When the Hernan Cortez came to the Aztec Empire he and other Conquestadores claimed that the Aztecs were engaged in human sacrifice. While the debate over this issue has swung back and forth since then, the question of what we mean to do and what are the unintended consequences of our act is worth discussing. The Inquisition was burning people at the stake at the time in Europe and so what the Spanish perceived in Azteca may have been colored by their experiences at home. Just as the Spanish saw Aztec altars made of human heads and felt this proved human sacrifice, so Islamic and Chinese visitors to European churches saw a man nailed to a cross and thought European Christians worshiped death and could interpret it in the same way as human sacrifice. The Supreme Court has ordered California to set 30,000 inmates free due to the over crowded, unsafe and unhealthy conditions. Today Texas executes people for crimes and its rate of state sponsored death would put it among the top nations in the world in such acts if it were a country (http://www.deathpenaltyinfo.org/...) only Oklahoma has a higher per capita rate. In total annual executions Texas beats out Afghanistan, Yemen and Libya. While we call it justice, is it not a form of human sacrifice?
In the ancient world banishment was the more frequent capital punishment as in the famous case of Zoroaster more than 2,500 years ago, or the ostracism of the Greeks where the entire community would vote to banish or not. I say here, “capital punishment” as banishment was considered in antiquity to be the worst punishment. Not only was the banished person separated from his or her community, but shunned by them, so no aid could be expected. Famous figures were occasionally successful in being recalled from banishment, as in the case of Cicero. Fines, humiliation and corporal punishment were the more frequent methods to attempt to rectify behavior (E.A. Hoebel, The Law of Primitive Man : A Study in Comparative Legal Dynamics, Cambridge, 1954). Often it was not the individual who paid, but the family unit, the clan, the lineage or extended family. This way the cost of one renegade person was a drag on the survival of a group, the group that created him or her and this social punishment caused the group to watch and to control the individual (E.E. Evans-Pritchard, The Sanusi of Cyrenica, Oxford: The Clarendon Press, 1954).
Prison Labor
However, today in the same pursuit of order we put people in prison for a remarkable number of offenses. We argue that this is humane. We do not require prisoners to work or do hard labor in most American state prisons because this is also believed to be inhumane or a form of slavery. Up until the 1930s prison labor profited locales and state governments and then Congress passed a law banning such labor (the Hayes-Cooper and Ashurst-Sumner Acts, which outlawed prison labor and made it a felony to move prison goods across state borders.) as it also was the backbone of the Jim Crow laws (http://lpa.igc.org/...). However, in the 1970s, Supreme Court Chief Justice Warren Burger pushed for prisons to become "factories with fences." A new series of laws, beginning with the Justice System Improvement Act of 1979, loosened regulations to allow prisons to put people to work, provided they paid prevailing wages, consulted unions and didn't displace workers outside prisons. So the foundation of Jim Crow laws are back in place. Some compensation is required but this has not kept some officials, even judges from exploiting the situation of power (http://www.dailymail.co.uk/...).
We have abandoned corporal punishment as barbaric, when it was the main form of punishment by the world’s (essentially European) nations until the 20th century. Jail time and fines are our means of achieving justice. In 1793 W. Bradford of Pennsylvania defined the theory of trial & punishment of our new nation on the basis of the prevention of repeat crimes. By any measure we have failed in this endeavor. As Michel Foucault demonstrates in his book, Discipline & Punish: The Birth of the Prison, N.Y. Vintage Books, 1977), corporeal punishment was thought to be effective because it showed the criminal of the enemy of public safety, but also displayed the suffering in the context of the power of the civil authority. But to make the criminal an enemy of the people prevented any possibility of his recovery as a useful citizen. Displays of suffering also created a form of social entertainment rather than a manifestation of righteous punishment. We have to realize that neither alternative is humane, both, corporeal punishment and incarceration are failures and certainly so in America.
California has such a growing prison population that we are exporting prisoners to other states. We are not alone. A number of other states are also shipping prisoners across state lines. Despite a declining crime rate America’s growing prison population is costing the states and the federal government over 40 million dollars a year. A 2004 study by the Justice Policy Institute in Washington, D.C. found that California’s Three Strikes law have doubled felony sentences and produced an inflexible sentencing structure that is a prime generator of prison crowding. The inmate population in 2002 was 2.1 million according to Bureau of Justice Statistics.
Drug War vs Education
Drug offenders make up over half of all federal prisoners. The Department of Justice reported last month that there are now more than 7 million Americans behind bars, on probation or on parole at the end of 2005. Of these 2, 193,798 were in prison a 2.7% increase over 2004. In 1991 there were more than 1 million Americans in prison, or 426 per 100,000. At that time South Africa had the second highest imprisonment rate of 333 per 100,000 with the, then Soviet Union a third at 268. In Europe the rate varied from 35 to 120 with Asian countries at 21 to 140 per 100,000. Between 1980 and 1990 the number of Americans in prison doubled, Andrew Sullivan, of University College, London, summarizes the current situation,
“The U.S. rate is 724 for every 100,000 people - up from 505 in 1992. Of major countries, the only close competitor is Russia with 581, and Cuba at 487. Iran and Israel, to give examples of countries with internal conflict, clock in at 206 and 209 respectively. Most major U.S. allies are in the 130 range or lower. I'm not sure what any of this proves. But this much we can say: the land of the free is also the land of the unfree. Millions of them. Texas, by the way, has an imprisonment rate of well over 1,000. There's no country on the planet - no dictatorship on earth - as comfortable with locking people up as the state of Texas.”
This situation should be seen in the context of international trends in criminal justice. For example, recent surveys have been interpreted to show that Great Britain is the most violent developed country. In an article in the Wall Street Journal on 17 June 2006, Joyce Lee Malcolm used this assertion to show how the jails in the United Kingdom are over-crowded and non-violent convicted criminals are being either sentenced to no incarceration or limited time with a variety of forms of diversion intended to produce a reduction in return rates. An example she used was the case Tony Martin a Norfolk farmer jailed for killing one burglar and injuring another who broke into his home. While it was the 7th break-in at his home he was denied parole while the surviving burglar got out early on the new program for release of non-violent criminals. This situation is by no means limited to Anglo-American culture, rising crime related to illegal drugs and illegal immigration, especial prostitution have caused the Italian government to request an amnesty for thousands of prisoners. The cost of incarceration has skyrocketed.
Rising drug use, especially over the counter drugs used by youth have contributed to a wave of hospitalizations, while use of methamphetamines has grown dramatically and hospital admissions jumped since 1990 by 100,000. Drug convictions make up a large and growing percentage of the national criminal population and it is clear that the War on Drugs has been a failure. J.M. Olin of the Stanford Law School and J. J. Donohue of Boalt Hall School of Law published a paper in the Quarterly Journal of Economics in 2001 showing that there was a significant impact on crime by legalized abortion. After Roe vs. Wade and beginning earlier in states that allowed abortion after 1970, there was a great reduction in crime rates in the 1990s, indicating a cohort of unwanted children had been aborted that reduced individuals liable to criminal behavior. Since the anti-abortion drives in the 1980s and 1990s the rate of abortion has dropped and the crime rate risen.
Education or Gang Warfare
In Mexico authorities have identified functional illiteracy with increased crime. Forcing prisoners to learn to read seems a means of reducing crime. Most educational programs in American prisons assume that the inmates can read. Our prison systems are reinventing the wheel. Recent studies have found that prison generally increases the probability an inmate will return to crime, and that one learns new methods or vices while incarcerated. The French found this out in the 18th century as prison reformer G. de Mably published in 1789. What he found was that simply warehousing people is costly and inculcates idleness and brutality. Prison is not an effective deterrent to future crimes, either of those incarcerated or the general public. The experience of American prisons over the past 100 years of reform is certainly a proof of de Mably’s proposition.
Brazil’s 2007 street violence that turned many cities in battlegrounds between security forces and organized criminals is argued to be derived from a long period of profits from drug sales and the lax prison environments that give rise to organizing of prison gangs. Our prisons are functioning in just the same way today, they are creating armies of prison gangs where recruitment and training can be carried out. The most violent country in the developing world is El Salvador whose gangs have an intimate link with California and the illegal drug trade. A study by San Francisco State University researchers in 2000 demonstrated that prison was not a cost effective way to deal with illegal drug offenders, and a 1999 study by New York’s John Jay College found that imprisoning people produced more crime in communities by taking adults out of families. People in communities from which prisoners are drawn believe, due to the obscurity of prisons, that injustices are produced there and thus prisons act as a corrosive agent on society in two ways. Since punishment is private and away from the view of the public any amount of suspicion can and does develop about what takes place within the walls.
In the 1920s America’s gangland wars arose from the vast profits produced from illegal alcohol. The end of prohibition ended those profits and ended the gang wars. An end to America’s Drug War will do the same and end corruption in the criminal justice system. But America must decide, and especially we in California, if we can afford to have prisons of the kind we have inherited. Perhaps we should return to a system of public and corporal punishments for most crimes instead of our current system of fines and incarceration. As shocking as this consideration might seem at first, one should consider, As Michel Foucault (1977) did, that at the end of the 18th century French prison reformers argued that imprisonment was identified with tyranny in history, that it denied a family of its source of income and punished them as well as the criminal. It denied the principle of individuality of punishments for specific crimes by equating time to be served with all crimes defining severity with duration of sentence.
The solution to the problem should be two fold, we must remove the profit from the drug war by legalizing drugs and we need to break the veil between prisons and community and cost. The most direct way of doing this is to make prison more transparent, show people in communities that each prisoner is costing their community funds that could otherwise be used to educate and employ its residents. Lodge prisoners in communities and provide more educational services and fewer spots related activities. With drug profits gone, gang leaders will have greater difficulty controlling and employing members. It worked with Prohibition and America’s illegal alcohol industry in the 1920s, it can work again. Taxes on drugs can be used to revitalize communities most affected by them and most suffering from the incarceration of its members.
In the UK the prison reform trust proposed one structure, see http://news.bbc.co.uk/.... Critics argued that this would require the building of new local jails, but some sources proposed reevaluating halfway house programs and work/release sentencing. The National Institute for Corrections study in 2000 (nicic.gov/Library/Files/017520.pdf) found that states have been increasing releases of prisoners early and without supervision due to the increasing prison population and rising prison costs.
This is a surrender of the role of prisons to provide correction time based on the severity of the crime. While ending prison time for victimless crimes and requiring convicted individuals of these crimes to serve community service, would greatly reduce prison populations and costs, it would not produce corrections experiences without proper treatment and supervision. Releasing such prisoners into the community with paid supervision and paid training would direct funds into communities and provide corrections conditions. The vast increase in unsupervised releases without service of time of sentence is simply turning the criminal justice system into a revolving door and no-punishment system. Certainly some of the early releases are due to the aging prison population (http://www.berkeleydailyplanet.com/...). In general people have defended early release as there is no relationship between prison time served and recidivism (http://www.justicepolicy.org/...). Ohio's community focused supervision and release may provide a format for move extensive "open incarceration/transition" programs (see http://www.middletownjournal.com/...).