« Notable protests and legal appeals as rapper Meek Mill's harsh sentence for probation violation shines light on back-end of justice system | Main | Ohio unable to complete execution for elderly murderer once called death penalty “poster child” »

November 15, 2017

"Should life in jail be worse than life outside?"

The question in the title of this post is the headline of this new commentary authored by Chris Barker in The Week. Here are excerpts:

The crucial concept governing carceral practices is something called "less eligibility." The idea dates back to the English Poor Law Amendment Act of 1834, which codified English practices of dealing with the indigent. In 1832, the economist Nassau William Senior described how the "first and most essential of all conditions" in administering relief to the poor (often by moving them into a workhouse) is that the indigent's "situation on the whole shall not be made really or apparently so eligible as the situation of the independent laborer of the lowest class."  That is, the conditions in the workhouse should be awful: worse even than the poorest of the poor.

But even before Senior's famous line, a different carceral ideal was afoot: equality. In 1791, writing specifically about criminal offenders, the English utilitarian philosopher Jeremy Bentham argued that "the ordinary condition of a convict doomed to a punishment that few or none but the individuals of the poorest class are apt to incur, ought not to be made more eligible than that of the poorest class of subjects in a state of innocence and liberty."  As the historian Janet Semple observed in Bentham's Prison (1993), his rule of severity is not "less eligibility" but a more commonsense equality principle — offenders should have access to no more resources than they had while free. "Bentham," Semple wrote, "did not envisage grinding his convicts down to below the level of the poorest of the poor."

Other countries do not run their jails and prisons according to a principle of less eligibility. German prisons operate under an "approximation" principle, wherein offenders' rights to privacy, dignity and property are protected.  Norwegian prisons use a similar "normality principle," which holds that daily prison life should be, as far as possible, no different from ordinary life.  Fellow Englishman and Bentham disciple James Mill embraced the normality principle in 1825 by arguing that inmates in pre-trial incarceration should be allowed to lead the same life that they enjoyed prior to arrest, including access to employment and freedom to make small purchases with their own money.  Today, U.S. jails and prisons have rejected these examples in thrall to "less eligibility," and not just for the poorest of the poor....

If, as I think, the aim of punishment is rehabilitation, it is hard to justify less rather than equal eligibility.  But not all agree that rehabilitation is the primary aim of punishment. Deterrence theorists think that controlling crime is the most important aim of punishment. Retributivists hold that punishment should repay the harm done to another in a like manner: an eye for an eye, a tooth for a tooth....

Too often, the U.S. conversation about criminal justice is about principles and theories of punishment: rehabilitation, retribution, deterrence. What I am arguing here is that these theories amount to little if we ignore less eligibility, or how we punish.  Visiting a jail without an outdoor yard, where offenders have no physical contact with friends and family during their incarceration, or a prison where life unfolds within coils of obtrusive razor wire, is not a normal life, and doesn't prepare you to return to normal life.  As opinion in the U.S. starts to move away from some punitive strategies such as solitary confinement, we should reconsider which of our other carceral practices meet or violate the crucial secondary principles (leniency, proportionality, egalitarianism) of a just criminal justice system....

It is a tragedy if the attempt to have a just society with a suitable criminal justice system has been transformed into criminogenic warehousing, based on surveillance and discipline, which achieves few or none of the goals of punishment.  It is foolishness to countenance such a system merely because it has not yet touched you.  The road to the present state of affairs leads through less eligibility, which, on the surface, is a principle that makes sense: treat offenders to a life that is worse than life on the outside.  After all, why should offenders have air conditioning if the farmer "living in innocence and liberty" does not?  But the answer is that it is too easy to forget the other constraints on the dignity, privacy, and autonomy of those incarcerated in jails and prisons.

Our present system is costly and ineffective; it creates aberrant economies and empowers prison gangs that in turn influence street gangs.  Prisons reproduce the cultural inadequacy of life on the inside on our streets and in popular culture, and when offenders are released into communities, their lack of rehabilitation justifies further segregation and other collateral consequences, such as employment and housing discrimination.

November 15, 2017 at 11:23 AM | Permalink


Excellent article. As a psychologist have have been arguing this for a long time, in a different context. It is ludicrous to think that "necessity is the mother of invention". If that were the case Google would pay its employees nothing. Everything we have learned about innovation and creativity over the last 100 years is that aspiration is the mother of invention and necessity is an aspiration killer. A person who is just trying to make it through the day is not inventing anything. It is the person with capital to play and experiment that is the innovator. So if one believes that rehabilitation is an important penal objective, then its crazy to think that making living conditions in prison worse than on the outside serves any productive purpose.

This is also one of the major arguments for national healthcare and welfare: they are investments in entrepreneurship. The problem is, however, that if already one has wealth and are working to keep people away from grabbing your wealth by employing the vocabularies and institutions of competition one cannot be seen as rewarding cooperation. So one has to put out myths about welfare queens and life-cycle dependency and beat the hell out of everyone who dare cross one.

So yes the author is correct. However nothing is going to change until the larger culture changes.

Posted by: Daniel | Nov 15, 2017 12:44:18 PM

Completely agree with you! Purpose of imprisonment should be to reform the prisoners, they are already being punished since they are locked. They must be provided tools and means to study, learn and gain employment, so that when they go outside, they are reformed and can live the life with dignity.

Posted by: Paul Carrillo | Nov 15, 2017 1:12:02 PM

Prof. Berman refuses to post this story addressing prison reform, even though I begged him to, to show America the way to proper corrections.

Shame on America allowing a Middle East country to lead the way to the future of prisons. This is a private prison company. You lawyers may still think, it is not good enough. We have to settle for now.


Posted by: David Behar | Nov 15, 2017 7:30:50 PM

You lawyers will get your ultimate wish, that there be no prisons. They become obsolete, like spats factories or buggy whip makers.

No one will even want to work in one, partly because lawyers have made it impossible to control their vicious, ultra-violent clients.


Once the prisons have closed, that will be the time, victims and their families can hunt the lawyer judges, prosecutors, legislators, and their running dogs. Beat them with metal rods. Then pass laws mandating that insurance companies deny all pre-authorizations for opiates for their injuries, due to the opiate crisis. If these patriots are caught and convicted, there will be no prisons open to confine them.

No more opiates for lawyers in pain: the opiate crisis, after all. Tylenol 650 mg every 6 hours.

Posted by: David Behar | Nov 15, 2017 11:44:14 PM

Paul. How come your link goes here:


Are you in transition to male? If you are, it would mean you would win all your cases. Going trans would make you rich.

Posted by: David Behar | Nov 15, 2017 11:47:22 PM

By nature, detention against one's will with certain guidelines of living handed down by the state will result in life in jail to be worse than the outside for many individuals. For some, detention might be an improvement in certain respects, at least if the conditions meet a certain minimum. Thus, e.g., some get treatment and education.

So, the question here is one of degree. I would not say the "aim of punishment is rehabilitation" alone. I think punishment has various aims. For certain people, punishment will largely be one of incapacitation, for instance. But, the one note punishment mentality is bad policy and in various cases creates more crime.

Like things in our past are now, future residents of Earth and maybe beyond will find our current penal policies cruel and uncivilized. Once upon a time, slavery and denial of basic rights to women were deemed proper too. And, like then, other nations provide another way.

Posted by: Joe | Nov 16, 2017 10:10:47 AM

And this is where I jump in again with my recommendation for split sentencing paradigms, where separate sentencing lengths are mandated for punishment and for rehabilitation. Punishment should be the same ACROSS the board, in which the convicted individual has to endure: incarceration with stark amenities. The second phase, just as important, is the comprehensive reintegration phase, which constitutes rehabilitation both in and out of incarceration, as well as the ability to hold a job or function in society through a better-trained parole system.

Without punishment, though, there is no real semblance of justice for the victim and the community, but equally important, there is no justice for the convicted criminal unless he has a path back to adjustment in society. Only a split sentencing scheme can accommodate for both.

Posted by: Eric Knight | Nov 16, 2017 11:47:42 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB