That being said, our prisons aim to punish, incapacitate and rehabilitate. Punishment is a legitimate role for society; it is not juvenile.

I don't believe this -- neither do you. Thus in my strictly scientific sample of people in the United States (n=2), 0% believe that statement.

"in fact, many people are against letting people out of prison even once they have been cleared!" -- I'd ask you to find the name of one person who believes innocent people should be incarcerated.

The theory underpinning most of these wishes, insofar as these wishes exist and they have a theoretical rather than emotional underpinning, is that there exist a class of offenders who guilty of crimes far in excess of what they have been convicted for, that they have internalized norms condoning things such as violence and theft, and that if released they would continue to pose an ongoing risk to society.

Assuming their original imprisonment to have been the just consequences of one act for which they have been convicted, then the subsequent fantasy imprisonment would be the just consequences of the other acts of which they are (or are forecast to be) equally guilty but for which they have not been convicted.

N.b. The appropriateness and efficacy of these wishes, specific materializations of these wishes, and the way that they interact with other concerns involving the rule of law, the fundamental dignity and rights of Man, and the greater good of society... all of that is not addressed in this post, because the nature of crime and attitudes towards crime in America is a complicated topic and this post is short.

Just look at how the word "thug" is carefully used in rhetoric. The implication is that someone is a criminal simply for being who they are, not because of any particular infraction. Further implied is that people who are "thugs" deserve whatever "punishment" they end up getting, regardless of guilt or even whether they were accused of a crime. The Trayvon Martin controversy brought quite a bit of this to the surface for all to see.

You can find plenty of instances where there was resistance to letting an innocent person out of prison, start by Googling "innocence project".

> I'd ask you to find the name of one person who believes innocent people should be incarcerated.

There are most certainly stigmas in the US about prisoners. There are also stigmas are about certain kind of crimes and that racist and sexist in nature. This is a country in which politicians do not pledge to ensure fairness in the law but to be even harder on criminals.

http://www.newyorker.com/arts/critics/atlarge/2012/01/30/120...

What's your rationale for this? Personally I can't agree. I can see the logic behind punishment-as-deterrent (but then it creates perverse incentives), but punishment as an end goal itself isn't an appropriate concern for society.

But the most important feature is healing for the victims, the partial return of justice. When someone is murdered or raped (let's not cloud the discussion with morally ambiguous crimes like drugs), the victims and their families have the fabric of their lives completely torn up; they experience immense pain and suffering. Yes, I'm going for pathos, and that's on purpose, pathos is central to the argument. The knowledge that the perpetrator has pain inflicted on him is an important factor in stitching their lives back together. I'd love for a proponent of the "rational" argument to sit down across from a mother whose daughter has been raped and explain that her feelings are irrational.

Yes, this is an irrational argument, but humans are irrational (the rape itself was probably a rather irrational act) - like it or not, that's a fact of how humans work. An order of society that ignores this fact is bound to fail.

There should be strong preventive measures in place, the best policy is the one where the crime isn't committed in the first place. Education and solid ways out of poverty are important factors here. Avoiding recidivism is also important. But once the crime is committed (which is the theme here), a narrow focus on rehabilitation is blind to the "red meat" of the issue.

What you didn't get right is the role of the justice system. It's not the role of the justice system to pander to emotions. A judge does not sit down with the mother of a murder-rape victim and explain to her how she ought to feel, at least that is not the case in Norway. One could argue this is in fact the case in the US, in the sense that the laws the judges rule by pander to emotions.

Humans=\=Society. That is the gist of what I am saying. Society is a construct, and it is not just a reflection of human nature, it is also a product of our ability to coexist. Anyone who has been in a relationship knows coexisting means sacrifice, both emotionally and otherwise.

In Oz courts, there is often a "victim impact" statement read to the court, eg a rape victim will tell the court about the negative effects the assault has had on their life (eg can no longer have sex with partner, so is now divorced; can't leave house at night so has lost job). This impact statement will be taken into consideration when sentencing, and is often directly referenced in the judge's closing statement. Eg, "the victim has experienced years of mental anguish and you show no remorse; I am therefore pronouncing the maximum allowable sentence".

So yes, the court very much does "pander" to emotions. I'd love to hear an actual lawyer chime in, the ones I've talked to have a very strong code of professional ethics surrounding this (believe it or not.)

> not just a reflection of human nature

I acknowledge the human element, I should think no-one believes a construct doesn't reflect the maker, but society like any invention is also more than that.

When this topic comes up I'm always surprised by the flood of comments stating "well golly gee, I'm sure he's real sorry he raped and stabbed those girls, we just need to put him through some advanced reading courses then send him back on his way!" Followed by, "now if you think he should be punished for his actions well you're just barbaric and primitive and irrational".

Punishment is not irrational. It's a fundamental ethical standpoint. Mitigating factors should be weighed (mental health, IQ), but at the end of the day people need to face the consequences of their actions.

And part of the point of rehabilitation is not "golly gee, we just need to put him through some advanced reading courses then send him back on his way!" as you so childishly put it, but that the offender wouldn't be released until it was fairly certain he wouldn't offend again (because he'd been rehabilitated). I'm fairly certain that kind of rehabilitation would take years at a minimum.

Ad-homs do not improve the conversation.

> the consequences of rape is that the perpetrator got his jollies.

With the further consequence that the rapist has emotionally traumatized an innocent victim, and the still further consequence that the victim may demand justice. The point of punishment is not primarily to make the offender feel guilty. The point of punishment is to make the victim feel better.

Think of it transactionally. If I stole $50,000 from your grandma and got caught, you'd expect me to pay back the money, yes? Now say I beat your grandma with a stick because I thought it would be funny. As we're too civilized for the courts to have me beaten with a stick, instead I repay her emotional trauma with my own - through incarceration.

While your ethics might be different - you may think people should not bear the responsibility for their own actions - my ethics firmly hold that we are all accountable for our own decisions.

That is the question you really need to answer.

Is it better to stop future offending or feel good about inflicting suffering on others who are "bad" right now?

You might also want to throw into the mix the observation that a very large number of people in prison have untreated mental / behavioral issues and that a very large number of people who commit violent or sexual crimes have themselves been victims of such crimes in their formative years.

My argument is that whatever your ethics are, treating people like animals creates more animals. We all pay the cost of that.

Again, you attack me personally, this is not a good look for you. I wish harm on nobody; I long for a utopian day of mutual respect.

> You might also want to throw into the mix the observation that a very large number of people in prison have untreated mental / behavioral issues

I have already directly raised this point. You are changing the frame.

> [will] you [...] accept a 70% rate of re-offending, or would you trade your desire for revenge for a 15% rate of re-offending? That is the question you really need to answer.

I will boldly answer your question, though you have answered none of mine. Yes, I will accept a higher rate of re-offending. Ethics are not convenient, and are often not utilitarian. I would not kill one person to save ten, nor even a thousand. If holding an individual to account for their actions has a high cost, then so be it.

"Truly ethical behavior is acting according to principles even when those principles are inconvenient."

Thus, creating more victims and more criminals in the long run. We have to burn the village in order to save it?

Why should taxpayers have to pay for stone-age, eye-for-an-eye vengeance? Harsh sentencing is expensive.

Now the US prison system has become a corrupt business - and that's a separate and awful issue. But the fundamental ethical basis for punishment stands: you steal money, you pay it back - you deal emotional trauma, you pay it back.

Thus, our goal should be the lowest possible crime rate, and I'm not sure punishment for vengeance's sake is ultimately compatible with that goal.

I propose that you would feel differently if someone had emotionally assaulted you or your loved ones via rape or violence. Perhaps this is a difference in personal ethics, but I despise such assaults more than property damage; at the very least I hope we can agree that such crimes deserve to be redressed.

I cannot prove this, and I personally am not inclined to believe in proofs from first principles in these matters, but I can appeal to people's gut sense of what is moral and decent. Who really believes that a person can murder someone else (and let's suppose that they were not raised in a violent or abusive environment that would tend to normalize acts of violence), out of pure malice, and then be allowed to enjoy the same happiness as if they hadn't committed that act?

I'm aware that there are people who don't really believe in "pure malice" and are therefore more sympathetic to murderers. While I'm happy to here their arguments, my own observations and experience suggest that there is tendency in human nature to do what is wrong, and this should be punished. I'm also not arguing against taking into account a person's upbringing and even their "mental health" when sentencing.

Who really believes that such a thing would be possible, regardless of external punishment?

Surely only a psychopath could kill someone in anger and not ultimately be destroyed by the act, almost by definition, and we've already decided that those people are medical cases, and that punishing them literally does nothing.

I guess it depends on how you personally view human nature; this stuff is hard to pin down. Maybe I'm just naive.

Just think of examples of self defense, or crimes of passion (e.g. the killing of your lover's mistress). Why do we never hear of how all of these people fall into bottomless pits of depression?

Particularly in your description of it "destroying" someone, I wonder if you are thinking of "Crime and Punishment". Remember that was not a crime of passion, but a planned killing expressly chosen to be in cold blood. Killing in cold blood is a different story, but we are not talking about that.

On the subject of psychopaths, I don't think this category exists in the sense that you mean it. In particular, the personality traits usually thought of as characterizing psychopathy, do not predict criminal behavior strongly (or at all) [1]. So I think you need to reconsider your factual claim that there is a category of people, defined by certain mental traits, who are "medical cases" and cannot be deterred from committing crimes.

As you say, people have very different views of human nature. I consider the idea that a mentally healthy person would never want to harm someone else, or else would suffer from extreme guilt if they did, to be wrong. Also, most arguments for this viewpoint, including your own, seem to suffer from the No True Scotsman fallacy.

[1] http://www.psychologicalscience.org/index.php/publications/j...

Count on this. People are excellent at rationalizing their own actions.

But it's only fair then to ask you how you can be so presumptuous to think you can, or even should 'rehabilitate'?

Anyway, you are missing a third option. Imprisonment does not have to be about either rehabilitation or punishment. It could also, or even instead, be about detainment and isolation. In other words, you can imprison somebody not out of some sort of desire to "get back at them", and not with any hope of correcting their behavior, but merely to make sure they cannot injure people again.

Consider the case of Charles Manson: That guy is way too far gone to ever really hope that he can be rehabilitated. There is no fixing that guy; the US prison system couldn't do it, the Norwegian system couldn't do it, no "Manhattan Project of Psychiatry" could do it. Even so, that doesn't mean that the only option left is to ensure that he lives in relative misery the rest of his nature life. We could allow him to live the rest of his life out in relative comfort, so long as we never allow him to be free to harm others again.

Where we cannot 'fix', we obviously need to detain and isolate, but doing that for the safety of the public is sufficient motivation. We don't need to do that out of a desire to 'punish'. (Unless you buy into "such punishments act as a deterrent")

This is the only truly just reason for impeding anyone's freedoms. Rehabilitation is certainly a noble end, but anything else seems to be disastrously misguided, as is evidenced by the modern situation we live in. Deterrence? How do you deter someone who has no other avenue to make a living, as we have done to felons? Retribution is also a truly vulgar line of thinking, appealing to our basest instincts, and we need to grow out of it as soon as possible.

Yes, that makes sense. Rehabilitation is something that you might as well attempt while detaining somebody dangerous, but detainment is obviously the priority.

I agree that proactively making his life miserable is silly, but the question becomes "how much comfort do we provide". Different people have different ideas of how much they are willing to pay to fund this man's life in "relative comfort", and of course only naturally their desire to channel their dollars towards his comfort is lower than it probably would be for an individual who is not a convicted criminal...

Why on earth is he being locked up. Pissing away the life savings of thousands of people? Water under the bridge. Stop being so vengeful -- it's childish and unbecoming!

I think Bernie Madoff is an interesting example. He doesn't represent a threat to anybody (he is not a violent man. Furthermore we should be able to make sure he doesn't start running another scam again, even if he is free, since we know he is a con-man now), and if we discard vengeance as a legitimate reason to detain somebody, we then need to consider the value of detaining him as a deterrent to others.

If we are worried about psychopathic con-men who are incapable of experiencing fear, then detainment probably doesn't do much to deter similar crimes. I am not convinced that is an accurate representation of psychopaths though, and I certainly don't think all con-men are psychopaths anyway. Detaining Madoff probably does serve to deter similar crimes.

The question I have is if there are other punishments besides imprisonment that could fill that roll.

The likelihood of being caught is probably a bigger factor in deterrence than the severity of the punishment itself. White collar criminals probably get away with a lot of small crimes (I am guessing).

Madoff is a very extreme example because he was doomed to eventually be caught. But we can look at it the other direction and consider how many hundreds(?!?) of small and large crimes did he get away with before it all collapsed on him?

Basically, just like he isn't allowed to run a business or manage his own finances now, when he is in prison, he wouldn't be able to while outside either. Literal prison walls don't really add that much to our ability to control those things.

I suspect that in some cases it does. Fear of the law probably does a decent job of keeping most people from enjoying alcoholic beverages on sidewalks for instance. (but I also suspect that in many cases (if not all cases) the imprisonment could be replaced with other punishments. Punitive damages are one obvious example of non-imprisonment punishment.)

In cases like Charles Manson, I doubt punishment is valuable. Crazy people aren't exactly known for their fear of consequences. If this is the case, then punishment of Charles Manson would be pointless and frankly verging on barbaric (though detainment of Charles Manson would of course be absolutely essential).

At the same time, the reason why I do not currently break the speed limit (to an excessive degree) when I feel that it is safe is that I am not keen on being slapped with a fine. Speeding fines are a punishment that seems effective at discouraging me from speeding.

Cost benefit analysis makes sense. "I am going to hurt you and make you suffer" rarely does. There are exceptions but it is generally a desperate ploy, not one focused on a goal. It is generally an admission that we don't know how to accomplish a civilized environment. We don't know how to design an effective society. We are too stupid, collectively, as Americans to achieve civil solutions. So we are sfimply going to hurt you.

I think that it would be fair to say that this sort of imposed cost is a punishment. It seems to meet definition 2b here (http://www.merriam-webster.com/dictionary/punishment). That cost/punishment/whatever isn't worth the reward, so I don't do it.

I mean, it isn't a "speeding tax" or "speeding fee" that you pay for the retroactive right to speed for a while.

As another example, the fine here for violating open container laws in a public park is something like $25, which I would gladly pay on some nice summer days for a personal permit to drink in the park. I don't drink in the park and accept the possibility of that fine though, despite the naive cost/benefit ratio working out. It isn't just about the $25, I also don't want to be fined. The "fine" part I don't like; the "$25" part is okay.

(Repeat offense will of course result in the loss of your license, a penalty that acts as a more severe punishment but also a form of detainment. When your license is taken the idea is that you cannot endanger the public until you prove yourself capable of driving safely (prove yourself rehabilitated))

Thanks for the discussion.

I read about a case like this in Sweden. Kjell-Eric Eliasson, who was a soldier at the time, was sentenced in 1986 for a sadistic murder of a young single mother. He butchered her and dumped the corpse into a well outside his mother's farm.

The man was sentenced to a mental institution. He was treated for a single (1) year and then released to as "cured", much to the horror of the relatives of the murdered woman. Some 25 years later, in 2010, he lost his job as a highly paid government official, when the truth about his dark past hit the internet.

Was it right to release him? It seems he lived the next 25 years well, with a great career and paying his taxes. So society didn't need to be protected from him any more. But was it morally right? There is a perceived need of revenge, of punishment. Of some justice.

--

Details of the case are here (use google translate to read) https://www.flashback.org/t1287612

And if "rehabilitation" is all that's required for freedom, it shows a disconcerting lack of value for the victims of crime.

[citation needed] for that claim.

I'm friends with a woman who works with prisoner rehabilitation and treatment of violent prisoners and sex offenders, and the work they do is scientifically sound, using evidence-based methods. There are very strong, proven casual links between the rehabilitation and recidivism.

Try, http://scholar.google.com/scholar?q=sex+offender+evidence+ba...

> And if "rehabilitation" is all that's required for freedom, it shows a disconcerting lack of value for the victims of crime.

Indeed. "Not only must Justice be done; it must also be seen to be done." -- Lord Hewart

Imagine another incident, a careless driver who runs over someone at a stoplight because they're texting. How should this manslaughter be treated? With a remedial driving course?

In practice judging rehabilitation with perfect knowledge is impossible, and so are one year sentences for murder. In the real world we would balance out the likelihood of actual rehabilitation with concerns regarding public safety.

The difference may seem academic, but I don't think the difference in attitude could manifest itself in how the banishment actually takes place. For example:

If you are part of a group of sailors that want to banish that big meanie captain and start their own little floating hippy commune, do you throw the captain overboard? Or do you throw him into a lifeboat with a radio and enough food to last until he is found?

The second is not best described as 'punishment'.

To answer your answer in the more general sense: If you raped someone in my community, I might maintain that I'm not justified in causing you direct physical harm. But I do know that you're never doing any business with me. Other people in the community might feel the same, some might not, and if they shelter you, depending on the circumstances, I may or may not include those individuals in my exclusion. If I'm too broad in my banishment, eventually, I myself lose out, so there's a feedback mechanism somewhere in there. I guess that's punishment.

Of course, if you're a direct physical threat to the community, that community is justified in using proportional force in resisting that threat. That would be protection.

Sometimes it's one, sometimes it's the other. I suspect most of the times it would be a mix.

It could however, hypothetically, be the case that the sailors felt that their lives were being endangered by the captain (who perhaps seemed intent on sailing off the edge of the world, as historically inaccurate that fear may be) and felt that he needed to be removed from command for their safety. This could be done non-violently (perhaps by simply threatening 'civil disobedience') and the captain could decide to not fight the will of the sailors and just live out the rest of the voyage in his quarters, but it is doubtful that any captain would choose that option. When this ship-turned-hippy-commune was eventually caught (the rightful owner would be furious after all), the captain certainly wouldn't want it to look like he tolerated the arrangement. The mutinous hippies, ever understanding of the captain's plight, could therefore offer the option of non-violent banishment by lifeboat.

Anyway, this non-violent banishment by lifeboat would not be done out of a desire to punish the captain. I think that banishment can either be done out of a desire to punish, or a desire to remove a threat. It doesn't necessarily need to be both, though usually it probably is. Anyway, I think we are agreeing there.

How so? Who benefits from punishment, and what do you mean by "legitimate"? Do you consider punishment ethical?

I do consider punishment ethical, from a utilitarian perspective it acts as a deterrent, and preventing men from benefiting from evil acts appeals to a human sense of justice and well ordering.

Society benefits, in that it is deterrent to crime and as a tool to uphold law.

But that doesn't mean that the punishment should be the highest priority for imprisonment.

The point is that positive reinforcement is more effective than negative reinforcement.

While it's true that "our prisons aim to punish, incapacitate" (see three-strikes law), I doubt about the rehabilitation part; there is undeniably an interest in making them profitable.

    "And certainly I'll grant you that people have been 
    wrongly convicted -- but that is a very small part of the 
    prison population."

Prosecutorial discretion.

> Punishment ... is not juvenile.

Criminal law making shows little evidence of utility analysis, operations research, actuarial research, experimental psychology, etc. For the most part it appears to just be one big emotional carnival act designed to draw in the rubes and part them from their money.

Don't be too hard on yourself. A conservative coalition that includes a right wing populist party that want prison to be less about rehabilitation and more about suffering and punishment just won the general election here. The next four years will see how much impact they can have on the system..

I agree the war on drugs is a much bigger factor.

128k out of 1.6m, or 8%. Graph of the incarcerated population: http://en.wikipedia.org/wiki/File:US_incarceration_timeline-.... The prison population started exploding in 1980 with the drug war and the war on immigration, but for-profit prisons had less than 10,000 prisoners as of 1990. It's a lagging effect--the for-profit prisons are sprouting up because we put so many people in prison, not the other way around.

Do you really account for it?

Assuming that there is a certain percentage of people who will not commit a crime under any circumstance, another percentage of people who will commit a crime and are not deterred by any punishment, there remains a sub-population who will offend if the cost-benefit ratio is right. The only way to drive up cost for this population is by making them suffer, unfortunately.

Do you see another solution?

Plus, the empirical data on sentence lengths as a deterrent is fairly weak. People do seem to respond to likelihood of being caught: a 6-month sentence you are virtually sure to get is more of a deterrent than a 6-month sentence that you have maybe a 5% chance of being caught and sentenced to. But especially at the high end, there is little to no evidence that having prison sentences of 30 years is more of a disincentive than prison sentences of 10 years.

What? I'm talking about hypothetical situations. This means by definition cases in which the increase in incentives to offend is more than counteracted by other factors.

That's the sort of system one would expect in a medieval country, we can and should do better.

For example: In the case where housing programs for the homeless actually directly _save_ the gov't money, the only argument against them is "I'm taxed enough already!!! Stop giving my money to people who are homeless because they deserve it!!!!". Telling them that, empirically, it's far more likely that the state is saving money from doing this is useless, because "facts are just another opinion" is a disgustingly prevalent belief around here.

through reduced spending on homeless-related law enforcement and emergency medical care, and this doesn't even include the indirect economic value of lower crime and higher property values

http://www.pbs.org/moyers/journal/12282007/penalphilosophy.h...

If that is so, we need to introduce re-education courses for victims who primitively persist in calling for revenge (though they call it justice) following the misery resulting from destruction of treasured possessions through to rape and murder of family members.