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March 27, 2012

The Machinery of Criminal Justice #5: From Idle Imprisonment to Work

[Stephanos Bibas, guest-blogging]

In my previous posts about my new book, The Machinery of Criminal Justice, I've sketched out a few of the ways in which punishment has changed in recent centuries and how modern punishment has become mechanistic, insulated, and hidden. In my last few posts, I'll propose a few reforms to make punishment more visibly pro-social, by encouraging work, accountability, reform, and reintegration. Today I'll focus on prison labor.

When we convict defendants of moderately serious crimes, we usually imprison them. American prisons, however, are deeply flawed. Prison severs inmates from their responsibilities, hides their punishment, and does little to train or reform them. Victims and the public do not see wrongdoers being held accountable, paying their debts to society and victims, and learning disciplined work habits. Instead, they visualize lives of idleness, funded by taxpayers. Thus, wrongdoers are unprepared to reenter society. And victims and the public, believing that wrongdoers have neither suffered enough nor learned their lessons, are loath to welcome them back.

The vast majority of prison inmates spend their days in idleness, with endless television and little labor. The minority of prisoners who do some work in a prison laundry, cafeteria, or license-plate shop rarely cultivate skills that are in demand in the outside world. Even prisoners who are able to work earn far less than the minimum wage, not enough to support a family or repay victims.

Nor is life inside most prisons structured to teach good habits such as self-discipline or productivity. On the contrary, prison encourages listless dependence on institutional routine, setting prisoners up for failure upon release. Healthy habits, such as the orderly work envisioned by prison reformers, broke down long ago.

Perhaps the most troubling aspect of imprisonment is its hiddenness. It is out of sight behind high prison walls and thus out of mind. It is too easy for the public to forget about it, to overlook the sporadic prison stabbings and rapes, or simply to discount the terrible soul-destroying, idle monotony.

Because the punishments are invisible and idle, the public never sees justice done. Voters may clamor for higher sentences to express outrage at crimes. But, because they do not see and appreciate the punishment, they have less sense of how much is enough and when inmates have paid their debts to society and to victims. Sunlight is the best disinfectant in a democracy, but prisons are shrouded in gloom.

Prisons must change from dens of idleness and crime to places of public accountability, mandatory work, and sustained reform. First and foremost, prisons must force all able-bodied prisoners to work. Governments could abolish restrictions on trade in prison-made goods and prevailing-wage requirements, relying on competitive bidding to raise wages. While medium- and maximum-security inmates would have to work in prison for security reasons, minimum-security inmates could transition back to the outside by working outside of prison, as many already do in halfway houses. Inmates might even be able to prove themselves to employers and so have jobs waiting for them upon release.

To make their work pro-social and accountable, inmates should have to use their wages to pay at least a portion of their moral and monetary debts. Perhaps a quarter of their wages could go to the government to defray the costs of investigation, conviction, and imprisonment. Perhaps a quarter could go to victims to make restitution and pay for medical care. Perhaps a quarter could go to inmates' families, requiring inmates to support their spouses and children. And the remaining quarter might go to inmates themselves, to encourage their efforts. Though these earnings might never fully repay the state or victims of serious crimes, even partial repayment would be materially and symbolically important.

Certainly there are practical obstacles. Most prisoners have few skills and many have disciplinary problems, so their unskilled labor is not especially valuable. Many law-abiding businesses and workers will fear that competition will undercut their wages and cost jobs. The political and practical hurdles are substantial enough to make this proposal a long-term hope rather than a realistic short-term goal.

That's all for now. Next I'll discuss possible military service, educational and vocational training, and drug treatment.

Stephanos Bibas, guest-blogging

March 27, 2012 at 09:46 PM | Permalink


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Many people actually see the gloom and doom atmosphere of prisons as a POSITIVE social component. They do not want to see the prisoner gain anything for himself, especially in crimes that involved victims. In many cases, they would rather hear that the prisoner is having a horrible time in prison, and the "serves him right" attitude easily trumps the long-range, societal integration plan. Finally, the public would MUCH rather see an ex-con fail and go back to prison so they can justify their own moral compass.

The proof, of course, is the sex offender registration laws which defy any reasonable reintegration effort in residency, employment, or even technology attributes, almost guaranteeing their failure at contributing to society's well-being, OTHER than providing citizens with an artificial "serves 'em right" moral antipathy that can never be replaced.

And of course, the victims and their families retain the greatest antipathy, and society wants to ensure their needs are first and foremost. To that end, only continual prosecution of offenders, both in and out of prison, can feed this need.

Posted by: Eric Knight | Mar 27, 2012 11:37:22 PM

I apologize in advance for my rudeness, but this lawyer's pro-criminal bias has finally reached my last nerve. I can't take his stuff anymore.

1) The lawyer needs to disclose its conflicts of interest. It was a prosecutor, a worthless, coffee slurping, lazy, criminal dependent government worker. This lawyer allowed 90% of serious crime to go unanswered. He went after people that would get him in the papers, looking out only for itself. Never mind public safety. When it had a guy, some large fraction of the time, it was the wrong guy. It stacked charges so that even innocent people took the false plea deal. Plea deals are yet more lawyer fictions. So fail 90% of the time. When you bother to act, 20% of the time it is on the wrong guy. Then you have absolute tort immunity for your carelessness and idiocy. Not even mentally retarded people in a sheltered would be allowed to operate at such a shocking level of incompetence. No other industry would either. Imagine a mechanic that refuses to repair 90% of broken cars, then does the wrong repair on 20% of the few he chooses to try to repair. What other industry would be allowed this amount of failure?

2) The lawyer takes for granted that other goals than incapacitation have any value. They do not. He has no data to present that any other is of any benefit to anyone. Retribution is from the Bible and violates the Establishment Clause. It comes from the culture of the unwashed, Iraqi low lifes that wrote the Bible. It brings Takriti mentality to our lawyer besieged nation.

3) If incapacitation is the sole mature goal of the criminal, 123D is the best path to safety. The deceased have a low recidivism rate. And death is less cruel than the government run prison conditions.

4) When does this lawyer plan to present any external validation data, rather than a long series of self-dealing ipse dixits? I usually do not make personal statements. However, he got to me. I can't take his stuff anymore. These feminist running dogs deserve no human consideration. They protect the criminal. They go after the law abiding citizen who would defend people and property. This form of low life caused 9/11 by bullying law abiding citizens into not competing with government workers for the eradication of crime. All PC intimidation stems from case law, and the prosecutors are the cause of all PC.

5) On an editorial note, if the above were a high school paper, I would demand the student redo it or get a failing grade. Try to put in more content, less fatuous pronouncements. I regret the lack of hospitality for a guest blogger, but the tripe level is reaching my neckline, and lapping at my mouth.

6) I am local to him. I will gladly give a brief presentation to his criminal law class on how badly it sucks, and the reasons why they are being lied to on every page of their law books. This would be the only opportunity his students would have to hear news from outside the lawyer Twilight Zone to counteract his phony, lying propaganda. He is a hopeless denier. There is no debating deniers. These facts would be for the students' benefit. He can bring his high fallutin' lawyer education. I will come with my 10th Grade World History course. It will be a debate slaughter. Ultimate debate point: wait until nightfall. Now go outside your law school, take an hour's walk West. Period. A good pistol whipping or rape is more persuasive hours of debating about the state of the criminal law.

Posted by: Supremacy Claus | Mar 28, 2012 12:22:58 AM

Many thanks for these "snapshots" of your arguments from the book. I look forward to having an opportunity to read the full text in due course, and to the further snapshots to come. My only wish is that your publishers had regard to the essential target audience of it, which must extend into public readership and not be limited to privileged professionals and students within the legal fraternity. Perhaps a mass production edition will emerge later, or more likely a more realistically priced Kindle edition (I have requested this through Amazon). Meanwhile, I am grateful to Professor Berman for inviting your input here. I have come across an excellent review, which compliments your snapshots, which can be read here:
(click on my name for a direct link)

Posted by: peter | Mar 28, 2012 4:11:41 AM

I demand Prof. Bibas utter the V word. He cannot. No lawyer can without choking, requiring resuscitation by fire rescue.

However, public safety is the only reason to put up with any government. It is Job One, and Job Last of government. The lawyer cannot look at that reality because the conclusion is we have to kill his customer, the criminal. The crime victim generates no lawyer income and may rot. The lawyer is absolutely worthless to the crime victim. Thus all the lawyer boohooing for vicious predators and hug-a-thug proposals. Prof. Bibas in the final analysis joins the lawyer hierarchy in protecting the criminal, and generating lawyer employment. Because rent seeking is at the point of a gun, and because there is no legal recourse to their self-dealt immunities, there is full intellectual , moral and policy justification for violent self-help against the criminal cult enterprise that is the lawyer profession. I am trying to save the profession, by proposing limiting the purges and mass executions to the hierarchy, around 15,000 cult criminal bosses. Once they are gone, the public can eradicate their customer the career, violent, repeat offender, and lower crime by 90%. The boost to our wealth and productivity will be astounding. Inner city real estate values will shoot up like fireworks. Just about all our social and economic problems will end once the lawyer hierarchy is executed. The lawyer is a denier of the toxic effects of the profession on every minute of our lives.

Posted by: Supremacy Claus | Mar 28, 2012 6:58:55 AM

Notwithstanding all the ranting and raving, and more to the point of the blog excerpt, it should be noted that the Federal Bureau of Prisons already has implemented - and has for quite some time - many of the proposals Mr. Bibas sets forth; i.e., work is required of all able inmates at most facilities (although the pay scale is still exploitative and miserly), inmates must pay restitution through the Inmate Financial Responsibility Program (IFRP), and once transferred to a Residential Reentry Center (halfway house), a federal inmate must get a job. If the author would like to get an education about the federal prison system and the recidivism consequences of the BOP programs, he might do well to engage in some research and could start with the mass of available tracking data.

Posted by: Paul Kurtz, FEDERAL ADVOCACY CENTER | Mar 28, 2012 8:54:03 AM

Mr. Kurtz, The intent of the BOP to demand that prisoners have a job is admirable BUT sitting in the shed on a long bench waiting for your turn to push the lawnmower 30 feet is hardly a job. The truth is that the BOP has so many prisoners there are not enough real jobs for them.

Posted by: Obvious | Mar 28, 2012 10:27:49 AM

The trackback system doesn't seem to be working.

A comment on this post is on Crime and Consequences here.

Posted by: Kent Scheidegger | Mar 28, 2012 11:56:08 AM

Thank the lawyer for 1) the end of meaningful work in prison; 2) the barriers to re-entry upon discharge.

1) It was a privilege to be earned by good behavior to work in a beef operation that fed the entire prison system in Pennsylvania. Prisoners loved it. Prisons were quieter and safer with much fewer staff. Lawyers demanded minimum wages, despite the provision of shelter, food, and other considerations provided by the prison. Program is shut down.

2) If an employer hires an ex-convict, and litigation ensues, the liability is per se, if one of the many regulations prohibiting such hiring is violated. If you want to lower barriers to re-entry, stop the plaintiff tort litigation bar, stop the relentless onslaught of lawyer generated regulations.

Those are obstacles no lawyer here has ever mentioned. The lawyers here are deniers. They refuse to face the fact that the lawyer is the cause of all problems and failures of the criminal law, including wasting the time in prison, and the barriers to re-entry.

At some point, the public will get tired of this toxic profession, and mass eradications will result. I would like to limit these to the moronic, self-dealing, lawless hierarchy of this criminal cult enterprise.

Posted by: Supremacy Claus | Mar 29, 2012 7:01:42 AM

To make their work pro-social and accountable, inmates should have to use their wages to pay at least a portion of their moral and monetary debts.

Posted by: Snapback Hats | Jul 6, 2012 8:04:53 AM

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