For the Present
The US "correctional" system can, at best, be described as a dismal. The Department of Justice,
Bureau of Justice Statistics
publishes extensive statistical studies on correctional activities and conditions.
The 2004 mid-year data indicates that over 2 million people are in jails and prisons, and almost
5 million are on parole or probation. A large number of those probably would be incarcerated
if there were sufficient prison facilities. The existing prisons are critically over crowded
so that many convicts are paroled or released early to make room for more violent criminals.
Over 90% of the prisoners are male. The prison population grew 2.3% between mid-year
2003 and 2004; substantially less than the average annual growth rate since 1995.
At the end of 2001, about one half of the prison population was incarcerated for violent crimes. (Note: The BJS publishes the latest studies available so that a variety of dates are used. Use judgment in extrapolating to the current year.) Except for drug related crimes, the growth has been nearly constant for many years. Drug related crimes grew rapidly between 1985 and 1995, but then slowed and actually dropped slightly in 2001.
Recidivism is a major problem: In 1984, 65% of released prisoners were re-arrested within 3 years, up from 60% in 1983. For drug related crimes, the rearrest rate increased for 50% to 70% over the same time period.
From 1983 to 1990 North Carolina experiences a rapid increase in reported crime. During that period NC had a very liberal prisoner release program. In response in 1994, actual incarceration time was increased dramatically. The reported crime decreased but not to the 1983 level. Naturally, NC claims that the program has been a great success, however, reported crime was decreasing between 1990 and 1994. The exact impact of the program remains uncertain but was probably positive.
Cruel and Unusual
The US Constitution prohibits Cruel and Unusual punishment. But what was
intended by this phrase? Certainly, many of the usual punishments in 1800
would be regarded as cruel by today's standards. Conversely, a punishment that deprives
one for normal interpersonal contact and forces contact only with criminals
of the same sex is unusual for almost any society. Does imprisonment constitute
cruel and unusual treatment?
My interpretation of cruel and unusual is that the phrase was intended to limit a judge's power to impose arbitrary punishment. I also assume that the writers of the constitution knew how to use the English language. To be prohibited by this phrase a punishment would have to be both cruel and unusual. If they had intended to prohibit both cruel punishment and unusual punishment, the phrase would have been cruel or unusual. A cruel punishment that was specified by an appropriate legislative body, and routinely imposed to all classes of convicts, would not be unusual; thus not prohibited. An unusual punishment that was not cruel, or at least less cruel than the normal punishment, would not be prohibited.
The Wikipedia Encyclopedia provides an excellent discussion of definition of punishment. The Stanford Encyclopedia of Philosophy presents the varied justifications for legal punishment. In Britain. Esmee Fairbairn Foundation conducted an extensive study of the correctional system entitled Rethinking Crime and Punishment.
A Modest Proposal
That May Be Condemned By All
Is the world ready for a correctional reform that would accomplish the following?
- Close all prisons and most jails
- Provide the victim with a sense of retribution
- Provide victim compensation
- Rapidly return convicts to a normal, productive life
- Reduce recidivism to near zero
I think these goals could be achieved at a cost probably much lower than the current cost. Even more so, if the earnings of released convicts are included. However, many people will probably call my proposals cruel and unusual.
The most effective methods of altering criminal behavior include pain and shame followed by an extensive rehabilitation program. My "modest proposal" is to replace the current prison/parole system with a multi-tier system consisting of pain, shame, monitored release, rehabilitation, and victim compensation. Pain should be administered as soon as possible after conviction. Shame, monitored release and rehabilitation are simultaneously. Victim compensation should be independent of punishment.
Pain: Historically, using pain for punishment has been usually associated with corporal punishment. Whipping or canning (with a flexible rattan strip) on the back or buttocks have been the most common methods. Both methods are likely to cause major organic damage at relatively low levels of pain. Organic damage should be avoided or at least minimized. We do intend to rehabilitate all (or at least most) of the offenders.
The back and buttocks are relatively insensitivity when compared
to other part of the body. The hands and mouth are the most sensitive
areas with the feet and the genitals in second place as shown by the
sensitivity homunculus. In this model the sensitivity is indicated by
the size of the area: Note the grossly exaggerated hands and mouth.
Some countries have used canning
on the soles of the feet or the palms of the hands. This causes intense
pain with little organic damage.
I would suggest inducing pain directly into the nervous system. The current knowledge of the nervous system should permit the development of pain induction techniques. Coupled with medication to enhance sensitivity, the convict should suffer intense pain. For the science fiction aficionado, Dune provides an example of the concept. In this scene, Paul experiences the pain of having his hand burnt horribly, but without actual physical damage.
The convict would be sentenced to a level of
pain for a specified duration. Only a small portion of the punishment would be
administered before release; the remainder could be administered
for repeat offenses, or failure to observe the restraint and rehabilitation
procedures. For minor offenses, a single application of low level pain
for a brief period should be sufficient. For the worst offenses, repeated
sessions of high level pain spread over several days might be imposed. In all
events, the extent of the punishment would depend on the offense and
the ability of the convict to endure pain.
Pain of this sort could induce shock and heart failure. A qualified medical team should participate in all punishment.
Shame: In colonial America, the stocks were used primarily to induce shame. Hawthorne described the shame punishment of wearing clothing or emblems designating the crime in the Scarlet Letter. In Saudi Arabia the amputation of the right hand is considered as shaming: No decent person would touch their food with the left hand!
More recently, Ohio and New Hampshire have proposed issuing distinctive
vehicle license plates to drunken drivers. New Hampshire has also proposed
corporal punishment as a way to
I propose following Hawthorne with clothing and emblems indicating the type and severity of the offense, but to a greater extent for major crimes. For minor crimes, a distinctive jacket, shirt or emblem would be sufficient. For the most horrendous crimes, the offenders entire wardrobe would indicate the crime. Any appearance in public without the distinctive clothing would merit additional pain. Progress in rehabilitation would produce gradual relaxation of the restrictions.
Monitored Release: The shame treatment would be administered during a monitored release program. The location of the offender would be monitored continually. The technologically capability to accomplish this monitoring exists today. Implementation would require little development; mostly reprogramming existing devices. A cell phone with GPS and Bluetooth capabilities is the essential component. Its software would have to be modified to implement the monitoring capability. Several models exist including the Motorola A1000 and the Blackberry 7520. The GPS capability is that developed to enable cell phone access to the emergency 911 system. The second component is a transponder that communicates with the cell phone. The transponder could be about the size of a heart pacemaker but much simpler. It would only respond to an interrogation. For minor offenses the transponder could be attached around the neck, wrist of ankle; for the most serious offenses it could implanted.
The modified cell phone maintains connection with the transponder and with a central enforcement facility. Any interruption in the connections would initiate an alarm in both the central facility and the cell phone. The nominal distance between the transponder and the cell phone is about 30 feet. As for shame, progress in rehabilitation would produce relaxation mobility restrictions.
Rehabilitation: Concurrently with the monitored release, the offender would participate in a rehabilitation program. Most states have rehabilitation programs but many of them are ineffective. I think that the primary reason for their ineffectiveness is lack of flexibility. Most programs operate with a "one size fits all" philosophy. The second major reason for ineffectiveness is the failure to coordinate rehabilitation with reduction in shame and increased movement permission.
Any effective rehabilitation must be tailored to offense and the individual. Traffic offenses, petty thievery, casual violence, white collar crime, sex offenses, child abuse, murder, and terrorism are only a few categories that require different rehabilitation techniques.
Victim Compensation: The victim of a crime should receive compensation for loss of property and injuries. In my opinion, the only questions should be:
- How will it be funded?
- How will it be administrated?
- How will the level of compensation be determined?
Most states have victim compensation programs in some form. My proposal would integrate these programs and provide more extensive benefits.
Funding: I envision three primary funding sources: Tax on the future earnings of an offender; Royalties from persons or organizations that benefits, directly of indirectly, as a result of the offense; Governmental appropriations. Tax exempt charitable contributions should also be permitted. Royalties would be collected not only from the offender but also from everyone who derives profit from the offense; including jurors, judges, attorneys, authors, movie companies, publishers, magazines, and television networks: In short anyone who exploits the criminal action for profit.
Administration: The compensation system should be administered by one independent agency such that a common policy can be used for all victims in all areas. A quasi-governmental agency similar to the postal service would be appropriate.
Compensation: The level of compensation to victims is likely to be highly contentious. Victims, particularly of violent crimes, will undoubtedly think that they deserve compensation beyond any amount that could be available. A quasi-insurance concept may be the best approach. People can purchase insurance against loss of property, life, and bodily function. Compensation equivalent to the value insured by a typical person would be reasonable.
Insane and Incompetent
But what about the "insane", "incompetent" and youths? This is a collection the almost always are considered exempt from normal punishment. Should they be? In general, I do not think so. The primary, if not sole, rationale for punishment is to correct the behavior of the offender. Only those persons incapable of associating the punishment with their offense would receive no punishment. These persons would have to be removed from normal societal interaction. Permanently: But not cruelly. They should be confined in as pleasant an environment as feasible, but nor permitted the access to repeat the offense.
© Copyright 2005-2017 D E Pauley