The Indignity of Imprisonment

            Do we need to radically rethink the practice of imprisonment of criminals – not in the direction of novel forms of punishment, but rather in the form of vastly reducing punitive imprisonment altogether?  While prisons are integral to modern criminal justice system, a report from the British Academy earlier this month puts serious pressure on the institution.  Their overall argument is that we should move away from current levels of incarceration and focus on alternative responses to criminality like fines, rehabilitation programs and restorative justice.  Part of the report rehashes familiar empirical, consequentialist arguments for prison reform: prisons are expensive, they have deleterious effects on society, they have unclear deterrent effects, and so on.   Those arguments are relevant and important, but in this post I’d like to focus on the more theoretical, non-consequentialist arguments for prison reform.  The British Academy report argues that, in essence, current imprisonment practices are incompatible with the values of liberal democracy.  This is roughly in line with a growing body of philosophical literature militating against mass incarceration and other forms of punishment.  Here, I’ll go through some of the report’s arguments (and one of its weaknesses), as well as introduce an alternative account I’m developing that links up the imprisonment debate with the torture debate and emphasizes a respect for dignity and humanity.

The British Academy report’s theoretical argument against imprisonment

            The British Academy report identifies a set of fundamental values threatened by the practice of imprisonment: liberty, dignity, inclusion, security and moderation.  It is not difficult to see the tension between each of these and the practice of imprisonment:

• Ensuring the liberty of citizens is a hallmark of liberal democracy; locking someone up for years on end is perhaps a paradigmatic way of reducing someone’s liberty.  Not only one’s movement but one’s ability to work, communicate, interact and engage in a wide array of life-plans are infringed.  Liberty (like these other values) is not absolute and may be alienable (or at least overridable), but a very strong justification will be needed.
• Dignity (and what the report takes to be related concepts of autonomy and solidarity), in the present context, refers to the ability of people to control their own lives, rather than be wholly subject to the will of another.  Yet this subjugation is exactly what goes on in a prison, where one’s life (for a number of years) is under the extensive domination of guards and wardens.
• A more communitarian value, inclusion refers to one’s integration with the whole of society.  To the extent that one is a member of society, one has a right to such integration – interaction, engagement, involvement and so forth with the larger group.  But prison is the polar opposite, a forceful exclusion from society.  And it shatters the bond of community not just during the time of incarceration, but afterwards as well; separation does lasting damage to social ties, and moreover the stigma and trauma associated with prisons will further distance former inmates from the society.
• Security is the responsibility of any state towards its citizens.  Frequently, it is used to justify imprisonment itself – both deterring crime and keeping dangerous criminals out of society.  However, it only does so by specifically endangering another population – the prison population.  It should come as no surprise that prisons which house numerous violent criminals will themselves become hotbeds of violence.  Measures can be taken to improve security within prisons, but the stronger those measures, the greater values above like liberty and autonomy will be threatened.
• The principle of moderation should apply to any policy: apply the least harmful means to achieve the end one seeks.  This is, admittedly, a consequentialist idea (it comes from Bentham), and so relies on more empirical analysis of the effects of imprisonment.  Still, it is an important idea insofar as it suggests we should take less-harmful alternatives to prison like fines or reconciliation much more seriously.

All these values, then, are in direct and serious tension with the practice of imprisonment.  Because of this, the British Academy report argues a prison sentence requires a very high bar of justification, and perhaps should only be used in very serious or extreme circumstances – for the most violent and dangerous of offenders.  However, the weakness of these arguments is that – even though they use the language of rights – they are still subject to a consequentialist calculus.  All those considerations are pro tanto, and the report admits they can be overcome by sufficiently weighty social needs.  A defender of the current system can make two claims: one, the values are not so weighty as the report claims, especially in the case of criminals (we care less about their liberty, dignity and so on); and two, the deterrent and retributive values promoted by imprisonment are much stronger than the report claims.  Taken together, it becomes plausible for the value of prison to outweigh its disvalue.

An alternative account: torture and imprisonment

            There is, I believe, a stronger reason to oppose current prison practices, and that is by analogy to the practices of corporal punishment and torture.  Western criminal justice systems by and large bar floggings, canings, electric shocks, and the like due to being cruel and unusual, degrading and inhumane treatments.  These bans are not based on tortures being more harmful than prison; for many, it would be better to receive 10 lashes than 10 years in prison, though the former is banned and the latter allowed as a criminal sanction.  This also indicates the ban on punitive torture is non-consequentialist in nature; there is something about the practice of torture that makes it unconscionable for the state to undertake.

            The most plausible explanation in the literature, in my view, returns to the idea of dignity (qua control).  David Sussman puts forward a striking characterization of punitive torture: “The victim here becomes little more than a point of pure receptivity, having the most basic forms of agency effectively at the command of another.” (Sussman 2005; for similar accounts, see also Juratowitch 2008 and Luban 2009)  The assault on dignity in torture is so thorough that it is incompatible with treating the subject as a person – hence, it is essentially inhumane.  For the duration of the torture, one is no longer the author of one’s own life, but at the mercy of the will of another.  Dignity, on this account, is not merely a powerful value; it is so strong that affronts to it should not be entertained for any reason by the state (excepting, perhaps, extreme ticking time-bomb scenarios – but those are implausible, and in any case inapplicable to the punitive context).

            Imprisonment may not be a form of torture, strictly speaking, but it clearly shares the affront to dignity associated with torture.  Again, imprisonment involves the complete domination of one’s life.  Control of one’s life, livelihood, all manner of actions and projects are taken away and put in the hands of external agents.  Those agents exert direct authority over what one eats, when one sleeps, the conditions of social interaction, the prospect of work – virtually every meaningful aspect of one’s life.  The domination is perhaps not as complete in an instance of imprisonment as in the instance of torture, when one is strapped down and one’s body consumed by momentary pain.  However, the excessive length – months, years, decades – lead to, overall, a much greater loss of control over one’s life through prison than through torture.  Imprisonment is, in essence, an act of enslavement – treating prisoners as chattel, rather than as people.  Based on this, I would submit, if torture to be banned due to being undignified and inhumane, so is imprisonment.

            If one accepts the analogy, there are two directions one could go.  One could take this as reason to relax the ban on torture, or at least reintroduce corporal punishment: given that we accept prisons, and some forms of torture are just as bad, we should accept some forms of torture as well. (Benatar 1998, Scarre 2003) This arguably provides some benefits over imprisonment; for instance, lashings would be less costly and less socially isolating than long prison terms.  However, I take the dignity arguments against torture extremely seriously and so prefer the second option: recognize that imprisonment is, like torture, inhumane, and severely curtail the practice.  Criminals may need to be deterred and perhaps deserve some setback their interests; yet we don’t take those considerations to justify punitive torture.  Nor should we be swayed by them in the case of imprisonment.

           Here, we have an admittedly radical solution – but perhaps not as radical as it first appeared.  Alternatives to imprisonment, as suggested in the British Academy report, may well serve most of its functions.  Financial restitution is still feasible for non-violent crime, and punitive financial damages may be workable as well to satisfy retributivists.  An emphasis on rehabilitation and reduction of recidivism through reintegration deserves more attention.  And an enormous amount of work has already been done on restorative justice, which involves a more personal, interactive approach to repairing the affronts and damages caused to a victim by a victimizer.  These alternatives may be imperfect, but most importantly, they better respect the dignity and humanity of all concerned than our current harsh practice of imprisonment.