What do we want to do with convicted criminals? Penology has several philosophies waiting to answer that question.
- What is the purpose of punishing a convicted criminal supposed to be? It depends on which philosophy you prescribe to.
- None of these ideas are without their detractors, or qualifying evidence.
- As the United States grapples with criminal justice reform, the arguments each philosophy has behind it will have to be considered.
Retributive justice<p> Perhaps the most straightforward idea about <a href="https://plato.stanford.edu/entries/punishment/" target="_blank" rel="noopener noreferrer">punishment</a> there is; if someone does something very wrong, they cause themselves to be worthy of <a href="https://plato.stanford.edu/entries/justice-retributive/" target="_blank" rel="noopener noreferrer">punish</a><a href="https://plato.stanford.edu/entries/justice-retributive/" target="_blank" rel="noopener noreferrer">ment</a>. This punishment is good by itself, even if there are no side effects. Most theorists in favor of this system also posit that the punishment should be proportional to the crime and that it should only affect those duly convicted. </p><p>Most people have a strong intuition about this. A famous thought experiment with many variations asks people to imagine that murderers enjoy long tropical island getaways where they can't hurt anyone after conviction but appear to be suffering in jail for TV cameras every now and again, to deter other potential murderers. Even if the deterrent works, you might feel that something is off here. Something that can only be corrected by inflicting some kind of punishment on the murderer. </p><p>University of Chicago Professor Albert W. Alschuler argues that retributive justice can have positive consequences in addition to any inherent justice it <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1893&context=journal_articles" target="_blank" rel="noopener noreferrer">offers</a>. </p><p>He puts forward the idea of a neighborhood where no one parks correctly, with drivers frequently boxing in others and parking too close to stop signs and fire hydrants. The laws against this are unenforced in that neighborhood. Because there is no consequence for inconsiderate parking, there is no reason to be considerate yourself; your neighbors will continue to act like this in any case. It ends up being the case that everyone acts this way to avoid being a sucker. He points out that this situation could be resolved by punishing the lawbreakers, as it would drive people back to a state of fair play. He summarizes the concept by saying, "Withholding punishment is inappropriate when doing so would encourage people to conclude, 'Everyone else is looking out for themselves, and I'll be a fool unless I become a little bit like them.'"<br> <br> </p><p>Arguments against retributive justice often focus on the difficulties of justifying harsh treatments (rather than just punitive damages or restitution) against the convicted in a way that aligns with broader principals of justice. Many theories that attempt to do so have been deemed unsatisfactory by other <a href="https://plato.stanford.edu/entries/justice-retributive/#QuesJust" target="_blank" rel="noopener noreferrer">philosophers</a>. Others point out that retributive systems only look backward on what has been committed and not forwards, to what situation we'd like to be in after matters are settled. </p>
Deterrence<iframe width="730" height="430" src="https://www.youtube.com/embed/G21L5bvxARM" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe><p> Deterrence theory is the idea that punishments for crime should exist primarily to discourage others from committing a similar crime or to assure the punished individual won't do it again. For example, making the potential costs of committing a crime too high to justify doing it in the first place. </p><p><a href="https://plato.stanford.edu/entries/bentham/" target="_blank" rel="noopener noreferrer">Jeremy Bentham,</a> the <a href="https://bigthink.com/mind-brain/most-eccentric-philosophers-history" target="_self">eccentric</a> founder of Utilitarianism, took a consequentialist approach to punishment. Seeing punishments as "always evil," he nevertheless hoped that the use of them could deter crime by others, increasing the total happiness of society overall and reducing the number of criminals in the future. He combined this support for deterrence with elements from other <a href="https://plato.stanford.edu/entries/bentham/#PenLawPun" target="_blank" rel="noopener noreferrer">theories</a>. </p><p><a href="https://en.wikipedia.org/wiki/Cesare_Beccaria" target="_blank" rel="noopener noreferrer">C</a><a href="https://en.wikipedia.org/wiki/Cesare_Beccaria" target="_blank" rel="noopener noreferrer">easre Baccaria</a>, a jurist in Milan during the Enlightenment, argued that crimes strained the social contract and that punishments should be used to assure that people continued to stick to it. Rather than a retributive scheme, this called for a deterrence system to ensure that neither those punished nor those aware of the punishments would desire to commit such crimes in the future. </p><p>Of course, there are objections to this idea as well. The most common revolves around the theory's assumption that most people who break the law weigh costs and benefits before doing so. A point many would contest. The previously mentioned thought experiment (with the murderer on the island) also points to another objection to pure deterrence theories. Deterrence can be produced without actually punishing the convicted, a situation that strikes many as unsatisfactory. </p>
Rehabilitation<iframe width="730" height="430" src="https://www.youtube.com/embed/q_hAE95LriQ" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe><p> Rehabilitative theories of punishment are diverse in their foundations. In general, they look at what causes a person to turn to crime and try to remedy the situation.<strong></strong></p><p><strong> </strong>Many proponents of rehabilitative theories argue that the decision to engage in criminal behavior is not as clear cut as other theories suggest. Factors of economic opportunity, addiction, mental illness, social issues, and circumstance can make it more or less likely that a person will be driven to crime. With that in mind, they suggest that the penal system should focus on resolving or mitigating those issues. </p><p>Others are more utilitarian in perspective. They argue that a person who went into jail with a criminal tendency is likely to come out the same way unless some action is taken. What that looks like, be it job training, education, counseling, or something else, depends on the situation. Making it less likely someone will return to crime by providing these services, they argue, benefits society as a whole. </p><p>This comparatively holistic and often humane approach doesn't mean there isn't a potential dark side to rehabilitation. The theory is very dependent on our understandings of psychology, sociology, and criminology being accurate. Mistakes can have horrible results. The modern practice of solitary confinement, a practice now deemed <a href="https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25633&LangID=E" target="_blank" rel="noopener noreferrer">torture</a> by the United Nations when used for more than two weeks, goes back to recommendations by the Quakers that leaving criminals alone and slightly sensory deprived would allow for <a href="http://learning.law.harvard.edu/frontiertorts/topics/solitary-confinement/" target="_blank" rel="noopener noreferrer">repentance</a> and reformation. They were extremely <a href="https://www.apa.org/monitor/2012/10/solitary" target="_blank" rel="noopener noreferrer">wrong</a>. </p><p>Even when it works, there are concerns about its implications. In his pro-retribution <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1893&context=journal_articles" target="_blank" rel="noopener noreferrer">essay</a> on criminal justice, Professor Alschuler cites Francis A. Allen's argument that a dedication to rehabilitation can make it challenging to limit the scope of state involvement, as "one immediate consequence of a rehabilitative regime is a drastic enlargement of state concerns. The state's interests now embrace not only the offender's conduct, but ... his motives, his history, his social environment." </p><p>The concerns of libertarians and others interested in a limited state are easy to comprehend. </p>
Enough of this abstract philosophy, what does the data say?<iframe width="730" height="430" src="https://www.youtube.com/embed/buCU6eP9iVA" frameborder="0" allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture" allowfullscreen></iframe><p> Empirical data does exist in a wide variety of areas related to the criminal justice system. Here, we can use it to see if the above conceptions of justice can do what they set out to do. </p><p>Retributive justice benefits from only seeking to deal punishment out to those convicted of crimes, which it often manages to do. It isn't easy to empirically measure such a thing, but its various side effects can be measured.</p><p>Studies show that those close to a convicted individual can share the effects of punishment despite them not having committed a crime <a href="https://www.sentencingproject.org/publications/6148/" target="_blank" rel="noopener noreferrer">themselves</a>. Similarly, a criminal record's impact can follow people long after they have "paid their debt to society," suggesting that it is more difficult to assure "proportionality" in sentencing than might be <a href="https://newrepublic.com/article/134712/wounds-incarceration-never-heal" target="_blank" rel="noopener noreferrer">supposed</a>. In the United States, unequal sentencing is a known and well-documented <a href="https://www.sentencingproject.org/publications/un-report-on-racial-disparities/" target="_blank" rel="noopener noreferrer">problem</a>, suggesting more difficulties in reaching the ideals of retributive justice in reality. </p><p>Deterrence theory has a fair amount of empirical evidence against it. Studies suggest that many crimes are committed under the rationality reducing influence of <a href="https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf" target="_blank" rel="noopener noreferrer">alcohol</a>, that few people can tell you what the punishments for a given crime <a href="https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf" target="_blank" rel="noopener noreferrer">are</a>, and that many people don't consider the possibility of being caught when planning a crime. </p><p>Longer sentences are associated with slightly higher recidivism <a href="https://www.prisonpolicy.org/scans/gendreau.pdf" target="_blank" rel="noopener noreferrer">rates</a>, the opposite of what a proponent of deterrence theory would expect from people with first-hand knowledge of the prison system. Likewise, programs like "scared straight" don't seem to do much. </p><p>However, Professor Daniel Nagin has argued for the existence of a general deterrent <a href="https://web.archive.org/web/20161005063450/http://faculty.washington.edu/matsueda/courses/587/readings/Nagin%201998.pdf" target="_blank" rel="noopener noreferrer">effect</a> while also suggesting it is difficult to use this to make any new policy. Dr. Valerie Wright suggests that a deterrent effect does <a href="https://www.sentencingproject.org/wp-content/uploads/2016/01/Deterrence-in-Criminal-Justice.pdf" target="_blank" rel="noopener noreferrer">exist</a>, but adds that it is tied to how certain a person is that they will be caught and given a specific punishment rather than how terrible their punishment might be. </p><p>Rehabilitation has shown promise in achieving its goals. Efforts at providing <a href="https://static.prisonpolicy.org/scans/ny_ged.shtml" target="_blank" rel="noopener noreferrer">education</a> and <a href="https://www.apa.org/research/action/aftercare" target="_blank" rel="noopener noreferrer">addiction treatment</a> in the American prison system lead to reductions in recidivism. The Norwegian prison system, based on rehabilitation and renowned for its <a href="https://www.theguardian.com/society/2013/feb/25/norwegian-prison-inmates-treated-like-people" target="_blank" rel="noopener noreferrer">humanity</a>, boasts one of the lowest recidivism rates in the <a href="https://www.salve.edu/sites/default/files/filesfield/documents/Incarceration_and_Recidivism.pdf" target="_blank" rel="noopener noreferrer">world</a>.<br> </p><p>Despite this, American efforts have yet to match the Norwegian system's effectiveness levels, and some studies also suggest that modern treatment programs have little effect on individuals with <a href="https://www.gwern.net/docs/algernon/2006-harris.pdf" target="_blank" rel="noopener noreferrer">psychopathy</a>, who are disproportionately incarcerated and have a high rate of <a href="https://www.nytimes.com/2012/05/13/magazine/can-you-call-a-9-year-old-a-psychopath.html" target="_blank" rel="noopener noreferrer">recidivism</a> to begin with. <br></p><p>What this data means is going to be influenced by which of the above arguments appeal to you. Do the side effects of retributive policies or the problems we have in assuring equal punishments for similar crimes outweigh the moral intuition towards punishing criminals? Do failures in rehabilitative practices make the concept worthless? Can deterrence be of use even if we know a disproportionate number of criminals aren't acting along the lines of its assumptions? </p><p>The raw numbers can't answer these questions by themselves. Philosophy has to step in and provide the tools for value judgments, answer questions of justice, and help determine where the line between theory and practice has to be drawn. </p><p>We'll probably never be rid of the need to do something with people who harm or violate the rights of others. What we do with them is another question. No definitive answer exists for what models of justice and punishment are best. Still, by considering the philosophy and raw data around each model, we might find something that works for our society. While many people would support a system that uses elements of all three of these considered philosophies, alongside others, how much of each to use remains the subject of continual debate. </p>
The Labour Economics study suggests two potential reasons for the increase: corruption and increased capacity.
Cool hand rebuke<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNDQyMTIyNy9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY0NjY1NTYyOH0.0MCPKN3If94mYCNf3mMNrnTvJXjXN_bKLhgk9203EXk/img.jpg?width=917&coordinates=0%2C0%2C0%2C0&height=453" id="1627b" class="rm-shortcode" data-rm-shortcode-id="6d76421ba1ea0de4b09956b97e80c384" data-rm-shortcode-name="rebelmouse-image" />
A chart showing prison population rates (per 100,000 people) in 2018. The United States has the highest rate of incarceration in the world.
Who profits with for-profit prisons?<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="97ac37e6c7f6f22ec130ea2d56871701"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/dB78NV2WpWc?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>The Labour Economics study suggests that privately-run prisons do convicts a few favors at the moment of sentencing. However, proponents of private prisons often point to other benefits when making their case. Specifically, they argue that private prisons reduce operating costs, stimulate innovation in the correctional system, and reduce recidivism—the rate at which released prisoners are rearrested and return to prison.</p><p>In regard to recidivism, the research is mixed. <a href="https://journals.sagepub.com/doi/abs/10.1177/0011128799045001002" target="_blank">One study</a> compared roughly 400 former prisoners from Florida, 200 released from private prisons and 200 from state-run facilities. It found the private-prison cohort maintained lower rates of recidivism. However, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9133.2005.00006.x" target="_blank" rel="noopener noreferrer">another Florida study</a> found no significant rate differences. And two other studies—one from <a href="https://journals.sagepub.com/doi/abs/10.1177/0011128799045001002" target="_blank" rel="noopener noreferrer">Oklahoma</a> and another out of <a href="https://journals.sagepub.com/doi/abs/10.1177/0734016813478823" target="_blank" rel="noopener noreferrer">Minnesota</a>, both comparing much larger cohorts than the first Florida study— found that prisoners leaving private prisons had a greater risk of recidivism.</p><p>The research is also inconclusive regarding cost savings. <a href="https://www.hamiltonproject.org/assets/files/economics_of_private_prisons.pdf" target="_blank" rel="noopener noreferrer">A Hamilton Project analysis</a> noted that such comparisons are difficult because private prisons, like all private companies, are not required to release operational details. In comparing what studies were available, the authors estimate the costs to be comparable and that "in practice the primary mechanism for cost saving in private prisons is lower salaries for correctional officers"—about $7,000 less than their public peers. They add that competition-driven innovation is lacking as the three largest firms control nearly the entire market.</p><p>"We aren't saying private prisons are bad," Galinato said. "But states need to be careful with them. If your state has previous and regular issues with corruption, I wouldn't be surprised to see laws being more skewed to give longer sentences, for example. If the goal is to reduce the number of incarcerated individuals, increasing the number of private prisons may not be the way to go."</p>
Researchers are using technology to make visual the complex concepts of racism, as well as its political and social consequences.
- Often thought of first as gaming tech, virtual reality has been increasingly used in research as a tool for mimicking real-life scenarios and experiences in a safe and controlled environment.
- Focusing on issues of oppression and the ripple affect it has throughout America's political, educational, and social systems, Dr. Courtney D. Cogburn of Columbia University School of Social Work and her team developed a VR experience that gives users the opportunity to "walk a mile" in the shoes of a black man as he faces racism at three stages in his life: as a child, during adolescence, and as an adult.
- Cogburn says that the goal is to show how these "interwoven oppressions" continue to shape the world beyond our individual experiences. "I think the most important and powerful human superpower is critical consciousness," she says. "And that is the ability to think, be aware and think critically about the world and people around you...it's not so much about the interpersonal 'Do I feel bad, do I like you?'—it's more 'Do I see the world as it is? Am I thinking critically about it and engaging it?'"
8 powerful voices share what it's like to be black in America, and why white people must break the racist status quo.
- Black communities have been telling the nation, for more than a century, that they have been targeted, beaten, falsely accused and killed by the police and other institutions meant to protect them.
- They have not been believed until recently, when the rise in camera phones and social media finally enabled them show and disseminate proof.
- Even after the video of George Floyd's death on May 25, 2020, there remains defensiveness and denial among white Americans and institutions—a defensiveness that prevents change to the root of the problem: systemic racism. In this video, eight powerful voices share perspectives on being black in America, and why white inaction and white politeness must end.
The programming giant exits the space due to ethical concerns.
- IBM sent a latter to Congress stating it will no longer research, develop, or sell facial recognition software.
- AI-based facial recognition software remains widely available to law enforcement and private industry.
- Facial recognition software is far from infallible, and often reflects its creators' bias.
In what strikes one as a classic case of shutting the stable door long after the horse has bolted, IBM's CEO Arvind Krishna has announced the company will no longer sell general-purpose facial recognition software, citing ethical concerns, in particular with the technology's potential for use in racial profiling by police. They will also cease research and development of this tech.
While laudable, this announcement arguably arrives about five years later than it might have, as numerous companies sell AI-based facial recognition software, often to law enforcement. Anyone who uses Facebook or Google also knows all about this technology, as we watch both companies tag friends and associates for us. (Facebook recently settled a lawsuit regarding the unlawful use of facial recognition for $550 million.)
It's worth noting that no one other than IBM has offered to cease developing and selling facial recognition software.
Image source: Tada Images/Shutterstock
Krishna made the announcement in a public letter to Senators Cory Booker (D-NJ) and Kamala Harris (D-CA), and Representatives Karen Bass (D-CA), Hakeem Jeffries (D-NY), and Jerrold Nadler (D-NY). Democrats in Congress are considering legislation to ban facial-recognition software as reported abuses pile up.
IBM's letter states:
"IBM firmly opposes and will not condone uses of any technology, including facial recognition technology offered by other vendors, for mass surveillance, racial profiling, violations of basic human rights and freedoms, or any purpose which is not consistent with our values and Principles of Trust and Transparency. We believe now is the time to begin a national dialogue on whether and how facial recognition technology should be employed by domestic law enforcement agencies."
Prior to their exit entirely from facial recognition, IBM had a mixed record. The company scanned nearly a million Creative Commons images from Flickr without their owners' consent. On the other hand, IBM released a public data set in 2018 in an attempt at transparency.
Image source: Best-Backgrounds/Shutterstock
Privacy issues aside — and there definitely are privacy concerns here — the currently available software is immature and prone to errors. Worse, it often reflects the biases of its programmers, who work for private companies with little regulation or oversight. And since commercial facial recognition software is sold to law enforcement, the frequent identification errors and biases are dangerous: They can ruin the lives of innocent people.
The website Gender Shades offers an enlightening demonstration of the type of inaccuracies to which facial recognition is inclined. The page was put together by Joy Buolamwini and Timnit Gebru in 2018, and doesn't reflect the most recent iterations of the software it tests, from three companies, Microsoft, the now-presumably-late IBM Watson, and Face++. Nonetheless, it's telling. To begin with, all three programs did significantly better at identifying men than women. However, when it came to gender identification — simplified to binary designations for simplicity — and skin color, the unimpressive results were genuinely troubling for the bias they reflected.
Amazon's Rekognition facial recognition software is the one most frequently sold to law enforcement, and an ACLU test run in 2018 revealed it also to be pretty bad: It incorrectly identified 28 members of Congress as people in a public database of 28,000 mugshots.
Update, 6/11/2020: Amazon today announced a 12-month moratorium on law-enforcement use of Rekognition, expressing the company's hope that Congress will in the interim enact "stronger regulations to govern the ethical use of facial recognition technology."
In 2019, a federal study by the National Institute of Standards and Technology reported empirical evidence of bias relating to age, gender, and race in the 189 facial recognition algorithms they analyzed. Members of certain groups of people were 100 times more likely to be misidentified. This study is ongoing.
Facial rec's poster child
Image source: Gian Cescon/Unsplash
The company most infamously associated with privacy-invading facial recognition software has to be Clearview AI, about whom we've previously written. This company scraped identification from over 3 billion social media images without posters' permission to develop software sold to law enforcement agencies.
The ACLU sued Clearview AI in May of 2020 for engaging in "unlawful, privacy-destroying surveillance activities" in violation of Illinois' Biometric Information Privacy Act. The organization wrote to CNN, "Clearview is as free to look at online photos as anyone with an internet connection. But what it can't do is capture our faceprints — uniquely identifying biometrics — from those photos without consent." The ACLU's complaint alleges "In capturing these billions of faceprints and continuing to store them in a massive database, Clearview has failed, and continues to fail, to take the basic steps necessary to ensure that its conduct is lawful."
The longer term
Though it undoubtedly sends a chill down the spine, the onrush of facial recognition technologies — encouraged by the software industry's infatuation with AI — suggests that we can't escape being identified by our faces for long, legislation or not. Advertisers want to know who we are, law enforcement wants to know who we are, and as our lives revolve ever more decisively around social media, many will no doubt welcome technology that automatically brings us together with friends and associates old and new. Concerns about the potential for abuse may wind up taking a back seat to convenience.
It's been an open question for some time whether privacy is even an issue for those who've grown up surrounded by connected devices. These generations don't care so much about privacy because they — realistically — don't expect it, particularly in the U.S. where very little is legally private.
IBM's principled stand may ultimately be more pyrrhic than anything else.