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March 23, 2012

The Machinery of Criminal Justice #3: Hiding Punishment Behind Prison Walls

[Stephanos Bibas, guest-blogging]

In my last two guest-blog posts on my new book, The Machinery of Criminal Justice, I described a couple of the key features of colonial-era punishments: the room they left for showing mercy and for reintegrating defendants after they were punished. Now I'll start to describe a couple of key changes that happened in the nineteenth century with the shift to imprisonment as the dominant punishment. In this post I'll focus on how prison hid punishment from public view.

An ideological change led to the great prison experiment. Reformers no longer saw the roots of crime in weakness of free will or in the devil's temptations. Rather, they blamed wrongdoer's families, associates, and vice-filled cities for dragging wrongdoers down into crime. The solution seemed to be to remove them from their criminogenic environments and to instill new, law-abiding habits and discipline.

After a few failed experiments with hard labor in public or having the public come into prison to watch prisoners work, a newer vision took hold, starting in Philadelphia and New York. The Pennsylvania system kept each inmate in solitary confinement, separate from one another and in complete silence. If each man was kept in silence, with only a Bible as his companion, optimistic reformers believed that his inner light or reason would convict his conscience and lead him to repent and reform.

New York's Auburn prison was less austere, as inmates worked together in silence each day but slept alone at night. Both the Pennsylvania solitary system and the New York silent system involved at least some isolation, as well as almost military structure and discipline. Both had as their central aims to reform wrongdoers through structure, and in some cases through work.

These reformers were far too optimistic about human nature. Penitentiaries did not breed penitence but crime. Solitary confinement without work drove some inmates insane or to suicide and did not reform them. True solitary confinement also proved too costly and difficult. Crime kept rising, leading to double-bunking and more cells. Once prisoners talked and bunked together, prison became a school for crime, providing criminal networks and contacts.

Though prison had failed, few people could stomach going back to bloodier punishments, and there was no obvious alternative. Thus, prison has remained our default punishment for the last two centuries. Inertia triumphed. Prison bred everything from abusive guards to gang violence to rape, but these brutalities were out of sight and mind.

One of the biggest barriers to reentry was the prisons bred idleness, not job skills and responsibilities. Though at first work had been central to prison administrators' ambitions to reform inmates, prison labor dwindled between 1870 and 1940. The fatal blow was not humanitarian but economic, as labor unions and small businesses opposed potential competition and got Congress to outlaw interstate transportation or sale of prison-made goods, choking the market for prison labor.

Today, prisoners can work for private firms only at prevailing local wage rates. That requirement, on top of the added security costs in prison, makes prison labor uneconomical for private firms. Prisoners can instead produce goods for state governments' internal use, but that internal market is too small to keep most prisoners busy. As a result, only about 1/9 of state prisoners and 1/6 of federal prisoners work in an industry or farm. Far more waste their days in mind-numbing idleness, watching television or killing time.

March 23, 2012 at 12:46 PM | Permalink

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Comments

"The fatal blow was not humanitarian but economic, as labor unions and small businesses opposed potential competition and got Congress to outlaw interstate transportation or sale of prison-made goods, choking the market for prison labor.

"Today, prisoners can work for private firms only at prevailing local wage rates. That requirement, on top of the added security costs in prison, makes prison labor uneconomical for private firms. Prisoners can instead produce goods for state governments' internal use, but that internal market is too small to keep most prisoners busy."

Glad to see this issue brought up. It is one that does not get nearly enough attention.

Deciding whether prisoners can or cannot make certain goods by the identity of the purchaser is economic nonsense. If the competing goods are made in the U.S., then diverting any portion of the purchasing pool, whether government or not, costs law-abiding workers' jobs. Conversely, if substantially all of the market segment is imported, then allowing prison-made goods to compete in that segment does not cost any American jobs whether the goods are sold to government of the general public.

That should be the criterion. And we should get rid of the prevailing wage requirement. A person provided food, clothing, shelter, and medical care by the government does not need to make prevailing wage. He should be able to buy an upgrade to better accommodations with his earnings.

Posted by: Kent Scheidegger | Mar 23, 2012 2:15:41 PM

Typo in previous comment: should be "or the general public."

Posted by: Kent Scheidegger | Mar 23, 2012 2:44:10 PM

not to mention any restitution or fines plus save part to be given upon release to support themself

other than that. i agree completly Kent!

Posted by: rodsmith | Mar 23, 2012 7:29:17 PM

I have proposed that prisoners make unique products in short supply. An example, are the drugs used to execute prisoners.

Posted by: Supremacy Claus | Mar 24, 2012 1:02:21 AM

I would add to Kent's point.

Inmates should also be able to work on public work projects. This may include picking up trash on the side of the road and move up the spectrum all the way to disaster recovery and road paving that is being done by the local government (but not large jobs contracted out to private companies). Although this will indeed cost jobs, it is public sector jobs that will suffer and the economic benefit of these jobs being done with cheap labor far outweigh that concern.

This is being done to a small extent. However, there are tons of idle inmates who should be doing work for the benefit of society that local government is paying union wages to have completed.

Posted by: TarlsQtr | Mar 24, 2012 10:22:02 AM

'A person provided food, clothing, shelter, and medical care by the government does not need to make prevailing wage.'

maybe a return to slavery would be a cheaper and quicker solution

Posted by: lax | Mar 26, 2012 6:19:06 PM

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