A prison skeptic's manifesto

Abolition won't work, but the status quo is wholly unacceptable

It’s no secret that regressive attitudes toward prisons, prisoners, and crime are common.

When people are surveyed on whether they think that prisoners should be allowed to study, they say no. When people are surveyed on whether they think prisoners should be forced to study, they say yes.

Forty percent of people in America, including a majority of Trump’s primary voters, believe it would be worse to have 20,000 criminals free than it would be to put 20,000 innocent people in prison.

Never thought I’d uncritically include a Cato institute infographic, but here we are.

People, including liberals (perhaps even especially liberals due to a weird American-history-exceptionalism about what slavery means), deny the obvious fact that forced and coerced labor in prisons is slave labor. Because people don’t see prisoners as fully human, we forget that we still live in a society with slavery.

I try to believe and act on the principle of persuading the population to get on board with my ideas, rather than railing at people I disagree with. I want to try and convince you that you should be skeptical of prisons.

Do we need prisons? I think, sadly, yes. Since there have been prisoners, the question of the humanity of keeping them has been debated. A lot of people I know support prison abolition, yet I don’t find it plausible. Some people are dangerous- repeatedly violent. My guess is that no amount of eliminating the social causes of crime will make it go away completely, but certainly, it is true no amount of eliminating the social causes of crime will instantly make violent crime go away.

So I reason as follows:

Incorrigibly violent people need to be dealt with.

Killing or mutilating these people is wholly unacceptable.

Ergo, they must be contained.

Ergo something like prison is necessary.

Every society has to wrestle with the difficult problem of the persistently violent, and I get a bit sick of people who claim to be prison abolitionists who, upon examination, are really just mob justice advocates. However, if you think you have a solution to incorrigible violence that doesn’t involve capital punishment or prison, feel free to articulate it in the comments.

For that reason, I reluctantly support the existence of prisons. However, I want to go through exactly what prison is in practice and to explain why I think the humanity of our prisons is perhaps the most urgent issue of domestic policy. I’m worried that the very abstract stance of prison abolition has stopped us from grappling with the hard questions.

Victimless criminals are not make up a majority of prisoners in the vast majority of jurisdictions. A lot of prisoners committed murder, rape, serious assault, and so on but that doesn’t make them inhuman. Nor does it mean that these people don’t have stories.

It’s easy to emphasize good people who suffer, but consistent humanism is defined by its approach into the depths. I concede that there probably are a few people who are simply bad, but I hold that suggesting someone is merely bad is usually the result of a failure of imagination, empathy, or knowledge. Let’s look at some evidence for that.

Everyone is aware that prisoners often face disadvantages through no fault of their own, but you may be unaware of the extent of those disadvantages

Some estimates suggest that up to 65% of prisoners have traumatic brain injuries:

See this and this.

The rate in the general population is much smaller- perhaps one-fifth of this.

Approximately 25 to 50 percent of prisoners- of both genders- appear to have Borderline Personality Disorder

See for example this and this.

This review, while acknowledging some work finds differently, summarizes the results of a majority of studies as follows:

Collectively, these studies— all using specific measures for personality disorder assessment— suggest that approximately 25 to 50 percent of prisoners suffer from BPD.

68% of male prisoners may have been abused as children, and the rate is likely higher for women prisoners

See this

Men who grew up in the bottom decile of income are 20 times more likely to end up in prison than men who grew up in the top decile of income

See this

See also:

And of course, the effects on incarceration by race are massive. Black people in America are about five times more likely to be incarcerated at any given time than white people, and almost twenty times more likely to be incarcerated than Asians.

See this

These statistics are almost eerie. I’ve been working with statistics in social science for years, looking at everything from the determination of income to the determination of education to the determination of happiness. It’s incredibly rare to see anything so profoundly correlated with life circumstances as this.

For example, if you’re born in the bottom quintile of income, your chances of reaching the top quintile are 1/10. If you’re born in the top quintile your chances of staying in the top quintile are 3/10, so being born in the top quintile makes you three times more likely to get to the top quintile than being born in the bottom quintile.

Using the statistics here, I was able to work out that your odds of going to prison if your parents were from the bottom quintile of income are x12 greater.

So your parents being from the poorest income quintile versus the richest has a much greater effect on whether you go to prison than whether you end up in the top income quintile. Four times as great an effect. This shows the staggeringly strong relationship life circumstances have with going to prison.

As best I can tell, your chances of going to prison are related to what happens in your life with strength like nothing else in social science.

An eccentric aside on free will, determinism, and evading the debate

There’s a view sometimes thrown around that there is no such thing as a bad person only a sick person. One response to this is that there is no clear line between sick and bad - relabelling someone’s tendency towards evil as “mental illness” doesn’t excuse it. The philosophical issues are very complex and if we follow of this line of argument back far enough, we will quickly get into difficult questions in the philosophy of psychiatry, not to mention debates about free will versus determinism.

However, I think we can say something about disadvantages in life and the chance of going to prison without wading into the free will debate. It doesn’t take much humanity to think that a wrongdoer who is a wrongdoer because they have suffered great misfortunes deserves special sympathy.

For a long time now I’ve held to this principle:

The principle of the conversation of moral status under misfortune.

This idea is a little bit complex but bear with me. Suppose that something has happened to Bob- for example, Bob has been hit on the head and acquired a traumatic brain injury as a child. Suppose that people with traumatic brain injuries acquired as a child are five times more likely to murder someone. I hold that we should adjust the moral weights so that having a TBI does not affect your expected lifetime moral praise or blame. If you are five times more likely to kill someone after getting a TBI as a child, then your blameworthiness for killing someone is one-fifth as much.

This is maybe even more so when these disadvantages represent our collective failures. Think about how many of these disadvantages- BPD, abuse, traumatic brain injury, poverty, and racial disparities start in childhood. We have a collective responsibility for the welfare of children, their protection from violence, abuse and deprivation. If someone’s misfortunes should incline us to have mercy on them, how much more so when these misfortunes represent a failure of our responsibility to protect?

Regardless of how you think of it, the vast relationship between misfortune and ending up in prison that we’ve documented demands your sympathy.

Consistent humanism

So far I’ve tried to justify concern about prisoners on the basis of the great misfortunes prisoners have generally suffered.

But there’s another good reason to think prisoners matter. Consistent humanism. None of us are perfect, and probably none of us are wholly evil.

In light of that, you have three choices:

1. To hate all humans. A path to misery.

2. To try to draw a line down humanity, a border between loveable and unloveable.

3. To love everyone.

Drawing a line might seem attractive at first, but it’s more difficult than it looks. We’re all ridden with rottenness and light. All of us probably have at least one conceivable circumstance that would break us- morally- and make us do awful things. Most of the people you know would have cooperated with the Nazis had they lived in Nazi Germany- at least at the passive level of the ordinary citizen. The goodness of those you know probably reflects in large part their good fortune.

I can’t stop you from drawing the line, but in my time on earth, I’ve never seen a line that makes the world better or the drawer happier.

Defining the prison skeptic position entails

Having made my case that we should care about prisoners, let me lay out what I think taking the rights of prisoners seriously entails.

1. All people matter. We do not have to earn our mattering. We cannot dispense with it.

2. Prison is a measure of last resort, and should be used more or less exclusively for:

   1. Those more likely than not to commit more violent crimes in the future unless locked up. AND/OR Extreme recidivists who cannot be dissuaded from serious crimes by any means, and for whom fines would be inappropriate. AND

   2. Where alternatives (e.g. home imprisonment) are not workable, despite substantial efforts.

3. Every time a person is put in prison it should be regarded as a failure of policy and society- perhaps an unavoidable failure in some cases, but a failure nonetheless.

4. The punishment inflicted by a prison is to be the removal of freedom only. Inhumane conditions, boredom, a lack of activities, slave labor, and violence by guards or other prisoners should be abhorred, and structurally disincentivized by increasing the power of prisoners to bring tort cases and by prisoners’ unions. Access to healthcare, education, activities, and sports, in prisons is of key significance. This is true not just because it may have reformative effects, but because the welfare, dignity, and even happiness of prisoners matter inherently.

5. Anyone sent to prison (or jail!) and later found innocent should be entitled to very substantial compensation on a time-spent basis.

6. Bail should be granted in all but the most extreme cases.

7. Given the extreme perverse incentives created by private prisons, these should never exist.

8. There is a lot to be fixed, a lot that needs repair. We have the right to protest that, to point out what is rotten and corrupt, without always having immediate alternatives ready to hand.

9. People have affirmative moral values and deserve meaningful lives, whatever they have done.

Prison sets the minimum bar for humanity, we should try to set it higher

What the government and ruling class think they can get away with to prisoners (and a few other marginalized groups, like refugees) sets the minimum standard of what is acceptable. Numerous thinkers have expressed a sentiment along the lines of:

They do to prisoners what they'd do to all of us if they could

You sometimes see people saying things like “why are we worrying about prisoners when pensioners are eating dog food”. I would suggest that in countries where prisoners are treated better, on average pensioners are less likely to be eating dog food. I doubt there is a direct causal connection here- but it’s commonsensical that setting a higher bar for what anyone can deserve protects the innocent as well as the guilty.

One very obvious way this is true is the use of prison labor as slave labor- workers coerced into production at less than the minimum wage. It doesn’t take a genius to see that this will undercut the wages of non-prisoners.

Another very obvious point is that it’s extremely foolish to allow governments to disenfranchise prisoners because doing so gives the government an incentive to imprison its political opponents. This applies even more so to forbidding ex-cons from voting.

We need to think very honestly about what prisons mean

Once I wrote an essay entitled “A katana, an iron bar and prison”. I considered the (real) case of a man who had killed a home invader. The jury rejected self-defense, but I argued that even granted even if he was guilty, a prison sentence was inappropriate.

I gave this analogy. Suppose that being beaten with an iron bar was just as painful, just as likely to prevent recidivism, etc. as being sent to prison. Only you had to do it yourself, you had to look the person in the eye as you did it. You had to face the reality of what you were doing. Now suppose only the iron bar existed, and not prison. Also, assume that the punishment via iron bar had to be inflicted by the decisionmaker- it couldn’t be farmed out to a class of eager sadists. I’d suggest that if this were the case, we’d still use the iron bar on some people, but we’d be much more reluctant to do so and that is proper.

Consider again the guy who killed someone in a confused melee with a katana in the aftermath of a home invasion. Would you be willing to beat him with an iron bar? Most people, I think, wouldn’t. They’d consider the fact that he was unlikely to offend again, consider the fact that he was acting out of a (possibly misguided) sense of danger, and find they couldn’t bring themselves to hit him with an iron bar. They’d reprimand him, fine him and leave it at that.

But if you couldn’t hit him with an iron bar- if you’d convince yourself it wasn’t necessary when faced with the prospect of doing such terrible violence, what right do you have to send him to prison?

Boxing gloves, contrary to common belief, are not intended to make boxing less dangerous, on the contrary, they allow boxers to hit harder by insulating the striking hand from shock. Prison, with its abstract damage done somewhere else, fills a similar function for the judicial assailant.

The legal system inflicts violence in an abstract way, if we face that violence in real terms, we become much less willing to endorse it. Always be honest about violence. If we were honest with ourselves about the violence of prison, that might, in itself, be enough to achieve everything that is demanded here.

“Epistemic violence” and prisoners- a case study of the complicity of academics

In general, I find the language of epistemic violence a little overdramatic. There is, however, a sense of epistemic violence that I think is perfectly legitimate- the use of ideas, theories and knowledge to physically hurt people. The role of certain academics in relation to prisons can’t be seen in any other way. Consider this paper by Barbarino and Mastrobuoni: “The Incapacitation Effect of Incarceration: Evidence from Several Italian Collective Pardons”.

We estimate the “incapacitation effect” on crime using variation in Italian prison population driven by eight collective pardons passed between 1962 and 1990. The prison releases are sudden (within one day), very large (up to 35 percent of the entire prison population), and happen nationwide. Exploiting this quasi-natural experiment we break the simultaneity of crime and prisoners and, in addition, use the national character of the pardons to separately identify incapacitation from changes in deterrence. The elasticity of total crime with respect to incapacitation is between −17 and −30 percent. A cost-benefit analysis suggests that Italy’s prison population is below its optimal level.

I’m not going to argue with their figures about crime. Instead, I want to zoom in on that last sentence.

A cost-benefit analysis suggests that Italy’s prison population is below its optimal level.

A pretty unequivocal statement, no? There is a little timidity in the word “suggests” but in the main, it’s perfectly clear. We all know a lot more people read the abstract than the body. Well, let’s habeas corpus then.

In order to conduct such a cost-benefit like this properly, we would have to consider many things. We would have to consider the costs of incarceration on the state. We would have to consider the costs of crime on its victims and their families and friends. We would have to consider the costs of prison on prisoners, their families, and friends. We would have to consider the fact that violence and other torments of all sorts is rampant in prisons and often underreported.

The first surprise then is that their cost-benefit analysis is 5 pages long. Now I’m all for brevity, but this is a bit short for a cost-benefit analysis claiming to show that more Italians should be locked in cages in a terrifying environment.

So how do they factor in the costs of incarceration on incarcerated people? The single largest cost of incarceration? They don’t. At no point do they include psychological, physical or even economic costs on imprisoned people or their friends or relations. They’re aware that the conditions in Italian prisons are horrendous, but they wash their hands of it like so:

Finally, Italian prisons in recent years have witnessed an intolerable level of overcrowding on the brink of violating human rights. Unfortunately, we do not have data to measure how the disutility of criminals is affected by such harsh conditions of detention but we acknowledge the urgent need of an expansion in prison capacity.

Here’s a radical suggestion. If you can’t quantify the most important cost something has, don’t do a cost-benefit analysis on it. The largest and most obvious cost of prison is the disutility to prisoners.

The standard metric for evaluating costs in costs and benefits analysis is to look at how much people are willing to pay to avoid something. I would suggest that most people would be willing to pay 100,000 euros to avoid going to prison for a year, even if it meant going into debt, as a lower bound. This would flip the results of their cost-benefit analysis easily, by a huge amount

I want to suggest a few rather radical premises which I think follow on from my iron bar thought experiment, viz: if the academics who wrote this paper believe that their actions have any influence on the world, then given the number of people this paper could have harmed, given the scale of those harms, and given their malice in not considering those harms as they made their recommendation, this paper is a crime against humanity. It is an attempt to influence policy in a way that will break thousands of people’s lives, structured deliberately so as to be indifferent to those people and their lives. Once we take the lives, personhood, and dignity of prisoners seriously, this kind of activity is not so very different to work by intellectuals justifying apartheid, a rationalization of violence against the weak.

We need to take very seriously then the complicity of intellectuals in the prison system.

Thinking about utopian alternatives

Utopian writing and thinking, even more so than dystopian thinking and writing, is a mirror of our faults. It’s important see a world without prisons as the goal, even if it is a distant goal.

Imagine some Cavemen from a small hunter-gatherer having a conversation like this:

Urga: I just wish we didn’t have to kill Bonza.

Tar-rara: He’s a dangerous, violent thug. What else are we going to do? Exile him? He will come back for us in the night- or we will inflict him on some other group. We’ve tried disciplining him. We can’t keep him contained forever- there is no other way.

Just as prisons and other forms of captivity abolished the (necessity) of execution for dealing with the uncontrollably violent, I am optimistic that future technologies might abolish the need for prisons, maybe sooner than we think.

Iain Banks imagines the slap drone. As summarized in the Culture Wiki:

A slap-drone would be assigned to, for example, someone who has committed something objectionable or malicious, such as hitting or attempting to kill someone, and which they might be expected to repeat.  It would escort the target in their daily life and intervene in any further attempts at misdemeanor, either by distracting the target or physically deflecting a blow, for example.  A slap-drone would usually have the authority to render its target unconscious if necessary.

One idea that I want to suggest even though I’m aware that it could be abused, is that, with patient consent, it might be possible to treat some of the issues that lead people to be imprisoned, as psychiatry, psychology and neurology advance. If there is evidence of damage among certain prisoners, then, so long as we have their consent and so long as the treatment programs are thoroughly tested and developed ethically, wouldn’t it be morally right to treat prisoners, to try to remove the neurological and psychological damage which made their lives so much worse? There’s so much potential for abuse here, but I think there is something commonsensical about the idea that if, for example, head injuries are making people more likely to commit crimes, then we should fix the head injuries, and that such a program, if very successful, might greatly reduce prison populations.

I don’t think things have to be like this, and I think that one day soon, we’ll have alternatives.