Our country’s system of punishment is inhumane. A democratic country is supposedly made up of individual citizens who are, as citizens, treated like living beings above the status of robots or animals. Regardless of whether you are granted this status by jus soli, jus matrimonii or another form of citizenship, the law says you have inherent rights to freedom and liberty. We utilize these freedoms granted by our relatively democratic country to own property and obtain a livelihood from our relationship with the means of production and the markets that are produced by them. Obviously, we do not own the means of production in a capitalist system, but our contribution to their development and our value as necessary inputs in a system that values outputs allows us to live somewhat fruitful lives. Punishment strips us of these freedoms. It is a method of reducing the human being to a restricted state of existence through their confinement in de jure or physical cages. If the law is to reduce the freedom of an individual and, perhaps, confine them to cages for their entire lives, then it should be based upon just reasoning. Our conception of punishment is derived from retribution, where we punish criminals who inflict harm upon others or the property of others within the state. I believe that this derivation is a major component of punishment’s inhumanity and unjust reasoning.
First, I shall describe the current U.S. legal system as a bank. Let us imagine that the state is a bank and that we, as citizens, each obtain a credit card. Every time you decide to rob a store, sell an illegal substance or commit tax fraud, you add a certain amount of debt to your credit card. When the bank catches you, this debt must be paid back. What is even more important, at least in relation to our democratic system, is the idea of the bank contract. Under the terms and conditions, you have signed away your right to hold that credit card if you rack up debt and do not pay it back. We, as citizens, enter into a contract with the state that, should we evade the law, we must pay back our debt. This is the idea of retributivism. But a specific question inevitably arises. How should the bank determine what debt you pay back? Should they charge higher interest rates for worse overspending? Under a retributivist system, a banker can commit tax fraud and receive only five years of prison, and a person who sells illegal substances because the state has left them behind can receive 25 years of prison. The problem I am honing in on is the determination of years, months or days of punishment. How could we truly say that one crime is worth 10 years and another is worth 50 years, since there cannot be a clear comparison except between examples such as the difference between murder and petty theft? In terms of prioritizing which crimes come first, I would advocate for punishment based on the consequences of the crimes rather than the intrinsic value that some place on the crimes themselves. What I mean to say here is that we should rank the offense of crimes based upon the damage they do to others, or by extension, the damage that they do to the property of others. But if we punish the banker who commits fraud less than the drug criminal simply because that is the way it has always been, we risk running a cold cost-benefit analysis that turns citizens into statistics and destroys millions of lives because of a slight differentiation in debt to the state.
We might generally be able to say that the U.S. system is ill-prepared to deal with white-collar crimes, and so the government has decided to increasingly ignore cases where they must fight against powerful banks and instead focus on unprotected individuals (1). Therefore, if the law tells us that we must punish citizens based upon their crimes committed in the past, but we are not well-equipped to prosecute one group that has stolen much more from the state than another, what can we do to add a more justified sense of punishment? In the United States, our continually racist institutions create systems of de jure and de facto segregation of punishment between communities with different wealth statuses. The Department of Justice (DOJ) has found that in poorer communities across the country, there are more instances of crimes being committed. If we treat punishment via prison as a method of retribution, we would find that the poorest among us, who have been mistreated by the state their entire lives, are the ones who receive the most punishment. But this factor doesn’t take into account the underlying reasons why these communities are less safe and certainly doesn’t do anything to address the inequalities themselves. This is where forward-looking justifications for punishment come into the picture. When I speak of “forward-looking” punishment, it means changing the laws and changing the institutions where those who have been sentenced end up. It is an all-encompassing approach. We can make punishment more just and less unequal in its application to the citizenry.
An important aspect of forward-looking punishment is deterrence. Rather than punishing the drug dealer for many more years than the banker, we must consider which sentence would truly prevent the individual from committing the same crime again while also discouraging the entire body politic from committing the same crime as the offender. Imagine a solution to this like the famous Scandinavian prison system. Instead of building cement walls around prisoners, the simple act of placing them in buildings more similar to college dormitories might be a solid first step. Maximum security need not mean maximum confinement. This might suggest turning the inequality between financial crimes and petty crimes on its head. If we are looking for better consequences than simply the right form of retribution, we might seek a more rehabilitative approach for the drug dealer and a harsher sentence for the financial criminal who stole millions. If we consider the impact on the respective communities where each criminal comes from, this reversal of the status quo could see much better benefits. It also makes sense that the best way to find which punishment is the best deterrent is by looking at the consequences you want to create rather than just the debt that needs to be paid back by the offender.
The most important reasoning behind forward-looking punishment is adding humanity to an inhumane system. If our legal system takes a look in the mirror and asks itself what actual benefits come from giving a 20-year sentence to a teenage offender, it might find that the system must reduce these types of unjust punishments. There are already movements around the world to end unjust juvenile punishment, such as the Texas protests against juvenile prisons, and these must continue. Criminals are not robots or animals — they are people. It is no longer acceptable to tolerate the punishment of criminals without considering their inherent rights as human beings and citizens. We must punish by seeking to find the best consequences for the criminals and for communities that are suffering, not seek retribution against people who the state treats as numbers rather than living beings. This type of punishment would look more like the couch in a therapist’s office and less like a metal cage surrounded by cold cement.
Sean Reichbach is a sophomore double-majoring in economics and philosophy, politics and law.