Article: Incarceration

Tullianum, the first modern prison, built in 250 BCE.

Incarceration is the detention of a person in jail or prison. People are most commonly incarcerated upon suspicion (or conviction) of committing a crime.

Historically, the frequency of imprisonment, its duration, and severity have varied considerably. There has also been much debate about the motives for incarceration, its effectiveness and fairness, as well as debate regarding the related questions about the nature and etiology of criminal behavior.

Religious perspectives

Religious opinions have often shaped views towards incarceration.

Talmud Yerushalmi, Talmud Babli, and both the Old and New Testaments describe law as the expression of the will of God. Islam adopts a similar legal posture with Sharia, an Arabic word meaning "path," interpreted as the infallible expression of the divine will that is applicable to all aspects of life.

One of the differences between monotheistic religions is the degree to which they emphasize orthopraxis vs. orthodoxy (i.e., proper conduct vs. proper belief). In comparison with Islam, Judaism and Christianity emphasize orthodoxy over orthopraxis. Islam emphasizes orthopraxis more than orthodoxy.

Legal positivism

Those who favor legal positivism maintains that there is no unjust law, and no unjust incarceration.

Among the founders of the legal positivism was Jean Bodin, who argued that burning is too lenient a punishment for severe crimes, because the suffering does not last more than one hour. Bodin also approved of torture during the criminal interrogations, including the torture of children to compel them to testify against their parents.

This perspective characterizes the legalistic posture of the influential Thomas Hobbes. Arguing that humans are by nature selfish and aggressive, Hobbs thought that self-interest leads people into a social contract where they surrender their freedom to an authority to protect them from their aggressiveness. Hobbes maintained that

"the essence of law is the command or will. The notion of an "unjust law" is contradictio in adjecto, because law is itself the definition of justice."

Legacy of the Enlightenment

Around the time of the American and French Revolutions, social philosophers started to support the notion that a human law, which violates "natural law," is not a "true" law. In this view, an unjust law is not a genuine law but rather an act of violence, and unjust incarceration is a possibility.

Social philosophers who opposed legal positivism include Hugo Grotius, Gottfried Leibniz, Benedict Spinoza, Voltaire, and Jean Jacques Rousseau.

John Locke's criticism of Hobbesian theory was a forerunner to the modern notions of civil disobedience and human rights. Locke argued that humans in the state of nature are free and equal and that they possess the fundamental rights to life, liberty, and property. Everyone should defend his or her rights and should surrender only such rights as are necessary for the common good. This natural-rights theory provided a philosophical basis for both the American and French revolutions, with Thomas Jefferson substituting "pursuit of happiness" for Locke’s "property" in the trinity of inalienable rights.

Punishment vs. Rehabilitation

The above mentioned opinions often inform debates about the goal of incarceration: should the emphasis be on punishment or rehabilitation? Arguments have been made on both sides of the issues, and larger societal perspectives have shifted from one side to the other over the years.

Those who favor punishment often contend that the practice serves both as revenge for the wronged and as a deterrent against further crime. On the other hand, those who favor rehabilitation argue that by trying to change a criminal's behavior, recidivism rates can be reduced, and both the criminal and society can benefit from improvement.

Justice studies

Penology and justice studies emphasize description and analysis of antecedents of criminal behavior and outcomes of consequences imposed by criminal justice on the criminal behavior. An example of a modern quantitative study of factors influencing the criminal behavior is the study by Krus and Hoehl (1994).

Fig. 1. The index of the unequal distribution of wealth and the index of family disintegration, the best predictors of incarceration rates.

In the study by Krus and Hoehl, variables that might explain differences in incarceration rates among populations were located by a computer-aided search of the compendium of world rankings, compiled by the Facts on File Corporation and the World Model Group, containing over 50,000 records on more than 200 countries.

They argued that predictor variables explained about 69% of variance in the international incarceration rates. Cited as especially important were unequal distribution of wealth (the explanation perhaps favored by liberals), family disintegration (the explanation perhaps favored by conservatives). According to Krus and Hoehl, these variables act in concert: the presence of one variable does not always precipitate crime, but the presence of both variables often does precipitate crime.

Fig. 2. International incarceration rates per 100,000 population in 2004 (inset) and Growth of the incarceration rates in the United States between 1925 and 2004.

Frequency of incarceration

In the United States

Marc Mauer (1991), in his Americans Behind Bars: A Comparison of International Rates of Incarceration, was among the first who called attention to the fact that the United States has higher per capita rates of incarceration than many countries in the world. Sample headlines regarding Mauer's observations were "America, the Land of the Imprisoned" (Santa Barbara News-Press, February 20, 1992), "The World's Top Jailer" (USA Today, February 12, 1992) and "A Dangerous Place to Live" (St. Louis Post-Dispatch, February 11, 1992). On February 22, 1992, Boston Globe reported that

few statistics about the United States are more startling than the growth of the prison population during the quarter-century since Americans abandoned the war on poverty.

and the Houston Chronicle (February 17, 1992) concluded that

a huge potential human resource is being wasted. That is the real crime.

This reported extreme aberrance of the United States with respect to frequency of incarceration as compared with the other nations did not alter the prevailing opinion that favors Draconic laws and strict punishments. In fact, arguments have been made that the higher incarceration rates of the U.S. might well explain the nationwide decrease in violent crime in the U.S.. A 1992 study by the office of U.S. Attorney General William Barr asserted:

"...it strains credulity to believe that the lowered crime rates have been unrelated to the unprecedented increases in the nation's incarceration rates, even if there may have been other causes as well."[1]

Arguments have been made to the contrary, as well: Dr. Todd R. Clear writes:

...the expansion of the penal system has not been accompanied by an equivalent decrease in crime. The failure of this extraordinary increase in incarceration to produce a meaningful reduction in crime needs explanation. The purpose of this paper is to argue that the common view of the prison is simplistic because it fails to account for the unintended consequences of imprisonment. These unforeseen effects are subtle and, in some ways, modest, but over time they combine to counteract the positive effects of prison. A broader, more complete understanding of the effects of incarceration would enable us to understand the limits of using prison as a crime-prevention strategy. [2]

Also cited as a possible factor in incarceration rates in the U.S. is the influence of the mass media. It has been argued that the media emphasis on individual criminality does not allow for opinions that society at large might shape criminality.

Similar observations about larger society were made centuries ago: Thomas Jefferson's favorite book by Cesare Beccaria’s (1764) Dei Delitti e delle Pene (On Crimes and Punishments), remains arguably one of the most thought-provoking books on criminal justice. Beccaria documents the relationship between the brutalization of society and its support of severity of punishments, and stresses that the law should not encompass more than what is necessary to maintain the public order.

Duration of incarceration

In the United States

Partly in response to rising crime rates, the average length of incarceration in the United States steadily increased in the 1970s.

Many legislatures continued to reduce discretion in both the sentencing process and the determination of when the conditions of a sentence have been satisfied. Determinate sentencing, use of mandatory minimums, and guidelines-based sentencing continue to remove the human element from sentencing, such as the prerogative of the judge to consider the mitigating or extenuating circumstances of a crime to determine the appropriate length of the incarceration. As the consequence of "three strikes laws," the increase in the duration of incarceration in the last decade was most pronounced in the case of life prison sentences, which increased by 83% between 1992 and 2003. ^{[citation needed]}

Fig. 4. Distribution of opinions (1998, percents) that severe punishment is justified, excessive, inhumane, or barbaric. (Adapted from Krus, 1999). Six years later, the ABC News/Washington Post poll (2004) found that 46 percent of the U.S. adults endorse the notion that torture is justified.

Severity of incarceration

Severe punishments (such as beatings, prolonged sleep deprivation, sensory deprivation, chaining) have been often inflicted on prisoners. There are many reasons given for justification of such punishment. In the 16th century, the Bishop of Trier, Binsfeld, in his Tractatus de Confessionibus Maleficorum (1596) claimed that

since the sinfulness of the world increases, God also allows increasing the severity of punishments.

A movement to abolish cruel treatment of prisoners began during the Age of Enlightenment and continued throughout the 19th and 20th centuries. However, there have been continual arguments for severe punishments, perhaps increasing somewhat in the early years of the 21st century. Contemporary justifications for such punishment often revolve around the "rights of the victims". Often underlying these perspectives are opinions that stress the vindictive eye-for-the-eye notions of the Old Testament and Qur'an ^[3], over the notion that the primary goal of incarceration should be the reform and reeducation of prisoners to facilitate their re-integration into society.

Within the framework of penology, the trend toward increasing the severity of punishments is reflected in publications such as Block's (1997, p. 12) advocacy of policy initiatives aimed at increasing the unpleasantness of prison life that would likely be "a cost-effective method of fighting crime” and Arpaio and Sherman's 1996 book claiming that the increase in the severity of treatment of prisoners will result in decrease in recidivism.^[4] Arpaio and Sherman proposed to increase the severity of imprisonment by the construction of tent prison camps in the Mojave Desert where summer temperatures reach 120 degrees Fahrenheit, by serving prisoners foul-tasting food, by humiliating prisoners by cross-dressing, and by reinstatement of the chain gangs. Mauer (1999, pp. 92-93) documents some other the measures used to implement the increasing the unpleasantness of prison life policies that include shooting around prisoners to keep them moving, forced consumption of milk of magnesia, placing naked inmates in strip cells, and handcuffing inmates for long periods of time.

Incarceration and torture

As noted above, cruel treatment has long been a feature of incarceration. Taken to extremes, such treatment might be described as torture.

Torture has, for much of history, been seen as a tolerable or even necessary component of imprisonment, whether performed as punishment or as part of interrogation. Recent controversial cases described by critics as torture of incarcerated persons include the Abu Ghraib military prison in Iraq and the Guantanamo Bay, Cuba scandal.

Please see the main torture page for further information.