Stephanos Bibas has been guest blogging at Doug Berman’s excellent Sentencing Law and Policy Blog in recent days. What follows is the fifth installment in a series on the machinery of criminal justice. In earlier posts, Bibas has chronicled the evolution from mercy to punishment. His fifth offering will be controversial. Reacting to the growing for-profit prison industry, criminal justice advocates typically decry attempts to profit off the toil of the incarcerated. Bibas approaches the issue from a different angle. Let us know what you think. AGB
In my previous posts about my new book, The Machinery of Criminal Justice, I’ve sketched out a few of the ways in which punishment has changed in recent centuries and how modern punishment has become mechanistic, insulated, and hidden. In my last few posts, I’ll propose a few reforms to make punishment more visibly pro-social, by encouraging work, accountability, reform, and reintegration. Today I’ll focus on prison labor.
When we convict defendants of moderately serious crimes, we usually imprison them. American prisons, however, are deeply flawed. Prison severs inmates from their responsibilities, hides their punishment, and does little to train or reform them. Victims and the public do not see wrongdoers being held accountable, paying their debts to society and victims, and learning disciplined work habits. Instead, they visualize lives of idleness, funded by taxpayers. Thus, wrongdoers are unprepared to reenter society. And victims and the public, believing that wrongdoers have neither suffered enough nor learned their lessons, are loath to welcome them back.
The vast majority of prison inmates spend their days in idleness, with endless television and little labor. The minority of prisoners who do some work in a prison laundry, cafeteria, or license-plate shop rarely cultivate skills that are in demand in the outside world. Even prisoners who are able to work earn far less than the minimum wage, not enough to support a family or repay victims.
Nor is life inside most prisons structured to teach good habits such as self-discipline or productivity. On the contrary, prison encourages listless dependence on institutional routine, setting prisoners up for failure upon release. Healthy habits, such as the orderly work envisioned by prison reformers, broke down long ago.
Perhaps the most troubling aspect of imprisonment is its hiddenness. It is out of sight behind high prison walls and thus out of mind. It is too easy for the public to forget about it, to overlook the sporadic prison stabbings and rapes, or simply to discount the terrible soul-destroying, idle monotony.
Because the punishments are invisible and idle, the public never sees justice done. Voters may clamor for higher sentences to express outrage at crimes. But, because they do not see and appreciate the punishment, they have less sense of how much is enough and when inmates have paid their debts to society and to victims. Sunlight is the best disinfectant in a democracy, but prisons are shrouded in gloom.
Prisons must change from dens of idleness and crime to places of public accountability, mandatory work, and sustained reform. First and foremost, prisons must force all able-bodied prisoners to work. Governments could abolish restrictions on trade in prison-made goods and prevailing-wage requirements, relying on competitive bidding to raise wages. While medium- and maximum-security inmates would have to work in prison for security reasons, minimum-security inmates could transition back to the outside by working outside of prison, as many already do in halfway houses. Inmates might even be able to prove themselves to employers and so have jobs waiting for them upon release.
To make their work pro-social and accountable, inmates should have to use their wages to pay at least a portion of their moral and monetary debts. Perhaps a quarter of their wages could go to the government to defray the costs of investigation, conviction, and imprisonment. Perhaps a quarter could go to victims to make restitution and pay for medical care. Perhaps a quarter could go to inmates’ families, requiring inmates to support their spouses and children. And the remaining quarter might go to inmates themselves, to encourage their efforts. Though these earnings might never fully repay the state or victims of serious crimes, even partial repayment would be materially and symbolically important.
Certainly there are practical obstacles. Most prisoners have few skills and many have disciplinary problems, so their unskilled labor is not especially valuable. Many law-abiding businesses and workers will fear that competition will undercut their wages and cost jobs. The political and practical hurdles are substantial enough to make this proposal a long-term hope rather than a realistic short-term goal.