“I believe that the repulsive aspects of our condition, if they are inevitable, must merely be faced in silence. But when silence or tricks of language contribute to maintaining an abuse that must be reformed or a suffering that can be relieved, then there is no other solution but to speak out and show the obscenity hidden under the verbal cloak.” —Albert Camus from “Reflections on the Guillotine”

Hopes were high in America at the close of the eighteenth century. With the oppressive legacy of the monarchy chased back over the seas, it was held that many of society’s plagues would disappear. Some dared to dream that crime itself would be among those. Popular reason put forward that humane yet certain punishment, awarded faithfully and without caprice, would win the day. The legacy of darker ages where the thief lost his hands or the poacher his eyes had long since passed away. The stocks and the gallows were looked upon as leftovers from a time that was fading with the rising sun of independence. In the words of Benjamin Rush, signer of the Declaration of Independence,

Capital punishments are the natural offspring of monarchical governments. . . . Kings consider their subjects as their property; no wonder, therefore, they shed their blood with as little emotion as men shed the blood of their sheep or cattle. But the principles of republican governments speak a very different language. . . . An execution in a republic is like a human sacrifice in a religion.

By 1820, hanging was abolished in most states save for capital murderers. The age of the prison had begun. Brutality gave way to the impartial law of the people meted out not with whip or axe but with years. Potential criminals, observing the sure and just punishments the lawless received, would reject the criminal way. What could be more reasonable? Yet children still hungered, greed still beckoned, and impulses still governed. In a short time, the earliest American prisons were overwhelmed and out of control. The causes of crime eluded the new republic, and the focus shifted from prevention to quarantine.

The room, board, and chains of the jail became so ingrained that to question the prison was to question the law. For almost two centuries the furniture in the room was redesigned and rearranged, but no matter how uninviting the decorations, there would never be a shortage of guests. In its turn, each generation’s model of retribution would find the same words scrawled across the reports: recidivism, overcrowding, and sadly inhumane conditions. In answer, like Poe’s great pendulum, prescriptions would swing from rehabilitate and reform to punish and control, each swing seeming to etch deeper the impression of futility. Failures either real or imagined gave few reforms any working space.

Today, little has changed in the overall picture though the stakes seem higher than ever. Two million Americans began the millennium behind bars, thus propelling the nation that once dreamed into a nation that incarcerates a higher percentage of our citizens than any other nation in the world. I agree with Camus: if the repulsive aspect of this condition of bondage is inevitable, then let us not waste our efforts in empty dreams. But is that really the case? Have we truly exhausted our imagination and resources to the point where the time for silent acceptance is at hand?

We live closely together. One man’s freedom is another’s misery. We must have limits to those freedoms which cause pain and, in doing so, must answer those that cross the line to injure another. Few would argue with that, but what we have today is another matter altogether. In 1996 alone, 123 new prisons opened or were being built at a tremendous cost to the taxpayer. These human sinkholes are built to last and be filled for decades to come. This is not without public support. The experts on the public’s mood and temper, the politicians, know that better than anyone. For many years most major elections have been preceded by enactment of “get tough on crime” legislation. Why? Because it garners votes. But are such votes informed or in fear? We cannot afford to ignore that question. If two million lives are not enough of a reason, then remember this—nine out of ten of those behind bars will return from the experience and bring back into society whatever they have received.

Ask any child, “Who do we put into prison?” and they will answer, “Criminals.” Are all criminals in jail? Of course not. The majority of crimes go unsolved, maybe even unreported. Many sitting here reading this have broken laws, some of them quite “jailable” offenses, and never faced any court of any kind. So all criminals are not in jail, but at least all those in jail are criminals, right? If that were the case it would certainly make our jails the lone historical exception. The cell has indeed held the murderers and the rapists of time, but it has as often held our heroes as well. Joseph and Daniel did time as did countless others from Bonhoeffer to Mandela. For most of its days the prison was more likely to hold a debtor or a prisoner of politics than a murderer. The first prisons of England were largely for the paupers and vagrants who could not pay their dues. During the reign of Domitian and other Roman emperors, to be a Christian was to be a criminal and thus to be a captive.

Today we would like to believe we are beyond jailing “free thinkers” or heretics, at least in this nation. Maybe so. Who are our criminals then? The Sentencing Project publishes statistics and other data to shed some light on just that question. The project found that the majority of inmates are male, though with mandatory minimum sentencing for some crimes, the number of women is growing. Two-thirds of those inmates are either black or Hispanic. They are mostly young, between eighteen and twenty-nine, though with mandatory sentencing removing judicial discretion the population will age as the heavier sentences imposed in the nineties unfold.

Sixty-five percent of state inmates in 1991 had not completed high school, and roughly the same proportions were unemployed or below the poverty line. Sadly, they are also the moms and dads of some 1.8 million children on the outside. Statistics being what they are, it is hard to gain anything beyond a vague picture. Still it is safe to offer a few general indications. The prisons are full of minority men, mostly poor and with modest education. This in and of itself can be taken to several different conclusions; a much closer look is needed. For instance, it might suggest that education and employment for fair wages might be a worthy investment. Yet, that is another matter. So with this admittedly vague glimpse at the population, we are still in the dark. What we really want to know is, “What are they in for?”

The crime story of two million citizens is difficult to really get a hold on, but some facts are quite intriguing. For starters, the Sentencing Project reveals that 71 percent of those sentenced to state prisons in 1995 were convicted of nonviolent crimes,1 though that number can be misleading. Some nonviolent offenders receive jail time due to past records. Still, even conservative criminologists like John DiIuloi Jr. feel that while the rates for many crimes are dropping, the number of inmates is needlessly inflated by laws demanding mandatory sentences for drug offenses.2 The Sentencing Project concurs. In the brief span from 1983 to 1989, inmates in jail as drug offenders rose from one in ten to one in four. In a very true sense, the growing number of prisoners has more to do with the changes in the law than any real decline in behavior.

When beginning the discussion, which is all we claim here, of what has brought these particular two million to jail, several factors stick out and disturb. One already alluded to is the presence of many who simply got caught in actions quite familiar to many an “upstanding citizen.” Of course, that is the nature of chance and society, but something important to remember when jail time can be such a pivotal experience. (There but for the grace of God . . . ) Secondly, it seems that two individuals can be convicted of similar actions with quite different results. Economic power can be the safety net between freedom and the cell.

Even more disturbing is the matter of racial disparity in sentencing. The Atlanta Journal and Constitution reported in 1998 the findings of a computer analysis of 2.4 million sentences obtained from the Georgia Department of Corrections via the Open Records Act. The analysis reported that white defendants were 30 to 60 percent more likely to get probation than black defendants with similar prior criminal records. The greatest disparities were found in violent crimes, property crimes, and drug offenses.

In a pattern consistent throughout the U.S., two-thirds of Georgia’s inmates are black, while people of color make up only one-third of the state itself. The report speculates that twenty thousand white defendants avoided jail while blacks under similar circumstances were imprisoned. Similar reports throughout the nation make it unlikely that Georgia is an anomaly. Some counter the charges of racial disparity by pointing out that minorities are more often without the money for quality legal help, thus the likelihood of time behind bars. It is hard to see which is more incriminating: privilege of race or of class, or how one can be separated from the other.

The most moving cause for hesitation before slamming the gate is the tenuous status of guilt itself. The old joke about everyone in jail being innocent may cause a cynical chuckle, but this year alone enough Illinois men on death row were exonerated by DNA testing to cause the governor to declare a moratorium on capital punishment. If that much error has crept into cases where the dizzying gravity of the consequences brings constant review, what is the error rate in less infamous cases? The more powerful our response to a crime, the more grievous the nature of any error. And the American prison is very powerful and affecting. Despite rumors to the contrary, if there are country-club jails, few common criminals arrive there.

Charles Dickens toured Pennsylvania’s Eastern Penitentiary shortly after it opened in the nineteenth century. Eastern was the new model prison, an answer to the unabated crime and recidivism rates that were allegedly sweeping the nation. A cry had gone up claiming that the jails were too soft and the convicts were merely schooling each other in crime (a familiar note). Eastern, more than any prison before it, was the embodiment of the belief that isolation and regimentation would solve the problem. In his American Notes, Dickens described how new inmates began their sentences: cloaked in black hoods, to avoid even brief contact with other inmates, they were led to the cells they would rarely leave again. Seeing these men fed through slots and even isolated from each other during exercise deeply disturbed an Englishman no stranger to hardship himself:

I believe that very few men are capable of estimating the immense amount of torture and agony which this dreadful punishment, prolonged for years, inflicts upon the sufferers; and in guessing at it myself, and in reasoning from what I have seen written upon their faces, and what to my certain knowledge they feel within, I am only the more convinced that there is a depth of terrible endurance in it which none but the sufferers themselves can fathom, and which no man has a right to inflict upon his fellow-creature . . .

Today Eastern is no longer the solitary confinement chamber it was, but in the new “super max” prisons springing up around the nation, Dickens’s nightmare of prisons past is still with us. Priding themselves on their austere environment, these super max prisons have earned condemnation from the internationally respected Human Rights Watch. Inmates are fed through slots in small drab cells where they spend twenty-three hours of the day. Allegations of beatings and excessive force are common, with prisoners’ appeals as limited as their human contact. Some have responded with hunger strikes and other solitary protests—one Indiana inmate sliced his own pinkie off and sent it to the ACLU in hope of attention.

In 1997, ABC’s 60 Minutes ran a segment called “America’s Deadliest Prison” on one such dungeon. The documentary pulled a curtain back on the maximum security section of California’s Corcoran State Prison. The scene revealed would have been better suited to the Roman Colosseum. Rival gang members were forced together in a small exercise yard where individuals were pitted against each other in modern gladiatorial battles. Prison guards and employees, some not even assigned to the unit, would come and observe from the tower, even wagering on the “game” they had organized. Inmates in disfavor with certain guards were often the ones set up to fight. More than once men were gunned down at the end of the fight, thus climaxing the entertainment. These allegations have been corroborated by many witnesses, among them two guards who had seen enough. The courts and the Department of Corrections have been slow to act although eight men have already been killed under these suspicious circumstances.

How exceptional is Corcoran? It is hard to say, but if even a fraction of the stories of misery in America’s prisons are true, abuse is more widespread than we would like to think. Any casual skepticism had best be abandoned at the gates. If history has taught us anything, it is that humans are poor keepers; the power seems to draw the worst out of us. To say this is not to paint all the employees of the system with the same brush but to acknowledge the fallen nature of man. Even without the extremes, prison is a grinding stone of waste and boredom that only experience can understand.

Dr. Richard Korn, a spokesman for prison reform and a professor of criminology, has that experience. A former director of treatment at the New Jersey State Prison, Korn was a friend and coworker of the renowned warden Lloyd McCorkle.

Dr. Korn addresses the fact that those on the outside making the laws and filling the jails have difficulty grasping where they are sending these souls. Therefore, he is a strong advocate of programs like the D.C. corrections workshop where 110 representatives from all segments of the criminal justice system—judges, prosecutors, police, defense counsel, corrections, probation/parole authorities, and private citizens—spend time in the cells and shoes of the inmates. Those involved in such programs come away with a new understanding of the damaging potentials of the present system. This excerpt from one participant, a young lawyer, was typical of many:

I was a full-fledged inmate at Lorton Reformatory for a day and a night. Yes, the prisoners knew who we were—they had to guarantee our safety. At 11:30 p.m. when lights were out, I lay back and thought to myself: What if I knew I was not going to get out of here for years? That ceiling settled down upon me like a great lead blanket, suffocating my humanity with feelings of powerlessness and beginnings of bitterness.3

In light of our affinity with those convicted, our fallibility in the process, and above all the dangers inherent when humans have such power over one another, should prison be such a common answer? This need not be a wholesale question. We can reevaluate what the prison is to our society without denying that some members of society do need to be constrained and placed where they can no longer harm others. The need for safety and protection is vital. The crime victim’s needs must always be the first priority of any new direction. However, prison is touted as an answer to extremely diverse problems, from drug possession to sexual abuse. When a tool is used for jobs other than what it is suited for, the results are usually poor. The prison sellers promise incapacitation, retribution, and deterrence in abundance. Are they delivering? At what price?

To incapacitate is to remove a person’s capacity to commit further unacceptable actions in society. When the thief is in jail, he is guaranteed not to be in your living room. In one sense, as long as the sentence lasts, prison works. However, that something works to incapacitate does not always justify its use. In fact, the more disabling, the more limited should be its use. There could be no more effective means of incapacitation than to execute all thieves upon conviction. Think of all the future robberies that would be avoided. No escape or parole means no recidivism. Complete incapacitation for the cost of a decent meal, a blindfold, and a bullet. An unfair analogy? There are other less thrifty forms of death. For instance, the burial enacted by the three strikes laws, named after our other national pastime. These laws deliver a life sentence upon the third conviction. These convictions or “strikes” can range from serious violent felonies to marijuana possession or petty theft. The possible overkill is obvious.

In California, where the harshest of these laws thrives, as of March 31, 1998, over one-half of the 4,076 strikeout victims doing twenty-five to life were permanently removed for nonviolent or nonserious felonies. Ronnie Villa was a grandfather of four. His last convictions had been twelve years prior to his third strike. He was filed away for stealing five bottles of shampoo. Since then, reforms to return some discretion to the judges have been fought for, but the next wave of fear may sweep them away. Too often the defense of such laws is built around the scenario of the violent rapist or murderer. Incapacitation may very well be the only answer for those crimes. However, lock up the drug pusher on the corner and another will take his place before morning. In such instances, if all we are getting is another individual behind bars, we will get nowhere. Dynamite can clear a road. It can also unclog a sink, though few suggest it for that purpose.

Retribution is the payment deserved for the action. When someone wrongs us, the sneaking desire to see them get their “just deserts” is the natural hunger for retribution. When a Pinochet walks free beneath the sky despite his past, who does not feel that something is missing? Something should have been “done to him,” a punishment. C. S. Lewis was uncomfortable with any rejection of the legitimacy of punishment. He felt that to forsake the concept of desert was to endanger not the established order but the criminal himself. To reject punishment is to see crime as a disease to be cured, opening up the criminal to infinite meddling.

To be “cured” against one’s will and to be cured of states which we may not regard as disease is . . . to be classed with infants, imbeciles, and domestic animals. But to be punished, however severely, because we deserved it, because we “ought to have known better,” is to be treated as a human person made in God’s own image.4

Yes, there is guilt for the criminal, but a guilt the rest of us may share. To our shame we allow men to live with wages that sorely tempt them to other means of feeding their families. This is our society and our conditions. Should that man cross the line and rob another, that choice and that guilt are indeed his, but the two choices are interwoven. The share of society in the crimes of its citizens is often ignored by the modern version of retribution.

This infatuation with punishment is not a far cry from pure bloodthirsty revenge. How often recently is the “eye for an eye” Bible text quoted while the trajectory and context are ignored. These verses were not so much a stamp of approval as they were a limiting of the payback in an excessively retributive culture. As in only an eye for an eye (setting the stage for the mercy that would come and finally override). Once the safety of the victim is insured, of what worth are the grinding years in the hands of the state? Is there no work that could be done in recompense, offering something more than just the satisfaction of pain for pain? Can the scales upset by crime really be leveled? Most human loss, both emotional and physical, is priceless. Something beyond the gathering of eyes might offer more of what we really long for anyway. In Hugo’s Les Miserables, Jean Valjean is recalled to goodness not by retribution but by trust and empowerment. The world around him grew safer because of it. Where would Cosette have ended up had justice been served to the thief who would become her savior?

Deterrence is the inhibition of criminal behavior through fear. A crime is punished, and the onlookers decide the price is higher than they will pay and avoid the same offense. The harsher the penalty, the greater the deterrent effect should be. A reasonable equation for reasonable actions, but what has that to do with crime? The more damaging criminal behavior has little such reason at its roots, making deterrence an unlikely player. The most grievous crimes are usually impulsive. In some jail populations, 50 percent of the inmates had been under the influence of drugs or alcohol at the time they committed their crimes. Not exactly a carefully calculating bunch.

Few perpetrators, if interviewed at breakfast, would admit even to themselves the possibility of violent action that afternoon. Neither the cold calculating crime boss nor the lost youth seeking infamy are subject to influence by another man’s sentence. The former has no plans to be caught, the latter no conception of reality. Strangely, even former inmates seem little deterred by the years. Rates of recidivism are high and seem untouched by harsher penalties. No doubt some are “scared straight” by their experiences behind bars, but many more only find the stigma and experience of the convict make it tougher to redirect their lives.

Incapacitation, retribution, and deterrence. Some would find rehabilitation conspicuously absent from this list. It too has been a goal, but not because of the nature of captivity but rather in spite of it. Those pointing to the rates of recidivism are cynical of any “big mouth” reformers who have never walked the line and seen the reality that is dealt with every day. Though not unanimously sold on the promises of rehabilitation programs, many guards, once among those opposed to these programs, now see them as necessary to the smooth functioning of the system. The bright spots behind the walls are likely found where those in charge have compassion and commitment on their sleeves. There is no greater hope for change than the involvement of fair and decent people. Still, it is hard to deny that rehabilitation in the present conditions is next to impossible. Despite the struggle of the reformers, the jailhouse always returns to coercion and disablement.

Oscar Wilde, an ex-convict himself, reflects in his “Ballad of Reading Gaol”:

. . . every prison that men build Is built with bricks of shame, And bound with bars lest Christ should see How men their brothers maim. With bars they blur the gracious moon, And blind the goodly sun: And they do well to hide their Hell, For in it things are done That Son of God nor son of Man Ever should look upon! The vilest deeds like poison weeds Bloom well in prison-air: It is only what is good in Man That wastes and withers there:

Dr. Richard Korn believes, “One does not invent the electric light by improving the gas lamp.” It is time for prison as we know it to be abolished, but only after replacement by a more universally accepted proposal. In “A Case for Abolition,” he lays out the principles of his vision.

•Restitution. Adversarial trial procedure will be retained as the best available way to find the facts. Upon a finding of guilt, the judge and jury will assess the damages owing to the victim, both in material terms—dollars—and in psychological terms (pain and suffering). Instead of being sentenced to a term of years, the convicted defendant will be sentenced to make reparations for the damage and suffering s/he has caused. In the event s/he rejects any obligation to make reparation—the award is subject to appeal—s/he may be remanded to prison.

•Enablement. If, as most often is the case, the convicted defendant lacks the educational, social or technical skills to begin reparation, this fact will be construed as an extenuating circumstance and will invoke an obligation on the part of the community to provide him with educational opportunities—the choice of occupation or calling being his own. During this learning period, s/he may be required to live under some form of probationary supervision or custody in order to monitor commitment to the program.

•Reconciliation. Because the relief of the victims depends on the ability of most offenders to make restitution, the victims and their community have a vested interest in the well-being and habilitation of the offender. Because the community has become his sponsor rather than his destroyer, the offender has a vested interest in deserving the good will of the community.

•Positive Prevention. The Chinese seer Lao-Tzu has the first and final word: “Enabling a person to do right disables him from doing wrong.” (Promoting health renders treatment unnecessary.)5

Granted the many questions Dr. Korn’s short summary must leave unanswered (such as the application of these ideas for the exceptionally violent offenders), it is nevertheless extremely compelling. This is no soft-pedaling of the criminal’s responsibility. With the clear light of experience, Korn cuts past the excuses on all sides. He advocates a reinvention that will “be tougher than it ever was—but in an entirely new way. Instead of more being ‘given’ to convicts, more, much more will be asked of them.” They must take responsibility for the reparation of the damage they have done. In his essay “Negotiating Consent,” he offers some tantalizing possibilities on how the prisoners themselves can help us find the path to something better:

What would happen to the atmosphere of those cell blocks if they were constantly occupied by a changing but representative handful of the men and women who will one day run our courts, serve in our legislatures, drive the squad cars, walk the blocks as correctional officers? What if many concerned private citizens—some of them crime victims—could rise above their justifiable resentment and walk the Yard, if only for a day or two, with the men and women they sent there? Would any of them be the same? Would the convicts be the same? Would we be the same?6

On the platform of what was learned in these days of walking in another’s ball and chain, a different kind of justice might be built. Korn points out that this is not all the stuff of dreams. We already have programs in use that run along guidelines similar to those Korn calls for, and they have stood the test of time. These programs are

1. Community-based and internally autonomous rather than institutional-based and bureaucratically controlled; 2. Informal and personal rather than formal and professional;
3. Evocative, enabling, and creative rather than repressive, inhibitory, corrective, or “therapeutic;” 4. Mutually contractual rather than unilaterally obligatory.7

So where are these fine-sounding principles employed? Why, in the programs maintained by the well-to-do on behalf of their deviant members.

The civil settlement of wrongs which could be prosecuted as crimes has long employed restitution to the victims as an alternative to imprisonment of the offender. In every middle-class and upper-class community there are psychiatrists specializing in the treatment of the errant youth of the well-heeled, frequently with the full approval of the police and judicial authorities.8

Korn feels the evidence is overwhelming that where these methods are employed, especially with the youth, they work. That they should be only available to select members of society is ethically untenable. In conclusion he states:

Penal reform has failed in this country: there was too little of it, it was too slow, and what there was of it was invariably dressed in a rhetoric so inflated that the actual achievement was always discredited by the pretense. . . . The change called for is the transformation of a criminal justice system based on retaliation and disablement to a system based on reconciliation through mutual restitution.9

If ever there was a time for the nation to take a risk on such vision and imagination it is now. We have little to lose. The expanding ripples of two million stones tossed into the stagnant waters will soon be washing ashore. We can no longer answer our problems with longer sentences and stronger locks. We cannot stay here and neither can we return to the days of the stocks and gallows. The truth is there is no reason to. There were many wise and learned minds who could not see a world without the lash and the guillotine. They were mistaken. Today our fears tell us that we cannot do without the dungeon, but we too may be mistaken. Today we look with horror at the drawing and quartering of any human. Tomorrow, others may look with horror upon a nation rich in resources and opportunities that buried its talents along with two million of its citizens.

Christians should be the last to be silent, standing against such a sad surrender. Our Lord was a prisoner Himself, executed as a lawbreaker. Among the commands Christ left us was the visiting of those in chains. He knew that if we would but once see them we would not turn away.

Endnotes: 1. www.sentencingproject.org/brief/brief.htm 2. John DiIulio Jr., “Two Million Prisoners Are Enough,” Wall Street Journal, Friday, 12 March 2000, U.S. op. ed. 3. www.sonic.net/~doretk/ ArchiveARCHIVE/RICHARD%20KORN/DCCrime%20CorrectionsWor.html. 4. C. S. Lewis, God in the Dock, ed. Walter Hooper (Grand Rapids, Mich.: Eerdmans, 1997), 292. 5. www. sonic.net/~doretk/ArchiveARCHIVE/RICHARD%20KORN/ACaseforAbolition.html 6. www.sonic.net/~doretk/ArchiveARCHIVE /RICHARD%20KORN/Negotiating%20ConsentPartI.html 7. www.sonic.net/~doretk/ArchiveARCHIVE/ RICHARD%20 KORN/ChangingtheSystem.html 8. Ibid. 9. Ibid.

First published in Cornerstone (ISSN 0275-2743), Vol. 29, Issue 119 (2000), p. 14
© 2000 Cornerstone Communications, Inc.
Electronic version may contain minor changes and corrections from printed version.