The Punishment IndustryMarch 3rd, 2008

Our legal system wasn’t designed to keep the prisons full to capacity, but it accomplishes this with amazing consistency. Today, one out of every 100 people in America is in a penal institution. If we build them, they will come. Jails are busy despite a steady reduction in crime rates over the past several years. Because of a gradual decline in the number of young adults–the age group that accounts for most of the offenses–crime is down. Even so, incarceration rates have been rising, to the point that prisons are now operated for profit by private businesses in many states. Prisons are a profitable business because there’s a steady stream of customers, and they can’t kick about the service.

Almost a third of the prison population is locked up because of drugs. These prisoners incurred their debt to society by violating a prohibition on the possession of drugs. Some were using drugs, and some were selling drugs, and most weren’t doing anything else illegal. Several big drug manufacturers made news recently because they peddled prescription medicines that they knew were deadly, and they didn’t say anything. You don’t go to prison for that, but if you’re in possession of pain killers and have no prescription for them, you can end up in jail for a year or more. What message goes out when we prosecute a drug peddler who hasn’t killed anyone but allow drug peddlers who have killed people to advertise their cures on television?

A look at incarceration rates might lead you to the conclusion that dark skin is associated with criminality. Alternatively, on the selfsame evidence, you might conclude that dark-skinned people are more often imprisoned because light-skinned people still decide who goes to prison. What with melanoma, the deterioration of the lower stratosphere, and the peculiarities of natural selection, light-skinned people will soon be outnumbered, and we can guess that light-skinned people will be the prison-fodder of the corrections industry of the future. How society benefits by imprisoning people of a particular color at a higher rate is a question to ponder. Seems as if such a situation might do more harm than good.

You would think after a couple of centuries of self-government we would have our prohibitions pretty much settled, but no. To keep the prison industry humming, our legislators invent new crimes every session, and they point to their creations with great pride. This year in my state it’s a multiple violent offense law that would jail you for life on conviction of your third act of violence. No doubt most of the people prosecuted under this law will deserve the sentence, but that doesn’t answer the question of social utility. Do the rest of us really gain anything by jailing a felon for life? Instead of finding ways to rid these misfits of their criminal tendencies we lock them up for life to prey on weaker prisoners, mostly drug offenders. Guards must turn away to maintain the illusion that they, and not their most violent charges, run our correctional institutions.

It’s not really corrections, of course. Studies of outcomes of delinquency prove that most convicts can be redeemed, but the presumption of our prison system is that rehabilitation isn’t worth the effort. You’d think that corrections staff would earn bonuses for ex-cons’ success on the outside, but they don’t. Prisons are a punishment industry, and both the suppliers and the customers know it. And what does society gain from the punishment of wrongdoers? Is it the prospect of punishment that keeps us from breaking laws? Probably not. Offenders don’t expect to get caught, much less punished. The rationale for punishment seems to be not so much deterrence as retribution. Victims of crime crave justice and need to know that the predator received a just punishment. It’s part of the social contract. Injury must be avenged, and it will be avenged, and if the state doesn’t take care of retributive justice, then the people will. It’s jail for offenders, or it’s mob rule for all.

Punishment certainly has its place, but high rates of imprisonment should be seen as a failure on the part of the law-abiding citizenry. Either we are creating anti-citizens at an alarming rate, or we are unjustly punishing millions of young people. Either way, it’s a huge social failure, and it’s sitting out there in front of us like a rotting carcass. Things haven’t always been this way, and the disastrous state of things–one percent in jail is a disaster–should tell us that the punishment industry is a failure.