Certainty vs. Severity

American legislatures have constantly added to sentence lengths for a host of crimes in the last 25 years. In many states, this has been combined with a decrease in the power of the parole board due to determinate sentencing. The resulting increase in length of stay has been a key driver of the prison population boom.

In theoretical terms, the excessive focus on the severity of punishment has led farther and farther away from the realization that the Enlightenment thinker Cesare Beccaria reached way back in 1764. Namely, that if the goal is deterring crime, the certainty of punishment is far more important than the severity.

A particular case in point is drunk driving laws. Numerous states have adopted felony sentences for three or more convictions for drunken driving. In terms of actually preventing drunk driving, however, it would probably be more effective to put more cops on the road on a regular basis.

Why would this help? As things stand now, most offenders drive drunk multiple times before they are finally pulled over and charged. But if there were a significantly higher chance of being caught, potential drunk driving offenders would be more inclined to avoid committing the offense altogether.

This, at least, is what Beccaria’s certainty principle would suggest. To be sure, it would cost considerable sums of money to put more DWI checkpoints in place and engage in other crime prevention efforts. But considering how expensive it is to incarcerate someone, Beccaria’s insight could reallocate resources toward a more efficient overall strategy for dealing with drunk driving.

It would also be more just. With more consistent enforcement of the law, arrests would seem more consistent, and therefore more fair.

The Misfit on Crime and Punishment

How do you respond when confronted with unredeemed evil? And where does evil come from?

In Flannery O'Connor's A Good Man Is Hard to Find, a previously talkative grandmother can muster only one word when she finds herself alone with an escaped convict known as The Misfit. The word is Jesus, and she says it twice - intending it as an invocation of sorts, a call to prayer, but sounding, in practice, more like cursing.

The mention of Jesus' name immediately elicits a revealing reply from her abducter. "Yes'm," he says, "Jesus thrown everything off balance. It was the same with him as with me except he hadn't committed any crime and they could prove I had committed one because they had the papers on me."

The Misfit does not see himself as blameless. Yet he feels a kinship with Jesus, who knew what it was like to have the full force of the law arrayed against him.

For the Misfit, however, a lengthy prison sentence was not redemptive like Jesus' death. Rather, he becomes consumed by a sense of grievance that the punishment did not fit the crime. "I call myself The Misfit," he tells the grandmother, "because I can't make what all I done wrong fit what all I gone through in punishment."

When Flannery O'Connor published this story in 1955, the U.S. prison population was a fraction of what it is today, and a character like The Misfit seemed like an outlier.

Today, brutal killings have become so common, and the media to report them so ubiquitous, that the shock value they had a half century ago is largely gone.

My question is this: To what extent have the heavy-handed sentencing policies of recent decades contributed to the creation of a multitude of misfits?

Measuring the Unjust Pain

Act I, 1978: Analyzing the Birth of the Modern Prison

In 1978, Michael Ignatieff, a 31-year-old Canadian college professor, published his first book, A Just Measure of Pain. Like Michel Foucault’s Discipline and Punish (Surveiller et Punir), whose first American edition appeared the same year, it examined the origins of the modern prison during the Industrial Revolution. Both Ignatieff and Foucault described the turn away from punishments aimed at the body to those measured in units of time under supervision. Today, with over two million Americans in jail or prison and millions more on probation or parole, these books remain important reading for possible clues to the nature of our current Leviathan in embryo.

At least within the academic world, it was Foucault’s work that came to have the wider impact. The versatile Ignatieff moved to Britain the same year A Just Measure of Pain was published and established a second career as a public intellectual and media presence. Meanwhile, Foucault’s work, probing deeply into the dynamics of knowledge and power, became of great interest to academics in numerous disciplines. Though he is not as notorious as his fellow Frenchman Jacques Derrida, the two are sometimes lumped together among the postmodern “prophets of extremity” (Allan Megill). Indeed, the term foucauldian has become a word in its own right for the would-be unmasking of power relationships.

In Discipline and Punish, Foucault recounts how by the early nineteenth century, punishment as a public spectacle was in decline. Instead of publicly torturing an offender’s body, often accompanied by outright execution, a new understanding was emerging, focusing not on the sheer physical intensity of punishment, but on the certainty of it. On this view, justice in the sense of eye-for-an-eye violence is seen as actually counterproductive because it only incites more violence. As empathy for victims expands, executioners seem like criminals, judges like murderers, and tortured criminals “object[s] of pity or admiration.” (Discipline and Punish, Vintage Books edition, 1979, p. 9).

In place of torture, the theorists of the modern prison conceived of a response to crime in which offenders would be deprived of liberty for a set period of time and subject to close supervision. Every hour of the day would be closely regulated, as prisoners were reformed in factory-like settings into compliant, productive members of society. Foucault cites examples of the extremely detailed timetables the penitentiaries were to follow, seeking to reform prisoners and instill respect for institutional order.

Around the time Foucault was writing Discipline and Punish, the United States Supreme Court articulated the underlying rationale of incarceraton this way: Offenders are sent to prison not for punishment (physical pain), but as punishment (defined as the deprivation of liberty). The chioce of preposition here is crucial, and it reflects the way in which the modern prison grew up along with modern democratic conceptions of political freedom.

Act II, 2002-03: The Dubious Case for War In Iraq

What happens when an insecure American president wearing ideological blinders tries to export democracy to a Middle Eastern dictatorship by waging preemptive war? Given the debacle that Iraq so quickly became, it is hard to believe that the invasion of Iraq attracted a certain amount of support among opinion makers in 2002-03. Tom Friedman, for example, used his New York Times column to promote what he called “my war” — the personal pronoun sought to distinguish his case for invasion from the Bush administration’s. Instead of dubious WMD shenanigans, Friedman spoke of installing democracy in Iraq as a first step toward instilling it throughout the Middle East. Coming from the lauded author of From Beirut to Jerusalem, these words carried considerable weight.

Michael Ignatieff was essentially in Friedman’s camp. Though Ignatieff lacked the bully pulpit of the New York Times editorial page, he had come closer, since we last saw him in Act I, to direct political involvement. Leaving London in 2000, he moved back across the Atlantic in 2000 to direct the Carr Center for Human Rights Policy at Harvard University. From that perch, in the run-up to the invasion of Iraq, he sought to make a case for war in Iraq as a humanitarian and human rights mission.

Igantieff would come to at least partially recant of these apologetics, once the scale of the Iraq debacle became plain. The abuses at the Abu Ghraib prison had become widely known by the spring of 2004, and by then there was, to use the title of Charles Ferguson’s fine documentary, “no end in sight.” In 2006, after leaving Harvard to become deputy leader of Canada’s Liberal Party, Ignatieff tried to distance himself from his earlier views on Iraq, saying they reflected the theoretical enthusiasms of the academy, not the cold-eyed prudence of practical politics. As Katha Pollit suggested in The Nation, this is not a satisfactory explanation. Paul Wellstone may have been the only U.S. Senator to vote against it, but there was no shortage of professors against the war. Michael Ignatieff was not among them.

Act III: The Obama Administration Picks up the Pieces

On April 16, 2009, the Obama administration released memos detailing the brutal interrogation methods used by the CIA under President Bush, while also assuring the agents involved that they would not be prosecuted. The materials made public included legal memos from within the Bush administration trying to redefine torture to provide legal cover for actions of shocking brutality. The techniques will never be used again, President Obama said, but neither would he pin the blame on rank and file agents who acted in good faith.

The released memos contained long excerpts from the CIA’s interrogation manual, describing how each coercive method was to be used.

● Waterboarding (simulated drowning): Strapping a prisoner to a gurney at a 10- to 15-degree angle, covering the mouth with a cloth, pouring water over the cloth from 6 to 18 inches away, for no more than 40 seconds at a time

● Sleep deprivation for up to 180 hours

● Shoving against a wall “30 times consecutively”

The precision of these details is weirdly reminiscent of the prison timetable from the early nineteenth century described by Foucault. Only this time, the precision is used to inflict physical pain, not to set the prisoner on an institutionalized path to rehabilitation.
Ostensibly, under Bush, the purpose of the pain was to force detainees to provide information. But is there any scientific literature showing that tactics of this sort produce useable evidence? It may work on television to slam people against walls, as a means to extract information, or in movie to place prisoners in a dark, cramped box filled with insects (another CIA tactic). But if someone will say anything to make the pain stop, why should they be believed?

Roughly two centuries after the birth of the modern prison, America regressed in its “war on terror” to tactics that sound more like something from two thousand years ago. The limitation of shoving against a wall to 30 consecutive times recalls the “40 stripes” established in Jewish law (Deuteronomy 25:3) centuries before the birth of Christ. This was the limit on the number of lashes for someone being whipped. By the time of the apostle Paul, the number had been cut to 39 stripes, so that the punishment did not exceed 40 inadvertently or through excessive zeal.

In banning waterboarding and other brutal tactics, the Obama administration is doing much more than cutting back from 40 stripes to 39. Mr. Obama has reversed key Bush interrogation policies, not just scaled back on them. The scales of justice have not yet stopped balancing, however, after the unjust measure of pain our country inflicted in Iraq and on detainees around the world.