Thursday, October 17, 2013

Prison: Enemy of Justice

Modern society has a problem. The problem goes to the very core of society, the preservation and promotion of justice. At the center of this problem lies a prison system called to be a promoter of justice, but can only be its destroyer.
Society exists because it provides for the best possible life for individuals within it. Individuals join society, societies coalesce, or societies exist naturally because they provide a place for each individual. They enable the relationships and discourse, and opportunities that make for a fully human life.

Society emerges from relations. The organic or mechanical relations between individuals, groups, and institutions constitute a society. The relations of society and the contributions of each member to the society create rules of engagement for the society. Call it the social order. Order has more than its authoritarian meaning. It has biological meaning. An order naturally collects of smaller units (families) in the animal kingdom in natural, meaningful relationship.

Birthed in the relational nature of society, social order in turn creates authority. Social relation necessarily gives proper authority to the elements involved in the relation. Social order comprises the rules that govern behavior within society for each individual to live a fulfilled life. The proper social order best directs each individual to the best life, a fully human life in the society. Each elemental part of society has the duty to support the social order and the basic authority to defend it. Various elements, individuals and institutions, have various authority proper to themselves determined by the social order.

Laws enact various parts of the social order by the force of the state, a powerful element in society. Law declares which parts of the social order should be upheld and sanctioned by the authority proper to the state acting on behalf of the whole society. Obviously, not every part of the social order properly belongs to state enforcement. The state will not punish you for lying to your cousin, but it will sanction you for defrauding him in a business contract.
Crime is the breaking of law. In the broadest sense, this includes all law, private and public. That crimes harm victims directly and break the law is easily recognizable. More fundamentally though, crime, the breaking of law, represents a breach in society. The lawbreaker breaches social order by harming others in the social order and by implicitly claiming to be outside of the society. The criminal states implicitly that social order does not bind his action.

The law provides for sanctions to fix the social breach. The sanctions repair social order by including the following elements: providing justice, or restitution, to the victim, punishing the criminal to prevent further crime, and returning the criminal to proper relation society. The state, through law and power, has the authority to enact justice and punishment, but community, the relational side of social order, perfects justice, restoring each member to society. Community enables the forgiveness and restoration that completes the justice enacted by state sanctions.

Society is more than the state, and social order is more than its laws. Community brings together the whole of society’s powerful constitutional relationships. Community engenders the feelings proper to smaller, organic institutions in society. Just as families naturally tolerate and forgive, community brings this characteristic society as a whole to heal societal breaches.

Prisons fail because they do not fulfill any of the elements of proper sanction. Prisons may punish but not in a way that deters criminal activity in the future. Prisons do not provide justice and restitution to the victim, whether an individual of society as a whole. Most importantly, prisons do not restore social order. Prisons do not address the basic breach in society created by crime. Failing to do so, prisons negate any beneficial aspects of the punishment. If the sanctions do not actually allow for the restoration of society, the law is worthless.

Prisons preempt restorative justice by removing the criminal from society and its community altogether. Prison places the criminal outside of society in the name of punishment, but it also forces the criminal into another order. This new order is the far from natural. The forced mechanical order attempts to control the inmate’s and bend him to the will of the prison order. Prison order lacks all the community elements of general society, relying on raw force to impose its structure. There is no belonging in a prison order. There is only a power struggle between the individual inmate and the state. Order loses the relational and familial aspects entirely. It is not proper order. Even if the inmate conforms to the prison order, he is not at all prepared for social order based on the communal and familial nature of relations. Prison order does not translate to real society. Justice cannot be completed in the restorative function.

Having done away with a key aspect of order, prisons have all the same problems of a general society that lacks community support for the social order. Prison has each problem to a greater degree because community is almost nonexistent. The raw power of the order, like a totalitarian state, refuses community as rival authority.

As individuals are born into families, they have a natural desire for understanding and belonging that community provides in a broader way. When real community does not exist, people naturally migrate to other communities for a sense of belonging. Illicit communities, gangs, mafias, etc. grow to fill the vacuum. Prison encourages the growth of illicit communities because community must be found somewhere. The inmate has been denied the restorative community of general society. The inmate looks for community he can find for protection and belonging. In many prisons, the authorities can do nothing more monitor the increase of gang activity because it cannot be controlled. Inmates leave prison much more likely to be involved in gang activity, or the activity of other illicit communities. Restoration moves further away, and individuals remove further from society in general. Even more, the preventative aspects of punishment are nullified, as the inmate emerges more likely to engage in criminal activity. The obligations are to another order, a criminal order that is antithetical to proper social order.

Lastly, the breaches in society are never healed. The illicit communities gain more power to rival social order. The state must act to quell these rival powers. As the state accrues power, the social order moves further out of balance. The effects of growing illicit communities are very real, not just spillover. Prisons do not in any way restore the criminal to proper social order. Rather, prisons enable greater disruption of social order.

The delusion that prisons can be instruments of justice is recent. Historically, prisons have never restored breaches in social order. Prisons grew for what they do well, removing undesirables, usually political, from society and rounding them up like animals away from the pursuit of a fully human life. Prisons degrade the basic equality of each human, declaring the criminal as less than human, unfit for human society.

Interestingly, American society implicitly admits prisons fail to provide justice. Many convicted felons are denied voting rights. The law implies that though justice has supposedly been served through prison time, the person cannot reenter political society. Senator Rand Paul has drawn useful attention to this fact in calling for an end to this policy. This is a useful beginning point for policy changes, but the debate must go deeper than ever.


1. For further reading on the importance of community and its restorative function see Robert A. Nisbet, Community and Power (New York: Oxford University Press, 1953, 1962); R.J. Rushdoony, Law and Society (Vallecito, CA: Ross House Books, 1982); Sandra Walklate, “Crime and Community: Fear or Trust?” The British Journal of Sociology, Vol. 49, No. 4 (1998); and Gordon Bazemore, “The ‘Community’ in Community Justice: Issues, Themes, and Questions for the New Neighborhood Sanctioning Models,” The Justice System Journal, Vol. 19, No. 2 (1997).

2. For a powerful study of the statistics of gang activity in prison, see John Winterdyk and Rick Ruddell, “Managing prison gangs: Results from a survey of U.S. Prisons,” Journal of Criminal Justice 38 (2010), 730-36. Note that within the prison system, the only response is to manage or monitor gang activity. Many prison officials have resigned to the fact that prisons already encourage gangs. They need to realize the bigger implications.

3. “Sen. Rand Paul calls for restoring felons' voting, gun rights,” Louisville-Courier Journal, September 16, 2013.

1 comment:

  1. Good insights. Especially if you are referring to "petty crimes" and "political enemies." The one thing I would challenge is the underlying premise that prisons unnecessarily prevent people from living full lives or that there is a better solution. A portion of the prison population, maybe more than you think, has behaved so badly that they cannot be rehabilitated. They have given up their rights to a full life by the very nature of their crimes. I would make the argument that, whether they are in a mental health facility or prison, the community is better off without them. If we agree on that, then we have to draw a line and your line might be different han mine. I would include violent criminals, repeat offenders, and people who prey on children. And I would throw away the key.