Fair warning: Madison Opera has asked me to come write about one of their new shows again, so that experience will be informing the next couple of posts here on MA101.
If you’ve been reading for at least a year, you may remember last April’s Don Giovanni live-blog. Since the current show is Dead Man Walking, a contemporary opera based on the real-life story of Sister Helen Prejean’s work with prisoners sentenced to death at the Louisiana State Penitentiary, coverage will be a little less light-hearted this time around (although in an ironic twist, Dead Man Walking would be a perfectly appropriate alt-title for Don Giovanni, too).
So here are some heavy thoughts in anticipation of further heavy thoughts about crime, punishment, America’s criminal justice system, and all that.
The idea of retributive justice for crimes, especially violent crimes, is about as old as human civilization. So is crime, which suggests that retributive justice isn’t a great deterrent.
Seriously. I’m all for experimental social science, up to a point, but we’ve been trying to prevent anti-social behaviors like murder, theft, etc. by demanding equal retribution (or as close to it as the law can approximate) for at minimum 4000 years now.
The data does not show this system as working very well.
Retributive justice hasn’t actually come that far since the Code of Hammurabi. Probably the biggest evolution is that these days we try to legally codify victims out of the equation, and treat penalties other than monetary compensation for provable expenses as part of a “debt to society” rather than an act of personal vengeance carried out by officers of the law. (Not that you won’t hear impassioned cries for vengeance in most prosecutors’ closing arguments.)
That has the conscience-soothing effect of making punishments more impersonal — it’s not your legal opponent or the jailer or the executioner punishing you; it’s society! — but it also suggests that society has a stake in the punishment.
And if that’s the case, shouldn’t we also get a say?
Here is the reality of a convicted criminal’s “debt to society”: it is something that you, a random member of society, will never, ever be paid.
In fact, you’re paying for it. Locking people up is expensive. The average cost of incarcerating a federal prisoner in America for one year was just under $29,000 in 2011; it’s probably gone up slightly since then.
So if, to use the common phrase, a convicted felon is released after “paying his debt to society” with 25 years behind bars, society (meaning you and your fellow taxpayers) has actually ponied up three-quarters of a million dollars, give or take, as punishment for his crime.
Which begs the question: how many of you really feel like you’re getting your money’s worth on that deal?
What do we really get when we lock a prisoner up?
There are three basic arguments: security (potential threats need to be kept away from members of society), deterrence (demonstrating penalties will scare other potential offenders into following the law), and pure retribution (people who have made other people suffer should, as a moral imperative, be made to suffer).
Of the three, security is the most compelling. You don’t want a demonstrably violent offender running around the streets with access to weaponry; you don’t want a proven thief out there unsupervised. In the short term, some people genuinely do need to be separated from the rest of society, at least until the causes underlying their initial crime against society have been analyzed and corrected. In some cases that’s quite easy; in others it’s not, and would require a substantial social service infrastructure working on behalf of convicted criminals.
But if you can get to that point — if you can remove any motivation to commit crimes — there’s no longer a security-based need for incarceration. At that point any further imprisonment is wasted expense, at least from a security standpoint.
As far as creating a secure society goes, money spent on eliminating root causes of crime is a better investment than money spent on long-term incarceration.
So then we have deterrence, or the idea that people are less likely to commit crimes when they know they will be imprisoned or harmed if they get caught.
It’s a fairly easy notion to dismiss; the evidence against it is all around us. We’ve been mandating death or imprisonment for violent criminals, as I said, for literally as long as recorded history, and violent criminals are with us still.
The very best anyone can do is argue that retributive penalties reduce serious crime through deterrence, and if that’s your bag you can make a nice career out of compiling case studies and statistics for or against varying degrees of harshness.
But any argument along those lines willfully ignores the larger picture, which is that overall the method does not work. It just doesn’t. The same basic crimes are still plaguing human societies 4000 years since Hammurabi’s time. Punishing criminals, in and of itself, is demonstrably not a sufficient solution, and anyone who wants to actually eliminate crime has to look beyond simple deterrence.
Which leaves us with the third and most distasteful argument for hurting or imprisoning people in the name of justice: that they deserve it in a pure and moral sense; that someone who has harmed society is inherently in need of punishment regardless of its practical effect.
Human history gives us deep cause to be wary of any group consensus that decides some people inherently deserve punishment. Pick your horror story: honor killings, stonings, sodomy laws, the Holocaust; whatever.
Any argument based on the idea that there are some behaviors or characteristics which automatically mandate a punishment regardless of circumstance relegates some subset of humanity to second-class citizen status. I’d like to think most of us are uncomfortable with that idea.
So where does that leave us?
With an inadequate notion of how society should be repaid by its offenders, mostly.
The blunt reality is this: beyond the short-term need for public safety, incarceration provides little benefit to society as a whole. (Execution, the theme of Dead Man Walking, provides even less, and additionally burdens the society that performs it with an inherent barbarism and hypocrisy, but that’s a subject for another day.)
If we really want to think about crimes as being committed “against society,” rather than against individuals, then we also need to think about how society can be repaid in ways that benefit everyone — including the criminals, who are, after all, members of society themselves.
Right now, we’re not doing that. The only people being repaid are the increasingly privatized owners and operators of our prison system, and you should really be asking yourselves what they did to deserve a cut of the money every time someone gets convicted of a crime.
Because right now, it’s not just the convicts who are paying that elusive “debt to society” — and it’s not society that’s getting paid.