Torture instead of prison

Leo Katz has been blogging over at the Volokh Conspiracy this week. He's written a book called Why the Law Is So Perverse, and Volokh is giving him the opportunity to pimp it by writing about subjects covered within it. Today, he posted an entry entitled The Problem of Voluntary Torture in which he lays out the following (imaginary) proposal:

Imagine the following proposal by a wild-eyed legislator for making our criminal justice system more efficient. “The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution. But prison happens to be a very expensive pain delivery system. There is a much cheaper one which for some reason we haven’t really adequately considered. Instead of making a prisoner’s life moderately painful for a prolonged period of time, which is what prison does, why not just make it intensely painful for a very short period of time: a lot of pain, but for a short duration—that should give us as much retribution and deterrence as before but at a fraction of the cost.”

He then gives his own opinion of it:

I view the deal the legislator is suggesting we offer each prisoner as the quintessential win-win transaction. Everyone is better off. The prisoners (though only marginally so, to be sure) and society at large which now has to pay only a fraction of what it used to have to pay for deterrence and retribution. 

Nevertheless, like most other people, I would not for a moment contemplate seriously adopting the legislator’s proposal. The question is why?

In answering his own question, he assumes the win-win nature of the proposal to be a given and then argues that there are valid reasons for certain kinds of mutually beneficial arrangements to be prohibited including "force or fraud or incompetence or bad effects on third parties", none of which, he admits, are applicable in this case. Ultimately, he concludes "that some other as yet unidentified reason must be at work here". He, of course, will explain this in another post or, for the impatient reader, already does in his book which the reader is invited to purchase.

First, Mr. Katz' belief that this proposal, despite his reticence to implement it, is a win-win is spectacularly incorrect. Given his starting point, the current prison system, it's not hard to see why he went wrong. Society already already pays a great price to imprison criminals. According to the Bureau of Justice Statistics, the U.S. spend almost $75 billion per year to house inmates. States vary widely on costs, but with the prison population hovering a little under 3 million, the average is just over $23,000 per inmate per year. Just imagine if instead society tortured these individuals mercilessly for a few days or a week or even a month! If the costs scale linearly, then society would pay less than $2,000 per inmate per incarceration, and surely torture would provide enough deterrent to keep prisoners from committing their crimes again.

The obvious problem with this is that torture is not simply a physical act that ends when the pain subsides. It is also has psychological components, and both of these have long lasting effects. Nor are these effects limited to the recipients of this torture. Imagine being an employee at a facility that offers this type of "correction". It would be like watching the Saw movies back-to-back-to-back for at least 8 hours a day, 5 days a week, only the characters are real people, and there is no way to turn off the movie. Employees of such a facility would, in the end, suffer just as much -- probably more -- than the prisoners themselves. Imagine further those actually charged with carrying out the torture as a regular profession. We would literally have to find the worst of the worst of society -- worse than the prisoners themselves -- train those people to become perfect in their craft, and then pay them to carry out the most heinous acts that one human being could commit against another. That, I submit, is not a society.

Exposing the sheer insanity of this proposal has probably been a waste of time given that even Mr. Katz is against it. But the fact that it is even brought up is incredibly ironic, given the reaction to the idea of torturing prisoners. Mr. Katz, like the rest of the population, doesn't fully comprehend the nature of the prison system even though he mentions it a number of times in his post. It is so ingrained in most people's minds that they don't even see it. Look back to the "wild-eyed" legislator's first words:

“The point of punishment is pain,” he explains.”Obviously. Without pain, we don’t get deterrence and we don’t get retribution.

The purpose of the prison system is to punish, and "the point of punishment is pain". If we accept this premise, then society is already engaging in torture of a more mild variety. A variation on an old joke springs to mind:

A: Should society imprison criminals?
B: Absolutely.
A: Should society torture criminals?
B: Absolutely not; what kind of society would that be?
A: We've already established that; now we're just seeing how far it will go.

Back to the legislator's words, the point of punishment is pain and the point of pain is deterrence and retribution. Deterrence is well and good, but the fundamental problem with the prison system is the retribution. When someone commits a crime, the justice system metes out retribution. Who benefits from this retribution? Only the justice system -- and, to an extent, the prisoner -- benefits. The victim doesn't benefit in any tangible way. Whatever damage may have been done is not repaired, nor is the victim compensated (over and above the actual damages) for the  "inconvenience" of being victimized. Nor does society benefit since society has to pay for the trial and incarceration of the criminal. Furthermore, it has to deal with the effects of prison on the criminal (no marketable job skills, inability to function in the "real world") when the criminal has finally served his/her time and is released. But the justice system benefits as money must be poured into it to house an ever growing number of inmates. And while incarceration is certainly no picnic, the incarcerated "enjoy" 3 meals, a bed, and a roof over their heads at the victims' expense.

What if, instead, the criminal justice system focused on restitution instead of retribution? First, a number of crimes would simply disappear. If police picked up a prostitute, to whom would he/she pay restitution? In order to answer that, we would have to pinpoint the damages caused of which there are none. The same goes for someone getting high in his garage. Second, victims, instead of the justice system would be compensated for the commission of a criminal act. This is obviously straightforward in the case of crimes involving money or things that can easily be assigned a monetary value. The victim is repaid his loss plus some extra as compensation for the inconvenience and to serve as deterrence of future crime on the aggressor's part. It seems less straightforward in the event of non-monetary damages like physical violence, but this should not be so. Society has already decided how long a prison sentence should be based on murder, manslaughter, physical violence, etc.; it is not a far leap to think that money could be substituted for time. And what of failure to abide by a sentence? Imagine if when someone refused to obey the law and by extension punishment for breaking it, society simply refused to extend the protections of the law to that person? This is what a criminal justice system in a voluntary society, one without an entity granted the legal ability to use force might look like.