
ability to take their business elsewhere. Prisoners by definition have
no ability to exit. This leaves them incredibly vulnerable to predatory
behavior by guards.
Predation by guards often takes the forms of the most heinous violent
crimes our society recognizes. In particular, prisons leave prisoners
vulnerable to rape and sexual assault by guards. In 2011, roughly half
of all sexual assaults reported in prison were committed by guards.
In a contest between a guard’s word and an inmate’s, the guard is likely
to win. There is a pervasive attitude of disdain and disbelief directed
towards prisoners who report sexual violence. Kay Walter, a prison
superintendent, responded to a series of sexual assaults in Washington
prisons by saying, “We will never take an inmate’s word against
staff–they’re not in prison because they’re honest people.”
Legislators have attempted to reduce prison rape through reforms such as
the Prison Rape Elimination Act. Yet these reforms leave the fundamental
power dynamic between guards and prisoners untouched, and so prisoners
remain vulnerable to predatory guards. As C4SS Senior Fellow Charles
Johnson put it, “the first basic obstacle is no matter how unambiguously
written and strongly worded the law is, it is always nearly impossible
ever to safely try to get a hack prosecuted from inside your cell. There
is just no way. The same overwhelming, full-spectrum life-and-death
domination that facilitates the endemic, repeated rape also makes it
impossible to defend yourself from them through legal processes.”
Those barriers exist even for rapes that are clearly recognized as
illegal. But one other perverse facet of prisons that enables predation
by guards is that actions we would ordinarily recognize as abusive
become treated as legitimate policy tools. To some extent this is
inevitable with imprisonment. If an ordinary individual locked you in a
cage and prevented you from leaving, we would ordinarily call them a
kidnapper. If a prison guard does it, they’re simply enforcing a public
policy. Sadly, this special privileging of aggressive actions by prison
guards extends not just to kidnapping, but to sexual assault as well.
Strip searches, and cavity searches in particular, have many
characteristics that we would ordinarily recognize as rape or sexual
assault. As Assata Shakur attests in her autobiography, these searches
can involve penetration, and non-consensual penetration is the FBI’s
definition of rape. But even when penetration is not involved,
commanding a human being to strip, spread open their ass, spread their
labia, or otherwise expose their own private anatomy, is a form of
sexual humiliation exacted with threats of violence. There’s a reason
Angela Davis calls it “the routinization of sexual abuse.”
A just society is one where interactions are voluntary, where people’s
rights are secure, where they’re free from violence and plunder. In such
a society, people have incentives to trade, produce, and cooperate with
each other rather than plunder, assault, and exploit one another. Their
sexual and romantic interactions can be sites of authentic love,
pleasure, and care rather than violence, abuse, and trauma.
But how do we get there? What types of institutions can bring us such a
world? We want to provide incentives that deter predation, violence, and
plunder by private individuals. But the dominant approach our society
currently uses for that end, the prison, enables vicious abuse and
predation through its basic institutional features!
I don’t know the way forward. But this way of framing the question, this
understanding of the capacity of governance to enable the very abuse
it’s designed to prevent, provides a heuristic for understanding the
problem. By examining the incentives that any given governance approach
provides both to its enforcers (assuming those enforcers are a separate
class at all, which shouldn’t be a given) and to the general population,
we can figure out whether those means are conducive to anti-violence
ends.
Imagination
The fact that prisons are the main tactic used to deter violent crime
and incapacitate violent criminals does not mean that they’re the only
game in town. If prisons often exacerbate the violence people want them
to stop, then they need to imagine other possible responses to violence.
This can be difficult in a world so shaped by the state.
One way to broaden our imagination is to recognize that none of these
approaches needs to be a panacea, and that multiple approaches can
coexist. Moreover, they don’t need to be designed from the top down.
It’s possible, and likely in my view, that the best way to create
sustainable justice systems is within a polycentric system, where there
is no one center of power designing and imposing justice from the top
down. This approach is likely to feature the exit rights that, as
mentioned earlier, produce incentives that deter abuse and promote
quality provision of services. Moreover, it is likely to create justice
that is driven by and responsive to those who are impacted by violence,
rather than the imperatives of political demagogues and rent-seeking
special interests.
To develop an incentive compatible justice system, we need institutional
changes that allow individuals and communities to discover new ways of
resolving violence, mitigating harm, and arbitrating disputes. To do
anything less is to invite stagnation and preserve a status quo that
empowers violent criminals and calls their crimes law enforcement.