1.005
Bearbeitungen
Benutzer:Woozle/Against Penitentiaries: Unterschied zwischen den Versionen
Benutzer:Woozle/Against Penitentiaries (Quelltext anzeigen)
Version vom 24. August 2016, 10:14 Uhr
, 10:14, 24. Aug. 2016keine Bearbeitungszusammenfassung
Woozle (Diskussion | Beiträge) |
Woozle (Diskussion | Beiträge) |
||
| Zeile 267: | Zeile 267: | ||
== Beyond Prisons and Punishment == | == Beyond Prisons and Punishment == | ||
When thinking about and planning to abolish prisons-as-punishment, at least two questions remain. Do we need prison-like places for other purposes? How do we deal with the need for a sufficient reaction to crime? | When thinking about and planning to abolish prisons-as-punishment, at least two questions remain. Do we need prison-like places for other purposes? How do we deal with the need for a sufficient reaction to crime? | ||
=== Security without Prisons === | === Security without Prisons === | ||
To many reformers it is a comforting thought that alternatives to imprisonment are on the rise, and that the prison sentence itself might eventually be eclipsed by the massive increase of non-custodial sanctions. This trend, though, will not automatically bring the age of prison-as-punishment to an end. There would still remain a qualitative question pertaining to the - maybe few - very dangerous criminals. Even if one raised the minimum age of criminal responsibility, found alternatives to prison for women offenders, and de-criminalized large parts of non-violent property offenses there would still be a number of crimes and criminals that would challenge any abolitionist imagination. Supposing the availability of non-custodial alternatives for most or all non-violent delinquents, there would still remain the question of how to deal with cases of extreme horror and/or dangerousness. Similarly to the well-known shanty song with its insistent repetition of the question "What shall we do with the drunken sailor", any abolitionist proposal will invariably be confronted with the same question pertaining to the dangerous few, and that would raise questions like these: What shall we do with the serial killer? What shall we do with the child molester? What shall we do with the roaming rapist? What shall we do wit the genocidical general? What shall we do with the ex-dictators? The question that is puzzling all participants in criminal justice reform discussions is therefore completely legitimate: Would societies be less safe without prisons? | |||
The answer is: Not necessarily - and there is a real chance that they would become even safer, if they learn to distinguish between punishment and security and if they act accordingly. Today, punishment by imprisonment is by and large expected to take care of both the retributive aspect (looking back at the offender's crime in the past) and the preventive one (which envisages risks from the offender's future behavior). For all practical purposes, "punishment by imprisonment" is thought to automatically include the answer to the community's security needs as far as risks from the (now imprisoned) delinquents are concerned. Once the serving prisons are not around any more, the security question has to be treated independently of punishment, as a matter in its own right. For some of the most definitely dangerous individuals - the archetype of whom is the serial killer - the absence of the prison-as-punishment option will invariably revive calls for capital punishment (or extrajudicial elimination). Alternatively it is conceivable (and from our point of view also preferable) to resort to decreeing the arrest and involuntary confinement of such individuals on the grounds of preventive detention, regardless of criminal liability and the question of punishment. Whereas this aspect can hide behind the question of punishment as long as there is the prison-as-punishment, the removal of this specific sanction forces the highly delicate matter of preventive detention out in the open. | |||
If the abolition of the prison-as-punishment is not to fail miserably because of public fears of unsolved safety issues, the ethical, legal, and practical questions involving preventive detention will have to be dealt with in a most serious and exhaustive manner. Questions that will have to be answered will include the following: how many of the present-day prison inmates would need continued confinement because of their dangerousness - and for how long? And how can solid criteria of dangerousness be established in the first place? What about the concept of dangerousness when the behavior in question is not the violation of rights of others, but only an abstract concept (as in the case of drug dealing between consenting adults)? How can the rights of dangerous individuals be protected? In the worst case, all those of today's prison inmates that have been defined by the criminal justice system as dangerous and who are serving prison sentences would continue in confinement even after the abolition of the prison-as-punishment. "Remain" is not quite the right term, though, because the cell prisons would be torn down as inhumane and ineffective, so they would move to other locations not built upon the model of the Quakers' penitentiaries, but on the model of residential living. | |||
How much preventive detention? ==== | |||
Scholars and practicioners agree that only a minority of the present prison population would need to continue to be locked up for security purposes once prison-as-punishment were to be abolished, with estimates ranging roughly between 30 and 5 or less per cent. A realistic scenario of prison abolition would therefore have to count with a substitution of the prison sentence by a kind of preventive security confinement concerning up to a third of the present-day prison population. Hopefully, of course, a reliable assessment of dangerousness would be able to reduce that percentage, and however large or small the resulting group may be in the end - one thing is certain: that the living conditions of those affected by preventive security confinement would have to be significantly superior to those in today's cell prisons. | Scholars and practicioners agree that only a minority of the present prison population would need to continue to be locked up for security purposes once prison-as-punishment were to be abolished, with estimates ranging roughly between 30 and 5 or less per cent. A realistic scenario of prison abolition would therefore have to count with a substitution of the prison sentence by a kind of preventive security confinement concerning up to a third of the present-day prison population. Hopefully, of course, a reliable assessment of dangerousness would be able to reduce that percentage, and however large or small the resulting group may be in the end - one thing is certain: that the living conditions of those affected by preventive security confinement would have to be significantly superior to those in today's cell prisons. | ||
| Zeile 304: | Zeile 291: | ||
The authors add an important caveat: | The authors add an important caveat: | ||
"The question remains, however, whether it is possible to articulate principles taht cover all cases of preventive detention in such a way as to mitigate possible abuses of power on ground of public protection. It imposes deprivation of liberty ahead of wrongdoings; grants considerable discretion to criminal justice professionals and to the courts; it is based upon predictions of dubious reliability; and it risks creating arbitrariness in its varied forms and practices (Ibid, 170). Some day, we may have to abolish preventive detention as well. | "The question remains, however, whether it is possible to articulate principles taht cover all cases of preventive detention in such a way as to mitigate possible abuses of power on ground of public protection. It imposes deprivation of liberty ahead of wrongdoings; grants considerable discretion to criminal justice professionals and to the courts; it is based upon predictions of dubious reliability; and it risks creating arbitrariness in its varied forms and practices (Ibid, 170). Some day, we may have to abolish preventive detention as well. | ||
=== Punishment without prisons === | |||
Even with the safety of the population guaranteed through a responsible system of preventive detention - both drastically smaller and better than present-day prisons-as-punishment - there might remain a need to see a criminal suffer. An example might help. Imagine a young man of 29 years, diagnosed as physically and mentally healthy, an educator in a kindergarten, who is found to have abused and brutally killed three children over the time of five years. Or a cold-blooded professional killer hired by the mafia or a drug cartel for the necessary eliminations of traitors, enemies, and unfair competitors, who, after a number of years on the job, is finally being arrested. In both cases, public security can be regained by ordering the dangerous individuals to be locked up in preventive detention. For questions of safety, that could be it. Even if we know that such a purely instrumental reaction will be seen as unsatisfactory by victims' families and beyond. In the case of a successful insanity defense such an exemption from criminal responsibilization is a long-standing tradition and the victims' discontent is seen as a sad, but unavoidable fact which the criminal justice system, in those cases, cannot do anything about. | |||
In the case of mentally sane offenders, though, not only victims' families feel a strong need for something more than just instrumental reactions to happen. It is one thing to forego punishment in the case of mentally ill offenders. It is another to do so with the sane and cold-blooded authors of heinous crimes. This becomes clearer when we imagine the case that either the child killer or the mafia killer could be set free after experts confirm a successful psychological treatment and come to the conclusion that the person in question does not pose a risk of continued offending anymore. | |||
Most people would probably not consider it just if the offenders were to walk out of their preventive confinement without having had to "pay" for what they had done. There is a strong and very widespread emotion that those who committed heinous acts should be responded to by the intentional infliction of retributive harm upon them. One might even say that common sense and jurisprudence both believe in a kind of natural law logic that crimes must be responded to with punishment: crime requires punishment. Not only the reduction of risks. | |||
But what exactly is punishment and what are the needs it responds to? First of all, punishment is "the intentional delivery of pain" (Nils Christie), it is a strong affirmation of a negative value judgement concerning the punished person's past violation of an important norm. For the punished person, punishment is - in the words of South African judge Thokozile Masipa uttered at the occasion of the sentencing of Oscar Pistorius in 2016 - "unpleasant, it is inconvenient, it is painful, it is certainly not what you would chose to do.” And that is the very sense of it. | |||
By its emphatic negation of the offender's deed and by making the offender suffer for what he did, the court declares in the name of state and society that this kind of behavior will not be tolerated, and that offenders will have to live with the consequences. Punishment sends a strong symbolic message to the offender and to the public, but also to the victims of crime. It is a symbolic response to an event in the past, and a response of sorts to affirm the continuing validity of the broken norm. | |||
Punishment is a specific reaction because of its expressive symbolism. Its fourfold meaning lies - at last according to Joel Feinberg (1970/1994) - in manifesting an authoritative disavowal of the act in question, a symbolic nonacquiescence to what happened, but it also emphatically reaffirms the law, and last not least it relieves others of suspicion and blame by way of concentrating guilt on those who are found to deserve the punishment. The expressive symbolism of punishment aspires to reach three target groups (Günther 2002: 218): (1) the victims of crime (who are reassured that the community does not regard the event as simply bad luck or fate, but as the result of unjustified and intolerable actions), (2) the offenders (who are told that their actions are seen as responsible for that what happened and that their behaviour is seen as strongly reprehensible), and (3) the general public (who is being told that the negative consequences are being defined not as accidental, but as an injustice that cannot be tolerated and that this injustice is neither to be blamed on the victim nor on the public). | |||
In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of social reaction to harmful behavior will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. | |||
=== Beyond Punishment? === | === Beyond Punishment? === | ||