• Jim Kelly

The case for closing America's prisons

Updated: Apr 19, 2020

A depraved criminal kidnaps a young woman whom he forces to live in a cage for 17 years, where she's repeatedly beaten up and occasionally raped.

What would you say is a proportionate punishment for such a crime?

How about stealing the criminal's car?

That is how America's criminal justice system works, only in reverse. If you steal a car, the government will put you in a cage for on average 17 years, where assault, rape, and murder are routine.

America's incarceration addiction is a human rights disaster. We put nearly 1% of our citizens behind bars, more than any other country. 25% of the world's inmates are in America.

Progressives have called for the abolition of privately contracted prisons, which is a good start. We should close the public ones too, not just for humanitarian reasons but because they make little rational sense.

Consider the traditional justifications.


No one believes prisons are a serious attempt to get criminals to reform. The state already had a try at imparting productive skills to every convict, for a decade or more starting at age five. It's hardly more likely to succeed when they're adults, especially in a monoculture of other criminals cut off from any means to build productive lives.

If we took the rehabilitation goal seriously, we'd evaluate a prison's performance based on recidivism rates and reform or close it if its graduates kept committing crimes. Sentencing would depend less on how many crimes were committed and more on how long it takes to reform a given convict.

The debt to society

Another classic prison justification, making criminals "serve their time" or "pay their debt to society" is pure gibberish. If I steal your money, I create a debt to you, not to "society." And I don't pay it back by sitting in prison, just the opposite. The government simply steals more of your money as a taxpayer to cover my room and board. You don't get made whole, you just get victimized a second time.

If "society" can hold debts, teenagers are as deep in the red as anyone. Society has invested resources in their upbringing far behind what they've contributed in useful output. We don't stick them in institutions to repay that debt. In fact much of the debt accrued in the first place because we forced them into school institutions for a decade or more and prevented them from holding jobs. On finishing school, they'll repay society by leaving the institutions, going out in the world and producing more than they consume.

Up to the mid 1800s debtors were thrown in debtor's prisons until they worked off what they owed. These prisons were mostly retired in favor of more humane and practical bankruptcy courts, which restructure the debtor's affairs to maximize his ability to pay his creditors.

What's the difference between working off a balance and serving a sentence? The units the warden keeps his books in.

We have better ways to settle debts.

Getting dangerous people off the street

The public safety argument for prisons goes like this. Someone who committed a crime in the past is likely to commit a crime in the future. If we lock up people likely to commit crimes in the future, we will prevent those crimes from occurring.

To accept this argument is to buy a statistical model and a principle. The principle says it's okay to lock people up to prevent hypothetical future crimes. The statistical model says the only relevant predictor of a crime in the future is a crime in the past. That leaves little room for rehabilitation or any theory of the roots of crime.

Once you accept the principle, though, it's crazy to stop with such a crude model. Most crimes are committed by young unmarried men from fatherless homes. If the legitimate purpose of prison is to prevent crime by separating high risk individuals, why wait for a crime? Proactive incarceration would prevent even more crimes, right?

Justice for victims

"Justice for victims" sounds like not only a thing but an important thing. When you unpack it, though, it's just an empty platitude. Imprisoning people doesn't make restitution to victims, it simply creates another bill for them to pay.

And justice, although it sounds like it has some cosmic heft, is just another word for fairness, which is wholly dependent on our point of view. The spouse-beater is a wicked man who acted badly and now must face the consequences, or a harried woman victimized by her upbringing and provoked by her loutish husband, who should therefore be forgiven. These are story lines from a telenovela, not an objective assay of reality.

The cold truth is that we enjoy watching the wicked suffer so much we'll pay for it. Hollywood figured out decades ago that nearly everyone will stump for a ticket to see the hero triumphant and the villain laid low. Psychology experiments have shown that people will sacrifice their own well-being to punish someone else's misbehavior.

Crime deterrent

The only justification for prison that makes rational sense is to make an example of criminals--not to change their behavior but to shift the economics of crime and thereby deter other people. Inflicting a punishment raises the average cost of breaking a law, so more people will choose compliance.

But this reason is morally indefensible. It's one thing to say you're entitled to restitution after someone trespassed your rights. It's quite another to say you get to punish them above and beyond your actual loss. How far beyond should you be entitled to go? As far as it feels good to you?

With no limiting principle, government employees go crazy. To prove how much they care about the environment, they're happy to pack you off to jail for six months for offering a plastic straw. Why wouldn't they? It doesn't cost them anything.

Alternatives to prison

We're so used to locking people up that it's hard to imagine there are alternatives. But societies have been devising ways to keep the peace for millennia. Once we open ourselves to the question, it's no surprise that people have figured out more than one answer.

The philosophical alternative to punishment is restitution. Whereas punishment is a blank check, an invitation for wildly disproportionate reprisals, restitution is intrinsically bounded and proportionate. Don't lock the transgressor away, destroying his job and family in the process, keep him in a productive role where he can work to make his victim(s) as near whole as possible, and earn his way back into society's grace. And keep an eye on him to make sure he does so.

If despite extra monitoring you can't trust him to remain in the community, throw him out. The sheriff used to run the bandit out of town. Ancient cities built walls precisely to keep the untrustworthy at bay, and the rich in their gated communities still do so today. Modern technology also offers electronic ways to oblige the unwelcome to leave.

Exiling a criminal doesn't necessarily reform him, but neither does prison. In fact prison does the opposite. Casting someone out sends him a message and gives him room to change course, while protecting other citizens. It's neither necessary nor productive to force those citizens to put him up somewhere.

Societies for thousands of years also operated a machine for preventing hot-blooded young men from turning to crime. It was called marriage, and it got them to live responsibly by giving them responsibilities of a family to support. Though it has fallen out of favor in recent decades, it still works, and if we could revive it we would see the prisons thin out. It's not just for gays anymore.

Crime, sadly, is not an issue people like to think rationally about. It turns the most liberal voter into an instant conservative, and we have the public policy to prove it. The drug war has roto-tilled minority communities for half a century with broad public support. Deep blue California passed its notorious three-strikes law with an overwhelming 72% support in 1994. Such laws are still sending people away for 50 years for stealing a $35 rack of ribs.

Disproportionate reprisals are immoral, no matter how good they feel. Prisons are inhumane hotbeds of crime in their own right--often far worse crimes than they're meant to "correct." For every victim they prevent through deterrence, they create another two both inside and outside their walls. It's time we collected our wits and shuttered them.

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