Punishment, Prison, & Necessary Changes

by Mackenzi Barrett

In 1992, a hitchhiker killed the man that picked him up. He was sent to prison and then paroled in 2005. In 2011, after earning his baccalaureate degree, Tulane University granted him admission into their law school. His name is Bruce Reilly, and to say that his fellow classmates at Tulane were wary of him would be an understatement, to say the least. However, as a 2011 article by Elie Mystal points out, “what is the point of having a prison system that ever lets people out if those ex-convicts are not to be allowed to try and succeed on the outside? If I am forced to watch Michael Vick prance around every Sunday getting praised and getting rich, why can’t a murderer turn his life around and go to law school?” Although this story may seem shocking, Bruce Reilly’s transformation story is not the first or only of its kind. Just two years ago, the story of Michelle Jones surfaced after Harvard rescinded its offer of admission to their graduate history program due to her filicide conviction. Back in 1995, Harvard also rescinded its offer of admission to Gina Grant, convicted of matricide. Perhaps the most important question that comes from these stories was asked by Elizabeth Hinton, a Harvard historian who supported Michelle Jones’s admission, “how much do we really believe in the possibility of human redemption?”

The Eighth Amendment states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Especially in the last century, numerous debates, not to mention Supreme Court cases, have occurred over the meaning of “cruel and unusual.” For example, in Trop v. Dulles, Chief Justice Warren stated that the meaning of cruel and unusual changes in response to “the evolving standards of decency that mark the progress of a maturing society.” However, Justice Antonin Scalia argues in his essay Common-Law Courts in a Civil-Law System that the terms cruel and unusual must be understood using the theory of originalism, as in the context of the Framers’ understanding of the terms. As important as these debates are, the more fundamental question that must be addressed concerns the purpose of punishment, i.e., does that purpose include redemption.

The purpose of punishment is a subject that has been contemplated by philosophers for millennia. In his 1887 book On the Genealogy of Morals, Friedrich Nietzsche states that the idea of punishment “is not content with manifesting merely one meaning, but manifests a whole synthesis ‘of meanings.’” Indeed, the general consensus is that there is not one sole purpose of punishment but instead a few, including deterrence, incarceration, rehabilitation, and retributive. Philosophers such as Kant and Hegel advocated for a focus on the retributive aspect of punishment. In Criminal Punishment and the Pursuit of Justice, Mike Materni counters Kant and Hegel with writings of Cesare Beccaria:

“The purpose of punishment … is none other than to prevent the criminal from doing fresh harm to fellow citizens and to deter others from doing the same. Therefore, punishments and the method of inflicting them must be chosen such that, in keeping with proportionality, they will make the most efficacious and lasting impression on the minds of men with the least torment to the body of the condemned.”

Ultimately, Materni concludes with an appeal to the criminal justice system to embrace a restorative justice approach. The most reasonable way to answer the question of punishment’s purpose would be to integrate all its purposes and rank them according to their priority: deterrence (to maintain society), rehabilitation (to reintegrate criminals as productive members of society), incarceration (as a last resort for those whom rehabilitation is not possible), and lastly, retributive (to placate the human thirst for vengeance).

Now to introduce some scary statistics for the United States: despite only having 5% of the world’s population, the United States has 25% of the world’s incarcerated population; a recidivism rate of approximately 70%; and the highest prison rate in the world (at over 700 per 100,000). Furthermore, overcrowding in U.S. prisons has become a serious problem with jail occupancy levels nearing 110%. Such daunting numbers make it clear that something needs to be done about the U.S.’s criminal justice system, a system that largely focuses on the retributive aspect of punishment. There are many different options that the U.S. could implement, not all of them as equally likely or effective. The United Nations addresses prison reform along five different platforms: pre-trial detention, prison management, alternative measures and sanctions, social integration, and healthcare. So, what has been done lately to address these concerns?

On December 21, 2018, President Trump signed the FIRST STEP Act into law. This federal law makes many changes and among the most important are making the Fair Sentencing Act of 2010 retroactive, easing mandatory minimum sentences, increasing the amount of time that inmates can earn off their sentences for good behavior, and allowing inmates to receive “earned time credits” for participating in certain vocational and rehabilitative programs (an attempt to reduce the recidivism rate). Of course, as important as these changes are, the FIRST STEP Act can only do so much as a federal law. A majority of the incarcerated population resides in state and local prisons, and thus, the law only affects a small proportion. In fact, the Brennan Center for Justice, while granting that the law is indeed a “first step,” insists that more must be done, including using federal dollars to incentivize state governments to take similar first steps. However, it is worth mentioning that some states are already taking measures to reform the prison system, and have been for a while, as is the case in Georgia. In fact, Georgia once had the fourth highest incarceration rate in the nation and is now down to ninth thanks to former Governor Nathan Deal’s efforts. Now, with a new governor taking office, there is a fear that all of these changes could backslide, or at least, plateau.

Still, with the highest incarcerated population in the world, these new measures probably will not be enough. Perhaps then, it is time to look at some other prison reform success stories in the world, such as Norway’s, where the incarceration rate is a mere 75 per 100,000 people and the recidivism rate only 20%. Norway, like Materni advocates for, employs a restorative justice approach to their criminal justice system and focuses on the rehabilitative purpose of punishment, insisting that the loss of freedom is punishment enough. Additionally, besides a switch to a rehabilitative focus, focusing on crime prevention might also prove helpful in reducing both the crime rate and subsequently, the incarceration rate. Recall Bruce Reilly, Michelle Jones, and Gina Grant, all of whom were convicted of violent crimes. What all three of them have in common, in addition to the nature of their crime, is troubled childhoods. Organizations like Alabama Children First advocate for public policy that betters the lives of children across the state. If more states realized (as in made real because hopefully they already know this) how much of an impact early prevention and identification can make and implemented preemptive measures for at-risk youth, crime could decrease drastically. Because ultimately, habits are hard to break, and it is so much easier to never form them in the first place.