Savage Thoughts -- Our Prisons

By Leo Savage

Something is really wrong with our prison system. More and more people are recognizing that prisons aren't helping to stop the crime wave, but it goes even deeper than that.

Broadly speaking, convicts fall into three general categories:

  1. Career criminals. Muggers, burglars, druggies, and so forth.
  2. More-or-less honest ordinary people who did something wrong and got caught.
  3. Crazies.
Crazies we can't do much about. Sad but true. About all we can manage is to keep them out of the way for awhile, and prisons manage to do that. It's about the only thing they do well.

But for the other two categories prisons are both too much and not enough. For the career criminals prison is more like paid vacation than a form of punishment, while for ordinary people prison is inconceivably dreadful.

Consider for a moment what would happen to you if you went to prison for even a "mild" sentence, say five years in a minimum security "country club". Compare where you were and what you were doing five years ago with where you are now. Would you have a job after an absence of five years? Would you even be employable after being out of touch that long? Most likely your entire life and livelyhood would be totally destroyed. This is just from your absence, regardless of anything else.

So prisons have a problem in that the punishment they mete out is trivial to the serious criminals, and horrendous to everyone else. Note that this is a problem with the entire concept of using prisons for punishment! It seems we've spent many years, much effort, and billions of dollars going down the wrong road.

Our only other form of punishment is fines, which are suitable only for small, minor infractions like speeding and parking tickets, really. Consider that the really big crooks can afford the fines without much trouble, and the minor career criminals have no attachable money since their income is all off the books.

What else can we do? Isn't anything else "cruel and unusual"? By current interpretations, yes, but let's look for a moment at where the whole "cruel and unusual" thing comes from.

Once upon a time, judges had a wide range of possible punishments they could mete out. Ducking, stocks, flogging, and so forth. Some were harsher than others. Suppose that five men are brought before a judge for some crime, say picking pockets. The judge sentences four of them to five days in jail, and has the other one branded. Relatively speaking, branding is cruel and unusual in this case. It's a much harsher sentence, and it isn't what the judge normally does. The idea is that if you are found guilty of a crime you have a reasonable right to expect that your punishment will be the same as what's normally given for that crime, even if you're dating the judge's niece and he has it in for you.

If you'll pardon a minor digression, the stocks are an excellent example of cruel and unusual punishment, since they were inherently inconsistent in the degree of punishment afforded. Most people have seen what stocks look like, and a few when playing tourist have played at sticking their head and arms in one (perhaps with a picture taken as a memento). To most people they seem perhaps a bit uncomfortable, but not all that terrible. But consider that the whole point was to "expose you to the community." For some period of time (generally twenty four hours or more) you would be totally helpless. Better hope you don't have any enemies! If you were reasonably popular you might make out okay, but if the whole town was pissed off at you it is unlikely that you would survive. Not to mention that women could expect all kinds of interesting experiences once the sun went down. Remember that a person in the stocks can't see anything behind them.

Back to the main point. That's where the whole "cruel and unusual" thing comes from, not from any idea that punishment should not be per se cruel and unusual. If it's pleasant and ordinary it's not punishment. Any given form of punishment should not be cruel compared to other forms of punishment, and a given sentence should not be unusual for that crime.

So what can we do instead of the massive, overcrowded, expensive prisons that don't do the job anyway? I propose that we bring back flogging.

It would not be difficult to convert our present system based on prisons to one based on flogging. We could translate sentences at the rate of, say, one lash per year of incarceration. Judges sentencing guidelines would translate immediately. We could then start removing current inmates from prisons by commuting the residue of their sentence to equivalent floggings. Before long we could start shutting down prisons all over the country. We'd still have to keep a few prisons for the crazies and for convicts sentenced to life in prison without parole, but even that problem can be handled when we're ready to face up to it.

But that's a topic for another essay.

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