Crime and Punishment III

Making Prisons Fair and Just

An oft-heard argument for longer prison sentences is the need to protect the public. The idea is that violent criminals will continue to prey upon others so the only way to protect the innocent is to lock violent criminals up forcibly separating them from their fellow man.

This argument for the prison system is intriguing insofar as it tacitly admits that rehabilitation in prisons does not occur--or that there are some persons that are virtually irremediable. Apparently the Corrections Department is not very good at that which its name implies.

We remain deeply skeptical over the ability and competence of prison to rehabilitate or correct. How one could be locked up with a college of criminals and by virtue of that fact be rehabilitated strains credulity beyond the breaking point. It is a stupid idea. But, more importantly, we do not like the "protect the public" approach, because it is fundamentally unjust. It necessarily involves punishment because of what might one do in the future, not because of what one has actually done--which seems inimical to even basic rudiments of justice.

Better not to introduce considerations of protection of society against a supposed threat which may be hypothetically carried out some time in the future.

Rather, as we have argued, the only just principle for prisons is to run them as institutions of involuntary slavery where the slaves have the opportunity to work to pay their restitution debts. Now, as we have argued, there will always been some proportion of the prison population who are recalcitrant and who refuse to work. We would expect that the more violent, lawless inmate is likely to be overly represented in this proportion.

It will fall out that these inmates stay permanently in prison because their restitution debts mount to the point where they could not pay them back in their lifetimes. They will likely die in prison. So be it. Moreover, it is also inevitable that capital crimes such as rape or murder would attract the highest and largest restitution penalties, requiring long years of work (and, therefore, incarceration) to pay off the debt. A by product of this would be protection to society at large--but this would be achieved without perverting the fundamental principles of justice.

We have argued that prisons would make more sense if they were completely structured around the fundamental principle of justice that the criminal needs to restitute those he has harmed. This would transform virtually the entire prison system into one of incarcerated employment. Everything would be orientated to achieving this end. But this would not be the kind of slavery where prisoners have no choices, rights, obligations or responsibilities. Remember, the enslaved work regime is not for punishment, but to enable payment to victims.

In this approach, prisoners would be required to compete for the jobs available. They would apply for them, be interviewed, appointed etc. They would not be forced to do a job they did not choose to do. (Once again, if they did not work, they would move into close supervision regimes, and their restitution debt would start to increase rapidly as the full cost of prison "room and board" were applied to their accounts.)

They would have the right of resignation from a job at any time. They would also be subject to firing if they did not perform up to specification. Prisoners would also have a right to change prisons, if they applied and were successful in being appointed to a work position in another prison. Naturally, the most popular prisons would be those that provided the best work opportunities. Moreover, those prisons which were keeping costs down, so that less was taken out of weekly wages for “room and board” would also be more popular.

Incidentally, under this model there is no reason why a prisoner could not choose which prison to be sent to in the first place. Since all the commercial operations run within prisons would be competing for labour they would be constrained to offer the best terms and conditions of employment possible. Once again--prison on this model would not be for purposes of punishment but for bonded servitude until restitution debts were paid. So, it would make sense for prisons to compete to attract prisoners, and for prisoners to have the right of choice. (Of course, if their preferences could not be satisfied, the courts would assign them to a particular prison.)

Prisons would be adjudged as relatively more or less successful not just in penal terms such as preventing escapes and maintaining social order (though these are important measures) but also in terms of how many prisoners were able to work off their restitution debts and win release. This would help give an incentive to prison administrations to ensure that sustainable, productive, and lucrative employment opportunities were available to those in their charge.

We would expect that some prisons would focus and concentrate upon particular industries or lines of commerce (much of which may be sub-contracted to private firms which would run businesses within the prisons). This would suit some prisoners and not others—depending on their levels of skills and training. Some prison businesses would pay more, depending upon the commercial rates for work and labour operating in their particular industry.

At the same time, a prisoner at any time could leave prison, provided someone in the marketplace or community were prepared to pay his outstanding restitution debt, and the prisoner's debt-obligation were able to be transferred to the benefactor. This would help keep all rates of remuneration in prison set to market levels. If a business run within a prison were paying sub-market rates for skilled labour, outside competitor firms could compete its trained staff away, by paying their restitution bonds.

Moreover, there would be no objections or barriers to prisoners becoming engaged in business activities outside the prison (provided they were lawful) by means of cell-phones, the internet, or other media. The earnings would need to be accounted for, administration of bank accounts be done by trustees, and appropriate payments made to reduce their restitution debt. Such constructive behaviour would be encouraged. The sooner the prisoner-slave paid off his restitution debt, the sooner he could be released. Neither would there be any barriers to prisoners employing other prisoners, provided all arrangements were formally contracted and properly administrated.

No actual money should ever be available in prisons! We would also expect that some incarcerated criminals would seek to exploit the system. There would likely be attempts to sabotage workplaces, conspiracies to ensure that gang members got the favoured jobs in the favoured prisons, etc. However, whilst this would require effective policing, there would be a number of factors that would militate against such influences. Since it would be up to each commercial enterprise which prisoners they hired, any gang or conspiratorial group would risk being black-listed. This would mean that all their associates would likely be refused jobs, thereby effectively lengthening sentences by the day. The knowledge that association with a gang would likely result in unemployability, leading to a lifetime in prison would be a powerful disincentive to associate with any group that was found undermining or working against the system.

Moreover, employers would have the right to fire unco-operative or dilatory prison workers. That would be entered on to a prisoners employment record. The likelihood of his finding a replacement job would thereby be diminished. The threat of a lifetime in prison would loom large at all times. But in most cases whether this threat came to pass or not would depend upon the attitude and application of the prisoner. In other words, his destiny would be largely in his own hands.

As soon as a prisoner had paid his restitution debt he would be freed from incarceration or involuntary slavery. The sooner he paid it, the sooner his prison sentence would end. There would be no prison terms, nor parole. Both would be irrelevant. The endless and tedious arguments about stricter prison sentences, longer prison sentences, earlier parole, home detentions and the like would all be redundant. Every day a prisoner worked he would know that this term was being shortened.

To reinforce this reality, every fortnight a prisoner would receive a payslip, or statement of outstanding debt. This would contain the summary of his offences and crimes, the amount of the original restitution debt, a statement of how much had been worked off to date, the amount outstanding, and the earnings for the past two weeks. This would serve constantly to remind prisoners of why they were currently enslaved, and what they needed to do to remove the yoke of slavery from off their necks. One imagines that they would have plenty of opportunity to think about their criminal acts and the damage they did to innocent people.

The benefits of this approach to crime and punishment, which derive from the Mosaic legal code, would be far reaching.

Gone would be the endless wrangles over length of sentences, parole terms, community sentencing, home detention, prison management, bungles at the Corrections Department, community safety, and so forth. There would be one strictly neutral and disinterested principle determining the length of a sentence: it would last as short or as long as it took to pay back the restitution debt.

The State and the court system also would have one overriding interest or objective in dealing with the criminal: everything would be aligned to ensure that the victim was justly restituted. The objective would be neither to make it hard nor easy for the criminal in prison. Rather, the focus of prison policy would be to provide an environment where every willing prisoner could earn a sustainable income to pay off their restitution debt so they could be released from penal enslavement as soon as possible. Moreover, every working prisoner would be making a meaningful contribution to the upkeep and running of the prison. The cost to the taxpayer of running prisons would be reduced substantially.

The successful rehabilitation of the criminal into the community once released from prison would be far more likely under this method. The criminal would be a criminal no longer: he would have completely paid off his debts to those he had wronged. He would bear the honour of having done the honourable thing—somewhat akin to a bankrupt who subsequently paid back all he owed to his creditors. Moreover, it is likely that his time in prison would have helped him gain marketable skills and work disciplines that would be useful on the outside.

The wider family of every prisoner could make meaningful contributions to seeing their family member get out of restitution debt. Every dollar they contributed would see the sentence shortened. The more the wider community were to contribute, the more the accountability when the prisoner was released. The more contributions to victim restitution an extended family could make, the more they would retain their honour and help remove the shame of a family member who committed crimes.

Moreover, there would be no need to debate “three strikes” sentencing policies. Each crime would be treated justly on its “merits” as it were, and sentencing would be focused upon restitution. As argued above, the more serious crimes would like take decades to pay off.

Finally, those who want to extend mercy, forgiveness and compassion to prisoners would have ample opportunity. Charities and individuals, if they chose, could assist in the repaying of restitution debts. They would then bear the responsibility—to a significant extent—of the course and career of the prisoner whose debt had paid and who had been released from prison.

Of course this penology would not result in every problem being overcome. There will always be problems, sins, and crimes in our fallen world. There would still be recidivism, although we believe at far lower rates. There would still be horrific crimes, which would attract restitution debts so vast that they would be unlikely to be repaid even in several lifetimes. There would always be recalcitrant prisoners who would elect to die in prison. The pernicious influence of criminal gangs in the prisons would not go away. At least not initially, although we suspect that their influence and control of prisons would likely weaken over time.

But underneath everything, in applying these principles, would be the overarching and undergirding principle of justice. No longer “you did the crime, now do the time” which bears no relation to justice at all apart from the element of retribution. The “time” as it is currently understood is a complete non-sequitur to the crime. Everybody instinctively understands that—which is why there is such disquiet over modern western penal systems. Moreover, even when the State levies fines upon criminals it is an unjust non-sequitur. How on earth does paying money to the state constitute a just punishment for damage done to a victim of crime?

But if the slogan were changed to: “you did the crime, now make it up to those you damaged” it is intrinsically much more just. A judicial and penal system built around this principle, and relentlessly and consistently structured so as to see that it is carried out, would be overtly and demonstrably more just that the current system.

“You dealt the dirt, now heal the hurt” has a far more righteous ring to it. That in a nutshell is the Christian philosophy of crime and punishment. That would revive and revolutionise the modern prison system, creating something far better.

But how likely is this approach to gain currency in our modern world? Not at all. Until a society knows and believes that all sin, including all criminal acts, will receive an exacting and full and just retributive punishment in the world to come it will not be able to relinquish its supposed right to execute vengeance in this life. Thus, in our modern western pagan world, restitution to victims will remain unimportant and inconsequential. Retributive punishment will remain a major driver of justice, along with totally contradictory principles such as the belief that sin is environmentally caused and that ultimately the criminal is a victim of society, not an evildoer.

These warring principles will consign the institutions of justice and the prison system to a hopeless Babel of ineffectual confusion and persistent systematic injustice. The practice of justice and the treatment of criminals is one of the places where the dominant religion of every society is on display. The fruits of the idolatry of Autonomous Man are not pleasant to behold.