Thanks to a recent White House conference, the debate over America’s “school-to-prison pipeline” is for the umpteenth time back in the news. These pow-wows inevitably offer up a standard litany of talking points and putative remedies. First, there is the obliquitory outrage over having far too many black males in prison. Second, the entire system, from court to proceedings to administrative overhead, is condemned as too expensive and this money could be better spent on schools. Third, the root defect of our criminal justice industry is “over-incarceration,” an outcome that reflects a failed, pointless war on drugs or America’s failure to cure poverty or racism. Finally, judged by high rates of recidivism and the seemingly unstoppable levels of lawbreaking among young black males, the current system fails in its basic purpose—crime prevention.
Let me suggest that this endless yakking is futile since it skips over what is fundamental in any effective criminal justice system: the utility of specific punishments. As any parent knows, it takes trial and error to determine the most efficacious punishment to deter junior, and this is equally true for reducing crime. At its core the current system rests on the belief that fines and loss of liberty (and, very rarely, execution) are the two sticks necessary to lower crime so progress depends on just tweaking the two menu items. That today’s punishment alternatives are but a tiny sampling of historic options is never raised.
The problem is that the current punishment menu ignores the huge variation in how the inflicted pain from identical punishments varies across individuals. That understood, punishment should fit the crime and the criminal–what is painful to Mr. Smith may just be a minor inconvenience to Mr. Jones.
Now, given today’s wide differences in crime and recidivism across populations, one can safely surmise that the threat of incarceration (and fines) is selectively losing its sting. This absence of dread is most obvious among young blacks. How else can you explain why so many of these youngsters consciously embrace the “prison look” as a cutting-edge fashion statement: homemade crude tattoos, pants worn well below the waist (prisons confiscate belts), untied shoes (shoe laces are also confiscated), engage in violent gang initiations that are alluring because they risk incarceration, and most of all, an almost indifferent attitude to revolving door justice. In fact, I’ve heard prison life depicted as “three hots [meals] and a cot,” hardly a vision of hell.
It gets worse. Having served hard time can certify “street cred[ibility],” a rite of passage into “manhood,” and flaunts a willingness to serve time that becomes a source of power since even fellow criminals are reluctant to mess with hard-core incorrigibles. Moreover, given the vocational aspiration of today’s underclass, the threat that a prison record will disqualify one from prestige jobs is irrelevant. That criminality may be a more lucrative career despite periodic jail-time interruptions similarly reduces the threat of incarceration. It is no wonder, then, that heartfelt pleas to stay in school, get a job and avoid jail are easily ignored.
The futility of the threat of incarceration (and its related punishments such as probation, home confinement) acknowledged, what deterrents might work? Let me speculate a bit.
Why not return to an earlier era of public shame and communal retaliation—recall homosexuals being put in stocks and rowdy crowds pelting them with rotten vegetable. Now, shortly after being apprehended, the accused would be offered an option to the usual criminal justice system: being confined half-naked in a zoo-like cage in a public park, 18 hours a day, with a visible toilet, with opportunities for onlookers to photograph you in your skimpy underwear. Other wrongdoers might be periodically added to the “perp tank” and the curious could watch you and your cage-mates battle it out at feeding time.
While this “cruel and unusual” punishment may offend our modern sensibilities, stigma and shame do have proven records of success. I’d guess that after a week or so of this “uncivilized” (but hardly life-threatening) treatment, the life of crime would lose much of its allure. It would also cost a tiny pittance vis-à-vis a trial, imprisonment, supervised probation and all the rest.
Modern reformers too easily neglect the power of shame. Recall the tale of Hester Prynne in Nathaniel Hawthorne’s Scarlet Letter about a young woman who in the 17th Century Massachusetts Bay Colony gave birth to an illegitimate child and refused to name the father. She was sentenced to wear a scarlet “A” on her dress while standing on a scaffold for three hours. Public humiliation further included wearing the scarlet “A” for life. It worked. Now, imagine if Hester committed her “crime” today and was sentenced to three weeks of “community service” in a homeless shelter and a year of private counseling to help her understand the consequences of her personal choices? Any bets on which approach would be more effective in reducing illegitimacy?
Moreover, despite probable public disgust at this shaming, most miscreants might rationally prefer a week in the cage, no matter how humiliating and embarrassing, to the possibility of five years (or more) in the clink. Equally important, caging miscreants for a week is a great deal for society over and above saving a ton of money. No need to worry about youngsters picking up bad habits from lifers, being sexually abused or having prison Imams radicalize them. Nor would there be any expensive half-way house programs to cushion the shock of re-entry shock. Friends and family (even employers) might not even notice a week-long absence.
Particularly enticing is the possibility of zero criminal record. Those caught in the act or who quickly confess can be driven right to the cage with barely any paperwork. This is huge for those worrying about a rap sheets when seeking employment or admission to college. As a bonus, no statistics would be kept so the “disturbing” race-related gap would vanish.
The use of quick, personally painful punishment also solves the frequency/harshness dilemma bedeviling the current criminal justice system. It is well-known that certainty of punishment, even if modest, is usually a greater deterrent than its harshness. For example, in today’s system armed robbery is a felony that can be punished by up to fifteen years of jail time, a very draconian punishment. But, given this severity, persecutors are typically reluctant to throw the book at first or second time offenders. The upshot is that repeat offenders may commit multiple crimes before serious punishment kicks in. Indeed, it is commonplace to hear of career criminals who finally got jail time only after building a long rap-sheet filled with supervised probation, time served and similar slaps on the wrist.
Now imagine if prosecutors had the option of quickly putting first-time miscreants in stocks for a week versus say requiring them to enroll in a job-training program or supervised probation? I suspect that the very thought of being verbally tormented by rival gang members will be far more likely to deter future criminality than having a kindly judge lecture you before handing down a suspended sentence.
Customization punishment is easily extended to multiple other crimes where deterrence outranks isolating criminals from society. In Orwell’s 1984 Winston Smith was terrified of rats and even the mere close exposure to them brought violent convulsions and blackouts. Slum landlords guilty of repeatedhousing violations might be required for an entire year to dress in neon yellow jump suits with “Slum landlord” printed in large bold-faced letters. Surely even the most craven money-grubber will be publicly shamed and, best of all, his entire family will be humiliated by being associated with this modern Hester Prynne. Meanwhile millionaire fraudsters from Goldman Sachs would be required to arrive at their offices attired in lime green polyester leisure suits with white belts and matching shoes versus pleading nolo contendere and painlessly paying a $100,000 fine.
To be sure, inventing customized punishments is great fun, but the problem is a serious one— what happens when punishment is no longer feared? It is pointless to insist that if you just tweak the current incarceration/fines menu we can substantially reduce the prison population and cut recidivism. History provides a cornucopia of punishments and perhaps at least some should be re-visited. I’m sure some feminists already have some ideas for the likes of Harvey Weinstein..