Mass Confusion

There is a long article in the New York Times about the increasing opposition to the use of exceedingly long prison sentences―often life imprisonment without parole―as punishment for all sorts of crimes, often not involving any violence, including drug-related offences, resulting in the phenomenon of “mass incarceration.” The article highlights the findings of social scientists that mass incarceration has long stopped contributing to the ongoing fall in crime rates, if it ever did, and that it may even be creating more crime than it prevents, by destroying the “social fabric.” At the same time, it results in enormous increases in public spending on prisons. And many people, including judges, feel that it is simply unjust to put people away, often forever, despite their very limited culpability. It is an interesting piece, but I would like to highlight a few distinctions which it blurs or does not make at all.

One concerns the label “non-violent crime”. There are many crimes not involving violence, or even threats of violence,―fraud, for example, or blackmail. I don’t think it is very helpful to confuse acts of that kind, which would be considered crimes on any, including the most libertarian, account of criminal law, with things like drug possession or trafficking. We can of course debate the appropriate penalties for fraud, but I doubt that many would argue that it should never be punished with imprisonment. Drug crimes are another matter. So I think that the category of “victimless crimes” is a better focus of concern than that of non-violent crimes.

A related point is that a discussion of penalties for victimless crimes, especially drug-related crimes, feels incomplete without any mention of the question whether these should be criminalized at all. Yet that is exactly what the Times‘ article manages. For all the discussion of the costs, human, social, and economic, of mass incarceration, it never really raises the issue of decriminalization. The closest it comes is by mentioning the fact that some now advocate “diverting” those found guilty of drug crimes from incarceration to treatment―but of course this implies that what these people did was a crime to begin with.

Another point of confusion concerns different sentences that the article lumps together as contributing to mass incarceration. There are simply very long sentences, mandatory minimum sentences, and specifically life imprisonment without parole. Yet these three types of sentences can raise different issues. Sometimes a sentence will be unjust because it is disproportionate to the crime, regardless of whether it is mandatory or the product of judicial discretion. With a mandatory sentence, the lack of such discretion will sometimes be a problem, but perhaps not always―I’m not aware, for instance, of people arguing that the mandatory sentence of life imprisonment with no possibility of parole for 25 years, which Canada imposes for premeditated murder, is unjust. Life imprisonment without parole, whether or not it is a mandatory sentence for any give crime, raises issues of its own. In Germany, for example, it has been held to be an unconstitutional violation of human dignity. I’m rather skeptical about such claims, but they are out there―and they are only made, so far anyway, with regard to life without parole, not any other sentence, except the death penalty of course.

The final point I want to make is, as it happens, one I previously raised (here, here, and here) with respect to the death penalty. Most arguments about it―in favour or against―are either consequentialist or deontological/justice-based, and it is sometimes remarkable how arguments of one or the other sort are made in specific contexts. With the penalties that contribute to creating mass incarceration too we see both sorts of arguments. Social scientists whom the Times quotes stay in the realm of consequences, as do the politicians who are now beginning to reverse some “tough-on-crime” policies. On the other hand, those who deal with specific cases―a prisoner interviewed by the Times and the judge who imposed a mandatory sentence of life imprisonment on her―speak of the injustice of that sentence.

Mass incarceration is a huge problem, and a disgrace, for the United States―and also to Canada insofar as our government seems keen to import some of the policies that create it. All the more important to think clearly about it.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading. View all posts by Leonid Sirota