Our Intuitions About The Criminal Justice System Are Screwed Up

It's hard to consistently think that prison and corporal punishment are that different

Stop calling it aggression

Ooh, we hate that expression!
We only want the world to know
That we support the status quo
They love us everywhere we go

—Tom Lehrer.

In the modern West, we tend to think of ourselves as very civilized, certainly compared to our ancient and barbaric ancestors. We don’t own slaves, women can drive, while they couldn’t in Ancient Rome, and so on. Though we systematically torture about 90 billion beings every year, before killing them, this is generally not seen as hindering our moral progress, for one generally doesn’t think that their moral failings are as severe as those of the past. And plus, those beings aren’t smart, so who cares?

One case where we like to think we’re very civilized and sophisticated is in our criminal justice system. We don’t behead people anymore—excepting Yemeni children, of course, and that’s as a side effect of our noble aims of funneling money into the hands of arms contractors—but instead, in the words of Tom Lehrer, we’d “rather kill them off by peaceful means.” Similarly, unlike those ancient savages, we don’t beat or hang people when they commit crimes—instead we lock them in prison.

Now, obviously I think in many ways we are more civilized than previous generations. But many of the criminal justice policies that we regard as indicative of being noble and civilized seem to be nothing of the sort. Nearly everyone would oppose bringing back corporal punishment, bringing back beatings for crimes. But how is what we do very different?

Somewhere between 1.9% and 40% of people are raped in prison. It would be unsurprising if it was nearer 40%, given how underreported it is. About a quarter of people, at least, are physically assaulted. So we sentence people to be locked in a box where many people get beaten as…a humane alternative to beating. Being locked up for 10 years isn’t a nice addition that takes the edge off a beating—a beating is just as bad whether implemented by the state as a punishment for a crime or implemented by a violent prisoner as a punishment for a crime.

The punishments we provide, while less viscerally upsetting than public floggings, are no more humane. I’d certainly much rather be beaten than be sentenced to prison for 10 years. Furthermore, because public beatings are more sudden, and those who commit crimes generally don’t think about long-term effects, they might even be a more effective deterrent.

Our criminal justice system functions very well to allow us to feel good about it. Those who commit crimes have their lives ruined, but it’s out of sight and out of mind. It’s not a public spectacle that makes us nauseous, so when the rapes and beatings happen behind closed doors, when people’s lives are ruined by decades of incarceration, we don’t feel responsible.

A while ago, I proposed serving only vegan food in prisons. I argued that this is a pretty good deterrent—having people eat bad food is pretty humane compared to other methods of deterrence. It also has the advantage—and this is the main draw of the proposal—of reducing the number of animals that get tortured and murdered every year for the sake of gustatory pleasure. People were horrified by this proposal—how dare I propose making the lives of prisoners worse?

But what do people think prisons are for? The purpose of a prison is to make the life of prisoners worse, so that they’re both unable to commit crimes while in prison and so that the punishment effectively deters crime. Ideally, they’d also rehabilitate, people, but vegan prisons don’t hamper that. My proposal is a million times more humane than the status quo!

Corporal punishment clearly causes people lots of misery. But so does any punishment for crimes. What is supposed to make prison any more humane? What makes it more civilized—less barbaric? Beyond the fact that we don’t have to witness the barbarism and cruelty, why is it any less barbaric and cruel?

In fact, were it not by the state, we wouldn’t think prison was one bit more humane than corporal punishment. If a person locked people in their basement with violent criminals for many decades, we’d think they were worse than one who just beat someone. So why is corporal punishment supposed to be any different?

I do not know how much one should be punished for various crimes. I’d imagine that our current policy is too inhumane. But however much one thinks people should be punished for various crimes, it’s hard to fathom why corporal punishment is ruled out but prison is tolerated. Given that prison is the less humane option, either both should be allowed or neither should. Allowing lengthy, life-ruining prison sentences, but condemning corporal punishment as barbaric is wildly indefensible. It’s a byproduct of foolish sentimentalism, of the greater emotional salience of corporal punishment. Contrary to modern notions, we are not any more civilized than those who supported corporal punishment.

Here’s another uncomfortable question—why are we so opposed to the guillotine. Oh sure, there might be all sorts of practical difficulties for it—beheadings get blood all over the place, hell of a job for the janitors. But why is it seen as so uncivilized? Our government kills people for their crimes, and yet bizarrely we act like other societies are backwards because they do their killing in a different way. This is so even though guillotines are less painful than our current cocktail of drugs that sometimes causes excruciating agony.

Lara Bazelon, in the recent Free Press Debate, described that if she could change one law, she’d get rid of the death penalty. My reaction was: what? The death penalty is only a bit worse than life without parole—I’d certainly take a 50% chance of life and 50% chance of death over certainty of life without parole. The number of people given the death penalty is in the low double digits. Contrast that with the 6-digit death count of our barbaric policy to arm the Saudis as they bombed and starved Yemeni kids, which killed many orders of magnitude more people—and the people killed were largely innocent children rather than malevolent child rapists. Really? This is supposed to be the biggest issue?

Our criminal justice system is completely screwed up. It’s dominated by a perverse kind of status quo bias, where we lock people in boxes for decades and then act like doing anything different is barbarism akin to the Roman gladiators. We’ll have better progress when we come to realize two facts: first, our current policy is unspeakably brutal, and second, punishment for crimes is inevitably at least a bit brutal.