Criminals and Victims: A Trial Judge Reflects on Crime and Punishment
Ever since imprisonment was enthusiastically accepted in the nineteenth century as a humanitarian alternative to the hanging rope and the whipping post we have been uncertain about just what it is supposed to do. The Quaker vision of moral regeneration through harsh solitude soon faded, but confinement has until recently remained the staple response to all but petty crime. Today the American prison population is not much less than 500,000.
There are several reasons why it is impossible to do without imprisonment. For very serious crimes a lesser response would in most cases not be perceived as adequate. While we must not exactly match punishments to the crime (should we rape the rapist or throttle the mugger?), anything falling below a certain proportionate degree of severity would simply not be understood as constituting punishment at all. A $1000 fine for murder looks more like a sumptuary tax than a punishment.
If this sense of fairness calls in some cases for a degree of severity that only imprisonment can acceptably supply, so also does the practical need for deterrence that preeminently justifies the penal system. Judge Forer, in her book on sentencing, is scornful of deterrence as a goal on the ground that many offenders repeat their crimes (so that deterrence clearly did not work for them), while most other people never get to hear of sentences imposed on particular defendants. But this is a prime mistake. The theory of deterrence does not rest on the belief that imprisonment can be exactly calibrated to stop an offender from repeating his crime or to dissuade others from emulating him. It asserts more generally that knowledge of the existence of a seriously punitive process is an important element in keeping most of us more or less law-abiding.
For many people the process of accusation and trial (or pleading guilty) is only perceived as truly degrading and depriving because imprisonment is known to be a possible outcome. Cases are fought desperately, money is spent, motions are filed, and appeals are taken in the effort to keep defendants out of prison. (This is a reason why imprisonment is often unnecessary in some white-collar crimes where the inevitable loss of office, job, or professional license may be a sufficiently awful outcome.) In theory it may not be necessary that any offender should actually be sent to prison. As Bentham suggested, deterrence could be served if people were deceived into believing that criminals were severely punished when in truth they were not. But since such a deception is impractical and objectionable the only way to maintain deterrence is to imprison the worst offenders. We cannot of course say how many people would commit serious crimes if there were no prospect of incarceration, but the number would surely be much greater and gravely threatening.
There is a clinching reason why imprisonment cannot be dispensed with. Some criminals are so dangerous that confinement is socially welcome because it partly incapacitates them. (Only partly since many violent crimes are …