The Society of Captives: Penology - Essay Example

The Society of Captives: Penology Introduction Penology refers to the theoretical and scientific study and practice of how crime is punished, how prisons are managed, and how rehabilitation is handled (Scott, 2008, p.2). Societal morals make it necessary for criminal offenders to be punished. What penology does is to determine how the offenders are to be punished and to what extent they ought to be and will be punished. It also reviews the way in which convicted criminal offenders can be rehabilitated both in prison and out of prison. However, criminals that are not in prison can be rehabilitated through probation or by being detained in penitentiaries. Penology as a science is concerned with many topics and theories. The topics that are directly related to prisons under penology include prison reforms, prisoners’ rights, and prisoner abuse. The theories on the other hand that relate to punishment and are analyzed under penology include rehabilitation, deterrence, retribution, and utilitarianism. Throughout history, heavy punishments were inflicted on criminal offenses regardless of their magnitude. The main reason why the set consequences for crimes were set to be extremely harsh was to simply discourage people from taking part in criminal offenses for the fear of the punishment that would be inflicted on them. As time has progressed, the severity of punishments has come to be determined by the severity of the crime that has been committed. These reforms have come to be simply because penology has helped in opening the eyes of the public in seeing the need to consider that criminal offenders have rights too. Punishment is also considered for offences that are not necessarily criminal in nature. One such offense is incapacitation. This review paper will be analysing the arguments that are for and those that are against incapacitation from both a moral perspective and a political perspective. Incapacitation When viewed in the context of sentencing philosophy, incapacitation refers to the effect of sentencing with the aim of preventing as opposed to deterring the future occurrence of a crime. Incapacitation can either be adopted as a goal or as a consequence that is imposed on the basis of retribution. When incapacitation is viewed or adopted as a goal, then what it means is that one is assuming the role of controller and overlooking the position of the controlled. When viewed as a consequence imposed on the basis of retribution, it does not advocate on the grounds of deterrence ( McEleney & McEleney, p.31). Like any other societal issue, incapacitation has reasons as to why it is appropriate and also why it is inappropriate. This paper will be discussing the arguments that are for and against its appropriation from the context of society and that of politics. Arguments against Incapacitation There are two approaches in which incapacitation is analysed; the forward looking or consequentialist theories; and the backward looking theories (Amatrudo, 2009, p.66). Under the forward looking theories, the consequentialists are of a contrary belief to that of retributivists; that is, they believe that punishment is inherently bad because of several reasons. Firstly, punishment is bad because it causes an infliction of harm for others and for this reason, punishment must be legitimately justified. Consequentialists also believe that above all, the utility of an action must be good meaning that the merits of the punishment must be more than the demerits realised from it. Incapacitation is aimed at deterring people from committing crimes. However, it can be argued that this is not necessarily the case. When the US abolished death penalties between the years 1972 & 1976, 1% of the murderers that were released went ahead to commit further murders. This therefore shows that incapacitation does not necessarily deter the occurrence or reoccurrence of crime. Consequentialists further their argument that incapacitation does not work because criminals work in a turf. This means that when a criminal is imprisoned, his place is occupied by another criminal outside of prison and this new occupant will end up doing the crimes that the imprisoned person would have done. So in essence, incapacitation does not deter; it encourages inheritance so to speak (Amatrudo, 2009). It is also noted that criminals have particular periods in their lives where their offensive nature is at its peak. This peak period ranges between the ages of 18 years and 24 years. So the argument brought forth from this is that when a criminal is kept in jail for longer periods, then the incapacitation effect is less because the criminal is not committing any crimes. When the criminal is therefore released from prison, there is a possibility of them picking up their criminal activities from where they left. False positives is also a judgment that develops an argument against incapacitation. The predictive judgment that a person will commit a crime while in fact it is not true, leads to a situation where large quantities of innocent people are incarcerated on the basis of false positives. Forward looking theories do not justify punishment because of several reasons. To begin with, there is a possibility that deterrence does not work. Secondly these theories have been formulated in a way that does not consider the probability of punishing innocent people. These theories are also incapable of measuring what might constitute a good outcome (Ashworth &Wasik, 1998, p. 80). The first backward looking theory is Retribution. According to this theory, punishment is a way of paying back a criminal for an offense that they have committed (Amatrudo, p. 67; Roederer & Moellendorf, pp. 555-6). However, the most controversial backward looking theory is commensurability. This refers to the extent to which a punishment or sentence is proportionate to the offense or crime committed. When analysing the backward looking theories, they do not justify punishment because they tend to victimise society and it cannot be considered a legitimate victim in the event of an offense. The theory of annulment also has loose ends. This is because annulment cannot undo a crime. It is therefore inconsiderate to punish as it will not restore things to their previous state. In addition, Sykes (2007) and Blomberg&Lucken (p. 136) argue that incapacitation or imprisonment deprives the convicts of some very fundamental rights of humanity. First of all, the convicts are deprived of their liberty. They are under captivity and are therefore under legal captivity and slavery. This is more or less deprivation of autonomy as well since the convicts are under strict rules and ought to follow them. Therefore it becomes impossible for them to act freely on the basis of choice. The convicts are also deprived of goods and services. When they are under incarceration, they are not allowed to have access to any material commodities that are from the outside. Heterosexual relationships are perhaps the most important things that any human being can possess in this world. However, convicts are deprived of these relationships when they are in prison. Parents are separated from their children while husbands get separated from their wives. There is little allowance for communication but this is not sufficient enough to satisfy the human need of being part of someone’s life. Finally, the convicts are deprived of their security when in prison simply because they are being monitored and not protected from themselves. According to Rusche and Kirchheimer(1968), punishment is directed at the control of the poor. The poor participating in crime activities is a survival mechanism. The bourgeoisie have the advantage of accessing cheap labour simply because the poor are willing to accept little pay as long as they make ends meet. Therefore, when the bourgeoisie employ people that are of lower social class, they implement heavy and harsh working conditions which are not proportionate to the pay that they give their employees. The employees are therefore in a position where they need to supplement their income in order to make ends meet. This in turn increases the temptation of stealing from their employers. For the bourgeoisie to avoid the being reaped off by their employees and keep them working in poor conditions, they have to impose harsh punishments that are worse than their living standards. Incapacitation is one such punishment and in this case, it is inappropriate simply because the people in power positions are using it a strategy to gain more wealth and retain the lowly paid workers. This is the principle of less eligibility. Incapacitation is mainly undertaken in prisons. Prisons were initially introduced in society to orchestrate reforms and for rehabilitation purposes. From a Christian philosophical point of view, prison isolation was a condition of reflection for the purpose of repenting sin and being redeemed back to society. For the utilitarian philosophies, prisons were made for the purpose of reforming offenders through constant inspection of their behaviours. Therefore, prisons were initially run by the public and owned by the public as well. As time progressed, the private sector started becoming an active participant in the prisons facilities. When prisons begin to be privatised, then it means that they are being used for the purpose of making money as opposed to their initial purpose of rehabilitating and correcting offenders. This is the main reason why political organs are against incapacitation; more specifically, incapacitation in private prisons (Zimring& Hawkins, 1995, p.16). Private prisons are businesses and are therefore put in place to make a profit. However, it is an immoral act to be making a profit out of the pain of others and therefore incapacitating prisoners in a private prison partly constitutes to immorality. Secondly, when offenders are incapacitated, they are subjected to different kinds of labour during their period of incapacitation. Considering that it is not the government that is subjecting them to labour, then it can be concluded that labour in the private prisons is a form of slavery. Private prisons are also inappropriate centres for incapacitation because they cause unrest and tension in the public prisons. This is because inmates in the public prisons feel like they are looked down upon in terms of treatment when they compare themselves to the inmates in the private prisons. It can also be argued that for the private prisons to make the profits that they anticipate to, they must lower their operational costs. One of the ways in which they can lower their operational costs is by the acquisition of cheap labour; cheap labour in the sense that the staff working in the prisons are not well trained. Also, the prisons can deteriorate the conditions of the prisons for the main purpose of making profits. However, in as much as prisoners are criminals that are being incapacitated, the law requires that they be treated in a fair and just manner and that includes locking them up in a place fit for human habitation. In simple terms, if a private prison wants to make profits, then profit is a cost that must be borne by prison officers or conditions. It can also be argued that since the motive behind incapacitation in private prisons is profit, then the owners will go to any length to ensure that their business is making enough profits for them. For this reason, penal expansion and longer and harsher sentences are inflicted upon criminal offenders, not for the purpose of punishing them for their offense but for the purpose of making a profit out of them (Amatrudo, 2009). Arguments for Incapacitation As has been mentioned earlier, the backward looking theories is one of the approaches in which incapacitation is analysed. Retribution is one of the theories under the backward theories. According to this theory, punishment is a way of paying back a criminal for an offense that they have committed (Amatrudo, p. 67; Roederer&Moellendorf, pp. 555-6).Under this theory is the annulment of crime. When referring to annulment, the retributivists believe that it rectifies the damage that has been inflicted upon the rights and freedoms in society that the offence has stroked. Incapacitation is also justified by the rectification of unfair advantage. By committing an offense, it is said that a criminal gains unfair advantage. Therefore punishment in the form of incapacitation seeks to redress balance. This can be likened to a penalty in a sport such as football. If a foul play is committed, then the referee needs to give a penalty in order to redress balance. This is a similar case to incapacitation and crime. Immanuel Kant’s categorical imperative is also a means of justifying incapacitation (Sullivan, 1989, p. 149). According to Kant, incapacitation as a form of punishment is appropriate simply because it is the right thing to do. He suggests that one should be treated as a means to an end but only as an end in themselves. This notion is in line with the utilitarian forward theory. Therefore, punishment should be accorded simply because an offense has been committed. This theory also justifies incapacitation on the basis of equivalence. Additionally, incapacitation, under retribution, is communicative in nature. What this means is that when a criminal is incapacitated, then society is passing out a message of displeasure to the offender. The process also gives the offender a chance to communicate their repentance to the society so that they can be reinstated as a good member of society (Scott, 2008; Hirsch, 2003). The forward looking theories also do have arguments that tend to support the issue of incapacitation. Utilitarianism theory aims at deterring people from participating in crime. Through incapacitation, other members of the public are deterred from taking part in crime activities simply because they are afraid of the same punishment being inflicted on them as a result of committing an offense to society. Incapacitation not only deters members of the public from participating crime, it also discourages the criminal offenders from engaging in a crime activity after they have served their sentence. Moreover, it eliminates the possibility of the convicts committing crime again since they cannot commit a crime against society when they have been locked up. Punishment shows the existence of solidarity in a society. Therefore if a society incapacitates criminal offenders, then it is depicting an act of solidarity, a necessary aspect in the unity of society. Incapacitation is also a source of employment for the government. When more and more people are convicted of their crimes and incapacitated, then there is the growing need of more staff in the prisons to help in the running and monitoring of inmates. Therefore, in essence, from an economic and political point of view, incapacitation helps in the creation of much needed jobs in the economy. Most criminal offenders have been found to be struggling with certain addictions such as alcoholism and drug abuse. When they are incapacitated, they are helped in two major ways. One is that they are helped in reforming their criminal character and secondly, they are kept away from accessing drugs and alcohol. Therefore when they are incapacitated, they are rehabilitated from both drugs and crime (Schlosser, 2007, p.42). Incapacitation also helps to control and reduce the amount and rate of drug trafficking in society. This is because when the drug traffickers and smugglers are incapacitated, they do not have the capability of conducting business when they are in prison and hence the drug substance rates in the streets are reduced. When a criminal offender is convicted of a crime, their period of incapacitation is determined in relation to the degree to which the crime committed has broken the moral code of society. Therefore, incapacitation is practiced on the basis of equivalence; that is, the severity of the sentence is pre-determined by the severity of the offence committed. The fact that private prisons have been introduced and are fully functional is also another issue that justifies incapacitation of criminal offenders. Public prisons have been dealing with the problem of increasing population and with the growing rate of crime, they have had to unduly punish criminal offenders simply because they do not want to congest prisons. The emergence of private prisons has helped a great deal in the administration of justice since offenders are convicted duly with regards to their crimes and can serve their full sentence without the government having to fear of the possibility of increased prison population. Conclusion From the arguments that have been brought forth above, it can be derived that crime has become a tool for political ends. This means that politicians are using the imprisonment or incapacitation of criminals to derive their political power. It is also evident that incapacitation is being used as a solution to societal problems but the main problem is the fact that the rate of imprisonment and the prison populations do not match the rate of crime in society. Crime is on the rise but the conviction of offenders does not reflect that the justice system is doing enough to ensure that crime is reduced. There is also evidence of societal injustice because punishments are directed towards the people of the lower class of society. Incapacitation is also a means of economic improvement and this explains why governments are in support of it. This is because economic benefits are reaped from the unpaid work that prisoners do when serving their jail terms. Due to these benefits, sentences of prisoners are being lengthened so that more income can be realized from their unpaid labour when serving the sentence. The lengthy sentences subsequently translate to overpopulation in the prisons. The existence of private prisons is also evident as an issue that justifies imprisonment and incapacitation. The proportion of private prisons is expected to rise due to the concurrent growth of managerialism and that of crime levels in order to help manage crime. Incapacitation is advocated for due to the moral standing and values of society and for the protection of society as a whole. On the other hand, it is opposed as a form of punishment because it does not guarantee the reduction of crime and more so, it does not eliminate the probability of reoccurrence of crime especially by the same person. References Amatrudo, A. (2009). Criminology and political theory. Los Angeles, SAGE. Ashworth, A., & Hirsch, A. V. (1998). Fundamentals of sentencing theory: essays in honour of Andrew von Hirsch. Oxford [u.a.], Clarendon Press. Berg-schlosser, D. (2007). Democratization: the state of the art. Opladen, B. Budrich. Blomberg, T. G., & Lucken, K. (2010). American penology: a history of control. New Brunswick [N.J.], AldineTransaction. Corlett, J. A. (2010). Heirs of oppression.Lanham, Md, Rowman& Littlefield Publishers. Mceleney, J. C., & Mceleney, B. L. (2005). Penology, justice and liberty: are you a man or a mouse? Lanham, Md. [u.a.], Univ. Press of America. Pojman, L. P., & Reiman, J. H. (1998). The death penalty: for and against. Lanham, MD, Rowman and Littlefield. 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