Philosophically, I’ve long been a retributivist. For a lot of reasons which I won’t go into here, I believe the proper function of the criminal justice system is two-fold:
- To protect the innocent from punishment by the state, and
- To ensure that offenders receive their just desserts.
I’ve never believed that the criminal justice system is an appropriate or effective arena for the rehabilitation of offenders or the restoration of what victims have lost. The system is too punitive, simplistic, and coercive for that to work. (At least, in my view.)
But I’ve come to believe that even the philosophy of retribution is ill-suited to justify the appalling state of criminal corrections in Canada. Our network of jails and penitentiaries visit punishments on offenders beyond what retributive principles can justify. And until we can accurately call our jails and penitentiaries humane, we shouldn’t send another person to serve time in one.
What We Take From Offenders
Incarceration is said to provide several punitive, protective, and reformatory benefits:
- It separates dangerous people from society
- It allows time for the rehabilitation of criminals
- It punishes criminals via the deprivation of liberty
While I’m deeply skeptical about the rehabilitative potential of incarceration, there’s no doubt that it serves as a separation from wider society and acts as a punishment.
By incarcerating someone, we deprive them of their freedom and their time. Every second they’re locked in a cell is a second they’re not free to live their lives.
This is an effective punishment because even the poorest among us (who frequently make up a large chunk of the criminal population) have and value their freedom and time. Even when someone has little else, they still possess freedom and can therefore be deprived of that asset.
This is a massive deprivation. The loss of liberty can never be recompensed. We all have a set number of days to spend on this planet and every day we spend in jail is a day lost forever.
Such a deprivation is also, in my view, an appropriate punishment for the violation of another person’s rights. That’s especially true where the crime has profound effects on victims.
Give and Take, and Take, and Take…
What’s much less appropriate is the fact that, after we’ve taken something of infinite and irreplaceable value from the criminal, we continue to deprive them of more and more valuable assets. Along with practical necessities like health care and legal representation, we deprive our incarcerated criminals of their safety, security, dignity, and self-worth.
In doing so, we don’t add to the retributive value of the punishment. After all, we’ve already taken criminals’ freedom from them. Instead, we add a layer of needless cruelty and, as members of the public responsible for overseeing this system, debase ourselves.
To be clear, my issue is not with the utilitarian consequences of mistreating offenders. I’m not talking about the fact that abusing incarcerated criminals makes them more likely to reoffend, although that’s very much true and troublesome.
My issue is with the total lack of moral justification for heaping unnecessary savagery on people who are already receiving their just desserts in the form of a deprivation of irreplaceable liberty.
The Appropriate Response
It’s my view that the only acceptable response to the reality of superfluous punishment in Canadian jails and penitentiaries is to stop sending people to serve time in them until Corrections officials can demonstrate that the facilities are, at a minimum, safe and humane.
This would mean ensuring that offenders serving time are deprived only of their freedom, and not additional rights and privileges everyone deserves to enjoy. If we can’t provide health care to people we lock up then we should stop locking people up until we can. If we can’t protect the dignity of incarcerated criminals then we should stop incarcerating them until we can.
I write this, not from the perspective of a “bleeding heart” softie, but as someone who strongly believes that punishment is a necessary component of moral agency and respect for rights. And while many have couched the need for better treatment of incarcerated people in terms of rehabilitative potential or reductions in recidivism, I don’t think any utilitarian justification is necessary.
We should treat prisoners humanely because that’s what they deserve. And giving people what they deserve is exactly what the criminal justice system is supposed to do. The necessity of punishment does not absolve the public of the responsibility to behave humanely, lest we all become worthy of punishment.