Who is Biased Against Prison and Sentencing Reform?

We face a massive prison crisis in the United States, and some thinking outside the box is necessary. Earlier in American history, incarceration was rare or non-existent. Shouldn't we figure out what they were doing right?

Dostoevsky believed the degree of civilization in a society can be judged by entering its prisons. Prisons today resemble declining civilizations in that prisoners spend an inordinate amount of time planning, avoiding and participating in violence directed against each other and very little time working productively. Our prisons in many respects might signal national decline. The era of American ascendancy from about 1650 to 1800 saw zero mass incarceration and very little incarceration at all as the ultimate punishment for crime. Back then, communities were more vigilant. Punishments included more judicial corporal punishment, banishment, hard labor, indentured servitude, death and public shaming. We humans like to flatter ourselves that society progresses, but that’s not always the case. In terms of effectiveness, misery, expense and social costs, few can seriously contend our modern system of punishment is demonstrably superior to the methods used earlier in American history. Today, the United States incarcerates over five (5) times as many prisoners as it did in 1975, when the “nothing works” to rehabilitate consensus appeared. Some things actually do “work,” but with this many prisoners and an economic slow-down, governments cannot afford them. We own a major crisis.

Increasing numbers of Americans worry about the social and economic costs of mass incarceration, our penal systems that put 2.3 million Americans behind bars at any one time and a total of 7.3 million Americans in the entire correctional population, which includes those on probation, parole and awaiting trial. Those concerned with our prison systems created a wide variety of foundations, centers, projects, academies, boards, bureaus, blogs, coalitions, commissions, councils, charities, leagues, networks, initiatives, institutes, studies, websites, university departments, offices and programs dealing with the social and economic consequences of our criminal justice and correctional systems.

These various and sundry organizations differ regarding their approaches, focus, methods and particular problems. Some primarily deal with the victims or families affected by crimes or punishments. Others address problems at specific stages in the crime-arrest-prosecution-trial-sentence-imprisonment-probation-parole-release-reentry-recidivism cycle. Several common issues or themes appear: racial disparities in sentencing, harmful prison conditions, social and economic costs, reentry stigma, recidivism and the overall ineffectiveness of incarceration. The goals and aspirations of these organizations are frustrated by the intractable problems of crime, punishment, incarceration in particular and recidivism.

Federal, state and local governments have a monopoly over criminal justice systems and incarceration. This includes defining crimes, apprehending and prosecuting criminals, and then deciding what to do with the convicts. During incarceration, government control is absolute. Despite variation in the means, methods, goals and aspirations of the many prison reform organizations, most of them out of necessity have a big-government focus. But the shift must eventually be away from big government and towards decentralization, local control, private enterprise, competition and evidence-based punishments in public. Why?  Because that’s what worked in the past. American and world history provide fully-documented successful evidence-based practices, not with studies or “social science,” but in the more critical world of practical application over centuries.

Punishment used to be carried out at the local level, but over time it became centralized. That centralization takes the form of prisons housing offenders from throughout a state or all over the nation. Prisoners live far from their homes. Big government absorbs big money and gives us little in return. Mass incarceration is the end result of big government, but big government has run out of options and ideas. Big-government proponents bemoan released prisoners’ inability to obtain public housing, welfare, student loans, voting rights, spouses and jobs. Smaller government advocates understand prisoners could work for reduced but negotiated wages, pay more child support and restitution, reduce incarceration expenses, and still have a small nest egg for their release.

Prison privatization today does not shrink government control over mass incarceration, nor does it break the governments’ double or triple monopoly over prison industries and labor. Prison privatization merely privatizes how the building and prison guards are financed and paid; it does not change the punishment or the grand failed wasteful paradigm. Private prison companies prefer large numbers of prisoners to support profits. Privatization may actually increase the government's role by artificially swelling the number of prisoners. In truth, privatization as currently understood merely privatizes the warehousing function, but has little impact upon the size, scope or effectiveness of American prison systems. Privatization now facilitates a larger government role and monopoly. Private prison companies have the same monopolistic incentives with regard to the care, treatment and rehabilitation of prisoners. Neither private nor state prisons earn rewards when prisoners are rehabilitated or goods produced. The rewarding mechanism for prisons is still roughly equivalent to the punishment being inflicted: time behind bars. Private enterprise used to play an active role in both prisons and slavery, with the result that those earlier institutions were very productive and profitable. Hard labor would be good for prisoners today, and prisoners want jobs, but only a small percentage work hard. Prisoners sit, stand and lie around most of the time. If they’re really bad or need protection, they get room service in solitary confinement. The government monopoly does a very poor job of working state slaves.

Incarceration used to be rare to non-existent. It was invented to rehabilitate, and has rarely succeeded. So, we ought to take another look at American history for the evidence-based methods we abandoned for a failed experiment. Punishment was administered at the local level, in public, so that it could provide the benefit of example. Judicial corporal punishment has worked nearly everywhere they have ever tried it, and it is not abolished for ineffectiveness, but because it is unpopular with newly enfranchised citizens. That was the case with France, Germany and the United States in two stages. The abolition of judicial corporal punishment is one of the byproducts of democracy. We abandoned the productive use of prison labor in private enterprises, an excellent form of rehabilitation. Some say prison labor is a form of state slavery, and they would be right. Under the Thirteenth Amendment, involuntary servitude is allowed after a criminal conviction. In the old days, slaveholders made money with their slaves, but today our state slaves cost law-abiding citizens tons of money, even though hard labor would be good for everyone concerned.

We will not abolish prisons. We can lessen the devastating burdens incarceration puts on the entire nation and certain communities in particular by handling less serious offenses with proven techniques, utilizing the labor of our prisoners and re-thinking institutionalized ineffectiveness. To shift the paradigm away from incarceration, we must admit failure. We’ve gone backward. To move forward, we must adopt methods we abandoned for untested experiments. For that to happen, big government, stifling special-interest laws, enormous expenses and centralized monopoly need to shrink. Local public punishments and private prison industries offering jobs to prisoners – not convict leasing – need to grow, creating a better private enterprise environment for prisoners. If prison industries only made goods now made exclusively overseas, everyone in North America can win.