Oubliette: The Un-Ethics of America's Prisons / by Carl Bindman

This was written for my CEGEP class, "Ethical Questions in Medicine and Health." Shouts out to Mendel Kramer.

It’s surprising that more people don’t find prisons surprising. Isn’t there something inherently illogical about thinking that because you’ve locked somebody up for however many months or years, that they will come out of incarceration as somebody who won’t commit a crime again? Where does that assumption come from? Maybe it’s ingrained into society’s way of thinking—prisons have been around forever, after all, they must be doing something right. But whatever the root of the idea, it has led to a proliferation of incarceration in recent years. This is particularly unfortunate when comparing imprisonment to other forms of punishment, as prisons end up being not only the least effective, but also the least ethical correctional choice.

By “our society”, what I mean is “The United States Of America.” The dramas play out on a grander scale in the world’s largest incarcerator. Because of this, paradigms and conundrums are more evident, studies are more thorough, and generalizations are more likely to hold true at some point or another. For reference, according to the CBC, there are around 15 000 inmates in Canada; there are just under 2 400 000 in America.

It’s worth trying to justify the expense of imprisoning so many people. The average inmate in a minimum-security prison costs the government $21 000 a year. Assuming every inmate is minimum-security, that’s a yearly loss of $50 billion. The budget of the Department of Education in 2016 is $61.7 billion, in case you were wondering. Imagine what’s possible with the money made available by reducing incarceration rates even by half, and it’s easy to see the wastefulness of the system in its current form. From a purely consequentialist perspective, without considering the legal, political, and economic circumstances that led to this point, this is unethical. There is no maximization of utility for anybody involved—except maybe CEOs of private prison companies, but to call those things people is a stretch.

While it is cliché to compare education and incarceration, I’m doing it for a reason. Continuing in a utilitarian vein, when it comes to taking an offender and turning them into a productive member of society, putting them in prison almost assures the opposite. This is especially evident in young people. Talking money, juvenile corrections cost $6 billion every year, at $88 000 per head. What’s more, according to Les Picker in his article named Juvenile Incarceration and Later Criminal Activity“incarceration during adolescence may interrupt human and social capital accumulation at a critical moment [in life].” In other words, getting arrested as a kid screws everything up. And while the tendency is to suggest that, well, maybe these people are in jail because they did something bad and deserve to have their lives screwed up, that’s mostly wrong. Only in Massachusetts are the majority of juvenile prisoners serving time for crimes committed against others. And nationally, only 61% of inmates are even convicted of crimes. But more on that later.

Going with the assumption that a juvenile convict (or any convict, for that matter) deserves to be punished, but ceding that ruining her life is perhaps not an appropriate payment of dues, what can be done? Les Picker, yes again, cites a study by Anna Aizer and Joseph Doyle Jr., when discussing his points. The study—which I can’t access to verify that Picker is telling the truth, but I have no reason to disbelieve a writer for The National Bureau of Economic Research—says that incarceration increases dropout rates and increases the likelihood of incarceration as an adult as well. Then it suggests alternatives to incarceration, referencing Illinois’ (the study was conducted in Chicago) alternatives. Employing curfews and electronic monitoring in place of blithely incarcerating the youth is shown to increase graduation rates and reduce future crime, oddly enough. By punishing while still giving tools for the future, the system can ethically teach two kinds of lessons to a youth offender.

Judy Tsui, a researcher for The Journal of Criminal Law & Criminology, dives into Chicagoan juvenile delinquency in much greater detail in Breaking Free of the Prison Paradigm: Integrating Restorative Justice Techniques Into Chicago's Juvenile Justice System. She agrees with pretty much everything Les Picker says, but adds one remarkable statistic: of the 225 juvenile offenders involved in alternative correction, 85% of them were able to “articulate the harm they caused the community and knew how to make amends,” compared to 25% across the country. From a utilitarian standpoint, Tsui also points out how “alternative programming” is cheaper than incarceration. That money, at least in Chicago, can be used to pay forward the city’s looming debt so Chicago doesn’t become an even more disastrous Detroit, which would in turn lead to impossibly high crime rates. That’s just science. Ethical science.

But there is a bigger question to all of this. Is the purpose of prison rehabilitation, or punishment? The question extends to the criminal-justice system as a whole. But let’s avoid platonic discussions of “justice” and focus on some specifics. Punishment seems unethical and unproductive. It’s also very hard to justify as a purpose for a justice system, ethically speaking. Especially when too many people facing punishment through incarceration fail to see due process before the law. Again, without diving into the many reasons for this being the case, a preposterous amount of Americans are arrested each year, far more than the court system can handle. It’s a number that gets tossed around often, that 80% of legal cases in America don’t even make it to court (which harkens to the 60% convicted prisoners number from before), but there doesn’t seem to be any actual evidence for that number being true. But it feels right, and gut feeling is all you need when dissecting enormously complex legal issues.

Once in prison, punishment is draconian and arbitrary in equal measure. Solitary confinement as a disciplinary measure, for example, is rampant, growing twice as fast as the overall prison growth rate—in spite of the fact that it literally drives people crazy. Plus, giving free reign for an institution to “punish” opens all kinds of doors to abuse, the kinds that need not be cited to be imagined nor described to be felt.

If the purpose of prison is rehabilitation, then that too is unethical, because prisons aren’t able to rehabilitate. It’s unethical to put the life of a patient in the hands of a parakeet wearing a labcoat; it’s unethical to put the future development of a human being in the hands of a prison. Even just from Tsui’s data, it’s obvious: 30 to 40 percent recidivism within six months is considered normal. That’s not normal. The National Institute of Justice points to disturbing rates as well: 76.6% within five years. At that point, why even let prisoners out of jail?

While it feels wrong to say that prisons should be abolished, the evidence points that way. Confirmation bias notwithstanding, there’s something true about prisons being generally unethical, at least as they are right now. Yet we cling to them. Maybe it’s a vestige of our still-evolving ape brains—the need to punish the evildoer. Maybe it’s just easiest to lock people up and forget about them until we can lock them up and forget about them again. Regardless, whatever drives us to imprison people instead of helping them, and whatever drives me to resist changing that drive, is worth examining. Maybe there is a place for prisons. Maybe there isn’t. I don’t know. But I do know that if (read: when) I break the law, I would ask whatever punishment I receive is an ethical response to my crime. It would literally be the least I could do.