Do We Still Need Prisons?

You should at least be comparing expected outcomes (if not worst possible outcomes) rather than actual outcomes. Especially because your thought experiment is subject to extreme (literal) survivorship bias; no murder victim will answer your hypothetical. Other crimes such as carjacking, which has a 50% death rate for the victim, should be punished very severely even if the victim survived.

In addition, in cases where people do things like cheating, they could blame the 'victim' for actually filing for divorce, and not being more forgiving. The divorce filing could be seen as much more damaging to children than the actual cheating, unless you try to instate some sort of negligence standard for 'immoral' activities. Another interesting case might be a child 'coming out' as homosexual when their parents are very religious and consider homosexuality a sin; is the child not inflicting harm here?

Is honesty (or lack thereof) more troubling to you than threatening a fellow human being with disability or death?

One of the most damaging things Clive Stafford Smith has done is to give public support for Moazzem Begg, who was almost certainly a high-ranking member of al Qaeda (https://en.wikipedia.org/wiki/Moazzam_Begg). (Sure, Begg should have gotten a fair trial -- he would have gone to court had the charges not been dropped, probably because the intelligence services didn't want to reveal all the intel they had gathered on him and his associates).

In every human society in history, there have been people who choose to rob, rape and kill. There's no pleasant way to deal with such people, but it is the role of the state to deal with them, or you have anarchy. It isn't the role of the state to prevent "emotional damage", "bad wives" or "bankers".

Stafford Smith's position seems to be a twisted version of Christian morality where all problems are caused by meanness. Since the justice system is an institutionalised form of meanness, it must be wicked -- indeed, it's probably responsible for crime and terrorism.

This is a really evil worldview.

Can't ignore in all that, the issue of public order. Going soft on bullies (which is what many smash-and-grab criminals may be) means it grows without limit. So establishing public order is not an optional thing.

I don't think this kind of reductive thinking, if taken into more political and behavioral extreme areas works.

Lets try this mental exercise, what is the physical damage to me if I get raped? In extreme cases one could get infected with a potentially deadly STD, or if a woman, onr may become pregnant, but in many cases at the physical level, it's not all that different from regular sex between people. The main difference is granting permission to sex, or not granting permission to sex.

That makes all the difference, or most.

So, you see, it's easy to break things down into oblivion, the thing is, this is what, in part, makes is human, why we don't follow the same kind of courtship other animals accept as part of nature. Or why otherwise rationalized behavior is not normally accepted.

Restorative justice won't cut it here.

I of course understand my example is extreme, but I simply want to point out that there is a point where these ideas break down as a solution to unjust sentencing.

Our legal system doesn't push "harm" per se, but rather harm caused unjustly[1]. E.g. it harms me a company raises the price of a product that happens to be in demand ("price gouging") but that company has every right to do so as it owns the product.

One way we can reconcile the utilitarian notion of harm, with the property rights/natural rights approach is through economic theory. The so called "welfare theorems" of economics state that when every person maximizes their own utility (under the assumptions of a perfect market), then the result is pareto optimal. From this it follows that in a society with redistribution of wealth, no person has a right to complain that another person has "harmed" them by way how they behaved in the free market.

Outside of the economic realm, the argument for natural rights is even stronger. How can you compare cheating, which is a consensual act, with robbery? At most cheating could be considered a violation of a contract, e.g. a prenuptial agreement.

By completely ignoring the role of natural rights and property rights in the law and in moral reasoning, you are engaging in sophistry.

[1] e.g. "[with developments such as the Model Penal Code] crime increasingly became conceptualized as the wrongful imposition of risk" (my emphasis) in "Making the Best of Felony Murder" http://www.bu.edu/law/journals-archive/bulr/documents/binder...

> Should we really be putting someone in prison for burglary when there are people who rip millions of people off with legal price gouging or break up a family by cheating?

I agree that cheating usually hurts more than burglary. However, it's not just a question of how harmful it is, but also how many people feel the urge to do it. We can mostly deal with burglary by criminalizing it, but criminalizing cheating would be a disaster akin to the war on drugs.

It's a bit interesting, but I don't think it's actually relevant to the OP.

Reason #1: The vast majority of people haven't been victim to something that's put someone in prison anyway.

Reason #2: At most, it would seem the 'solution' to the thought experiment is changes to legislation; not "scrap it all!"

It's only deep if you want it to be deep. In my opinion, it's as "deep" as any other meaningless question. As one in the title, by the way. Because the very assumption that legal system exists to help some commoner — you — seems absurd to me. It's not you who puts people in jail. It's not you who has the guns and manpower to maintain the existing regime and rules. It's not even you, who "feeds" those who have guns and manpower — regardless of what you think, you don't really chose to pay taxes, you just have to, because if you don't, then you are the "criminal" who must be punished.

These questions seem deep (which actually translates to "without an obvious answer") only if you assume that you are choosing who should be punished, what is a crime and what is a punishment. Then, unsurprisingly, it is quite hard to explain rationally the current state of things — so that "your" choices would seem "right" enough. Because that's just not the case.

But if you try to answer the question about "what is right" from the "Golem's" point of view — the legal system, the government, the "social norm" — it actually is pretty clear and simple. "Right" is what keeps it stable. Punishing somebody, who makes somebody else miserable doesn't really help it — it's ok for people to be miserable, it's not ok for them to turn on the Golem. It doesn't have to be rational or efficient, it doesn't have to help anybody or protect anybody. The moment it becomes something more than a mere human — and it long time is — it doesn't care for human needs or worries. Feeding murderers on behalf of other people, while keeping them in a closed institution doesn't really help anybody or is rational, it isn't about justice or whatever — it just works, it just keeps the system stable. On the other hand, people using psychedelic drugs and living in hippie communes doesn't hurt people, but hurts the system. That's why things are what they are.

>I got the insurance money.

>I was mugged one time

Have you considered that muggings are rare and underwriting property insurance is rational because theft/burglary carries the risk of jail time?

This is a good question, but the direction he's going with it seems like it might be advocating throwing the baby out with the bathwater. It's true, we're not punishing the right people, and the people we punish are frequently being punished too much for comparatively minor crimes. The solution isn't to eliminate punishment, it's to fix the system so that the bigger criminals don't get away with their crimes because of their wealth and political connections. And for things that aren't against the law but are devastating, maybe we need to look at changing the law. However, even here, civil suits usually serve to deter such behavior: many things aren't technically "illegal", but they are actionable "torts", which you can sue people for. The McDonald's coffee case is a good example here, and shows why civil suits, though frequently derided, actually serve as a check on really bad behavior that doesn't have specific laws passed against it yet: McD's kept their coffee heated to dangerously-high temperatures, despite other people being injured by it in drive-thrus, and when it happened to this woman, she sued (wanting them to pay her medical bills, as she sustained serious burns) and won a very large punitive judgment as the jury felt that McD's was negligent. There's no law saying how hot coffee should be served (and that's likely to be micromanaging and not a good way to run society), but it is entirely possible to be sued for "negligence" when you do something that gets someone hurt, so there is a big incentive to not do that, and to make sure you don't seriously injure someone through your carelessness.

These examples (mugging, burglary) are serious crimes that have a lasting impact on most people. In addition, a place where mugging and burglary is happening without consequence has a really negative effect on the people there. Ask a black mother whose kids live in fear whether that guy who is mugging, robbing and breaking and entering belongs in jail.

The punitive nature of arrest and jail makes the cost/benefit less attractive of capture looks like a high risk. (Example: NYC)

We don't jail cheating spouses because society learned that moral turpitude as a crime creates other problems that society is struggling to move past.

We don't effectively police many categories of white collar crime because the risk of capture is infinitesimal.

Not sure I follow. Are you saying robbers, rapists, carjackers, thieves, murderers, drunk drivers causing vehicular manslaughter etc etc should NOT be punished because some other "bad" behavior is not punishable by law in today's society?

Machiavelli said, the man forgets the loss of a father sooner than the loss of property. Imagine you worked 5 years to buy something and it is robbed. Isn't it emotional damage? Human rights people tend to separate rights in boxes, while in fact most rights are indeed human rights.

It's very considerate of the burglar to only choose victims who have insurance! I'm sure the insurance company was happy to pay out. I hope you can still afford it when premiums go up with the increased crime rate that follows unpunished crimes.

I think it's not about what is the worst, but about what is necessary. Ultimately, the idea is that there are some basic rules without which the society can not perform. The exact rules vary by culture, but in a Western culture they usually include murdering people, violating property rights, causing substantial bodily and emotional harm, defrauding or defaming someone, etc.

Now, one has to admit our current legal system has gone way beyond that and subverted criminal justice system from "absolute necessities" to "things I love to force other people to do because I think they should be doing those things and too stupid to realize it" - and so we now prosecute people for setting wrong kind of plant on fire and inhaling the smoke, or for cutting other person's hair without consent of government employee, or for listening to a musical tune without paying to some corporation that is considering "owning" it, or for using the idea because somebody else thought about similar idea before and asked government employee to give them "ownership" of it. And so on.

This all looks like abuse, but there's still the original idea behind it - the idea that there are some necessities underlying working society, and these necessities must be enforced. Not because each violation causes grave harm - but because multiple violations would snowball into set of consequences that would make our society very hard to live in.

So if we go to the mugging example, let's assume we say "mugging is no problem, the police should not care about it, there's no harm done, especially compared to what Wall Street bankers are doing". Let's ignore even the facts that people are grievously hurt or murdered in muggings. But even beyond that - what happens if we declare free mugging season?

First of all, more muggings - especially from people that are physically strong, imposing and have no moral problems with it. Then, people that are not so strong would try to defend themselves - e.g. by arming themselves. Then, muggers would arm themselves too, because they found the source of cheap income and are not going to give it up. Then you have two outcomes possible - either the non-muggers succeed, individually or collectively, in raising the potential price per mugging to level so high it's not worth it (i.e. if you are going to end up dead in 1/3 of mugging attempts, your mugging career is not going to be long) or you have situation where you're living in a warzone. Which some people learned to survive in, but would you want to get into such situation?

In either case situation did not exactly improve - in the first case, you just create the police by other name, and probably more harsh to muggers than any current one (vigilantes have little use for Miranda rights and competitive trials) , in the second you get dramatic reduction in quality of life.

How about sociopaths? They can become serial offenders, learning all the while how to apologize more effectively each time they are apprehended. If a crime has little downside, then crime will grow.

How will this work in today's society? Judges give the harshest sentences in election years compared to other times because they want to look "tough on crime". Some of the most asinine laws stem from politicians who also want to look tough on crime. As a society, we treat people who've been to prison like crap and our movies make prison rape jokes, as if it is something to be joked about. It is just depressing.

That sounds more like we need insane asylums not prisons.

Politically we find it easier to deal with people that can't function in society as criminal than sick and historically Insane Asylums have been really nasty places. However, I don't see the advantage of keeping criminals in the same place as the insane.

I agree we should be sending less people to prison. But then the problem becomes how to punish people for doing these things?

Some people do not have the money to pay compensation. Some people will avoid community service. Some people will disobey home detention orders. What do we do with these people now?

Are most of people locked up murderous maniacs or other constant danger to rest of us?

Not sure why you got downvoted, I'm pretty left wing but people who pull the kind of shit in that story really do belong in prison, it doesn't have to be a harsh american-style prison but it has to be secure, some people just shouldn't be in society because of the threat they pose to the rights of others.

It's not just about punishment it's about protecting law-abiding members of society.

> Spoken like a truly out of touch academic.

I agree.

Deterrent factor is huge. Most if not almost all people fear having to spend time in prison. And there is no question that it guides their behavior. And the people who don't fear being in prison don't need less of a reason to be out there. Prison is punishment. No way to compare that type of loss of freedom with home detention.

For all the crime committed now, there is no question that crime would increase if the punishment weren't viewed as taking away a liberty in a consequential way.

I think this is missing a big point of the article - Currently there is a real perception problem that probation (etc) is not enough punishment, therefore a lot of people get sent to prison. This is actually the same as you're saying.

So his solution is to provide a harsher middle ground, that provides more punishment and more "benefits" of prison, without needing to send all offenders to prison.

In fact the solution keeps prisons around - partly for the violent offenders in your example, partly for those that don't get the message from the middle ground.

Agreed, I think the big problem here is that we have "soft-drug offenders", and not only that, but we have lots of them - more than rapists. This erodes the public image of what "criminal" is - if we look at random criminal and it's a pothead that just wanted to get a little high without harming anybody, then the natural question people ask is "do we really need to be that harsh on that?" And the answer is no. Because he's not a criminal, and only idiotic laws make him a criminal. But the harm is done because the idea of "criminal" is now confused - are we talking about rapists? Are we talking about murderers? Are we talking about potheads and public drinkers? Do we want to be hard on them or soft on them? The only way to untangle the mess is to get people that we don't really need to prosecute out of criminal system altogether.

Show me where in the article he suggests that violent felons not go to prison?

He merely points out that punishments less severe than prison (i.e. fines) are ineffective against the poor, while prison is poor at rehabilitation.

[edit]

Furthermore his suggestion of deferred sentences would work great to imprison someone with multiple minor charges, as you mention these perpetrators having.

We (the human species) have done better than (modern) prisons; prisons are a compromise that makes the system of building and maintaining orderly society less effective and more expensive than simply hanging the bastards but in theory that compromise has enough positive tradeoffs to be worth it in the end.

As tongue-in-cheek as this is, it raises a valid point. Corrections industry unions are large and powerful.

And good luck getting the locals to agree to compete with unpaid forced laborers.

The right-wing states want higher crime?

White collar crime can be so much worse than violent crimes. If some desperate person punches you in the face that should be punished, but someone who destroys the lives of so many by engaging in fraud in the financial sector leading to billions in public money spent to bail out companies, lives destroyed has done far worse than punch a single person in the face.