CORRECTIONAL ETHICS
"In prison, those things denied to the prisoner become precisely what he wants most of all" (Eldridge Cleaver)

    Prisons as an institution symbolize the ultimate punishment, short of death, that any society can impose upon anyone who reneges on the social contract.  However, the moral and ethical issues associated with prisons go beyond the social contract, and include the "why" and "how" of prisons, or in other words, their "moral utility" (Souryal 2003).  The "why" and "how" questions correspond to John Rawls' (1955) two rules for justifying punishment; i.e. the crucial distinction between (1) justifying a practice or institution and (2) justifying particular actions that fall under it.  An underlying assumption has always been that studying prisons reveals much about how a civilization is to be judged (Jacobs 1983).  As civilization evolves, it is expected that prisons will simultaneously evolve.  Therefore, the social and moral issues associated with corrections are intimately connected with the social and moral issues that a society or civilization faces.  That is one reason why there have been so many shifting and changing correctional philosophies and policies.  As societies change, corrections changes.  If a society is uncivilized, it's prisons will be uncivilized.  Asking "why," or whether or not to have a "system," or institution, of corrections is perhaps the most difficult ethical issue. 

    The connection between prisons and society is not always apparent.  Corrections is the least visible component of criminal justice, and most people are strongly socialized to keep it "out of mind."  It is the "forgotten component" of criminal justice.  Relatively few people even care to know what goes on or examine why prisons are there in the first place.  Fewer other people would pay a visit to a typical maximum security prison, see all the human debasement and barbarism, and say something like this is a terrible reflection on how civilized we are as a society.  A lot of denial takes place psychologically, along with sociological processes of estrangement.  However, the key point is that there are few philosophical or ethical standpoints to really "judge" the "why" of prisons morally or ethically.  There are few ethical systems or principles that truly allow the study of whole penal systems and their place in society.  Take away the offenders, and you've lost your rationale for punishment.  On the other hand, there is no shortage of ethical systems (e.g., natural law and religious ethics) which easily permit us to "block out" the prisoner's suffering and see their punishment as righteous or deserved.  For this, we usually need to see some "how" regarding the actions that occur in prisons, and there are plenty of ethical positions from which to critique (or not critique) what goes on in prisons.  Far too much debate is centered on the humanity of what goes on in prisons as a substitute for thinking about why prisons as a social institution should continue to exist. 

    The antidote for this is SOCIAL JUSTICE, and now may be a good time to point out a few aspects of that concept.  Whole books and treatises have been written about social justice without ever offering a definition of it, and the most common understanding is "equal access to all resources," but this is only a narrow distributive sense of the term that one usually finds in discussions of affirmative action or welfare.  The full definition of social justice makes use of the first adjective "social" which means it is referring to all of society, and all of its institutions, as having the quality of justice.  Let's look at what J.S. Mill had to say about the term:

    Social justice aims for the good of the whole, not the good of any one individual, and not the good of any one behavior or virtue.  It is an ideological neutral term, and it can be sought regardless of liberal versus conservative distinctions.  If there is an ideology to it, then pragmatism would be it, because social justice argues for going beyond "situational" desert and pursuing an "absolute" desert that will always work in every situation, regardless of luck or effort.  Social justice argues for the cultivation (convergence) of virtue, habit, progress, or in the simplest of words, to just plain "keep trying."  Whenever we "lock em up and throw away the key," we have stopped trying, and we have given up.  Not pursuing social justice is the real social injustice.  With this in mind, let's examine the reasons why a system of punishment would need to be created.

THE ETHICS OF PUNISHMENT

    It's difficult to imagine a society without an established legal system of punishment.  While it might be worthwhile to speculate over some futuristic, "therapeutic" society, there's probably always going to be the need for some way to alter a person's aberrant personality or behavior against their will.  In other words, there must be some way to dispense pain or more precisely "harm," and it should not be lost on the reader that this is a "dirty business" -- dispensing harm.  Inflicting pain may not be the best way to get somebody to change.  To inflict pain deliberately, and to do it right, requires that some morally acceptable way be found of doing it.  Hence, the ethics of punishment takes center stage in the study of justice and liberty (Leiser 1973).  This is not the place to discuss the history of such efforts, which utilitarians like Jeremy Bentham (1748-1832) made a central part of their pleasure-pain considerations, nor is this the place to discuss how the practiced discipline of dispensing harm became part of American culture up through John Adams, Benjamin Franklin, and Thomas Jefferson.  Others (Massaro 1992) have told that story well.  Instead, this is the place to raise important moral questions about the appropriateness of a punishment institution.  Olen & Barry (1992) have presented an oft-cited list of the five things which make punishment morally acceptable, as follows:

• suffering -- punishment must involve pain, harm, suffering, unpleasantness, or some other consequence which is normally considered as negative or a counter-reaction.  This is a principle derived from Natural Law, because in nature, it is believed that equilibrium is sought between opposing forces, and restoring equilibrium sometimes requires unpleasant things to happen.

• violation -- punishment must be a response to a transgression of some sort, either a law or a rule.  Something that isn't written down, or intended to be followed by punishment, should not be punished.  For example, just because you had a bad day at work cannot mean that you were punished for that.  Sometimes, pain occurs in life as a normal part of life.  That's not punishment.  It's just pain.  This is the basic distinction between "pain" and "harm."  The first is unintentional, while the latter is intentional, or for an acceptable reason.

• judgment -- punishment must be limited to those who have been accused, tried, and found guilty.  All three elements are necessary.  Accusation alone cannot be the basis of punishment.  Neither can arrest, apprehension, or simple imprisonment.  You can imprison somebody in "time out," but you haven't really punished them until you've gone through the process.  Punishment is the process.  Anything else would be an injustice.

• externality -- punishment must be carried out by someone else other than the offender, and someone other than who is close to the offender.  In other words, someone distant, impartial, neutral, unknown, or external to the offender is preferred.  Punishment is a professional's game, and it should be played by professionals.  While some ethical systems might make a big deal out of "self-punishment," "guilty feelings," or a "twinge of conscience," when punishment is called for, the time is long past for letting the offender punish themselves (this would be masochism, anyway) or think that a close friend will "go easy" on them.

• rightful authority -- punishment must be carried out by a legally constituted authority which not only has the responsibility to punish, but additional responsibilities to maintain social or moral order.  In most cases, this means the government or some duly elected or appointed official who has a wider range of responsibilities.  The reason for this is that if the only duties an official had was punishment, this would be a prescription for tyranny.   

    These may all seem like strict standards for punishment, but they are all necessary.  It is important that prisons not become cesspools of human misery, and it is just as important they not become painless interludes in a life of crime.  Some pain may be necessary to motivate change, but we don't really know enough about human nature to calibrate or fine-tune the pain.  The varieties of pain that result from punishment are a mix of physical, mental, social, and economic pain (Newman 1985).  Of these, mental pain is the most modern form (Shaw 1946) since the progressive movement of history in corrections has been away from physiological torture to psychological torture (Rothman 1980; Foucault 1995).  Prisons are places where pain is more or less controlled, and time is the instrument of torture.  Clearly, as Amnesty International (at their torture test website) believes, prisons are places of torture, but not of the type where the offender says anything to make the pain stop.  Freed from certain abuses, most people accept prisons as an acceptable institution (Rawls 1955).  Rawls (1955) offers further conditions on justifiable punishment, as follows:

    THE PRISON ABOLITION MOVEMENT

    Deprivation is the key to effective punishment.  But, which deprivations?  Deprivation of liberty, as the punishment par excellence, may be a bit too much.  Surely, there are other things that a person can be deprived of which will motivate them to change.  Consider for a moment how strange and alien it is to practice the locking up of millions of people in a population.  What does that say about a society's failings?  There are logistical costs for keeping people under guard for long periods of time.  The Quakers (American Friends Service Committee) have always opposed the establishment of prisons on several grounds, which can be listed as follows:

• having a prison system assumes one group of people know what is better for another group of people (call this paternalism, colonialism, or what have you)

• having a prison system relies on coercion, and it is the natural tendency of coercion to escalate (the more coercion is applied, the greater the violence that will have to be applied in a never-ending cycle)

• having a prison system diverts attention away from efforts to come up with more humanitarian alternatives (one has given up on solving the problem of crime in society by peaceful means) [Source: Souryal 2003] 

    Not only Quakers, but anarchists (Anarchist Black Cross Network; Critical Resistance) oppose the existence of prisons.  Most anarchists feel that the problem stems from the 13th Amendment, which abolished slavery (for everyone except those convicted of a crime).  They also feel that prison systems have far too close a link with capitalism, a point that is well-taken when prison privatization is considered.  The anarchist arguments against prisons are as follows:

• prisons are as immoral as slavery

• the interpretation of law is always subjective

• the laws are written to benefit the few over the many

• judicial outcome always depends upon how much money one has

• the state frequently uses prisons to lock away undesirables

• people come to rely upon a penal system rather than take care of problems themselves

• there are examples of prisonless societies [Source: Wikipedia/Prison Abolition]     

    Additionally, other prison abolition groups exist, such as ICOPA, or International Circle of Penal Abolitionists, founded in 1982, and PRAWA, or Prisoners Rehabilitation and Welfare Action.

THE COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT

    In a book by the same name, Mauer & Chesney-Lind (2003) have documented most of the "hidden" or "invisible" costs of relying upon a massive and coercive correctional system.  No society at any other time in history has incarcerated more criminals from its population than the United States.  The impact is quite profound.  Many lives are touched, not only those of the criminals, but parents, spouses, children, friends, and communities.  Unbeknownst to most people are the many "collateral" consequences, or disenfranchisements, that come with a conviction.  A list is as follows of all things lost as a result of a criminal conviction:

• ineligible for health and welfare benefits, food stamps, public housing, and educational assistance

• driver's license may be automatically suspended

• may not qualify for certain employment and professional licenses

• if convicted of another crime, will be subject to imprisonment as a repeat offender

• will not be permitted to enlist in the military, possess a firearm, or obtain a security clearance

• may lose the right to vote

• may become immediately deportable for certain crimes   

INTERNET RESOURCES
Citizens Against Private Prisons
Coalition for the Abolition of Prisons
Ethical Issues in Penology & Punishment
Ethics Update: Punishment & the Death Penalty
Jesse Jackson on the Moral Costs of Prisons
John Kleinig on the Hardness of Hard Treatment
John Rawls on Punishment (Two Rules)
Journal of Prisoners on Prisons
Jurisprudence of the 13th Amendment's Slavery & Involuntary Servitude Clause (pdf)
Justice Action (Australia)
Legal & Ethical Issues of AIDS in Prison
Maryland Justice Policy Institute
Prison Policy Initiative
PrisonSucks.com
The Real Price of Prisons (Mother Jones article)

PRINTED RESOURCES
Allen, H. & Simonsen, C. (1989). Corrections in America. NY: Macmillan.
Davis, A. (2003). Are Prisons Obsolete? NY: Seven Stories Press.
del Carmen, A. (2004). Corrections, 2e. Cincinnati: Atomic Dog.
Dyer, J. (2001). The Perpetual Prisoner Machine: How America Profits from Crime. Boulder, CO: Westview.
Foucoult, M. (1995). Discipline and Punish. NY: Vintage.
Herivel, T. & Wright, P. (2003). Prison Nation: The Warehousing of America's Poor. NY: Routledge.
Jacobs, J. (1983). New Perspectives on Prisons and Imprisonment. Ithaca, NY: Cornell Univ. Press.
Leiser, B. (1973). Liberty, Justice, and Morals. NY: Macmillan.
Liebling, A. (2004). Prisons and Their Moral Performance. NY: Oxford. Univ. Press.
Massaro, D. (1992). "Of Crimes and Punishment." In Annual Editions: Criminal Justice, 1991-1992. Guilford, CT: Dushkin.
Mauer, M. (2001). Race to Incarcerate. NY: The New Press.
Mauer, M. & Chesney-Lind, M. (Eds.) (2003). Invisible Punishment: The Collateral Consequences of Mass Imprisonment. NY: The New Press.
McCorkle, L. (1970). The Sociology of Punishment & Corrections, 2e. NY: Wiley.
Newman, G. (1978). The Punishment Response. New York: Lippincott.
Newman, G. (1985). Just and Painful: A Case for the Corporal Punishment of Criminals. Albany, NY: Harrow & Heston. [E-text first edition]
Olen, J. & Barry, V. (1992). Applying Ethics. Belmont, CA: Wadsworth.
Parenti, C. (2000). Lockdown America: Police & Prisons in the Age of Crisis. NY: Verso.
Pollock, J. (2004). Ethics in Crime and Justice, 4e. Belmont, CA: Wadsworth.
Rawls, J. (1955). "Two Concepts of Rules," Philosophical Review 64: 3-13. [E-text]
Rothman, D. (1980). Conscience and Convenience. Boston: Little Brown.
Shaw, G.B. (1946). The Crime of Imprisonment. NY: Philosophical Library.
Souryal, S. (2003). Ethics in Criminal Justice, 3e. Cincinnati: Anderson LexisNexis.

Last updated: Sept. 30, 2006
Not an official webpage of APSU, copyright restrictions apply, see Megalinks in Criminal Justice
O'Connor, T.  (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.