Foucault and deterrence

I like to bounce back and forth between the really practical and the really theoretical when discussing prison policy. Something that definitely falls on the extremely theoretical end are centuries old and centuries long changes in penal practices. In the 18th century, and execution might have ended something like this:

After two or three attempts, the executioner Samson and he who had used the pincers each drew out a knife from his pocket and cut the body at the thighs instead of severing the legs at the joints; the four horses gave a tug and carried off the two thighs after them, namely, that of the right side first, the other following; then the same was done to the arms, the shoulders, the arm-pits and the four limbs; the flesh had to be cut almost to the bone, the horses pulling hard carried off the right arm first and the other afterwards.

Read the whole thing, it’s pretty great. In any case, an execution was a grisly spectacle in the public square, and also something resembling must-see TV for people in the town. Just a hundred years later, things were much more civilized and orderly. By the late 19th century, a criminal was either detained and segregated, or detained, segregated and put to work:

Art. 20. Work. At a quarter to six in the summer, a quarter to seven in winter, the prisoners go down into the courtyard where they must wash their hands and faces, and receive their first ration of bread. Immediately afterwards, they form into work-teams and go off to work, which must begin at six in summer and seven in winter.

(Foucault details a whole routine that prisoners had to go through during the day). As Foucault states, there was a change in the mentality accompanying punishment, which marched along in tandem with advances in the justice system such as the addition of jury trials, and additional due process:

And yet the fact remains that a few decades saw the disappearance of the tortured, dismembered, amputated body, symbolically branded on face or shoulder, exposed alive or dead to public view. The body as the major target of penal repression disappeared.

This also in many ways signified the turn from a deterrence/retribution model to a rehabilitation/segregation model. But was this driven by some underlying change in the barbarian nature of humanity, or simple logistics? In the 18th century it would have been impossible and counterproductive to facilitate productive or segregatory punishment for the tens of thousands of people who committed crimes. Better to either execute them or scare the shit out of them and let them go.

By the 19th century, you could transport, keep track of, and lodge thousands of people in little cities.

Once it becomes an option to not have to rip people limb from limb, that option becomes pretty appealing and societies tend to change their thinking along with that. The whole idea of retribution in the form of killing people appears “barbaric” and we’re looking at segregation and rehabilitation as the right things to do.

But now that a lot of the arguments for deterrence appear to have fallen by the wayside, and as a society we’re loathe to admit that we are actually using segregation (because it’s inefficient and stupid), where is the balance between humanity and barbarianism in the whole deterrence thing? Deterrence seems to be a primary and acceptable argument for super long sentences and also the death penalty. Maybe the way to go here is to look to the past and make things less humane. Or, with the awfulness of prison conditions at the moment, are we already heading that way?

How to create accountability for private prisons

One considerable issue with privatization of public functions like prisons is the question of how a private corporation will weigh its publicly granted mandate against the profit motive. Will private prisons support proven anti-recidivism measures that the government likes even if it cuts into their bottom line? Furthermore, how can the people hold them accountable? One possible solution to this, at least when the company operating the prisons is a public company run by shareholders, is to become a shareholder and attempt to create at least some accountability that way:

A former prisoner, now a shareholder in the country’s largest for-profit prison operator, has won a battle with company management over his campaign to hold the Corrections Corporation of America accountable for reducing sexual abuse at its facilities. The Securities and Exchange Commission has ruled that the shareholder resolution, calling attention to the issue of prison rape, can be included in proxy materials sent to CCA investors in advance of the company’s annual meeting.

Of course this is basically a way to get a certain amount of publicity directed to the issue of prison rape. Most people who buy stock in CCA probably do it for the same reason people buy stock in any other company: to make money. Most people who are investing in private prisons also probably either understand that they are making money of a company that has an obligation to control rape but isn’t really doing enough, or are in denial about prison rape. So the idea that a few activists who buy into these corporations on a limited basis can make a huge difference is probably naive. All the knowledge in the world about sweatshops won’t shut Nike down, and the same is likely the case here. There is just no substitute for government agencies fulfilling government functions.

Truth in advertising on reintegration programs

Here’s an apparently encouraging piece from Joshua Zaffos on a new program designed to help older inmates reintegrate into society, even those who committed apparently heinous and previously crimes where the convict would have no real opportunity for parole. This is supposed to be a money-saving deal. Old inmates are expensive, and if they’ve been there a while they have probably learned their lesson. Meanwhile, with a decent support structure, they can probably become contributing members of society again. This new program is designed to relieve the overcrowding problem in Colorado prisons, and also make sure these severe offenders who are released have a minimal chance of recommitting.

From start to finish, Long-Term Offender Program participants will maintain a relationship with a single parole officer who is familiar with the program and its curriculum. In general, most parolees are assigned different officers as they move through the system, but planners believe that this measure of constancy will reduce participants’ chances of recidivism. “In a lot of places,” Altschuler says, “there are efforts within correctional facilities that are not in any way, shape, or form tied into efforts back out in the community when offenders return either under parole or some other form of supervised release.”

This is an extremely noble sounding program, and I have no doubt it’s well designed in attempting to reach its goal of preventing recidivism. The problem is, as with all government programs, it was pitched on optimal performance and evaluated on realistic performance. Even though this is a program designed to save money, it of course will inevitably be the subject of cuts itself. All those different moving parts seem ripe for corner-cutting. Legislators will tell themselves the same basic premise of the program can be achieved without this or that aspect that doesn’t appear cost effective. That can easily strip it of its effectiveness, at which point it will no longer pay for itself.

Sure it will maintain that “new program” smell for a while, but as the novelty wears off, don’t be surprised if it finds much of its effectiveness trimmed by little tiny paper cuts. I really want these programs to succeed since they help people and save money. I’m just skeptical based on this state’s and this country’s short-sighted approach to rehabilitatino programs.

Blagojevich and prison benefits for the rich or famous

Sure, prisons are bad, but not all prisons are equally bad. Run of the mill violent offenders and drug traffickers are grouped together in the higher security prisons. These tend to have the worst conditions, not because of anything the government does, but simply because all the worst offenders are grouped together. That leads to horrible violence and tons of prison rape rising to the level of a pretty severe human rights violation. Additionally, state prisons are ill-funded in comparison to their federal counterparts, meaning the safety and health care is worse.

Right here in Colorado we have one of the preferred minimum security federal prisons, the Federal Correctional Institute in Englewood. And who gets to go there? Guys who can afford good lawyers like white collar criminal Rod Blagojevich:

Blagojevich, who was convicted last December of 18 corruption counts, had reportedly requested he serve his time at the low-security Federal Correctional Institution Englewood in Littleton, Colo., 15 miles from Denver.

Beside the Englewood facility is a work camp surrounded by mountain vistas, which according to the Chicago Tribune offers more freedom for prisoners. Blagojevich could eventually transfer there.

Of course the CBS story probably overstates the country clubness of the prison by a bit. You still don’t get to leave, and even if an inmate is assigned to the work camp, he still has to work a ton for almost no pay. And really, should a prison be a place where unspeakable horrors happen to people? Seems like the FCI Englewood is probably more what a prison should be like: people can do productive work, learn some skills and also maybe go through addiction counseling.

There isn’t enough money to allow most people to go to a prison like this though, so instead of being the basic level of incraceration like perhaps it should be, it’s reserved for the rich.

The decline of the prison economy

Although prisons are expensive, one benefit of building prisons is theoretically that it creates localized economic growth. Of course the fundamental wisdom of running a such a harmful policy just so we can spend government money to make jobs is fairly myopic, but we’ll leave that for later. In any case, per an article at the excellent Atlantic Cities site, the decline in the prison population is causing pretty severe problems for these prison towns.

Littlefield, Texas, may be the best example of this exodus. In July of 2011, the town auctioned off the recently-built Bill Clayton Detention Center for half the price it paid for the initial construction rather than risk defaulting on their loan. They also raised property taxes, increased utility fees across the board, and laid off city employees while their bond rating collapsed.

Other towns such as Walsenburg, Colorado, McFarland, California, Baldwin, Michigan, and Boydton, Virginia, have suffered similar fates. Without prisoners, they’re left with empty, foreboding complexes that cost the town millions to build only a few years prior.

Unfortunately there’s not a lot to be done here. Walsenberg can’t go back and unbuild its prison. It’s stuck with a big pile of bricks that used to be good for holding inmates but isn’t good for much anymore.

The upshot of this is probably a plea for honesty from state officials and from independent contractors that operate the prisons. It’s one thing for towns to do certain things in reliance on a state program. That’s inevitable, and people are going to move where some jobs are created. That said, the state is asking for a lot more than reliance. They’re asking for subsidies out and out in the form of free land, utilities breaks and other sorts of money to aid with the cost of construction.

That’s not reliance, that’s out and out cost-shifting from the state (which has money) to the localities (which don’t). If the legislature wants to send people to prison it should pay for that itself, not dupe struggling rural communities.

Screwing up on recidivism again

Though it’s easy to mince words on the rationales for punishment, and it’s fairly clear that rehabilitation is not really something people believe in any more, it’s also a fact that when people recommit they go back to prison and cost more money. And though whether you can actually rehabilitate someone is unclear (I suppose people will always insist that an ex-con always has that malice in their heart), there are things you can do to keep them from recommitting. One big thing is making sure ex-cons can get jobs. Of course this is difficult since employers run background checks, and prefer those without criminal histories, particularly with the economy the way it is.

So one way the government encourages this is by funding back to work programs for those released from prison. The DOC also tries to help folks learn skills that will help them on reentry. Of course these incredibly useful programs are the ones that are the first to get slashed:

“Our education department took a $33 million cut last year,” says Katherine Sanguinetti, Colorado Department of Corrections spokeswoman. “Right now, we’re trying to recruit volunteers to teach.”

Contrast these aggressive funding cuts to the extremely tepid reviews of Colorado’s ad-seg policy, and the pretty total lack of legislative action on the extremely long prison sentence and the conclusion is fairly easy to make: prison policy here is incredibly myopic and focused on saving a few bucks in the short run rather than actually solving any problems. Meanwhile programs that are proven to work are sliced and diced, as prisons begin to look more an more like simple segregationary holding pens.

The lack of clear and long term thinking here is stunning. It’s not a holistic plan. Rather it’s a series of random and apparently populist policies adding up to a situation and a trend that helps nobody.

Who pays for prosecutions in prisons?

Well, naturally the taxpayer does in the end, just like everything else that happens in prison whether it’s health care or food. What some may find surprising, however, is that in Colorado the agency that funds the prosecution is not the same agency that is in charge of it. The District Attorney’s office for the district manages the prosecution, then sends the bill to the Department of Corrections. Generally this is not a particularly big deal. However, when it comes to the death penalty it can become a very big deal.

Colorado is such a death-averse state that despite its nominal commitment to the policy in the Statutes, only one person has been executed in the last 40+ years. Colorado has only three people on death row. A big part of the reason for that is because it’s so overwhelmingly expensive to litigate, and ultimately rarely successful. District Attorneys are reluctant to blow huge chunks of their budgets tilting at windmills.

That’s why this policy is such a devastating cost-shifting measure. It enables prosecution of these incredibly expensive cases without any of the consequences being borne by the prosecuting agency. In other words, there is absolutely no oversight. Carroll Chambers, the District Attorney responsible for three of these prosecutions so far, claims this is because of “scorched earth” tactics used by defense lawyers. Well, of course they are going to do whatever they can! Their clients might die!

Meanwhile, the State of Colorado and the Department of Corrections have absolutely no say in how the money is spent. It is the strangest attorney-client relationship ever. The State pays for millions of dollars in legal fees without any input on the actual litigation strategy. Heck, this is even a sophisticated client with its own in-house counsel (the A.G.). There is absolutely no reason the Corrections Division of the A.G. shouldn’t at least be authorizing expenses for the prison prosecutions they are paying for, if not having some input on litigation strategy.

Health care for the old and the more immediate costs of prisons

The explosion in the prison population in Colorado and other states has had extraordinary costs, both in terms of costing the state money and taking a human toll on the incarcerated. One of the largest costs of prisons is providing health care for the inmates. Inmates do have a right to health care under the 8th amendment, though access is in the best cases comparable to that provided for the poorest Americans, and at worst basically nonexistent. The problem is all this stuff still costs money.

One increasing problem is the massive recent rise in the elderly prison population. With sentences becoming longer and longer, violent offenders are now in prison so long they require costly medical treatments like dialysis or chemotherapy. Additionally, incarcerating the elderly is giving the taxpayers very little in the way of return on investment since older inmates are much less likely to recommit after release than their younger counterparts. With this in mind, it’s natural for some to see releasing the old or the sick from prison as a fairly simple way to save money:

“Any state facing an overcrowding situation or budget crunch has to think about releasing, and it makes sense to release older inmates who pose less of a risk of re-offending, as long as attention is paid to the crime they committed,” said Rachel E. Barkow, a professor at the New York University School of Law.

The opposition to this is naturally that this is dumb reason to let someone out of prison, and could also weaken the deterrent power of incarceration:

“That sends the wrong message to younger offenders,” said Michael Rushford, president of the Criminal Justice Legal Foundation, a pro-law-enforcement group in California. He and others who oppose early release of prisoners also say that lengthy incarceration has been one factor in the decrease in crime rates to historically low levels.

The nut of this issue here I believe is how to balance sequestration and fairness. The deterrent power of prison sentences or other consequences far down the road is pretty questionable, both intuitively and empirically. Most people who commit crimes aren’t doing a rational cost-benefit analysis of the consequences of their actions. Most of the power of long sentences to prevent additional crime and recidivism has to do with sequestration, meaning the prisoner is simply there long enough that he’s sort of cooled down with age. Basically we can decrease the crime rate by putting people in prison when they are most likely to commit crimes against the general public and making them commit crimes against each other.

That said, the upshot of this fact is pretty depressing. We could decrease the crime rate a lot simply by throwing everybody who is between 19 and 39 in prison, but that would be ridiculous. However, isn’t that sort of the natural consequence of releasing the old and sick from prison? If the real concern is recommitting, the best and most cost-effective types of sentences might be simply ones that hold inmates until a particular age. So I’d contend that the real issue with a policy like this isn’t the message it sends or anything to do with the deterrent rationale. It’s a fundamental question of how we balance the cost-benefit analysis of incarceration against the fairness of releasing people early simply because they were older when they did bad things.