Post #161

This post is about 1060 words; 5 minutes to read

Most discussion of criminal sentencing revolves around only one thing – the length of the sentence.  A new paper by US law professor Eve Hanan argues (similar to an earlier post on this site by Queen’s law professor Lisa Kerr) that the focus only on length of sentence is highly distorting. Hanan further argues that failing to take into account the experience of incarcerated people when crafting sentencing policy is an epistemic injustice that feeds mass incarceration.

She writes:

While the severity of a prison sentence is measured solely in terms of the length of time, the actual experience of imprisonment is often more punishing and more destructive than a simple loss of liberty. Yet, lawmakers and judges evince a surprising lack of institutional interest in understanding the experience of imprisonment and applying this knowledge to sentencing…. I am advocating for a conceptualization of punishment that includes a general understanding of prison’s cruelties… This accounting may lead to the conclusion that prisons are simply not an ethical response to crime.”

Although people are fascinated by prison, as shown by the popularity of both fiction and ‘reality’ TV programs about them, that interest does not always correspond to an accurate understanding of the experience of incarceration.  In the absence of hearing first-hand from incarcerated people, sentencing policy proceeds with only a thin understanding of the punishment inflicted.

Imprisonment carries significant harms

Hanan argues consistently with many others that being imprisoned, no matter what the setting, carries many harms beyond loss of liberty.  Citing a wide variety of other evidence, she lists some of them.

– being either the victim of violence or under threat of violence.  Violent acts including sexual violence are common in prisons, much more so than in the general society.

– vulnerability to the whims of institutional actors

– isolation from friends and family

– loss of identity and sense of self, which can extend well past the period of imprisonment

– physical stress to the point of illness

Other harms Hanan doesn’t mention but that have been identified by, among others, Canada’s Correctional Investigator include poor quality and insufficient food, and inadequate health care, and systemic racism.

All of this impedes the supposed intent of prison to support rehabilitation. “…prison removes almost all opportunities for the incarcerated person to make choices, thereby weakening the person’s ability to make good choices upon release. Likewise, the damage done through prison’s cruelties may psychologically damage incarcerated people in ways incompatible with rehabilitation.”

Harm is built in to the nature of prison

Moreover, these harms are not accidental; they are built into the nature of prison.  “If we imagine prison as an abstract place of confinement, an incident in which a prisoner is beaten or raped will be viewed as an aberration. But if, instead, our view of prison is based on a catalogue of concrete examples of how incarcerated people experience prison, prison violence no longer seems like a random moment of bad luck, but, instead, like a reflection of the baseline injustice of prison itself.”

 “…It is very possible prison is often harsher and harsher in more ways than legislators and legal actors can keep in mind when making punishment decisions. And, prison’s cruelties may be greater than what the sentencing judge intended.”

Although judges have little to say about any aspect of the prison experience other than its length, they should pay more attention to the reality.  “The court can… factor the likely prison experience into their calculations. The sentence-as-experienced may otherwise be much more punitive and destructive than intended in the more formulistic calculation at sentencing

Sentences are always arbitrary to some degree

Hanan also makes the point that the length of any prison sentence is arbitrary.  Crimes are compared to one another and to laws, but there isn’t any basis for deciding what crimes should result in imprisonment in the first place, or why any given prison sentence is reasonable other than its comparison to some other sentence.  This leads to a bad dynamic.

Because proportionality is relative, sentence lengths have no built-in ceiling other than in reference to more and less serious crimes. As a result, sentencing by the numbers can easily fall prey to cognitive errors and political pressures, specifically, the cognitive phenomenon of anchoring and political phenomenon of inflation.”

Legislatures respond to the endless pressure to make more things into crimes and to have harsher sentences for crimes.  Since the evidence is that imprisonment does not reduce crime and may make it worse, this dynamic makes things worse for everyone even as it responds to a certain public thirst for vengeance (which, in theory, has no part in criminal law).

Experience of prisoners is deliberately excluded

Hanan believes that courts and the justice system generally should pay much more attention to the experiences and accounts of people who have been imprisoned in order to understand the realities of sentencing. Many thousands of such accounts actually exist yet seem to have little effect on justice system practices.  In fact, she notes, nobody is very interested in what prisoners or former prisoners have to say.  Like other marginalized groups, their voices don’t count, a situation referred to as ‘epistemic injustice’.

The result is that there can be “…a public debate about sentencing policy without ever mentioning what prison is like. The people who would share that information are excluded from the process.”

The decision not to credit the speaker’s knowledge is unwarranted because it is not based on a fair assessment of the speaker’s credibility but, rather, on a stereotype about “people like” the speaker.” In the case of prisons, we regard all prisoners as ‘bad people’ by definition, so their accounts are not to be taken seriously, or they deserve what they get, no matter how bad.

Understanding institutional reality would support better policy

The same dynamic can be seen in other institutions – for example the constant exposure, and constant surprise about abuse of people in orphanages, children’s treatment centres, churches, athletic groups, or seniors’ homes, each time accompanied by shock that this could have happened, and the discovery that people who came forward earlier to report the problems were ignored or suppressed.

We would do better to pay more attention to the realities.   “Prison’s cruelties, now cast as incidental to punishment decisions, should be catalogued and considered as injustices that are endemic to the practice of incarceration. Only after this task can we fairly evaluate incarceration as a practice and its theoretical justifications as a method of punishment.”





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