Abstract
The United States carceral system, as currently designed and implemented, is widely considered to be an immoral and inhumane system of criminal punishment. There are a number of pressing issues related to this topic, but in this essay, I will focus upon the problem of prison violence. Inadequate supervision has resulted in unsafe prison conditions where inmates are regularly threatened with rape, assault, and other forms of physical violence. Such callous disregard and exposure to unreasonable risk constitutes a severe violation of the rights of prisoners by the state. While there have been numerous legal, political, and activist efforts to draw attention to this issue—with the goal of reforming and making prisons safer—my goal is different. I argue that inmates who are victims of prison violence should have their sentences automatically reduced. Two distinct arguments are advanced in support of this claim. First, I argue that acts of prison violence are a sort of state-mediated harm which can thus be appropriately described as punishment-constituting. Second, and more straightforwardly, I argue that the compensation owed to prisoners who are victims of prison violence may naturally take the form of a reduced sentence.
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Notes
Beside the problem of inhumane prison conditions, the United States’ criminal legal institutions can also be criticized for overcriminalization (i.e., criminalizing conduct which should not be criminalized, e.g., drugs), and excessive punishment. Indeed, on this last point, I am of the opinion that the average American’s sense of justice and proportionality (with respect to punishment) is warped and skewed in the direction of favoring excessively harsh sentences. For a helpful overview of these issues and problems, see Wellman (2017).
Katie Benner and Shaila Dewan (2019).
For the sake of simplicity, I focus my attention in this essay almost exclusively upon the problem of prisoner-on-prisoner violence. Of course, much of the violence inmates experience is suffered at the hands of prison guards. However, I believe that if the claims and arguments I make concerning prisoner-on-prisoner violence are correct, they can easily and straightforwardly be applied to cases involving guard-on-prisoner violence.
For instance, the main thesis can easily be transposed so that it reflects terminology belonging to the retributivist’s lexicon. The proposal sketched along these lines would be something like: Criminals are deserving of a fitting punishment, but violence suffered while being incarcerated may sometimes reduce the amount of further incarceration warranted. However, because I believe a rights forfeiture theory is the best account we have for explaining the permissibility of punishment, and furthermore, that the complementary notion of rights reclamation is theoretically useful in helping elucidate those conditions under which punishment ceases to be just—I take forfeiture theory as my starting point. Defenders of a forfeiture account of punishment include Goldman (1979), Morris (1991), Simmons (1991), Kershnar (2002), and Wellman (2012, 2017).
Spelling out precisely how much punishment a criminal is owed for a given offense has proven to be no easy task. While nearly everyone agrees that criminal punishment should be proportional to the gravity of the committed offense, there is lively debate among penal theorists regarding how to determine what counts as a proportionate response. For a terrific overview and discussion of the challenges that a theory of proportionality faces, see Ryberg (2019).
Not everyone agrees with framing things this way. For example, Saul Smilanksy has recently argued against the claim that punishment of the innocent and overpunishment are morally equivalent wrongs. See, Smilanksy (2022).
While the notion of rights forfeiture is well-discussed in the literature, far less attention has been given to the correlative notion of rights reclamation. For a fuller discussion of this concept and whether there are multiple means by which a wrongdoer may recover forfeited rights (other than punishment), see Bell (2024).
As Douglas Husak has noted, endorsement of a principle of proportionality “has no implications about the mode or kind of punishment that should be inflicted” and “defendants who have committed equally serious crimes may receive a different type of punishment, as long as these modes are comparable in severity” (2022: 175–176). The point made here is similar but more exact: disparate lengths of imprisonment may be considered equivalent as long as there is a significant contrast in the harshness of the conditions of one’s incarceration.
I do not intend to suggest that residents at Norway’s Bastøy Prison experience no significant deprivations, only that the harshness of their treatment is less severe than that experienced in prisons like, for instance, Angola. To gain insight into the effects that Norway’s “Prison Island” has upon inmates, see Victor Lund Shammas (2014).
To be sure, Noorda’s focus is not on how different types of punitive measures affect our proportionality calculations, but upon how those subjected to certain types of non-traditional imprisonment are still deserving of standard legal protections (2023: 20–25).
Lisa Kerr has compellingly argued that imprisonment and its effects upon inmates is, by and large, a “black box” for punishment theorists (2019: 86). Philosophers typically theorize about punishment in the abstract, without paying much attention to how state punishment is carried out in practice. One particularly problematic habit of punishment theorists highlighted by Kerr is their almost exclusive focus upon the duration of a prison sentence when determining the severity of punishment: “the duration focus entails a view that imprisonment can be measured and fairly distributed by scaling particular amounts of time—the time in which liberty will be deprived—in response to wrongdoing. A great deal is often left out of this under-inclusive conception of incarceration” (2019: 102). For instance, one variable often omitted from sentencing considerations is how an identical prison sentence can have a drastically different impact on different offenders due to their differing psychological constitutions (see Kolber 2009). One of the explicit aims of this paper is to avoid the disconnect between sentencing theory and imprisonment that Kerr rightfully worries about. The principle of Equivalence is intended to highlight that in figuring out what counts as a proportionate penal response, more than sentence duration should be taken into account. While all prisons deprive inmates of their liberty, there are additional variables at play—such as the general harshness of one’s carceral conditions—which should also be factored into proportionality calculations.
Richard Lippke dubbed this question as “the problem of relatedness” (2001: 79).
I borrow this case unmodified from Quinn (1985: 322).
The most in-depth analysis of the problem of relatedness is provided by Wellman (2017; Chap. 6).
While it is true that the imposition of hard treatment against a wrongdoer is only permissible if carried out with the appropriate punitive aims, there may in fact be some impermissible harms that qualify as punishment and thus result in rights reclamation despite the lack of an accompanying punitive intention. Indeed, one of the main objectives of this paper is to explore such murky waters.
This case is loosely based upon an example from Wellman (2017: 183).
While Rodin’s (2014) discussion of conditional threats is the main inspiration for the argument developed in this passage, I borrow the language of “mediated harms” from Helen Frowe in her discussion of Rodin’s argument (2014: 126–131). It is also worth highlighting that the notion of state-mediated harms discussed here may bear some similarity to the concept of “state-mediated structures of injustice,” as developed by Mantouvalou (2023; Chap. 2). Building upon the work of Marion Young, Mantouvaolu writes: “The responsibility in which I am interested is responsibility for the creation of vulnerability through law that is linked to structures of exploitation: this is why I call it state-mediated. It concerns responsibility for state action—the creation of vulnerability itself…The state authorities know or ought to know of the vulnerability that they create, perpetuate, and increase, along with the resulting structures of exploitation” (2023: 21). Likewise, the problem of prison violence involves placing prisoners in an environment in which they are vulnerable to violence and abuse, and which represents a type of injustice that state actors likely do not intend but should be able to anticipate.
This move, again, parallels Rodin’s own argument. Rodin argues that when the victims of conditional threats are those who are “bound to us by relationships of loyalty, community, and kinship”, these associative bonds offset whatever discount would normally be applied to the harms which arise through the intervening agency of others” (2017: 83). Note, however, that there is significant debate about the status of associative obligations. Some deny that associative obligations exist; see, for example, Wellman (1997). The argument advanced above, then, is stronger than Rodin’s because the assumption that the state (which claims a monopoly upon the right to punish convicted criminals) has a special duty to protect its prisoners is relatively uncontroversial compared to claims about the existence of associative responsibilities.
Of particular note on this front is Allen Buchanan, who argues against what he dubs the “mirroring view”—i.e., the view that “the standard or typical justification for an international legal human right must appeal to an antecedently existing, corresponding moral human right” (2013: 50–51).
I borrow the example of dueling from Daniel Callahan, who uses it to make an analogous point about euthanasia. In brief, Callahan argues that even if individuals have a private moral right to assisted suicide, this does not settle the question of whether that right should be institutionalized and protected by a system of law (Callahan 2014: 85).
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Acknowledgements
I extend special thanks to Andrew Ramirez whose insightful line of questioning in response to another project led to the development of this paper. Additionally, I am grateful to Kit Wellman, Allan Hazlett, Graham Renz, Neal Baird, and Gina Cordoví for providing helpful feedback and comments on earlier drafts of this paper. A previous version of this paper was presented at the Indiana Philosophical Association, where I benefited from numerous insightful questions and comments from audience members. Finally, I am fortunate to have received such helpful and constructive feedback from the two anonymous reviewers of this journal, and I extend my sincere gratitude to them.
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Bell, W. Prison Violence as Punishment. Ethic Theory Moral Prac (2024). https://doi.org/10.1007/s10677-024-10448-x
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DOI: https://doi.org/10.1007/s10677-024-10448-x