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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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