Creating Freedom. Raoul Martinez
mental illness are exempted from punishment precisely because they lack the cognitive capacity – the ‘minimal rationality’ – to be deterred by threats of punishment.18 This seems reasonable enough, but the problem is that anyone who commits a crime belongs, by definition, to the category of people undeterred by the punishments of society. At least when they commit the crime, every lawbreaker clearly possesses a brain that is not put off by the possibility of being arrested, tried, imprisoned or, in some cases, even executed. The high percentage of reoffending former prisoners confirms that those who end up being punished are not the ones the deterrent is primarily acting on.
If punishment often fails to deter lawbreakers from offending and reoffending, what purpose does it serve? The standard answer is that if criminals were not punished for their crimes, those members of the public who were previously deterred would in future have less reason to abide by the law and the crime rate would go up. It is the effect on this second category of people (the deterred public) that is used to justify the punishment on the first (the lawbreakers), that is, the criminal population are being punished to prevent the rest of the population from turning criminal. But if people are not truly responsible, then using the deterrence argument to justify harsh punishment is, as Daniel Dennett points out ‘. . . doomed to hypocrisy. Those whom we end up punishing are really paying a double price, for they are scapegoats, deliberately harmed by society in order to set a vivid example for the more ably self-controlled, but not really responsible for the deeds we piously declare them to have committed of their own free-will.’19
Disturbing though this reasoning may be, it lies at the heart of the deterrent argument. It was candidly recognised by the influential American jurist Oliver Wendell Holmes, Jr: ‘If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, “I don’t doubt that your act was inevitable for you, but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like.”’20 Expressed in this way, the injustice of the deterrent argument is apparent. It advocates punishment, even execution, for people who are not truly responsible for what they do – people who in many cases have suffered excessive hardships and deprivation – in order to prevent the more self-controlled, and often more privileged, from breaking the law.
As well as being morally dubious, the strategy of harming some to deter others can easily backfire. Severe punishments can function as an ‘anti-deterrent’, increasing violent crime rather than diminishing it. For instance, both the US and Nigeria experienced an increase in murder rates after introducing the death penalty, while its abolition in Canada saw a drop in homicides.21 And of the countries with the highest homicide rates, the top five that employ the death penalty average 41.6 murders per 100,000 people, whereas the top five with no death penalty average roughly half that number at 21.6 murders per 100,000 people.22 One explanation for these facts is that severe institutional punishment has a brutalising impact on the general culture, exacerbating rather than deterring violence. Regarding the relationship between capital punishment and homicide rates, the United Nations concluded that ‘The evidence as a whole still gives no positive support to the deterrent hypothesis.’23 According to polls, the vast majority of criminologists and police chiefs do not believe the death penalty deters violent crime more than imprisonment.24
The immorality of the ‘double price’ paid by prisoners is aggravated by the severity of the punishments they receive. As long as deterrence is believed to be our most powerful lever of influence and, to the extent that more brutal punishments are considered more effective deterrents, there will be pressure to increase the suffering of prisoners. This pressure, founded on morally questionable and factually baseless assumptions, is regularly employed around the world to justify punishments that ought to be regarded as a form of torture. According to the United Nations, torture encompasses:
any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him . . .25
Imagine being taken from your home and locked up for years in a threatening, violent, overcrowded institution – an institution in which people are often beaten, injured, raped or even killed, all the time separated from family and friends, with every aspect of your routine controlled coercively by a group of salaried strangers. The distinction between torture and prevailing forms of criminal punishment breaks down under scrutiny.
Consider the US’s ‘supermax’ prisons in which inmates are kept in solitary confinement for twenty-three hours a day. Prisoners living under such conditions often become mentally ill. They are deprived of any meaningful work, training, exercise or education and are shut off from almost all human contact. Access to a telephone, books, magazines, radio, television – even sunlight and fresh air – are severely restricted or entirely denied. Cells are illuminated at all times.26 The Committee on International Human Rights argues that this form of confinement ‘violates basic human rights’ and in many cases ‘constitutes torture under international law and cruel and unusual punishment under the US Constitution’.27 It is estimated that up to 80,000 prisoners are currently living under these conditions.
Criminologists warn of ‘the serious psychological harm done to prisoners, and [the] difficulties in coping with the world outside when released, across all security levels and types of institutions’.28 Amnesty International, Human Rights Watch and the United Nations Committee Against Torture have all condemned the US prison system for its inhumane practices. These include the incarceration of children in adult prisons, abuse of the mentally ill and disabled, the prevalence of rape culture, the shackling of female inmates during childbirth, and the use of electric shocks as a means of controlling prisoners.29 As Gendreau writes, ‘if prison psychologically destroys the inhabitants, then their adjustment to society upon release can only be negative, with one likely consequence being a return to crime’.30
The deterrent effect of imposing the ‘double price’ on lawbreakers is not only overstated but a significant part of the problem. Arguments in its favour are riddled with holes, providing cover for many inhumane, unjust and unjustifiable practices. This cover is strengthened by our instinctive attachment to individual responsibility and the notion of retribution, which permeate the whole practice of punishment, shaping popular attitudes and making it far easier to ignore the grave deficiencies of outmoded penal systems.
Most of us anticipate the likely consequences of our actions, so in some contexts the threat of punishment may dissuade us from a course of action we might otherwise undertake. However, according to recent research, it is primarily the likelihood of getting caught – not the severity of punishment that awaits us – that deters us from doing what we otherwise would do.31 Once we have detained people who pose a serious threat to society, their suffering (beyond that caused by the removal of their liberty) does not serve the cause of justice and rarely increases the safety of society. In fact, it often makes society more dangerous.
If the justice system were rational, the social impact of harming lawbreakers would not be taken for granted; just like the effectiveness of a new drug, it would be something to be established empirically. The burden of proof would always be on those in favour of inflicting harm to demonstrate its value, and, even then, the benefits to society would have to be balanced against the fundamental right of the individual not to be harmed. Given the humane and effective alternatives to wilfully inflicting suffering on lawbreakers, the logic of deterrence is often hard to justify.
Beyond punishment
One of the most humane prisons in the world is situated on the island of Bastøy in Norway.32 Every inmate in this open prison is offered high-quality education and training programmes to develop a variety of skills. Prisoners live communally in comfortable homes, six men to a house. Each man has his own room but shares the kitchen and other facilities with the other inmates. A meal a day is provided for the inmates; any other food must be bought from the local supermarket and prepared by the prisoners themselves who receive an allowance of £70 a month and earn roughly