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Law in Contemporary Society
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Incarceration and Self-Interest in America-- By WyattLittles - 25 Feb 2013Punishment and Capitalism: Problem and SolutionWith only 5% of the world’s population, and 25% of the world’s prisoners, the United States has the highest incarceration rate in the world. To a capitalist, these figures may seem insignificant, until they are substantiated by the body of evidence demonstrating the deleterious effect that the nation’s failing criminal justice system has on the economy as a whole. This country not only locks up more individuals annually than other country in the world, but also has the highest costs of incarceration. $63.4 billion a year is spent on maintaining the nation's correctional facilities and programs, according to the Bureau of Justice Statistics. There are numerous principles for which American’s prescribe to justify their beliefs and behaviors. While it is claimed that America is the home of the “free”, this freedom is merely a token nomenclature to justify the unrestricted pursuit of self-interest. Nowhere is this principle more evident than in the system of Capitalism. Supporters of the capitalist system argue that as a framework, when the proper analysis is applied, it has the ability to solve modern day problems. Therefore, it stands to reason that the principles of capitalism should be applied to cure America’s current incarceration epidemic, either with Congress’ power to regulate interstate commerce or through economic measures.Principles of Punishment & Putting Commerce to WorkTo both cut the costs of imprisonment and net a possible profit from incarceration, the current system must be drastically altered. Fundamentally, criminal law is meant to regulate social conduct that endangers the health and safety of the general public through punishment for those who break laws. It is argued that there are generally five objectives that criminal law advances, retribution, deterrence, incapacitation, rehabilitation, and restoration. In theory, criminal law achieves most of these objectives. However, the fundamental flaw in the American system is the focus on incapacitation at the expense of rehabilitation. From a capitalist perspective, the incapacitated violator is substantially less productive than the rehabilitated violator. This is especially significant given that it currently costs over $47,000 a year to house each inmate. The insignificant return on these costs is contradictory both from an economic and rehabilitative standpoint.But $64 billion a year is not a very substantial underclass control budget. It buys goods and services in the private market, as well as providing employment to corrections officers and other prison control workers. It also provides captive employees to prison industries. The $trillions spent in the last fifty years building prisons provided immense income to private construction companies and other providers of private corrections goods and services. The system is far more profitable to capitalism than two million additional, mostly "low-quality" workers would be if they weren't incarcerated. The problem with your analysis isn't in the details. It's fundamental: our incarceration system has been shaped by, and has most recently exploded in size under the ministrations of, American capitalism. It's design, its fabric, and its role in US social and economic policy, is the outcome of the market's effect. Why are you surprised that the transition from democracy to aristocracy in the US, which occurred during my lifetime and almost altogether within yours, was accompanied by a vast expansion of the prison system, occurring in my lifetime and almost altogether within yours? As an aristocracy, the US needs prisons, and, also as an aristocracy, it divides the winnings of the system unequally. But winnings, both economic and social, there quite definitely are. The American ruling class, the 1% who own roughly half of everything, are able to incapacitate the most dangerous members of the underclass, at public expense, and they earn a fortune doing it.Similar to the role that economics played in the Civil Rights movement, in preventing businesses from discriminating against black customers when it began to affect interstate commerce, see Heart of Atlanta Motel v. United States, American history has demonstrated, that the effects of racial bias and discriminatory animus can be partially mitigated when this behavior becomes particularly “bad for business”. The same way that Congress was able to pass and enforce many of the Civil Rights Act of 1964, relying on the Commerce Clause, similar steps should be taken, appealing to the maxims of capitalism to address the issue of incarceration in America. In a down economy, programs implemented, which could cut into the incarceration burden, would ultimately benefit the aggregate. Being a nation so invested on the capitalism doctrine, economics should lead the charge to incite change. From an economic standpoint, mandatory and disproportionate sentencing should be repealed under the commerce clause. While stringent mandatory sentencing requirements may increase judicial efficiency, they not only create significant due process concerns, but also affect the national economy. Similar to the line of reasoning employed by the government in NFIB v. Sebelius regarding the affect that the uninsured have on the national economy, increasing the time violators must be imprisoned, when combined with a lack of proper rehabilitation and preparation for a return to civilian life, create a cycle of recidivism. In the aggregate, this cycle ultimately works to increase the number of tax dollars spent on housing criminals and has significant implications for interstate commerce. Realities and Practicality of ChangeIf a prisoner has no opportunity to return to the civilian world, what is the point of wasting resources on keeping them alive? While some would make the argument that life sentences are more “humane” than capital punishment, the ends are essentially the same. A more economic use of this human capital would be to transform these violators into productive individuals. To use the example of violators sentenced to life without parole, the incentive to be productive decreases significantly where there are limited prospects for release. Prisoners do not stop being human merely because they are imprisoned.But the system didn't treat them as fully, equally human starting long before it put them in prison.One of the main tenants of capitalism and free trade is the notion that individuals will naturally work to pursue their self-interest. When incentives are lost, so is productivity. Therefore if a system implemented a correlation between a violator’s productivity and his time remaining to serve, there would be greater returns on the investment. The current system of paying people to sit on timeout is an ineffective means of both rehabilitation and re-entry into civilization. While there have been efforts to create greater “exit” or career training for freed violators, the full range of these benefits cannot be enjoyed unless they are further reaching and the lengths of sentences are reduced. These programs must be combined with an elimination of “life sentences”, mandatory sentencing, and greater protection for violators returning to the public. Career training for violators is a positive alternative to the current system, given the net profit that these programs could ultimately garner, in terms of the number of productive individuals created. When accounting for the total costs of preparing violators for viable careers following their release, the analysis must take into account both the costs of housing violators and the opportunity costs, i.e. what these individuals could add to the economy were they not incarcerated. Educating inmates for careers at a basic community college or associates degree level for example would be one step in the right direction. The average costs of an associates degree at current is between $25,000 and $30,000 according to Kaplan University, less than what tax payers currently pay to merely “house” and not rehabilitate violators. Capitalists would clearly be against paying people to be on “time out”, while there is a more productive use of both the human capital and monetary investment. One of the changes from a democracy to an aristocracy in the United States lay specifically in shifting emphasis in the enforcement of the criminal law. A democracy is interested in rehabilitation: people are equal, the offender pays "his debt to society," and he is discharged back into a condition of equality. An aristocracy is interested in retribution and incapacitation: it controls the poor through imposition of pain and immobilization. It advertises its power to keep the people safe, whether in feudal bargains for protection or in the "deterrent" force of its punitive system. In order to improve the next draft, it seems to me, the underlying thesis has to be reconsidered. I'm not sure whether the word "capitalism" is helpful to you. In context, it seems to imply an effort to use an external (probably Marxian) analysis. Capitalism tends to call itself "the free market," or something like that. In the event, your analysis is anything but Marxian; there is indeed not even so much class-consciousness in it as there is in Aristotle's Politics. You don't have to be inclined to such an analysis yourself, but you need at least to consider its conclusions and respond to the evidence on which it reaches them. In this respect, as I say, it seems to me that you are treating the system of incarceration we have presently as though it were part of a democratic social system under which we do not live. The actual economic incentives, as well as the actual cultural attitudes, presently in existence are those characteristic of an aristocratic society with a very small ruling class with highly concentrated ownership and low social mobility. The system of "corrections" which we have is characteristic of such an aristocratic social system, though it is strongly tempered by constitutional limitations and occasionally banefully "reformed" by the whimsical dynamics of electoral democracy. If you think the evidence bears a different interpretation, you should help the reader to see the evidence and draw the better inferences. You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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