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.  

But while Ferguson is, perhaps, a liberal do-gooder, his book is too balanced and thoughtful to be disregarded on that ground. For example, his description of what might be labeled “conservative” in American culture acknowledges that these norms are, in important ways, positive. His effort to evaluate the prospects for prison reform includes not only an optimistic list of liberal accomplishments but also a complete picture of social and economic deterioration. Ferguson’s general disapproval of severe punishment must be set against his brief, but important, concessions: He notes, for instance, that the United States has higher homicide rates and higher unsolved crime rates than do other modernized nations. Even in proposing his own reforms, Ferguson admits that all previous ideas for prison reform have led eventually to new abuses. 

Inferno posits a humane but limited moral objective for prison reform. Ferguson rejects the common proposal that reform be constructed on an edifice of legal rights. He recognizes that society as a whole, and not just judges, must confront the reality of punishment. He knows that punishment, including incarceration, is necessary; but he insists, nevertheless, that every life should have at least some worth. The meaning of this essentially biblical imperative is established by a short account of the distinction between the inferno and purgatory in Dante’s Divine Comedy: The torments of the inferno are endless, and the souls condemned to suffer there have no hope; the torments of purgatory, while horrible, might end with deliverance. To have worth, then, is to suffer merited punishment, but to suffer with hope.

So Ferguson’s proposal is not that the American prison system be made pleasant. He wants to make it into a purgatory. As a moral objective, this is difficult to resist; but operationally, what would a life of some worth mean for prisoners?  

Ferguson mentions some of the standard proposals offered for prison reform: shortening sentences, reducing population density, eliminating long-term isolation, providing better protection against violence, and so on. Such measures sound sensible, but can, of course, be debated. All have costs, financial and otherwise, and some may be impossible, given the basic realities of prison life. 

Ferguson’s major emphasis, however, lies elsewhere. With near-missionary zeal, he first wants Americans to confront the realities of our system of punishment and our role in creating it. Precisely because Inferno is so perceptive in uncovering the deep reasons for both severity and inaction, it is tempting to respond, “Well, good luck with that.” Be that as it may, Ferguson wants our confrontation with the realities of punishment to produce a set of programmatic changes designed to restore, to most inmates, some sense of worth. 

The main change would be an ambitious job-training program intended to provide inmates with a measure of control over their futures, with some possibility of productivity and growth. The essential innovation here is that the training programs must be strictly separate from prisons: Selected inmates would be released into the community to complete educational and vocational training, after which they would be placed in small public/private business ventures that might include what sound like public-works projects. By physical separation from the place of punishment, this program of restoration would be cleansed of the corrupting influence of the retributive instinct.   

It is here, I am afraid, that my conversion experience ends. My doubts are not about the moral imperative of allowing convicts some sense of self-worth. Nor do I doubt that productive labor is a highly useful, often essential, means to that end. The problem is one of priority: This is a society, as Ferguson recognizes, that does not educate, train, or provide jobs for untold numbers of people who have committed no crime. According to what moral compass should we start providing effective education and jobs for felons before making them available to, say, inner-city youth?

Of course, Ferguson anticipates this question. His answer is that government is directly responsible for establishing guilt and imposing punishment; government is not responsible in the same way for other problems of social justice. This is true enough—and the distinction unquestionably imposes on government the duty to rethink overly harsh sentencing schemes, mitigate prison violence, provide inmates with adequate medical care, and so on. But an ambitious and costly job-training/job-creation program? To do this, first, for prisoners, rather than for the law-abiding, would be perverse. When faced with problems of scarcity and priority, the progressive impulse is to assume an adequate supply of available public resources so that difficult choices are unnecessary. (To his credit, Ferguson does not indulge this impulse—although in urging the affordability of prison reform, he does descend to an argument based on claims about how much money hedge fund managers earn.)

The issue is not whether there is enough wealth in the United States to institute Ferguson’s proposals. The issue is whether there is sufficient available wealth (and knowledge) to institute those reforms—and, also, to address our inadequate public education system and our high unemployment rate, as well as other public needs that are arguably more morally compelling than the self-worth of felons. Ferguson’s sense of moral urgency is, in itself, surely admirable, and it impels him to provide revealing insights about punishment. But his major policy recommendation, while desirable in a more perfect world, is not persuasive in the one we occupy. 

Robert F. Nagel, a professor of law at the University of Colorado, is the author, most recently, of Unrestrained: Judicial Excess and the Mind of the American Lawyer