Incarceration
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The first prison, Tullianum, was erected by Romans in 250 BCE. Since then, the frequency of imprisonment, its duration and severity considerably varied, as did opinions about the nature of the criminal behavior and its etiology. Incarceration is an eventual outcome of a crime and the questions "what is crime" and "why the crime" were asked since the ancient times. While religious doctrines stressed the moral side of this issue, the opposing opinion was perhaps best expressed by Francois Villon in his Le Testament (1461) as necessite fait gens mesprendre / et faim saillir le loup du bois that can be translated as poverty people into villains turns / because of hunger wolves leave the woods.
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Religious perspective
Talmud Yerushalmi, Talmud Babli, and both the Old and New Testaments put on the law as the expression of the will of God. Islam adopts a similar legal posture. Islamic law, Sharia, an Arabic word meaning path, is interpreted as the infallible expression of the divine will that is applicable to all aspects of life. Sharia classifies all behavior into forbidden, permitted, recommended, and required categories. 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
The legal positivism maintains that there is no unjust law. This maxim of legal positivism best characterizes the legalistic posture of Thomas Hobbes, who 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."
Hobbes argued that humans are selfish and aggressive and that their self-interest leads them into a social contract where they surrender their freedom to an authority to protect them from their aggressiveness. Among the founders of the legal positivism was Jean Bodin who claimed 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.
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. An unjust law is not a genuine law but rather an act of violence. 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.
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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). Predictor variables that might explain differences in the international incarceration rates 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 of the world. The predictor variables, explaining about 69% of variance in the international incarceration rates, were the index of the unequal distribution of wealth (the explanation favored by liberals) and the index of the family disintegration (the explanation favored by conservatives). These indices also displayed properties of the cooperative suppressor variables, i.e., these variables act in concert: impoverishment or breakdown of family by itself do not always precipitate crime, but poverty and a lack of family support often do.
Frequency of incarceration
Marc Mauer (1991) in Americans Behind Bars: A Comparison of International Rates of Incarceration, who was among the first who called attention to the fact that the United States is the nation with the largest per capita rate of incarceration in the world generated only brief attention in national newspapers and on public radio. Sample headlines were "America, the Land of the Imprisoned" (Santa Barbara News-Press, February 20, 1992), "The World's Top Jailer" (USA Today, February 12, 19992) 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.
However, 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.
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Duration of incarceration
Since the mid-1970's, the average length of incarceration steadily increased and the 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, i.e., the prerogative of the judge to consider the antecedents and circumstances of the crime to determine the appropriate length of the incarceration. As the concequence of the three strikes laws," passed with the intent to "turn career criminals to career inmates," the increase in the duration of incarceration in the last decade was most pronounced in the case of life prison sentences, that increased between 1992 and 2003 by 83 percent.
Severity of incarceration
Severe punishments such as beatings, prolonged sleep deprivation, sensory deprivation, chaining, have been often inflicted on prisoners. A movement to abolish cruel treatment of prisoners began during the Age of Enlightenment and continued throughout the 19th and 20th centuries. However, in the early years of the 21st century, demands for increasing the severity of incarceration reemerged. There are manifold reasons given for justification of these demands. 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.
Contemporary justifications of these claims revolve around the "rights of the victims" promulgated by the media. Underlying these claims are opinions that stress the vindictive eye-for-the-eye notions of the Old Testament and Qur'an Template:Ref over the rational humanistic notion that the primary goal of incarceration should be the reform and reeducation of prisoners that would facilitate their re-integration into the 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.Template:Ref 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 humilitating 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
Prior to advent of the President George W. Bush administration, the legalization of torture was unthinkable, as legalized torture was associated with the medieval times of witch trials and confessions forced by instruments of torture that embodied the most abject cruelties (cf., Fig.5).Template:Ref However, following the September 11, 2001 attack by a group of Muslims from from Saudi Arabia on three New York buildings, torture was openly advocated and later implemented, among other places, in the Abu Ghuraib military prison. Torture in Abu Ghuraib included crushing of testicles, burning with cigarettes, beating and choking, setting prisoners on fire, torture by electroshocks, thirst, sleep deprivation, insertions of a gun barrel to prisoner's rectum, and other forms of torture.
Torture was abolished throughout the Roman Empire around the 240 CE, was reinstated during the times of the Crusades, was abolished in the wake of the American and French revolutions separating the church and the state, and reappeared during the present decade. Among the prominent proponents of torture is Alan Dershowitz, Felix Frankfurter Professor of Law at Harvard University, recommending insertion of (sterilized) needles under fingernails in the course of criminal investigations.Template:Ref
Retrospect and prospectus
Among the reasons for the extreme aberrance of the United States with respect to frequency of incarceration as compared with the other nations (cf. Fig. 2) is the stress put by the media on the individual criminality and virtual absence of mediated opinions that society, as well as individuals, may engage in acts of violence that may be viewed as criminal. The increase in pressures toward augmentation of severity of punishments, including the imposition of torture and death penalty, is likely due to the same reasons. Over the last decades, the humanistic traditions of the Enlightenment, including the notion that
- an unjust law is not a genuine law but rather an act of violence
and that those who press for such laws should be considered social criminals on a par with the individual criminals, were supplanted by the punitive ethics of the legal positivism. Those who subscribe to ethics that do not keep the balance between the droit pénal and droit social, between the malum in se and malum prohibitum, should read Thomas Jefferson's favorite book by Cesare Beccaria’s (1764) Dei Delitti e delle Pene (On Crimes and Punishments), 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.
References
- ABC News/Washington Post poll (2004). Conducted by TNS of Horsham, Pa, on a random national sample of 1,005 adults with a three-point error margin.
- Arpaio, J. and Sherman, L. (1996) How to win the war against crime. Arlington: The Summit Publishing Group.
- Binsfeld, P. (1596) Tractatus de confessionibus maleficorum et sagarum. Trier, Germany: Heinrich Bock.
- Block, M. K. (1997) Supply side imprisonment policy. Washington: National Institute of Justice.
- Beccaria, C. (1764) An essay on crimes and punishments. New York: Gould & Van Winkle, 1809.
- Daneau, L. (1564) Les Sorciers, dialogue très utile et très necessaire pour ce temps. In Levack, B. (1992) The literature of witchcraft: articles on witchcraft, magic, and demonology. Garland. ISBN 0815310269.
- Geiler, J. (1508) Die Emeis. Strassburg: Johann Grüninger.
- Kurian, G.T. (1991) The New Book of World Rankings. New York: Facts on File, Inc.
- Krus, D.J. (1999) Die Harte des Strafvollzugs: Entbindung in Ketten. Zeitschrift fur Sozialpsychologie und Gruppendynamik in Wirtschaft und Gesellschaft, 24Jg/Heft 4, S.12-16 (Request reprint in English, in German).
- Krus, D. J., & Hoehl, L .S. (1994) Issues associated with international incarceration rates. Psychological Reports, 75, 1491-1495 (Request reprint).
- Mauer, M. (1991) American Behind Bars: A Comparison of International Rates of Incarceration. Washington, D.C.: The Sentencing Project.
- Mauer, M. (1999) Race to incarcerate. New York: The New Press.
- Monestier, M. (1994) Peines de mort. Paris, France: Le Cherche Midi Éditeur.
- Mǖllendorf, P. (1911) Geschichte der Spanischen Inquisition. Leipzig, Germany.
- Rhyne, C. E., Templer, D. I., Brown, L. G., & Peters, N. B. (1995) Dimensions of suicide: perceptions of lethality, time, and agony. Suicide & Life Threatening Behavior, 25(3), 373-380.
- Sindelar, B. (1986) Hon na carodejnice v zapadni a stredni Evrope v 16.-17.stoleti. Prague: Nakladatelstvi Svoboda.
Notes
- Template:Note Aslam Abdullah (2006, www.beliefnet.com) in Demystifying Muslim Justice observes that " most Americans' impression of Islamic justice is a rather barbaric image of retribution harshly and violently administered. Ask even educated Americans to explain the law in Muslim countries, and they'll inevitably talk about hands and heads summarily being severed. In fact, Islamic justice shares much with Christianity and Judaism. These similarities are not surprising, considering that our penal systems are influenced by common scriptural foundations. The Qur'an's most basic passage pertaining to punishment is a familiar one to Christians and Jews alike: "And We prescribed for them therein: The life for the life, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds equality."
- Template:Note The opinion that increasing the severity of punishments will result in decrease of recidivism is not supported by metastudies of this issue. Contrary to this popular opinion, the majority of research studies indicates that penal policies stressing rehabilitation over punishment result in lower recidivism rates. Most empirical studies consistently find that the employment status after the release from prison is the strongest predictor of recidivism. Thus, e.g., Pennsylvania's 2000 Legislative Report on Recidivism concludes that "most studies found that boot camps have not been very successful in achieving the goal of reducing crime" and that the fact that "employed offenders are almost three times as likely to succeed indicates that providing vocational training and employment opportunities for offenders should be a high priority."
- Template:NoteAmong the ecclesiastic writers, Lambert Daneau, professor of Calvinist theology at Geneva in his (1564) book Les Sorciers, dialogue très utile et très necessaire pour ce temps proposed the final solution of the witch problem. He held that witches represent a major danger for humanity and recommended their "mass extemination," often done in the bruloirs, large ovens built to expedite the burning of victims of the criminal justice proceedings (Mǖllendorf, 1911, p. 100; Sindelar, 1986, p.182). In Spain, these ovens were called "quemadero" or "brassero." This method of torture is likely close to the upper limit of methods designed to inflict pain. In a study on the agony of dying (Rhyne, et.al., 1995), according to forensic pathologists, the most excruciating way to die is by fire, followed by cutting the throat, and stabbing the abdomen.
- Template:NoteSimilar recommendations, made centuries earlier, were disputed by Johann Geiler who maintained in his (1508) book Die Emeis (The Ants) that devil anesthetizes his adherents so they would not feel any pain.