Senior Project
The American Philosophy of
Incarceration
Manuela Cardoso
Ross School
15
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Table of Contents
Introduction ............................................................................................................................................ 3
Ancient Retribution .............................................................................................................................. 5
The Code of Hammurabi................................................................................................................................. 5
The Oresteia........................................................................................................................................................ 5
From Body to Soul ................................................................................................................................. 7
Tool of Social Control ......................................................................................................................... 10
After Prison ........................................................................................................................................... 14
Conclusion ............................................................................................................................................. 18
“Ceci n’est pas une pipe” ............................................................................................................................... 18
References ............................................................................................................................................. 20
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Introduction
Throughout history, the view on how to establish justice has often changed. However, in
all their different ideologies, civilizations have never disregarded that a system of justice is
crucial to the control of society. But, most importantly, they have always understood how
punishment, or an unpleasant consequence to undesirable behavior, is even more valuable to the
maintenance of that system. When dealing with human nature, the 18th century criminologist
Cesare Beccaria claims that “neither the power of eloquence nor the sublimest truths are
sufficient to restrain, for any length of time, those passions which are excited by the lively
impressions of present objects” (9). Driven by these “passions,” or instincts, men are just like
children; no warning of danger or parental plea is more compelling than a threat of punishment
when trying to stop a child from acting upon an impulse. The effectiveness of punishment as a
tool of control is sustained by the fact that the desire of self-preservation lies at the very core of
human nature.
There are two main philosophies regarding the use of punishment: retributivism and
utilitarianism. The retributive approach is based on the idea that someone who has done
something detrimental to society deserves to be punished, and, usually, suffer in proportion to
the crime committed. Immanuel Kant, for instance, was among these supporters of punishment
for the sake of punishment. As he argued in favor of the “sacredness” of justice, he claimed that
whoever compromised another man’s rights should be punished to suffer the consequences of
his/her actions and, therefore, respect the value of “justice.”
In contrast, utilitarian philosophers consider punishment to be inherently evil, but
necessary to avoid injurious conduct in society. For them, punishment should serve the purpose
of deterrence (discouraging criminal behaviors), incapacitation (impeding law offenders from
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acting again), and rehabilitation (helping criminals lead a new life, free of their former behavior).
But, most importantly, utilitarianism relies on the effectiveness of punishment rather than its
harshness.
In this paper I will start by exploring how ancient times were dominated by extreme ideas
of retributive punishment, and how history developed to create a more utilitarian – and humane –
system of crimes and punishments. I will use the foundations of utilitarianism, exploring the
writings of philosophers like Michel Foucault and Cesare Beccaria, and more recent documents
like the United Nations Declaration of Human Rights, to expose how the American Penitentiary
System has deviated from its initial utilitarian purposes and transitioned to a failed system of
retributive punishment.
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Ancient Retribution
The Code of Hammurabi
Around 1700 BCE, Emperor Hammurabi of the Babylonian Empire carved into stone one
of the first known sets of laws, the Code of Hammurabi. Permeated by seemingly absurd ideas,
this early display of legislation is one of the best illustrations for retributivism. For example, with
code 196 (“If a man put out the eye of another man, his eye shall be put out”), Hammurabi’s
code became the origin of the popular saying, “an eye for an eye.” Similar to code 196, many of
the laws established by Hammurabi reveal a central concept to retributive punishment:
proportion. Even though the codes carry a very literal judgment of proportionality, they fully
convey the retributive belief that a criminal should face the consequences of his offense in
accordance to the harm he/she has caused. Despite some of its shocking ideas, the code presents
yet another crucial and very sensible part of retributivism: impartiality. With the underlying idea
that criminals “deserve” to be punished, lies a very thin line between a system of retributive
justice and a revenge culture; having a selection of pre-established neutral laws is what sets these
two apart.
The Oresteia
“'In
return
in
exacting
and
'In
return
for
hostile
what
for
is
words,
due,
bloody
let
hostile
Justice
blow,
let
words
be
paid!'
–
shouts
that
aloud,
bloody
blow
repay!'
'For the doer, suffering' is a saying three times old." (Hughes, 306-314)
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These words from the second play of Aeschylus’ Oresteia greatly resemble code 196
from the Babylonian Empire. In this selection of three tragic plays, which unveil the curse of the
House of Atreus, Aeschylus conveys the revenge culture that prevailed in 5th century Greece. A
revenge culture might also share the notion of punishment in proportion to crime, but in it, the
punishment for reprehensible behavior lies in the hands of each person. It is a “system” of
personal, and emotion-driven actions. When compared to the Oresteia, the Code of Hammurabi
becomes a very dull piece of history.
Here is a brief synopsis: It all starts when Thyestes seduces his brother Atreus’ wife,
causing Atreus to cook and serve Thyestes’ sons to Thyestes, who then sets a curse on the House
of Atreus, proclaiming that each generation would devastate the other. Said and done. Only one
of Thyestes’ sons survives, Aegisthus, who cultivates an intense hatred towards his cousin
Agamemnon, Atreus’ son. So when Agamemnon leaves for the Trojan War, Aegisthus becomes
a lover to his cousin’s wife, Clytemnestra. Together they murder Agamemnon, as Clytemnestra
resents him for sacrificing their daughter so the Greeks could win the war. But the couple is
murdered by Clytemnestra’s two children, who wish to revenge their father’s death.
Evidently, this Greek tragedy is very different, and much more cruel than the Code of
Hammurabi. But they share the same fundamental mentality: a criminal “deserves” his/her
punishment. In its extremely dramatized essence, the Oresteia embodies this ideal and shows
how the notion of punishment for the sake of punishment can escalate into a vindictive and
aggressive mindset.
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From Body to Soul
These violent patterns, as seen in the previous chapter, repeated themselves for centuries.
Still pervaded by the retributive view of inflicting suffering upon a criminal, justice in the 18th
century was established by arbitrary acts of cruelty. In Discipline and Punish, Michel Foucault
recounts the quartering and burning of an offender to illustrate what was “one of the most
popular spectacles of eighteenth-century France” (Sheridan ix). As the Age of Enlightenment
took down the absolute monarchies, it also brought about the respect for man, based on his most
innate aspect of being human. By the 19th century, the enforcement of justice was transitioning
from physical punishment, like public executions and torture, to incarceration.
The French philosopher claims that two new concepts were added to the penal system,
“measure” and “humanity.” With works by philosophers like Beccaria, new standards of justice
were slowly being established. Ideas regarding fair trials, the severity of sentences and the
effectiveness of punishment started to be discussed. And, in this midst, incarceration rose
alongside utilitarianism. “Less cruelty, less pain, more kindness, more respect, more ‘humanity’”
(Foucault 16), these were the goals they shared. However, Foucault highlights that punishment
never “ceased to be centred on torture” (15). Evidently, to serve as an effective tool against
crime, to actually alarm the human desire for self-preservation, incarceration needed to do more
than “simply” take away liberty. Its effectiveness also relied on the “rationing of food, sexual
deprivation, corporal punishment, (and) solitary confinement” (Foucault 16).
Nonetheless, much criticism arose from this new, allegedly lenient, system of
punishment. Led by their retributive minds, people did not agree with housing and feeding
criminals. They wanted more; they needed a tangible form of punishment. For them, “a
condemned man should suffer physically more than other men” (Foucault 16), not
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acknowledging that justice was changing its focus from the body to the soul (or the essence, or
the spirit, or simply the mind; in accordance to whatever each person believes to be inside a
human being). The lack of acuity to analyze the outcomes of this new system, has a created a
problem that still haunts our penitentiary system: “Perhaps it has been attributed too readily and
too emphatically to a process of ‘humanization’, thus dispensing with the need for further
analysis” (Foucault 7). In comparison to its preceding forms of punishment, incarceration is
clearly more humane. However, its torture of the soul should not be underestimated. The caging,
the labeling - the animalizing - of human beings should not be taken lightly.
Beccaria said that “uncertainty” is “the most cruel tormentor of the miserable” (7). The
constant fear, the leeriness, the unpredictability, the seclusion, all unites in this “tormentor.”
Phyllis Tabron, the mother of a teenager who spent 6 months in solitary confinement said, “If I
put my son in a room for six months and I wouldn’t let him out, I’d be arrested. That’s torture.
No one can take that kind of isolation” (Phyllis Tabron “PressTV-Americans protest US prison
violations”). No punishment is as dangerous as the one aimed at the soul.
This abuse of the soul, utilitarians would argue, is but a necessary consequence to the
least cruel form of punishment that has ever been attained. Nonetheless, the penitentiary system
started its decay from its utilitarian goals as the torture of the soul went from an unavoidable
consequence to a crucial need. Regarding the emergence of prisons, Foucault claimed that
punishments “become the most hidden part of the penal process” (9). Incarceration started to
serve as a means of taking the guilt from authorities. While proclaiming to pursue the utilitarian
ideals of a humane and effective form of punishment, the judiciary counted on the torture that
was hidden behind bars. In The Philosophy and History of Prisons, Professor Jocelyn M. Pollock
states, “‘You are nothing!’ is a theme that prison inmates live with during the course of their
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imprisonment, and the mental toll that prison takes on its population is very difficult to measure”
(Pollock 9). Inmate violence, abusive guards, precarious structure; it all subtly unites to intensify
the anguish of prison.
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Tool of Social Control
The United States is, by far, the country with the largest prison population in the planet.
Carrying less than 5% of the world’s population, America shockingly holds 25% of global
prisoners. Today, there are over 2 million people under incarceration, an outraging number when
compared to other countries with much larger populations.
Prison Population
Total Population
Prison Population
Total Population
1,367,73
1,265,57
0,000
0,000
2,228,42
1,701,34
4
4
671,700
United
States of
America
China
320,213,
000
581,507
China
Russia
Brazil
India
United
States of
America
203,750,
000
Brazil
Fig.1. Personal chart by author. 2015.
The severity of sentences in America is striking, especially when noticing America’s
leading position against countries with a history of harsh laws and punishment, like China and
Russia. In thirty years, the U.S. prison population has increased by 500%, whereas the crime rate
has only decreased by 15%.
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Fig. 2. Source: US Violent Crime Rate and Incarceration Rate, 1990-2011. 2013. By Paul
Waldman.
An article by The New York Times tries to unravel the reason for such discrepancy,
“Americans are locked up for crimes — from writing bad checks to using drugs — that would
rarely produce prison sentences in other countries. And in particular they are kept incarcerated
far longer than prisoners in other nations” (Liptak “U.S. prison population dwarfs that of other
nations”). But in The New Jim Crow, Michelle Alexander exposes the problem of mass
incarceration in much simpler terms: “The lack of correlation between crime and punishment is
nothing new” (7). The American penitentiary system is no longer a utilitarian system of
correction, but a “tool of social control” (Alexander 7). The delicate punishment of incarceration
has been thrown around almost as if arbitrarily.
In 2011, the Supreme Court declared that Californian prisons were so crowded they failed
to provide sufficient medical and mental care, infringing the 8th Amendment to the United States
Constitution: Excessive bails shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted. The greatest reason for such overcrowding was the Three Strikes
Law passed in 1994. The law states that if a former convict commits a second felony, his/her
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sentence shall be doubled. If this person commits yet another crime, the conviction is of at least
25 years to life. The motives behind this drastic change, however, were based on more than
crime and recidivism rates. In a time when the American government was dealing very severely
with crime, this law arose the interest of many institutions and its initiative was substantially
funded.
Michelle Alexander also illustrates the government’s erratic punishments with the War
on Drugs, one of the greatest contributors to mass incarceration. She presents several pieces of
evidence to support her argument that the war on drugs was set up by the government, during a
time when drug crimes were actually decreasing. Among the evidences, is a statement from the
CIA, confirming that they used to smuggle drugs into the United States. Most of these drugs
would then go to poor black neighborhoods. Even though research shows that people from
different ethnic groups are equally involved with drugs, Michelle presents the unsettling fact that
“in some states, black men have been admitted to prison on drug chargers at rates twenty to fifty
times greater than those of white men” (Alexander 7).
This inconsistency of a system of punishment driven by biased decisions was long ago
predicted by Cesare Beccaria, as he listed the possible problems that could ruin the effectiveness
of the penitentiary system. He said, “a multitude of laws that contradict each other, and many
which
expose
the
best
men
to
the
severest
punishments,
rendering
the
ideas
of vice and virtue vague and fluctuating and even their existence doubtful” (Beccaria 24). In
2003, 18-year-old Cameron D’Ambrosio faced a conviction of 20 years after he posted on
Facebook rap lyrics that contained a bomb “threat.” The same sentence of 20 years was received
by Justin Miller in 2014, for choking his girlfriend to death. Luckily, D’Ambrosio was found
innocent. If he had been convicted, the young boy would spend 20 years of his life in prison,
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alongside men like Miller. Sentencing a young adult to such a long time of incarceration because
of an Internet post completely diverges from the utilitarian principle of applying punishment
based on its efficacy to prevent crime. Instead, it reflects the American government’s intent of
sending a message against terrorism. When the system of justice changes its regulations
accordingly to economic and/or political interests, how are the citizens supposed to assimilate
what is the right conduct? Should they simply get caught in the fluctuating political system,
where the “undesirable” are disposed of, and lives are wasted, because of the message a
president wants to pass (or whatever other excuse that can be translated into “money”)? Again,
men are like children; they should be led by example.
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After Prison
In this midst of inconsistent laws, overcrowded prisons, and precarious conditions, the
penitentiary system has lost the focus on the most important purpose of prison: the protection of
society. The utilitarian rationale argues that this goal can be achieved with a punishment system
that aims to discourage criminal behaviors by incapacitating and rehabilitating criminals. In the
current scenario, the American system of incarceration only achieves relative success in
incapacitating convicts. However, even as prisons keep convicts from causing any more harm to
the outside society, there is no incapacitation behind bars. The environment of prison actually
becomes more propitious to problems like violence, gangs, and traffic.
The goal of incapacitation is also temporary. A study by the Bureau of Justice Statistics
shows that over two thirds of former prisoners are rearrested within three years of their release.
In the 1970’s, the National Advisory Commission on Criminal Justice Standards and Goals
stated that it would not be long before prisons were terminated. According to the institution, "the
prison, the reformatory and the jail have achieved only a shocking record of failure. There is
overwhelming evidence that these institutions create crime rather than prevent it" (Alexander 8).
To succeed in avoiding crime, the penitentiary system should focus on the rehabilitation
of criminals. The Prison Initiative Policy asserted that over 200,000 of state prisoners are serving
sentence because of drug related crimes, while nearly 150,000 are serving from public order
offenses such as carrying weapons (Wagner, Sakala “Mass Incarceration: The Whole Pie”).
These common types of crime are very easy to fall back into, and are especially encouraged if
the criminals return to the same environment they lived in before. After years in prison, in an
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environment where the violence and selfishness of human nature is aggravated, it is even harder
to lead a lawful life.
In an article entitled “Punishment fails. Rehabilitation works.,” on The New York Times,
law professor James Gilligan defends the utilitarian ideal that prison should incapacitate
criminals, while creating a safe and “constructive” (Gilligan) environment that will be reflected
in the conduct of prisoners. The professor also asserts that university programs in prison are the
only ones able to be “100 percent effective for years or decades at a time in preventing
recidivism” (Gilligan).
At a speech at the Ross School, writer D. Watkins claimed he wanted to help achieve
equality and peace in the world through literacy. He argued that reading supplies the mind with
the words it needs to elaborate complex thoughts. Education is the antidote to what journalist
Chris Lebron calls being “morally lazy” (Lebron "What, To the Black American, Is Martin
Luther King Jr. Day?"). Reading, reflecting, questioning, are essential for people to start
analyzing their surroundings as they discover who they are, and what they need and deserve.
Proving Lebron’s statement, former convict Arlander Brown said, “As you learn to be a better
critical reader you learn to be a better self-critic, too” (Gregory “Pictures from an Institution”).
Brown received a liberal arts diploma after he was released from prison. While
incarcerated, he joined the Bard Prison Initiative, a program led by Bard College that presents a
selective and challenging curriculum to prisoners, identical to that offered at Bard. Since 2001,
the B.P.I. has enrolled 300 students each semester. Becoming the greatest university-led
education program in the American penitentiary system, Bard has been joined by many other
universities and is now present in 9 states.
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The Bard Prison Initiative started with a mere sophomore from Bard. Max Kenner began
to think about this project after prisoners were denied the right to receive the Pell college tuition
grants. His idea has now changed the lives of hundreds of former prisoners who come out of
prison with the best tool for reintegration into society, education. Along with education,
Kenner’s example reveals another very simple solution that helps prisoners adjust to life postincarceration: respect. When citizens start to recognize former convicts as worthy of the same
rights and dignity, they are able to come up with ideas like the Bard Prison Initiative that create a
more humanizing, and restorative system of justice.
There is an absurd amount of prejudice regarding those who have served time. It seems
like many laws and rights do not apply to someone after he/she acquires a criminal record.
Article 23 of the United Nations Declaration of Human Rights states, “everyone has the right to
work, to free choice of employment, to just and favorable conditions of work and to protection
against unemployment”. Nonetheless, many job applications ask about criminal record, a
question that substantially influences the employer’s decision. In 2004, a movement called Ban
the Box was created to remove the questions regarding criminal record from job applications and
other forms. Even though discrimination against ex-convicts in the work place is still very much
perceptible, the movement has been fairly successful, causing changes in over 45 cities across
the world.
While independent initiatives have created great impact to prisoners’ lives, the American
government is the biggest propeller in what Michelle Alexander calls a “legalized
discrimination” (1). She insightfully describes the life of a former convict: “today it is perfectly
legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate
against African Americans. Once you’re labeled a felon, the old forms of discrimination—
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employment discrimination, housing discrimination, denial of the right to vote, denial of
educational opportunity, denial of food stamps and other public benefits, and exclusion from jury
service—are suddenly legal. As a criminal, you have scarcely more rights, and arguably less
respect, than a black man living in Alabama at the height of Jim Crow” (Alexander 2).
Shamefully, Alexander is entirely right in her accusations. For instance, there is a law
that prohibits those formerly convicted of drug related crimes from receiving food stamps and
money assistance. Even though states have the authority to change this law, only nine have
completely banned it. This is a clear offense to Article 25 of the Declaration of Human Rights:
“Everyone has the right to a standard of living adequate for the health and well-being of himself
and of his family, including food, clothing, housing and medical care and necessary social
services, and the right to security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his control”. The UN Declaration of
Human Rights is a list of thirty rights that the UN believes every human being is entitled to, for
the simple reason of being human. The fact that a law denies the access to government support to
certain citizens, plainly illustrates how convicts are regarded as second-class citizens, and as if
deprived of humanity.
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Conclusion
“Ceci n’est pas une pipe”
If there is one similarity between the 20th century Surrealist Art Movement and the
American Penitentiary System, it is that they both require to be examined from deep within.
They demand a look beyond the surface. They need people to dispose of their mental lethargy,
and to start examining their surroundings.
The real problem of incarceration in America lies at its essence, which is carefully hidden
under a pile of other problems. The surface is so tightly packed by a plethora of deficiencies, that
the nature of the penitentiary system cannot even be found to be questioned. Government budget,
political manipulation, concealed violence; these are not the real problems of prisons in America.
They are the mere consequences of the conflict at the core of American incarceration. The
catalyst of the prisons’ decay is the fact that, in the middle of the 21st century (and freedominspired words), the Unites States of America cultivates a retributive system of justice.
These external problems have been created by the neglect that has been perpetrated
towards the system of incarceration and its victims. Far from the utilitarian ideal of respecting
prisoners and preparing prisoners for the reintegration into society, the American penitentiary
system is dangerously approaching the line that separates retributive punishment from revenge. It
shows no more concern for its criminals, who are simply locked away from society, tossed aside,
enduring the challenges of prison until they day they will be released into a society that will
reject them.
This rejection is mainly stimulated by the government that, as it establishes legal
restrictions upon former prisoners, encourages prejudice in society. The American government
has been fortifying retributive feelings of anger, neglect and prejudice on its people. Feelings like
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these, are the reason that officer Darren Wilson thought 18-year-old Michael Brown “deserved”
to be shot six shots (he missed the other six) after they had a fight. Also aggravated by racial
motives, Wilson’s actions reflect the ideas of a revenge culture, where people start to take
“justice” into their own hands. The same revenge culture that was present in brutal 5th century
Greece, and that will soon earn a 21st century version of the Oresteia. The American Penitentiary
System shows more than just a retributive system of punishment, it reflects its nation retributive
sense of order. Look again, ceci n’est pas justice.
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References
Beccaria, Cesare. An Essay on Crimes and Punishments. London: Printed for J. Almon, 1767.
Print.
Hughes, Ted. The Oresteia. New York: Farrar, Straus, and Giroux, 1999. Print.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Pantheon, 1977.
Print.
"PressTV-Americans Protest US Prison Violations." PressTV-Americans Protest US Prison
Violations.
Web.
20
Jan.
2015.
<http://www.presstv.ir/detail/2014/11/09/385333/americans-protest-us-prisonsviolations/>.
Pollock, Jocelyn. "The Rationale for Imprisonment." The Philosophy and History of Prisons. San
Marcos: Texas State U-San Marcos, 2005. Print.
Liptak, Adam. "U.S. Prison Population Dwarfs That of Other Nations." The New York Times. 23
Apr.
2008.
Web.
18
Nov.
2014.
<http://www.nytimes.com/2008/04/23/world/americas/23iht23prison.12253738.html?pagewanted=all>.
Gilligan, James. "Punishment Fails. Rehabilitation Works." The New York Times. 19 Dec. 2012.
Web. 28 Oct. 2014. <http://www.nytimes.com/roomfordebate/2012/12/18/prison-couldbe-productive/punishment-fails-rehabilitation-works>.
Lebron, Chris. "What, To the Black American, Is Martin Luther King Jr. Day?" The New York
Times.
18
Jan.
2015.
Web.
19
Jan.
2015.
<http://opinionator.blogs.nytimes.com/2015/01/18/what-to-the-black-american-is-martinluther-king-jr-day/?_r=1>.
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Gregory, Alice, and Arlander Brown. "Pictures from an Institution." The New Yorker. 9 Sept.
2014. Web. 7 Nov. 2014. <http://www.newyorker.com/magazine/2014/09/29/picturesinstitution>.
"The Universal Declaration of Human Rights, UDHR, Declaration of Human Rights, Human
Rights Declaration, Human Rights Charter, The Un and Human Rights." UN News
Center. UN. Web. 11 Dec. 2014. <http://www.un.org/en/documents/udhr/>.
Wagner, Peter, and Leah Sakala. "Mass Incarceration: The Whole Pie ." Prison Policy Initiative.
12 Mar. 2014. Web. 8 Nov. 2014. <http://www.prisonpolicy.org/reports/pie.html>.
Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness.
Revised ed. New York: New, 2010. Print.