Randy Barnett on Imprisonment

4. The Role of Imprisonment

Thinking of the provision of law enforcement as a "public good" that must be provided by "society" can lead some to view society as a rights-bearing entity. Crimes may, in this view, be seen as offenses against society or the "state." The victim's right to reparations is thought to be civil in nature and, in practice, is treated as secondary to a criminal charge (the sanction for which is rarely reparations to the victim). By subordinating individual rights to "the rights of society," this "organistic" conception of society undermines both justice and crime prevention.

The practice of incarcerating criminals in public prisons stems directly from the twin imperatives of the Power Principle: to punish offenders and to exclude them from public property. Imprisonment effectively deprives victims of their right to reparations in those cases where the greatest rights violations have occurred. Victims of the most serious crimes and their families are thereby twice victimized: once by the rights violator and again by the enforcement agencies that require victims to participate at some considerable risk and cost while denying to them any effective ability to obtain reparations from the offender.

Public prisons as they now exist are both unjust to victims and largely unnecessary to accomplish any other purpose. Imprisonment can at best be viewed as a crude approximation of a market response to criminal conduct. Just as private citizens may individually or collectively ban others from their property, the government uses the penitentiary system to keep dangerous individuals out of public (and private) property. But public imprisonment has several significant drawbacks.

First, because a complete deprivation of liberty is such a severe sanction, one must be proved guilty beyond a reasonable doubt of a most serious crime before imprisonment is permitted. Many guilty persons, therefore, escape the sanction and remain free. Second, imprisonment is a blunt instrument. Although sentence lengths can vary, you are either in prison or you are out. As a result criminal sanctions for many offenders admit of only two degrees of severity: onerous or virtually nonexistent. Third, imprisonment is expensive. While scarce resources are expended to confine, prisoners are prevented from producing anything of value to others.

Finally, because only the worst offenders are incarcerated, prisons become very dangerous places. Dangerousness is thereby added to the deprivation of liberty to heighten still further the severity of imprisonment. As a result, judges become even more reluctant to sentence a person to prison for fear of a very real risk of overpunishment. Where they have discretion, judges become even more inclined to give even serious felons the benefit of the doubt by sentencing them to a period of probation until they have established a sufficiently serious criminal record. Actions speak louder than words, and repeat offenders soon come to rely upon the legal system's reluctance to incarcerate them. No one is more surprised than they are when the prison gates finally close behind them for the first time. By this time it is too late for deterrence.