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jail-prisonYears ago, while I was teaching at a left-wing liberal arts college (one of those places where the students wear black to show how depressing it is to be young and well off) a colleague bragged to me about a study he had done on how to keep convicted criminals from returning to a life of crime.  “Basically,” he said, “the parole officer has to hassle them in front of their friends.” It seems his study showed that, by embarrassing criminals in front of their cronies, the government can break up bad relationships and keep parolees on the straight and narrow.

So, apparently, what criminals really need to keep straight is a nanny. My colleague was quite proud of the study, in part because it showed that liberals can be “tough on crime” without actually punishing anybody. And I think he was right, in the extremely limited sense that a government that does not want to punish wrongdoing must devote increasing resources to overseeing people who do wrong—and even those who just might do wrong. The flip side, and in some ways the more dangerous side, of this equation is that the government that gets in the habit of subjecting its people to discipline forgets that a free people must develop and maintain its own character and way of life, or it will become nothing more than a flock of sheep looked after by said government.

Edmund Burke observed that “intemperate men cannot be free. Their passions forge their fetters.” Burke was arguing that the French Revolution, by destroying all the customs, habits, and traditions that had civilized the French people, would not make them free, but only enslave them in a way and to an extent never before seen.  Only people who have developed the character necessary to control themselves are capable of living in ordered liberty. And part of that character is the deep recognition that customs and traditions are both good and necessary, in no small part because they teach us how to treat one another, and ourselves, with appropriate respect.  Ideologues, enslaved to utopian ideals, will destroy all around them in pursuit of an impossible heaven on earth. By the same token, people who have become wards of an all-encompassing, supportive and protective state cannot lead ordered lives on their own; they lack the character, having been trained to look to the state for direction and discipline.  Small wonder so many Americans need the discipline of our various systems of enforcement.

Michel Foucault, the ultra-left wing French philosopher, argued back in the 1970s that modern liberal society began to develop when governments gave up on terrorizing the people into submission, choosing instead to discipline them into pliable subjects.  Foucault was a very bad guy.  But in this instance he had a point.  For both good and ill, governments starting in the nineteenth century stopped punishing people (whether murderers, thieves, beggars, or political prisoners) with the vicious means used from time immemorial, instead converting prisons from holding cells into institutions for long-term “rehabilitation” and otherwise bringing more structure to people’s lives.

Foucault, being an extreme leftist, carried his critique to the point of seeing the time clock and laws protecting children from sexual exploitation as oppression.  But the general point is important:  societies have chosen to punish less severely and instead impose discipline on their people. This is not all bad. Certainly the elimination of public executions exhibiting maniacal cruelty is a benefit to everyone’s humanity and dignity. But, as with so much else, the humanitarian impulse in liberalism has been joined with a determination to change human nature through state control to form a soft despotism that tends to infantilize everyone it touches.

I am not claiming, here, that we should bring back burning at the stake—or any of the even worse devices once used for punishment. But the desire to discipline rather than punish has been taken too far, and has had a debilitating effect on our entire society. This pseudo humanitarian impulse has come to dominate too much, not just of the prison system, but of our regulatory structure in general. It has relegated truth and appropriate consequences to, at best, an afterthought, while promoting the idea that all we really need to do is assure that everyone who meets some very, very lax criteria is both “in the system” and “given process.”

This means, for one thing, that there are all kinds of “no tolerance” laws regarding various activities politicians have decided it is popular to “get tough on.” But in practice “no tolerance” could mean sending somebody away for life for little more than a fit of youthful stupidity. So how does the system deal with that problem?  It “processes” it away. For example, did you know that over 9/10s of criminal cases never go to trial?  Almost all these cases are “plea bargained.”  The accused admits to a lesser offense in exchange for a reduced sentence or, very often, probation.

It is common to deride the plea bargain as a means by which criminals escape punishment—and sometimes it is.  But more often what happens is that both sides—the prosecutor and the defense attorney—pay too little attention to the question of guilt or innocence, instead bargaining over what the case is worth in terms of time and trouble in prosecution. And even innocent defendants are pressured into signing the deal, lest they risk more severe punishment (and bankruptcy from lawyers’ fees). The courts are too busy to take care of all these cases, and that is a very real problem, but so is a system in which the search for truth under the law is replaced by bargaining.  Bargaining, after all, is a term and a practice more appropriate for car sales than criminal justice, and leaves room for the rich and powerful, or the merely dishonest, to worm their way out of responsibility for their actions.

And after the bargaining? Then the nannies are unleashed. Parole officers, judges overseeing continuing proceedings, social workers, and a slew of government workers now have a piece of the convicted criminal, and are determined to keep him (or her) on the “right path” by keeping an eye on them. A lot of good people, and some not so good people, devote a lot of time and energy to this system, trying to keep people out of our overcrowded prisons.

So why are the prisons overcrowded? The United States, it often is said, incarcerates more of its people than any other advanced nation on Earth. But prisons are not the only places in which Americans are being “institutionalized.” Indeed, increasingly, it seems more and more of us must accept that we have been taken into “the system” if we want to go about our lives.  From child services to the SEC and any number of government agencies, the state has a way of threatening people with prosecution unless they sign agreements to “behave themselves” in ways spelled out by agents of the bureaucracy. People in business know these as “consent decrees” and they can require all sorts of concessions that have nothing to do with the supposed violation.

The motivations behind some of these developments are understandable. No one wants to just stand by and allow bad things to happen to innocent people. And once the government takes on the role of our protector, guaranteeing that we will have every chance in life that is possible (or “to which we are entitled”) it is only a matter of time before, in the name of freedom and autonomy, the government starts keeping an eye on our every move. Why are we so afraid when we hear that investigators have gone to a child’s home because a picture was taken of him holding a hunting rifle, or a third grader hugged a classmate, or shown up to school with a bruise?  Because we know that once someone is “in the system” there is no telling how long, or how much time, stress, and money it will take to get out, even if nothing untoward ever occurred.

Of course, sometimes something wrong, even horrific, has happened. But we no longer are prepared (or even can afford) to deal with real issues as they deserve, with full process, because so very much of our lives is subject to regulation and, potentially, prosecution.  The result is a system in which everyone tries to come to an accommodation—meaning not that much punishment (usually) but also not that much exoneration, and not that much freedom, either.

Obviously, in such a system those who actually did something wrong but have a good lawyer for plea bargaining may be treated more gently than they deserve. As for the innocents, they also are often treated wrongly. Most people most of the time receive the same mediocre, time-consuming, expensive, stressful process. Wrongdoers and the innocent are treated alike—as wards of the state.

As important, both the innocent and the guilty are taught that what really matters is not so much what they do, but how they deal with the system once they are caught—or accused.  The system trains individuals and corporations to eschew arguments on the merits in favor of bargaining for leniency.  That is, it turns all of us, increasingly, into more or less crafty supplicants before the state. We try to get around this problem, of course, with mechanisms like mandatory minimum sentences and “three strikes” laws throwing away the key for a third conviction. But the problem is too systemic for such blunt instruments to provide a cure.

The answer would be a system that only acts on truly serious accusations of truly serious crimes, leaving it to people in their own associations to protect, care for, and to a certain extent even punish (e.g. through ostracism) those who need it. But that would require admitting that “not even” the government can protect us from all harm. And that is an admission we seem to be finding it increasingly hard to make—which is a pity for us.

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2 replies to this post
  1. Dr. Frohen: As always, you’ve produced a thoughtful and provocative post. There is no doubt that “modern liberal society” and industrial capitalism have done much to create and enforce what you call a “soft despotism” that regulates and monitors citizens from cradle to grave and from the classroom to the workplace (the two places where most people spend a large part of their lives). In part, this reflects the efforts of “modern liberal society” to incorporate all citizens into the polity and to offer them all the sort of meaningful lives that had formerly been reserved for the elite. In any case, what the alternatives might be are unclear; I invite you to test them in your own classroom, perhaps by setting aside the tyranny of scheduled classes, assigned reading lists, and grades.

    A couple of other points: you write, “The courts are too busy to take care of all these cases, and that is a very real problem, but so is a system in which the search for truth under the law is replaced by bargaining…” I realize that you are a Professor of Law, so I hesitate to challenge you on the issue, but is it not the case that our courts very explicitly do not engage in any sort of impartial “search for truth under the law” but rather allow advocates/adversaries to contest in swaying judges and juries. Truth is at best an incidental by-product of such a system.

    Second, you ask “So why are the prisons overcrowded?” but I’m unclear as to how anything that follows constitutes an answer, or even an attempt to answer, to that question. Instead, you seem to be suggesting that all of us in America are already in “prisons” of various kinds, subject to oversight by an omnipresent “system” of discipline; but our “system” of social control is not in principle different from that of other Western countries, countries that don’t find it necessary to incarcerate anywhere near so many of their people. Is it possible that the answer to your question is that the American system is nowhere near as controlling (or as successful at controlling) as you suggest? Or perhaps Americans are just particularly resistant to efforts at social control–which would, ironically, make our overcrowded prisons testimony to our indomitable impulse toward freedom.

    Finally: I really don’t know what you mean, in practice, by “The answer would be a system that only acts on truly serious accusations of truly serious crimes, leaving it to people in their own associations to protect, care for, and to a certain extent even punish (e.g. through ostracism) those who need it.” If you’re suggesting that private vengeance replace public justice (except for undefined “truly serious crimes”), you’re no doubt right in thinking that such a solution would relieve our overcrowded prisons. You’re probably wrong, however, in thinking that “ostracism” would be the limit of such punishment. I have in mind the case of a young woman I know who was recently pushed down a flight of stairs and then further assaulted by her former boyfriend who had broken into her house–all this in front of their three year-old son. That case is now being adjudicated, a restraining order has been filed, Family Court and Child Protective Services are involved, etc. I can guarantee you that, left to “people in their own associations” to handle this matter, the boyfriend would not be ostracized: he’d be beaten to within an inch of his life by the woman’s family and friends. That, I believe, is why we have a public justice system, as unwieldy, overwhelmed, and imperfect as it is.

  2. Professor, you sound like Hans Hoppe. Your solution would create anarchy. Our system is what it is, an imperfect system designed by imperfect people, which also describes our democracy.

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