The Magazine

America Behind Bars

Does the punishment fit the crimes?

Apr 21, 2014, Vol. 19, No. 30 • By ROBERT F. NAGEL
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How should we react to the fact that the average length of a prison sentence in the United States has nearly doubled in the last 30 years? That 140,000 inmates are serving life sentences, and more than 100,000 are in prolonged solitary confinement? That California alone incarcerates more inmates than France, Great Britain, Germany, Japan, Singapore, and the Netherlands combined? That 67.5 percent of prisoners commit new crimes after being released? That life in prison is almost always dangerous, humiliating, and profoundly destructive?

Pleasant Valley Prison, Coalinga, California (2003)

Pleasant Valley Prison, Coalinga, California (2003)

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Perhaps the most common response to these and other distressing facts, if they are acknowledged at all, is a kind of tragic complacency: Yes, prison life is ugly, but punishment is inherently painful. Warehousing inmates for long periods of time is harsh, but less barbaric than older forms of punishment, such as mutilation, flogging, or banishment. Moreover, something must be done to protect society from lawbreakers; if the actuality of living in prison is miserable, so are the consequences of criminal acts for the lives of innocent people. In short, even on a massive scale, imprisonment is a necessary evil.

Inferno is a passionate, wide-ranging effort to understand and challenge these and the many other reasons for our heavy reliance on imprisonment. It is an important book, especially for those (like me) who are inclined towards avoidance and tragic complacency. If Robert A. Ferguson is persuasive on nothing else, he is convincing in his claim that we should look our use of imprisonment full in the face. That means examining the psychological, philosophical, cultural, institutional, and political reasons for locking so many away.  

This examination can be uncomfortable indeed. Ferguson is relentless in demonstrating how our use of the language of fairness and rationality can obscure vindictiveness and arbitrariness. We make great efforts, for example, to assure consistency and proportionality through sentencing guidelines. The result is a set of detailed legal prescriptions that, when implemented by the sentencing judge, often require highly relevant circumstances to be ignored. Moreover, the guidelines set carefully calibrated terms according to the relative severity of the offense. But in order for a system of comparative judgments to work, somewhere down the chain of judgment an appropriate term for some offense must be first be established. And that assignment, which enables the others to seem rational, is necessarily artificial and arbitrary.

Ferguson brings this unblinking honesty to other aspects of the punishment system. He insists that we uncover and acknowledge the pleasure people can take in retribution. He shows how the sterile influence of legal positivism has helped to strip legal language of its moral component. Ferguson notes that the American emphasis on individualism and personal responsibility facilitates harsh condemnation. He demonstrates how the division of public authority over punishment among legislators, judges, and prison officials diminishes everyone’s responsibility for the system as a whole. And he points out that severe punishments can be in the crass self-interest of politicians, unions, and prison operators. He is especially insightful in identifying the psychological and intellectual dynamics that cause punishment systems to increase in severity and yet be underestimated.

Nevertheless, many readers will understandably be inclined to discount Inferno as the work of an erudite, but hopeless, bleeding heart. And, indeed, Ferguson dismisses the hardheaded thinking of Herbert Morris and James Q. Wilson in a few pages. Both assume, we are told, that criminals act out of self-interest; they excessively emphasize retribution and neighborhood safety. And—gasp!—they are scornful of liberal reform policies.

Ferguson especially condemns victim impact statements. He writes as if the only purpose of allowing accounts of the harm caused by the criminal’s acts is to bury reason in emotion. He traces America’s punitive impulse to cultural norms, like widespread gun ownership and respect for the military, that are distinctly conservative. And he attempts to situate the feasibility of prison reform in a litany of modern liberal accomplishments that include extraordinary progress for women, racial minorities, and homosexuals.