Ethics in Practice

Punishment

objections that have been raised against it. He makes no pretense that punishment can guarantee repentance and reform. (Neither, of course, can other interventions - e.g., psychotherapy - that also aim at reform.) In this sense he would agree that punishment can do no more than offer criminals an opportunity for moral rebirth. In his view, however, the opportunity is presented by the punishment itself and not by some other devices that might be employed while punishment is being endured.

How could this be? It is, claims Duff, because punishment must be understood in communitarian terms - as an act of communication between the community and a person who has flouted one of that community's shared norms. The suffering endured is that of separation from a valued community - a community which the criminal values (perhaps without realizing it until he experiences its loss) and to which he would like to return - and communicates to the wrongdoer the judgment that his actions have made him, at least temporarily, unworthy of full participation in the life of the community. It requires that he experience the pain of separation so that he can come to see, in his heart, the appropriateness of that separation and thus seek, with the appropriate humility, reconciliation with the community that he has wronged. In other words, the hope is that a kind of compulsory penance will be replaced by a voluntary penance. Voluntary penance is a sincere act of reattachment or allegiance to community values - an act that will allow the wrongdoer to be welcomed again and reintegrated into community life. And what makes this paternalistic? Simply this: Punishment on such terms will benefit the wrongdoer because severance from a community - if it is a just and decent community - is a genuine harm to the individual who is isolated, and reintegration is a genuine good for him. The right sort of prison may help him to achieve this good because, as Duff says, it "removes the criminal from his corrupting peers, and provides the opportunity for and the stimulus to a reflective selfexamination which will [ideally] induce repentance and self-reform." Also worth considering are such alternatives to prison as community service and restitution.

Dufrs theory is rich and in many ways compelling. It cannot be the whole story on the justification of punishment, but it is - in my judgment - an important and largely neglected part of the story. It may, of course, be highly unrealistic to attempt an application of the theory to the crime problem in a society such as that found in contemporary America. It is not at all clear to what degree there is a genuine community of values in our society; and, even where there may be a community of values, it is sometimes the case that those who flout those values feel so alienated (perhaps because of poverty or racial injustice or cultural exclusion) that they could not reasonably see reintegration into the community as a good to be secured by their punishment because they never felt truly integrated into the community in the first place. 5 However, if the paternalistic theory really is a compelling ideal theory, then even a serious gap between theory and practice will not be a legitimate ground for rejecting the theory. Rather it will be an occasion for mourning the community that we have lost and for seeking to regain it - or for seeking to create it if we have never had it. Those committed to the paternalistic view will argue that we should work to create a community of mutual concern and respect wherein punishment, if needed at all, could - without self-deception or hypocrisy - be defended on paternalistic grounds.

But suppose that we are sufficiently charmed by the paternalistic theory that we want to get started now and not wait for the ideal world. How might we proceed? Perhaps the best arena in which initially to attempt to apply the theory is to be found, not in the adult criminal law, but in the law dealing with juvenile offenders. Juvenile offenders are probably more open to radical character transformations than are adults. Also, as David Moore has suggested, the more informal and discretionary proceedings might allow - in encounters between offender (and family) and victim (and family) - the use of empathy to build a sense of community that more abstract and formal proceedings might mask. 6

It is also possible that one might be able to draw on subcommunities in ways that would ultimately benefit the larger community by de-

veloping in juvenile offenders a sense of selfworth through "belonging." For example, a state court in Washington recently placed the punishment of two Tlingit teenagers guilty of robbery and assault in the hands of a tribal court - a court that banished the teenagers for 18 months to separate uninhabited Alaskan islands in the hope that the necessity of surviving on their own, with only traditional tools and folkways to guide them, would build their characters and allow them reintegration into the community. Ideally, of course, one would want all citizens to feel a sense of belonging in the larger national community. One has to start somewhere, however, and - since self-esteem cannot grow in an asocial vacuum - why not (before gangs come in and assume the role) take advantage of the opportunities offered by particular cultural subgroups? Such experiments are surely worth a try.7

Sentencing and Pardon

For the most part, however, we will no doubt continue to employ a system of criminal punishment that is driven by a variety of different values. Even if we seek to introduce paternalistic concerns as one of our justifications, concerns with crime control (deterrence, both special and general, and incapacitation) will also loom large. So too will concerns with retribution. A demand for retribution can be based on either a belief that people deserve to suffer for the badness of their characters (character retributivism) or a belief that victims and the community, having been wronged by the criminal, are owed a debt that can be paid only when the criminal suffers appropriate punishment (grievance retributivism). Both versions of retributivism have played a role in the justification for punishment in our society, and they - along with a deep concern with crime controlwill no doubt retain an important role for the foreseeable future.

To the degree that the system is driven by these important but generally non-paternalistic values, even full repentance on the part of the criminal will often be seen as not sufficient to remove the need for punishment. Punishing even the fully repentant, though having no

Repentance and Criminal Punishment

special deterrence value, might well serve general deterrence values; and punishment will sometimes be demanded by crime victims who believe, on grievance retributive grounds, that the injuries that they have suffered require a response that is proportional to the wrongs that have produced those injuries. Repentant wrongdoers may have better characters than unrepentant wrongdoers (and thus may deserve less punishment on the theory of character retributivism), but victims might well think that the legitimate grievances they have against wrongdoers are a function of the violations they have suffered, violations that do not cease to matter simply because the person who caused them is now sorry. 8

If repentance is to play any role at all in our present system of criminal punishment, then, it will probably be as one reason bearing on whatever discretion officials are allowed within a punitive range that satisfies the legitimate demands of crime control and grievance retribution. If, for example, we have grounds for believing that society's legitimate general deterrence and retributive objectives with respect to a specific offense could be satisfied by any punishment within a particular range (e.g., 3 to 8 years), then sincere repentance could provide an authority with discretion (normally a sentencing judge or an executive with the power of pardon) with a good reason for choosing a punishment at the lower rather than the higher end of the range.

A truly repentant wrongdoer is recommitted to community values, requires no additional special deterrence, and even - at least on a theory of retribution that bases criminal desert on character rather than victim grievance - deserves less punishment than a wrongdoer who is unrepentant. When one could promote the goods represented by these considerations without compromising the legitimate crime control and grievance retribution purposes of the law, it would seem irrationaleven cruelnot to do so.

lt is, of course, important that any system that rewards repentance (and thus, like our present system of plea bargaining, gives defendants strong incentives to fake it) develop safeguards against counterfeit repentance. As Montaigne observed in his essay Of Repentance, "These men make us believe that they feel great regret

Punishment

and remorse within, but of amendment and correction or interruption they show us no sign ... I know of no quality so easy to counterfeit as piety."

Legitimate caution here, however, should not lead one to adopt the radical skeptic or cynical view that we can never have reasonable grounds for thinking that repentance is genuine. It is indeed hard to know another's mental states or states of character; but, as our reasonably comfortable use of mens rea (e.g., a requirement of intention) in the criminal law illustrates, we do not generally regard it as impossible.

A Final Thought on Collective Repentance

When one thinks of repentance in connection with criminal punishment, one tends to think that all demands for repentance must be addressed to the criminal. But surely the community - through its patterns of abuse, neglect and discrimination - sometimes creates a social environment that undermines the development of virtuous character and makes the temptations to crime very great - greater than many of us might have been able to resist if similarly situated. The idea here is not that criminals, if they are from social groups that are poor or despised or abused or discriminated against, are not to any degree responsible for their criminality. They are. As a part of their dignity as human beings, they must be seen as responsible agents and not merely as helpless victims. But their responsibility is, in my view, sometimes shared with those of us in the larger community. In these cases, we too may be legitimately called upon for repentance and atonement - attitudes of mind that should prevent us from thinking of criminals as totally other and should thus moderate our tendencies to respond to them with smug and self-righteous viciousness. The wise and forgiving view that Felicia (in William Trevor's novel came to adopt toward the man who tried to murder her surely admits of a wider application: "Lost within a man who murdered, there was a soul like any other soul, purity itself it surely once had been."

Notes

The two best discussions of Plato's philosophy of punishment are Mary Margaret Mackenzie's Plato on Punishment (Berkeley: University of California Press, 1981); and Trevor J. Saunders's Plato's Penal Code (Oxford: Oxford University Press, 1991).

2Herbert Morris, "A Paternalistic Theory of Punishment," American Philosophical Quarter(y 18/4

(October 1981); Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs, 13 (1984); R. A. Duff, Trials and Punishments (Cambridge: Cambridge University Press, 1986). Although emphasizing punishment as a means of educating and reforming character, Duff, Morris and Hampton - unlike Plato - make room for retributive values as well. For an argument that the values ofboth retribution and moral education may be in tension with a liberal theory of the state, see my "Retribution, Moral Education and the Liberal State," CriminalJustice Ethics (Winter1 Spring 1985), and "Legal Moralism and Liberalism," Arizona Law Review, 37, I (Spring 1995).

3Plato only sometimes (e.g., in parts of Phaedo) relies on a simplistic soul/body dualism to explain wrongdoing. At other times (e.g., in Republic) he offers a more complex picture of the nature of motivation.

4Herbert Fingarette, "Punishment and Suffering," American Philosophical Association Presidential Address, 1977.

5For a discussion of the ways in which social inequality can undermine the application of theories of punishment, see my "Marxism and Retribution," Philosophy and Public Affairs 213

(Spring 1973).

6David B. Moore, "Shame, Forgiveness, and Juvenile Justice," Criminal Justice Ethics, Winterl Spring 1993.

7According to the New York Times (September II, 1995), the Tlingit experiment was unfortunately undermined by interference from friends and family and was not allowed to run its full course.

8Should the self-imposed suffering experienced by the sincerely repentant wrongdoer count as relevant toward the amount of suffering that the state might legitimately inflict as legal punishment? I explore this question - and defend a qualified answer of "yes" - in the expanded version of this essay. ("Repentance, Punishment, and Mercy," in The Quali~y of Merty, ed. A. Brien. Rodopi Press, 1997.)

Lynn Pasquerella

Introduction

The most brutal and shocking cases of violent crime, brought home to us in the daily headlines or on the evening news, remind each of us of our own vulnerability. It is perhaps not surprising, then, that despite a significant decline in violent crime spanning the last decade, there has been a rise in public fear and outrage at the perceived nature and frequency of violence in America (Bureau of Justice Statistics, 2000). Indeed, public concern over crime, accompanied by doubts about the effectiveness of our criminal justice system, has led to renewed calls for penal reform. In response, hard-line legislative proposals, fueled by media attention, have included provisions for a wide range of harsher sentences, from stiffer minimum penalties to "three-time loser laws" that impose mandatory sentences of 25 years to life on those convicted of more than two violent felonies.

With approximately two million criminals already in jails and prisons and another three million on probation or parole, such sentencing reform is likely to increase the number of people who will remain in prison for longer durations. From a public policy perspective, these proposals require evaluation in relation to inevitable financial constraints that will place limits on how many inmates can be housed long-term. Realizing this, a growing number of lawmakers, distressed by the notion that prisons

provide a life of luxury for many rather than a deterrent to crime, hope to make prisons a place to which "you don't want to go."

Indeed, this was the impetus behind New Jersey Representative Dick Zimmer's "No Frills Prison Bill," passed by the 1995 US House of Representatives. The bill prohibits federal authorities from spending taxpayers' money on inmates' access to such amenities as cable television, tape players, computers, electronic musical instruments, air conditioners, weight training rooms, martial arts instruction, and pornographic reading material. State legislators followed suit by proposing similar legislation applicable to state prisons. The effect has been both broad and varied, from charging inmates in Connecticut and New Jersey for medical care that used to be paid for by taxpayers, and discontinuing programs in New York that paid tuition for college-degree programs behind bars, to reinstating chain gangs in Alabama and Arizona.

Perhaps the most extreme example of this movement can be found in the nation's large maximum security or "super max prisons," now often operated under "lock down." Residents there are confined to their cells for all but one hour a day, placed in mechanical restraints when they leave their cells for exercise, and subject to frequent body and cell searches. Conditions on death row at the Oklahoma State Penitentiary are even worse. Prisoners there

Punishment

spend 23 hours of every weekday and the entire weekend in a concrete cell with no sunlight, no view of the outside world, and no physical contact with visitors or guards. Inmates have no access to vocational programs or even the prison library. Though Amnesty International has condemned these conditions as inhumane, there has been little criticism from taxpayers.

The legislative trend underlying each of these measures and policies reveals a popular "get tough" attitude designed to discourage repeat offenders and make sure that people who break the law get what they deserve. In what follows, I will explore the legal and philosophical challenges raised by these current trends in punishment and overall criminal justice policy. My focus will be on attempts to justify making hard time even harder through the removal of amenities and the imposition of hard labor on prisoners. In the end, whether these policies are deemed wise, or even justified, will partially depend upon what one considers to be the legitimate aims and purposes of punishment. Certainly, an acceptance of the punitive and deterrent functions of incarceration over rehabilitation may well lead one to regard these measures as removing privileges that promote the coddling of inmates, as opposed to "limiting civil liberties" by infringing upon prisoners' constitutional rights. In fact, the current trends in criminal justice, perhaps reflective of popular opinion in society that removal of all rights from prisoners is exactly what criminals deserve, are grounded in certain philosophical theories related to punishment. For this reason, we will begin by considering these theories and their implications for the nature and extent of our obligations to those in prison.

Differing Perspectives on the Aillls and Purposes of Punishlllent

Punishment, by its very nature, involves the intentional infliction of pain on an individual by an authorized agent of the state in response to some crime committed by the person being punished. Because the act of punishment entails the imposition of suffering through the loss of liberty, and sometimes life - acts which are

themselves ordinarily considered to be wrong - the act of punishment requires moral justification.

In general, there are two distinct, contrasting theories appealed to by those concerned with the attempt to justify punishment. These theories are retributivism and utilitarianism respectively. Retributivism, also known as retributionism, is characterized by the notion that we are justified in punishing criminals as a means of exacting the debt they owe to society in virtue of their criminal wrongdoing. The most famous proponent of the retributivist theory of punishment is the eighteenth century German philosopher, Immanuel Kant. At the basis of Kantian retributivism are two principles: the principle of desert and the principle of proportionali(y. The principle of desert dictates that a person be punished if and only if he or she deserves to be punished. Not only is it wrong to punish someone who is innocent and so does not deserve punishment, but it is also wrong to fail to punish someone who is deserving of punishment. The second principle, that of proportionality, is highlighted by the retributivists' claim that the punishment must fit the crime. The more serious the crime, the more severe should be the punishment. It is morally wrong to punish an individual more or less severely than the wrongdoer deserves.

Because retributivism justifies punishment solely on the basis of what has happened in the past, it is known as a backward looking theory of punishment. The fact that a person is guilty of a crime is sufficient to justify a punishment in proportion to the severity of the crime, regardless of any future consequences that might result. Central to this view is the attitude that the criminal has brought the punishment on him or herself. By treating the criminal as a moral agent who is responsible for the actions following from his or her free choices, we accord the individual respect. Thus, some philosophers have referred to a criminal's "right to be punished" under retributivism. A failure to punish a criminal in this scheme denies the criminal the opportunity to pay back a debt to society owed as a result of the violation of criminal law. This repayment is necessary in order to restore moral equilibrium to the society in

which someone has reaped the benefits of social order without paying the price of conformity to the law.

Indeed, Kant believed in universal consent by members of society to abide by the rules. By breaking the law, criminals have gained an unfair advantage over others who relinquish some freedom to do as they choose in order to live in a civil society. When a criminal fails to suppress the will to break the law, the individual becomes a "free rider" while the others pay the price of compliance with the rule of the law. Such a person is worthy of social condemnation, the loss of liberty, and at times, Kant believed, the loss of life.

An alternative to the retributivist position on punishment is the utilitarian perspective. Utilitarianism, developed by Jeremy Bentham and his student John Stuart Mill, presumes that acts are right if and only if they produce the greatest good for the greatest number of people. Whereas retributivists regard the guilt of the criminal as sufficient to justify punishment, utilitarians, in a forward-looking approach to punishment, weigh the consequences of punishment before concluding that the act would be justified. For utilitarians, a penalty should impose a degree of pain in excess of the degree of pleasure derived from committing the crime. Furthermore, the act of punishment, insofar as it involves the intentional infliction of pain on the wrongdoer, is regarded as an evil that can be justified only through an appeal to the social good punishment may produce.

The aims and purposes of punishment consistent with the utilitarian perspective are prevention, deterrence, and rehabilitation. Prevention refers to the incapacitation of the criminal through imprisonment or execution. Acts of punishment may be justified if they serve to prevent further crimes from being committed by the individual who is punished. The second goal, deterrence, shifts the emphasis from the person who has committed the crime to other potential criminals. Punishment sometimes serves the function of providing other members of society with the motive for not committing similar offenses for fear of suffering the same punishment. Under the broad heading of deterrence, some philosophers and sociologists dis-

Making Hard Time Even Harder

tinguish further between general deterrence, which refers to the psychological effect punishment will likely have on others, and specific deterrence, which deals with the persuasive effect punishment will have on the one who suffers it by providing the motive to steer clear of any future wrongdoing. Finally, utilitarians appeal to the rehabilitative function of punishment. A criminal is rehabilitated if he no longer has the desire to commit crimes. This lack of criminal intent is not due to fear of being punished, but rather to a personality change brought about by the therapeutic effects of pun- ·ishment.

It is important to note that while retributivists and utilitarians differ in their approaches to justifying punishment, they do not necessarily disagree whether a particular individual should be punished; they may even agree about the form punishment should take. Consider, for instance, the jury's rejection of the death penalty for Susan Smith, the infamous South Carolina mother who drowned her two young sons in October 1994 by rolling her car into a lake with the boys strapped into their carseats, and later blamed the crime on an imaginary black carjacker. From a retributivist perspective, the jury should consider not only whether punishment was deserved, but also its severity. In our judicial system, a crime is made up of two components, a bad act (actus reus) and a guilty mind (mens rea). There was no doubt that Smith committed the act of killing her sons, yet there was a great deal of controversy surrounding her mental state at the time of the killing. Past experiences in her own life each created a pattern which mitigated Smith's mental culpability. To mention some of these: Her parents were divorced and her father committed suicide when she a young girl. She was sexually abused by her step-father when she was a teenager; that lead to a sexual relationship that continued until the time she killed her children. As a teen she was depressed and attempted suicide. Moreover, out of fear of destroying the family's reputation, her mother refused to press charges or allow Smith to receive psychological counseling after she was sexually abused. Finally, Smith was divorced from the boys' father (who had an affair during their marriage)

Punishment

and was later rejected by a boyfriend who did not want responsibility for the children. Since desert is comprised of both the act and the mental state, Smith was viewed as not deserving of the most severe punishment, though by no means considered devoid of responsibility.

A utilitarian analysis might well lead to the same conclusion regarding the appropriateness of the punishment. Susan Smith is not the sort of criminal we usually fear. Her case was domestic, meaning she killed people in her own family. Society does not need protection from Smith, though she may need to be protected from herself and others. Potential murderers in similar situations are not likely to be deterred by the threat of punishment Smith receives, because of the unique and desperate circumstances surrounding the case. Treatment, with the aim of rehabilitation, may be a legitimate goal in Smith's case and certainly this purpose could not be achieved through execution.

Just as we can appeal to both utilitarian and retributivist reasoning to support the jury's conclusion in the Smith case, we can use both theories to champion a wide range of policies, including those that advocate harsher conditions of confinement for prison inmates. This notion that utilitarian and retributivist analyses can be reconciled has been defended quite persuasively by contemporary moral philosopher John Rawls. In his highly influential article "Two Concepts of Rules," Rawls makes the argument that any satisfactory account of punishment must include components from both utilitarianism and retributivism. Specifically, he contends that considerations of social utility must be invoked to justify the institution of punishment as a whole, whereas retributivist considerations are necessary to justify various practices within the institution ~ for instance, justifying why a particular defendant was put in jail (Rawls, 1955, pp. 3~13). How might these theories be applied in an effort to justify attempts at making hard time even harder?

To begin with, proponents of such policies and practices have argued along retributivist lines that punishment in prison is not severe enough. They claim the amount of deprivation inmates are suffering in prison is disproportionate to the severity of the crimes many of them

have committed, suggesting that prisons are no longer capable of serving the function of punishing those who have broken the law. Their contention is that incarceration can't possibly meet the goal of making the criminal pay when life in prison is often better than life on the street. In fact, when the House passed the "no frills prison bill," it required federal prison officials to "provide prisoners the least amount of amenities and personal comforts consistent with constitutional requirements and good order and discipline" (Peterson, 1995, p. B7). Representative Zimmer argued, "When you break the law of the land, you should pay the price for your crime, not be rewarded with a vacation watching premium cable on your personal television" (ibid.).

The amendment was just one part of a broader law that would require prisoners to work at least forty hours a week toward their support and payment of restitution to victims. The law would also mandate federally supported corrections systems to provide "living conditions and opportunities to prisoners within its prisons that are not more luxurious than those conditions and opportunities the average prisoner would have experienced if such prisoner were not incarcerated" (ibid.). The sentiments expressed echo a hard line retributivism and are reminiscent of a principle in criminology known as the principle of less eligibility.

According to the principle of less eligibility, conditions for those in prison should be no better than the living conditions of those law abiding citizens who are the least well off of those among us in the working class.

Yet, as we can see, this principle has not only retributivist overtones, but utilitarian ones as well. For not only does the principle suggest that those in prison don't deserve to be better off than those on the outside, but that prison cannot serve as a deterrent if the standard of living in prison is an improvement over what criminals had on the outside. This is crucial, since behind many of the proposals for cutting amenities from prisons is the desire to deter and prevent criminals. Thus, as one member of the Law Enforcement Alliance, an organization which pushes for harsher prison conditions has said, "Prisons have become mini-resorts and it's

disgusting to crime victims. We strongly believe that prison is meant to be punishment, a deterrent and a prevention tool, not a resort experience" (ibid.).

Assessment of Retributivist and

Utilitarian Arguments in Support of

Harsher Prisons

While we have seen that both retributivist and utilitarian analyses can be used to support nofrills prisons and the further restriction of prisoners' rights, there are objections that must be addressed before we conclude that the proposed policies making prison life harsher are worthy of our support philosophically. To begin with, the retributivist contends that the criminal owes a debt in virtue of having shirked the responsibility of abiding by the law in exchange for reaping the benefits of living in a civil society. Some philosophers, such as Richard Delgado, reject the idea of consent to the community and a debt owed in virtue of benefits reaped within contemporary society as being seriously flawed. There is no doubt that some members of society, especially those in impoverished urban or extreme rural areas, are completely disenfranchised. With little or no access to health care, insurance, police or fire protection, these individuals will be at a loss when trying to identify the benefits that have been heaped upon them. Thus, as Delgado points out, "it is not much of a burden to the economically powerful to obey the laws, nor is it a "benefit" to the powerless to live in a community which is indifferent to them" (Delgado, 1995, p. 263).

Though seemingly inconsistent with America's resurgence of "get tough" policies on crime, Delgado's view has received increasing tacit recognition in the judicial system, burnished by what some experts have termed the "Oprahization of the courtroom" (Gregory, 1994, p. 30). Signaling the influence of television talk shows in generating sympathy for defendants, this phrase is used to help explain juries excusing defendants from responsibility by delving into how past negative experiences may have caused them to commit their crimes. Indeed, "urban survival syndrome," "black

Making Hard Time Even Harder

rage" and "post traumatic stress disorder" have become familiar phrases in the courts, used by attorneys seeking defenses of "diminished capacity" for their clients by explaining how easily the victimized become the victimizers under such circumstances. While we may be loath to excuse the heinous acts that arise under these conditions, we are perhaps given insight into the reasons why, for instance, a ten-year old and eleven-year old boy would drop a five-year old from the window of a high-rise tenement because he refused to steal candy for them.

Under the present circumstances then, is it truly justifiable on retributivist grounds to punish excluded individuals on the basis of a debt owed to the community? While it may be possible in principle, under retributivism, to support harsher forms of punishment in a perfectly just society, applying a retributivist analysis to contemporary society appears enigmatic. Comprised of vast differences grounded in race, class, and gender as to the benefits conferred and burdens shouldered by society, retributivists will have an onerous task attempting to justify harsher punishment for many of the repeat offenders they claim aren't getting what they deserve because life in prison is better for them than what they have experienced in their own communities.

Yet, what of those criminals who have not experienced the "rotten social background" to which Delgado refers? Can retributivists justify harsher prison conditions for these individuals? If we focus solely on the notion of a debt owed to the community, perhaps harsher punishment is justified in certain cases. We must remember, however, that even the most ardent retributivists accept the position that some punishments are to be rejected as inconsistent with human dignity. As a consequence, retributivists fail to advocate the rape of rapists and torture of torturers. Because there are no fixed retributivist guidelines for determining whether or not a punishment in most cases truly fits the crime, it is not clear that the punishments proposed in policies promoting hard time are, in fact, consistent with a retributivist analysis. This will be the case even after we discount the sociological and economic factors some would offer as an excuse for criminal behavior.

Punishment

Further challenges associated with the retributivists' proportionality requirement can be understood by considering recent policies reinstating chain gangs. The harsher punishment they inflict on criminals might initially be welcomed by retributivists as giving criminals what they deserve, but are likewise subject to challenge on these same grounds. The central problem with the justification of chain gangs revolves around the fact that selection for them often has little to do with the severity of the crime committed and more to do with racism. Thus, in South Carolina, past presiding judges have been given complete discretion over the alternative of sentencing prisoners to a county chain gang, local jail, or state penitentiary. As a consequence, two people found guilty of having committed the same crime and sentenced to the same number of years might have vastly different penalties to pay. Sending certain prisoners to the penitentiary where rehabilitative services are available and others to chain gangs where there are none counts as denial of the equal protection clause of the Fourteenth Amendment. For this reason, chain gangs have been considered excessive in relation to the penalty paid by others for similar crimes both inside and outside of the same jurisdiction.

Injustice involved in the application of the punishment is, of course, possible to remedy by making the penalty mandatory for everyone convicted of a certain crime, regardless of the jurisdiction. But even if the retributivist could determine that this punishment is actually befitting of certain crimes, it would still remain to be seen for the retributivist whether the penalty of chaining people together to perform hard labor is consistent with respect for human dignity.

The retributivists are not alone in facing challenges to their attempts at justifying harsher conditions of confinement. Utilitarian attempts are also subject to substantial criticism, starting with the utilitarian goal of deterrence. Deterrence is the primary purpose cited by many officials for the proposed measures making hard time harder. The science of deterrence is complex and involves a number of presumptions, including the notion that prospective of-

fenders are in a position to make rational choices in weighing the benefits of crime against the pain of punishment. But, as Al Brownstein, 1995's director of the American Civil Liberties Union's National Prison Project argues, this notion is faulty. Brownstein reveals, "Study after study has told us that people who commit crimes never think about the consequences beforehand. They think they'll never be caught" (Curriden, 1995, p. 75). This is especially true when dealing with certain types of crimes, such as crimes of passion. In fact, with only 3.8 percent of all crimes actually being prosecuted, the risk of apprehension is very low. So even if the average criminal who has a 7.7 percent chance of being arrested undertook a thoughtful analysis, the outcome would not be favorable for deterrence theorists (Walker, 1994, p. 103).

Suppose we were able to crack down on crime and guarantee arrest. Would deterrence theory be more plausible under these circumstances? The evidence suggests otherwise. Consider, for example, high-rate offenders who do tend to contemplate the likelihood that they will be caught, given that most eventually find themselves arrested and imprisoned repeatedly. In their cases, repeated arrest, conviction, and imprisonment seem to do nothing by way of producing a deterrent effect. This conclusion follows from a study done by James Q Wilson and Allan Abrahamse in which they analyzed Rand Inmate Survey data revealing that "prisoners believe that crime in general is very likely to lead to arrest, imprisonment, and even death." Nevertheless, they continue to commit crimes (ibid).

Hence, while prison sanctions continue to be perceived by those in criminal law and the public consciousness as an effective deterrent to criminal behavior, empirical evidence does not support the assumption that we can reduce crime even by increasing the severity of punishment (Weisburd, 1995, p. 589). In fact, no matter how harsh prison conditions become, for many, the risks associated with criminal behavior are likely to be outweighed by the benefits. And while certain defenders of harsher prison conditions contend that the statistics would change in a system where punishment were administered with swiftness, certainty, and increased severity,

their response appears to ignore social realities and the genuine limits of both the deterrence model and the principle of less eligibility. Proposing that we confront these limits, criminologist Jonathan Simon asserts, "Individual sanctions can be applied effectively only in a context that provides a viable normative framework for choice. In the long run we can control crime only if we can restore the context of economic opportunity and common political destiny against which modern punishment has been intelligible and manageable" (Simon, 1993, p. 267). Thus, Simon challenges the utilitarian reasoning upon which the less eligibility principle is based. He does so by noting that the utilitarian focus on the choices of individuals who must decide between crime and the available alternatives is increasingly incoherent and destructive in the context of a society in which involvement with the criminal justice system is a virtual certainty for those trapped by "hardened urban poverty" (ibid. p. 265).

Equally questionable, under the same reasoning, is the efficacy of punishment involving shame, guilt, and harassment, proposed by some policy makers as an alternative to traditional approaches that have failed to deter. These theorists would support the increased stigmatization involved in such practices as Alabama's chain gangs. Little attention has been paid to this approach thus far, and there is no evidence that they will prove to be any more effective as deterrent factors. Moreover, we need to consider, in advance, the possibility that these practices may actually turn out to produce the opposite effect. Making prisoners wear stripes and serve in chain gangs breaking rocks is certainly stigmatizing, but isn't going to provide inmates with the economic means for survival on the outside that Simon believes we should emphasize. Instead, opponents such as Brownstein admonish, "These people advocating the return of the chain gangs are saying they want to treat prisoners like wild animals. Unfortunately, it may become a self-fulfilling prophecy" (Curriden, 1995, p. 5).

Further, without conclusive evidence to support the claim that chain gangs, like other "shock incarceration" techniques, are effective in deterring criminals, it is not clear that the

Making Hard Time Even Harder

increased punishment entailed serves any legitimate penological purpose. As the Southern Poverty Law Center has argued in the courts, the infliction of pain under these circumstances should be viewed as wanton, and therefore in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. In fact, this leads to one of the most formidable challenges for utilitarians to overcome, namely that their theory allows for the possibility that the guilty are punished more or less severely than they deserve if doing so will serve an overriding social purpose. Utilitarians may be able to justify such disproportionately harsh punishments, but at the cost of what some consider to be essential principles of justice and fairness.

Another objection for the utilitarian to address follows from the fact that such practices deny opportunities for rehabilitation, a central component of the utilitarian justification for punishment. While the rehabilitative ideal was once popular, it has all but been abandoned in the '90s. Diminished confidence in this goal has led to reduced funding for programs in prison, thwarting efforts to provide treatment for criminals. Rather, prisons are so fraught with drug traffic, gang violence, and sexual assault, that they often do little more than shift the victims of violence from those on the outside to those on the inside. Nevertheless, it should be noted that if rehabilitation remains a theoretical if not practical goal of incarceration, it certainly is not going to be achieved in the chain gangs or in institutions where there is gross deprivation and diminished opportunity for acquiring the skills necessary to survive on the outside.

Finally, while these measures were introduced in part to reduce the costs of incarcerating prisoners, they may actually end up costing states more money due to a flood of lawsuits filed from prison cells. During 1993 alone, the most recent year for which statistics are available, more than 34,000 such suits were filed. As a result, proposals to make prison life increasingly austere have been accompanied by changes in laws to limit inmates' abilities to sue state governments over prison conditions and make it more difficult for federal judges to intervene in how prisons are run (Curriden,