In 1983 I noted in Just and Painful: A Case for the Corporal Punishment of Criminals that there were approximately 315,000 individuals incarcerated in federal and state prisons, plus some 158,000 persons in jails of various kinds. The annual cost of this incarceration was estimated then to be $20,000 per inmate, amounting to an annual expenditure of some $10 billion.
The solution I advocated at that time was to replace much of the punishment of prison with corporal punishment of a specific type: one that applied acute pain (that is, intense sharp pain of very brief duration). I contrasted this type of punishment with those punishments that applied chronic pains, such as prison. Chronic punishments, I demonstrated, always bring with them uncontrollable side effects, especially “punishment overflow.” Prison causes suffering of the individual that cannot be controlled in its severity since the pain endured often lasts well beyond the specified duration of the sentence. The suffering also spills over to the offender’s family members who are deprived of the offender’s earning power and presence in the family. This, I argued, is an immoral and unjust side effect of chronic punishments such as prison. It amounts to the punishing of innocent persons.
In order to implement a program of corporal punishment, I argued that the criminal justice system should be split in two: one system to deal with nonviolent offenders, and the other to deal with persistent and very violent offenders. The first group would be targeted for corporal punishment, the latter for prison. If this had been implemented, the prison population could have been reduced by at least 70 percent, since roughly less than one-third of inmates in prison at that time were violent offenders. This proportion varies from state to state and institution to institution, but this probably is still true today.
To drive home the radical novelty of this scheme, the type of corporal punishment I advocated was acute electric shock, There were important technical reasons for selecting this punishment: it is less observably violent (and less spectacular than, say, whipping), and it is in line with current technology, meaning it can be calibrated and controlled very easily. The amount of pain delivered to the offender can now be controlled to a degree never before possible. The chances of punishing to excess are therefore minimized (though all punishments do have unwanted side effects, some more than others).
Penologists reacted to this scheme with outrage, and the media did their best to make me look like some kind of weird creep, but the logic of the argument was never assailed. Liberal critics in particular were invariably forced to fall back on a defense of prison as a cure-all, a position in which they felt very uncomfortable, or they were forced to advocate more probation or community service, none of which look to the public like punishments at all. The conservatives were silent, except for Pat Buchanan, who complained that the punishments I advocated were not severe enough, amounting to a mere slap on the wrist. Of all the criticisms, Buchanan’s was probably the only one that carried any weight. Let’s face it: who wouldn’t trade a year (or more given the long terms received by today’s drug offenders) of prison for some minutes of intense physical pain? The liberal critics were so busy calling the plan sadistic and barbaric, that they overlooked just how humane the plan was.
Many of my colleagues asked me whether “I was serious” about what I had written. A number defended me (and I thank them) by suggesting that they thought I didn’t really mean it, or that the book had been written “tongue in cheek.” It seemed as if I had written something that was beyond belief. The ideas were unthinkable in the late 20th century; a kind of blasphemy.
The most common reason given for the outright rejection of corporal punishment of criminals is that it is out of step with modern sensibilities, that “we no longer do that sort of thing any more.” This argument seems to imply that we are more “civilized” today in our punishments than were our ancestors. Yet it is easy to demolish. The death penalty (a favorite punishment of our ancestors) is again on the increase in this country. Some 70 percent of the people support it. The violent and crowded conditions in many prisons are difficult to hold up as standards of refined and civilized sensibilities. In fact the claim that our sensibilities are more refined appears absurd when we look at the enormous excesses today in the use of prison as a punishment.
But I am humbled by the fact that hardly anyone takes my solution to the punishment problem seriously, especially since things have become much worse since 1983. Today there are over 600,000 persons in prison plus some 405,000 in jails. The annual cost is somewhere in the vicinity of $40,000 per inmate, and to build a new cell costs approximately $100,000. Why has the situation become so much worse? Why has no credible alternative to prison arisen?
There are three main reasons why the numbers in our prisons have increased so drastically over the last decade. First, the draconian drug laws that were passed by many state legislatures mandated prison terms for possession of various amounts of drugs. The basic motive for this legislation was that popular ethic of governments: deterrence. The idea is that the more severe you make the punishments, the greater will be the reduction in crime. Unfortunately, there is scant research to back up this claim. It is a faith, and nothing more. Second, there is the failure to distinguish between truly serious offenders from other persistent but nonthreatening offenders. The predicate felon statutes of many states reflect this foolishness. The celebrated case of Rummel v. Estelle in which Rummel received a mandatory life term as a predicate felon, having been convicted of his third felony offense, is a good example. All three of his offenses were property crimes, the sum total of the property stolen amounting to $229.11. The U.S. Supreme Court did not find his sentence to be “cruel and unusual.” Clearly, the definitions of “felon” and “felony” require radical revision, so that we end up incarcerating only those who are serious, violent offenders (hopefully before they have committed their second or third offense).
Third, the advocacy of the “just deserts” principle of sentencing in the 1970’s resulted in the abolition of parole in many states and the subsequent legislation of mandatory prison terms implemented in the 1980’s. The just deserts advocates of the 1970’s argued that indeterminate sentences (i.e., sentences of incarceration that could be as long as necessary until the offender was rehabilitated) resulted in unequal punishments for the same crime, since some individuals “recovered” at different rates from others, thus getting shorter or longer punishments (sometimes by many years). The finger was also pointed at the supposed abuse of judicial discretion, and at the abuse of the discretion of parole boards (who get to second-guess the punishments by allowing the offender to be released from prison earlier, depending on his record). The deserts advocates (the now-celebrated Alan Dershowitz was among them) argued that, because rehabilitation had been shown not to work (which is generally true), there was no justification for applying different prison terms to different offenders for the same crimes. This seems straightforward enough. Unfortunately, while appearing morally correct, it ignored the practical outcomes of this “deserts model,” which required mandatory sentencing (i.e., same punishment for same crime) and a strict grid of sentences and punishments. Further, it failed to address adequately what to do with repeat offenders (since in theory according to the deserts model, one matches the punishment only to the particular offense, and is not justified in repunishing for prior offenses that presumably have already been punished).
Worst of all, the just deserts advocates failed to address the real issue: the obsessive use of prison. Because they were locked into this type of punishment, the morally defensible (and in my view superior) ethic they espoused produced what they considered to be unanticipated outcomes, especially the compounding of prison terms by legislatures and the resulting massive increases in prison population. What they had failed to understand was that legislatures are strongly disposed towards a deterrence view of the world. They simply adopted the moral verbiage of the deserts advocates and used this for deterrent aims, thus compounding punishments to hitherto unheard of lengths, kidding themselves that this would reduce the crime rate. (The relationship between crime rates and prison rates, by the way, is especially difficult to determine. Research in the United States and in other countries generally suggests that crime rates and prison rates vary independently. Even if we grant to the deterrence advocates that crime rates have shown a slower increase in this country since the more drastic punishments were introduced in the early 80’s, it is still reasonable to ask whether the small size of the decrease is worth the massive expenditure and human suffering caused by the system used to reduce crime.)
There have, of course, been alternatives to prison, but these attempts themselves demonstrate the very failure to understand the profound centrality of punishment to social life. The most well-known “alternative” was, of course, probation, introduced on a large scale in the United States early this century. It turned out to be largely an add-on “punishment” simply finding additional offenders. Worse, probation failed to convince the general public that it was in fact punitive enough. The great solution of the 1980’s was supposed to be “community service,” but unless its punitive element is sharpened, it will go the way of probation: people will see it, justifiably, as yet another attempt to subvert the punishment process. It turns “punishment” into “service” and “service” into “punishment” by taking away the intrinsic merit of service from those who would normally volunteer for it.
Yet the idea embedded in community service is morally attractive: it tries to draw out of the punishment process something “good”—service to the community. This is an important idea that, unfortunately in the way it is currently implemented, will go the way of other “alternatives” to punishment, because it does not address the fact that punishment must be punishment. The public, in my view, understands and demands this. Legislators understand this to a point, by enacting severe prison terms, but they ignore the fiscal implications of their legislation. These alternatives to prison have simply subverted the central idea of punishment: the intentional and deliberate infliction of pain and suffering on the offender.
This disjunction between the demand for punishment and the acknowledgment of its nastier side is at the bottom of our problem. The public demands more punishment, but does not want to see its actual effects. Prison does a wonderful job of burying the seamier side of punishment and hiding it from the masses. The offenders are locked away, and the prisons are built in isolated places. Likewise, legislators have been carried away with mandatory sentencing without any idea at all of what pain a year in prison actually brings to an offender. Indeed, the just deserts advocates of the 70’s fed this delusion by assuming that, because prison could be measured in years and months, this made it a precise punishment. But the reverse is true: the actual pain physically and mentally suffered by inmates even in one day, varies enormously, and is never specified by the judge. (Judges who have tried to do this have been hounded out of office. One New York judge sentenced a sodomite to a particular prison, expressing his hope that the offender would get there a taste of his own medicine. The local newspaper was outraged.)
We have reached the point in the late 20th century at which society, one, is unable to accept the fact that punishment is the intentional infliction of pain and suffering on an offender for an offense; two, is either unwilling or unable to accept direct responsibility for inflicting punishment, either fiscally or morally; and three, has abstracted punishment to the point where the number of years pronounced in the prison sentence is supposed to take the place of punishment. That is, the judge pronounces the sentence of x years in prison, but has absolutely no say in what type of prison, what type of suffering inside the prison the offender will experience. Indeed, there is an influential school of penologists that believes offenders are sent to prison not for punishment but as punishment. They see the mission of penologists as mitigating the experience of prison. They try to reduce the pain and suffering, which takes from the sentence its punitive intent. It was for these reasons that I advocated the substitution of corporal punishment for prison for many nonviolent offenders. I hoped that it would help us to see the realities of punishment and begin to accept direct responsibility for the pain and suffering intentionally inflicted on offenders. In this way we might come close to the moral responsibility displayed by our forefathers whom we are disposed to judge harshly because of the violent punishments they inflicted. But at least they administered their punishments openly and directly for all the community to see. They were not ashamed to punish.
Why are we ashamed? I believe it is because of the redefined sensibilities we are supposed to have as part of living in a “civilized” society. We try to submerge into our unconscious the violence that we wish upon offenders. Intentionally inflicting pain and suffering is seen as emulating the behavior of the offenders we punish. But did not the criminal intentionally inflict pain or suffering on his victim? This is the conundrum of criminal punishment (and perhaps all punishment): in order to punish, we must actually indulge in some of the same behavior as the one whom we are punishing. The Judeo-Christian tradition understood this contradiction by trying to turn it to its advantage: it used pain and suffering as a method to teach the offender a lesson, to correct him. This technique is taken to its logical extreme in the great epic of Dante’s Divine Comedy. In his scheme sinners are made to practice the virtue that is opposite their sin. Property offenders, for example, are condemned forever to change form, never having a form of their own, since they never in life recognized the boundaries of property owned by others. While Dante’s punishments are intended for those relegated to hell and purgatory, there is much we can learn from his theory of punishment, for Dante invented ways to inflict pain that were at the same time imbued with good: the painful practice of virtue.
The problem, I believe, is to figure out a way to extract something good out of the “evil” that is inflicted on the offender. For it must be said that there is very little that is positive in our punishment system today. Though used by legislatures that believe punishment will reduce the crime rate, today there is no morally positive justification for punishing, beyond the entire negative ethic left to us by the just deserts advocates: the “offenders deserve it.”
Our challenge, therefore, is to produce a punishment that carries with it the element of moral disapproval but that also turns punishment into a positive act. The 18th-century utilitarians thought they had the answer to this puzzle when they argued that only enough pain should be administered in order to outweigh the pleasures of the offense. But it soon became clear that this was just another version of the deterrence thesis. Governments since then have enshrouded this deterrent principle in the moral-sounding words of the “just deserts” argument, when all along their politically simple aim has been to reduce the crime rate. This might be defensible as a moral justification for punishment if it could be demonstrated that massive increases in punishment do in fact deter crime (which it cannot do).
Although my scheme for the reintroduction of corporal punishment was so soundly rejected, I have not given up on the idea on which the thesis was based: to acknowledge our responsibility for inflicting pain and suffering on those who have broken the law. I can see now that I began at the wrong end of the criminal justice system, although logically it was the appropriate place to begin, since that is where the majority of offenders are and certainly where the greatest fiscal savings might have been made. However, I recognize that to inflict pain openly on an offender is an extremely negative act, and certainly I made no attempt to argue that this process was morally more acceptable than the kind of behavior the offender himself may have performed. Rather, I based my argument for the moral superiority of corporal punishment by contrasting its merits to prison. By adopting this strategy, I won the battle against the prison, but I ignored the more difficult problem of how to apply pain and suffering while at the same time making it a positive act.
I propose, therefore, to turn to the other end of the criminal justice system, and ask what we might do to those few who have been condemned to death for the most hideous of crimes. Theirs is behavior that is not so difficult to pronounce as evil, and whose behavior we might try to avoid in our punishment. At the same time, though, in an effort to raise ourselves above the level of the murderer, we must try to extract something good out of the evil that we do to the murderer (such as the application of the death penalty) even though he may well deserve to suffer terribly for his crimes.
What “good” did the execution of the serial killer Ted Bundy do? We know that such penalties do not deter, so this was not the “good.” Did it “satisfy” justice? But what kind of justice is it that feeds on the killing of individuals? Is it good to feel satisfied after killing someone, even though the person deserved it? I do not argue that the motives for killing are identical, but I do insist that there are psychological elements of both acts that are similar. The most obvious similarity is that both killings are intentional. I contend that there is no positive aspect in the infliction of pain or suffering on an individual, even when it is justified. We need to work hard, therefore, to turn this act of violence into something that is positive. The mere taking away of the murderer’s life does not fulfill this need.
The answer lies in the very common complaint of murderers on death row. They announce that they are “sorry” for what they did (though it’s often hard to believe them), but add, what can they do? Their victims are dead, they say, and they can’t bring them back to life. True enough. But if we pause for a moment, we see the answer: while they cannot bring their victims back to life, they can save the life (and perhaps lives) of others. They could donate their body parts. In this way, one executed criminal’s body could possibly save several lives. I would go so far as to say that the condemned murderer should be made to give up his body organs. The social and moral good could be enhanced tremendously by this practice.
There is a critical shortage of donor organs. As of 1987, for example, there were over 13,000 individuals waiting for organs of one kind or another, and the number is closer to 20,000 today. The U.S. government spent $300,000 in 1990 on Medicare assistance for each of the 60,000 Americans who require kidney dialysis. Thus, each executed murderer is “worth” at least $600,000 just for the two kidneys alone. In 1987 there were more than 12,000 individuals waiting for kidney transplants, and only some 2,500 donors. A liver transplant costs about $150,000. The need, therefore, is critical.
The fantastic service that executed murderers could provide by saving lives is tremendous. While their suffering may not make up for the specific suffering and loss of the particular victim, the victim’s family and society as well can at least take comfort in the fact that two terrible deeds—the murder and the execution—have been turned at least to a truly positive outcome: saving lives and improving the quality of life of many others. This is true community service, while at the same time preserving the punitive element of the punishment.
There are, of course, many obvious objections to this idea. I anticipate, for example, complaints that the government will execute more murderers in order to obtain more body parts. This is indeed a cynical view of government. It should be possible to introduce legislative safeguards to fend off this pitfall, if it is a pitfall. There may also be some concern about an individual living with a serial murderer’s heart or other body part. Patients receiving such organs would need to be counseled carefully. Whether it should even be known from whom the organs came is a question that would need to be addressed. Others might complain of a slippery slope, since some organs, such as kidneys, could be extracted from prisoners without killing them. Why not trade off years in prison for donating a kidney? And could an inmate “freely volunteer” parts of his body in order to get out of prison? For the moment, we should begin only with executed prisoners, and if this works, then look to its extension in other settings.
When I advocated corporal punishment for most offenders some nine years ago, I thought that the enormous cost of using prisons for punishment would sooner or later bring the system down. The massive increase in the use of prisons since that time has so far proven me wrong. The problem of punishment is not motivated or limited by fiscal concerns. Rather, it is a problem of moral psychology, as I have argued in this essay. We must try hard to solve this distinctly late-20th century problem of punishment by beginning to acknowledge the deep-seated shame we have about punishing. We should not be ashamed to use punishment in order to save lives. In doing so, we may turn not only the bad of the offender into good, but also the bad of the punishment process itself into something good.
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