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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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?