The US prison system continues to fail, so why does it still exist?
- The United States is the world's largest prison warden. As of June 2020, America had the highest prisoner rate, with 655 prisoners per 100,000 of the national population. But according to experts, doing something the most doesn't mean doing it the best.
- The system is a failure both economically and in terms of the way inmates are treated, with many equating it to legal slavery. American prisons en masse are expensive, brutal, and ineffective, so why aren't we trying better alternatives? And what exactly are these overstuffed facilities accomplishing?
- Damien Echols and Shaka Senghor share first-hand accounts of life both in and after prison, while political science professor Marie Gottschalk, activist Liza Jessie Peterson, historian Robert Perkinson, and others speak to the ways that America's treatment of its citizens could and should improve. "The prison industrial complex is a human rights crisis," says Peterson. "Something needs to be done."
The 'reasonable person' represents someone who is both common and good.
The reasonable person is not just the average person. That's easily seen. Sometimes, average people do unreasonable things. This insight has led theorists to propose the reasonable person as some 'ideal person', such as the virtuous person, the person who achieves the best consequences, or the person who acts in accord with moral duty.
But this is all too quick. The reasonable person isn't just the average person, but neither is it simply the ideal person. Instead, the 'reasonable person' represents someone who is both common and good.
The reasonable person is often associated with the law of accidents. To determine whether someone is legally responsible for causing an injury, courts apply a test of 'reasonable care'. Did the person causing the injury act with the care of a reasonable person? But reasonableness sets countless other legal standards: was a killing reasonably provoked? Would advertisements have misled a reasonable consumer? Was a contract offer accepted in a reasonable time? Was a criminal trial reasonably delayed? Reasonableness appears within the law of both the United States and the United Kingdom as well as that of Australia, Brazil, Canada, China, Egypt, Hong Kong, India, Russia and Singapore.
Theorists often remark that the reasonable person is not the average person. As the American legal philosopher Peter Westen puts it:
[R]easonableness is not an empirical or statistical measure of how average members of the public think, feel, or behave … Rather, reasonableness is a normative measure of ways in which it is right for persons to think, feel, or behave …
The fact that a reasonable person can't be an average person inspires 'ideal' theories of the reasonable person. The UK's Supreme Court elaborates this view, on which facts about average people are entirely irrelevant. Evidence about ordinary people is 'beside the point. The behaviour of the reasonable man is not established by the evidence of witness, but by the application of a legal standard by the court.' On this view, the reasonable person is some 'ideal' person. As the UK Supreme Court observed, it is 'the anthropomorphic conception of justice … the court itself'.
Of course, often 'the court itself' reflects the judgment of ordinary jurors. Perhaps surprisingly, the question of how ordinary people judge reasonableness is largely neglected. When people evaluate a standard of 'reasonable care', it might be that they're considering the common level of care or a good level of care. Or perhaps they're considering both.
To test this thought, I ran an experiment. I divided participants into three groups. One group provided their estimates of the reasonable number of different things, such as 'the reasonable number of weeks' delay before a criminal trial' and 'the reasonable loan interest rate'. Another group provided their estimates of the average number of each thing (eg, the 'average loan interest rate'), and the last provided their estimates of the ideal number of each thing (eg, the 'ideal loan interest rate'). Then, I compared the three groups' mean estimates for each example. For instance, is the 'reasonable loan interest rate' more like the average or the ideal interest rate?
A striking pattern emerged: across all these different examples, the estimates of 'reasonable' amounts tended to be intermediate between the 'average' and 'ideal' ones. For example, the reasonable number of weeks' delay before a criminal trial (10 weeks) fell between the judged average (17) and ideal (7). So too for the reasonable number of days to accept a contract offer, the reasonable rate of attorney's fees, and the reasonable loan interest rate.
These results suggest that our conception of what is reasonable is informed by thinking about both what people actually do and what people should do. Reasonableness is not a purely statistical notion, nor is it a purely prescriptive one; instead, it is a 'hybrid'. In this way, reasonableness is similar to other hybrid judgments, such as our judgment of what is 'normal'.
Here we should distinguish between two questions about reasonableness. First, how do ordinary people actually understand reasonableness? The experiment addresses this question. Reasonableness is a hybrid judgment, reflecting both what is common and what is good. Second, which conception of reasonableness should the law reflect?
While it is clear that reasonableness should not be a purely statistical standard, it is also rarely applied as a purely prescriptive one. Real legal standards don't elaborate the reasonable person as the 'virtuous person'. And jurors aren't actually instructed to evaluate reasonable care as whatever leads to the best consequences. To the contrary, when the law does elaborate reasonableness, it often suggests statistical considerations. For example, to challenge a misleading advertisement, plaintiffs must show that a 'reasonable consumer' would have been likely deceived or mislead. The standard is not meant to identify just what 'should' mislead an ideally scrupulous consumer. Instead, facts about when people are typically misled are crucial. Most courts consider statistical considerations, and some even call for a consumer survey or other evidence demonstrating that an advertisement actually tends to mislead consumers.
Historically, courts have referred not just to the 'reasonable person' but also to the 'ordinary person'. Often, courts seem to gesture towards some mixture of what is common and good. In the words of Justice Oliver Wendell Holmes in 1881, our standard of care should be set by the 'ideal average prudent man'.
Reasonableness captures an intuition about the relevance of both what is good and what is common. This produces a more nuanced standard. For example, the reasonable person does not have to do what an ideal person would do, but instead must meet some slightly less demanding standard. Or, the reasonable person is often close to the average person, but sometimes average people do bad things. More broadly, a standard that reflects both what is common and what is good makes the most sense of reasonableness standards across widely varied domains: from reasonable attorneys' fees and trial delays, to a reasonable provocation to kill, to reasonable consumers and judges.
Acknowledging the relevance of statistical considerations offers more progressive implications for another significant debate about reasonableness, known as the 'individualisation problem'. Which personal characteristics – age, gender, race, etc – should be included in reasonable-person analyses?
For example, in sexual harassment law, we might consider how a reasonable person would understand certain workplace remarks – for instance, apparently sexist remarks. But should we ask about how the 'reasonable person' or the 'reasonable woman' would understand those remarks? On popular philosophical theories, we would individualise to a reasonable-woman standard if it seems that women should understand certain workplace remarks differently from men. We might ask, for example, whether the 'virtuous woman' has a different understanding from the 'virtuous man' in this context.
However, if what is common is also relevant to determining what is reasonable, it is more sensible for statistical considerations to impact on our individualisation choice. We have a reason to individualise if women do (in fact) understand certain remarks differently from men. To be sure, this view doesn't imply that we must individualise whenever there are such differences. But it provides a broader range of considerations to capture the aims of reasonableness standards and individualisation.
As many have rightly noted, the reasonable person is not simply the average person. But contrary to influential theories, the reasonable person is not some ideal person, an 'anthropomorphic conception of justice'. People do not judge reasonableness that way. Nor does much of the law – for good reason. The reasonable person is a hybrid person, reflecting a mixture of what is common and what is good.
One bill hopes to repeal the crime of selling sex and expand social services; the other would legalize the entire sex trade.
Although incorrectly labeled the world's oldest profession, prostitution has been on the minds of lawmakers for as long as extant laws allow us to track. The Code of Hammurabi, the most complete of ancient Babylonian laws, doesn't deal with the sex trade directly but does distinguish between the inheritance rights enjoyed by "devoted women" versus prostituted women.
A few centuries later and across the Mediterranean, the ancient Greek and Roman civilizations regulated a legal sex trade depicted on frescos and black-and-red-figure vases in exotic and highly idealized terms. However, the courtesan's life was hardly a high-minded exercise in sexual liberation. Freeborn wives and daughters did not participate in the sex trade. Instead, these societies filled their brothels with slaves and infames and allowed them to suffer in abhorrent living conditions. The ashen evidence from Pompeii reveals that prostituted women and young men were immured within dark, stifling cells barely large enough to house their stone beds.
In the United States today prostitution is entirely illegal, save for a few counties in the state of Nevada. Yet, trafficking persists across the country. One study from the Field Center for Children's Policy, University of Pennsylvania, interviewed vulnerable youths across 13 cities and found that roughly a fifth were victims of sex trafficking. Many said they were approached for paid sexual acts during their first night of homelessness.
Opponents of the full-criminalization model argue that these regulations only aggravate such problems, driving prostituted people further underground, where harm and violence may be inflicted upon them without recourse. In recent decades, European countries have introduced new prostitution laws, leading U.S. advocates to raise their voices for decriminalization. And two new bills introduced in the New York State Senate hope to make that change.
The Equality Model asks, criminal or victim?
Advocates stand outside a courthouse to protest Ghislaine Maxwell, former girlfriend to Jeffrey Epstein, for her role in his sex-trafficking ring.
Credit: Timothy A. Clary/Getty Images
The most recent of the two is the Sex Trade Survivors Justice & Equality Act. Set to be introduced by Senator Liz Krueger of Manhattan, the law would repeal the crime of prostitution in the state but would maintain punitive measures against buyers and pimps. The penalty for buying sex, for example, would be a sliding-scale fine based on income. The bill also aims to strengthen laws against trafficking and eliminate the so-called ignorance defense, which affords buyers legal cover if they did not have "reasonable grounds" to assume their victim was underage.
The Sex Trade Survivors Justice & Equality Act is based on the Equality Model, first introduced in Sweden in 1999. Under the Swedish Sex Purchase Act, the country decriminalized prostitution and began targeting buyers and suppliers with the goal of lowering demand. As demand decreased, the thinking went, Sweden would witness a subsequent reduction in violence, trafficking, and the trauma associated so strongly with the illicit sex trade. And a 2008 report did find that the strategy manifested some of those goals.
After the law's introduction, costs increased, fewer men sought to purchase sex, and the number of women in street prostitution halved—though the burgeoning internet scene likely influenced that metric as much as the law.
As for Sweden's prostituted population, the report was mixed. Fears of the law driving prostitution further underground weren't realized, nor did the risks of physical abuse or dangerous living conditions increase. However, while people who sought to leave the life favored the law, those who wished to stay in the trade denigrated it for hyping the social stigma.
After the report's release, countries such as Norway, Iceland, Canada, and Israel adopted the Equality Model, and today, many U.S. advocacy groups champion for states to institute similar laws.
"We who have been in the human-trafficking policy movement for a long time have been advocating for years that people in prostitution should not be criminalized for their exploitation," Alexi Meyers, director of anti-trafficking policy at Sanctuary for Families, told Big Think in an interview discussing the New York bill. "It's the only law where the victim is arrested. Instead of handcuffs, [people in prostitution] need services, need housing, need support."
Critically, the Sex Trade Survivors Justice & Equality Act does more than decriminalize prostitution. It also bolsters social services such as housing, job training, and mental health care. To help finance these services, money collected by the aforementioned buyer fine will go into a victim-compensation fund. The bill also expands protections for minors arrested under safe harbor and would vacate victims' prior convictions so they could more easily find jobs.
"When someone has had no family support, have been abused their entire lives, and they haven't gotten the services they need, at the age of 18, they haven't magically transformed from a victim of trafficking into a consenting adult," Jayne Bigelsen, vice president of advocacy for Covenant House, New York, said in our interview.
Bigelsen grants that not everyone engaged in the commercial sex trade may view themselves as a victim, but she notes that a large portion of the population remains vulnerable nonetheless. To treat such people as criminals, as so many contemporary laws do, does no one any favors. The fear of arrest actively discourages victims from seeking an "off-ramp" to the life and strengthens the coercive hold their pimps and traffickers maintain on them.
"[The law helps] reframe the understanding that this is not a crime. It is a form of gender-based violence and exploitation. I think, over time, people will have a greater understanding of that," Bigelsen adds.
Prostitution, an occupation like any other?
Sex workers in Amsterdam's famous red-light district, where window prostitution is permitted.
Credit: Dean Mouhtaropoulos/Getty Images
But critics of the Equality Model believe it's disguised paternalism that robs women of the right to choose. Worse, they argue, it further stigmatizes sex workers within society and drives the sex trade further underground, where exploitation and violence can continue to fester from prying eyes.
A second New York Senate bill, currently in committee, would decriminalize the entire sex trade within the state. Called the Stop Violence in the Sex Trades Act, the bill would keep penal laws related to minors and sex trafficking but would make sex work between consenting adults a legal, regulated trade.
"Sex work is work and should not be criminalized by the state," Senator Julia Salazar, who introduced the bill, stated in a press release. "Our current policies only empower traffickers and others who benefit from keeping sex work in the shadows. New York State needs to listen to sex workers and make these common-sense reforms to keep sex workers safe and empower sex workers in their workplaces."
Like the Sex Trade Survivors Justice & Equality Act, Salazar's bill draws inspiration from European laws, namely those from the Netherlands and Germany. Both countries legalized the sex trade a few years after Sweden introduced its Equality Model—though laws and regulations vary between the countries and even districts within them. For example, Germany has passed a law that requires any business offering sex services to apply for a permit "that will only be granted if health, hygiene and room requirements are met," while Amsterdam limits window prostitution to specific city zones.
Full-decriminalization advocates hope such laws will facilitate freedom of choice, access to social services, improved health and working conditions, and the decoupling of the occupation from criminal enterprises. They also argue that full decriminalization closes the unintended consequences created by the Equality Model.
An Amnesty International report notes that in Norway, sex workers are routinely evicted from their homes because landlords fear rental agreements will expose them to prosecution for promoting sex. Similar liability concerns deter third parties, such as security, from working with sex workers, too. As a result, sex workers themselves may not be prosecuted but their lives are no less secure nor more firmly established within society.
"What we have isn't working. The current model of criminalizing sex work traps sex workers and trafficking survivors in cycles of violence. The new proposed legislation referred to as the 'Equality Model' conflates sex work with sex trafficking, using the logic of broken windows policing to address trafficking by targeting sex workers," writes the advocacy group Decrim NY.
New York State to lead decriminalization
Of course, Equality Model advocates have their arguments against full decriminalization. Even in countries that have legalized prostitution, the sex trade retains strong ties to criminal activities. Prostituted women continue to be viewed as pariah—or, in the case of Amsterdam, tourist attractions. And like the legal sex trades of the ancient world, contemporary examples have witnessed a surge in human trafficking to meet the demand. More often than not, poor women from poor countries.
"If you decriminalize people who buy sex, you're removing any legal barriers or social barriers, and the number of people who buy sex will exponentially increase, and you'll have to fill that new, legal demand with supply. And that supply is human bodies, and there aren't enough willing participants to fulfill that need. That's when trafficking occurs," Alexi Myers said.
A report commissioned by Germany's Federal Ministry for Family Affairs, Senior Citizens, Women and Youth looked into the effects of the country's 2001 law. It found the intended impacts to be lacking. According to the report, the Prostitution Act did not create measurable improvements on social protection, working conditions, reduced crime, or the means for leaving the business. The report did assuage some fears, however, by finding that legalization did not make it more difficult to prosecute sex traffickers or related violence when they occurred.
All told, data will never point to a perfect solution to this or any social concern. In the case of prostitution, emotions and moral instinct run at the redline. Often, the solution one proposes comes down to one's answer of this question: What is prostitution? Is it a violation of another human's rights and dignity? An occupation like any other? Or a moral offense old as the law itself?
Whatever your answer, you'll likely find current U.S. law lacking. It's for this reason that many states are reanalyzing and revamping their prostitution laws to protect victims, usually with more robust safe harbor laws. Whichever law New York State chooses, its successes and failures will likely serve as a bellwether for the United States moving forward.
7 scholars and legal experts dissect what you can and can't say in America.
- The free speech debate typically happens at either end of a spectrum — people believe they should be able to say whatever they want, or they believe that certain things (e.g. hate speech) should be censored. Who is right, and who gets to decide?
- While they acknowledge that speech is a powerful weapon that can cause infinite good and infinite harm, former ACLU president Nadine Strossen, sociologist Nicholas Christakis, author and skeptic Michael Shermer, and others agree that the principle should be defended for everyone, not just for those who share our views. "I'm not defending the Nazis," says Strossen, "I'm defending a principle that is especially important for those of us who want to have the freedom to raise our voices, to protest the Nazis and everything they stand for."
- However, as Strossen and attorney Floyd Abrams point out, there have always been boundaries when it comes to free speech and the First Amendment. There are rules, established by the Supreme Court, meant to ensure that speech is not used to inflict "imminent, specific harm" on others.
It's "the biggest blow to the war on drugs to date," said Kassandra Frederique, executive director of the Drug Policy Alliance.
- Oregon voted to decriminalize possession of small amounts of all drugs, including heroin, cocaine and methamphetamine.
- The state also legalized the therapeutic use and sale of psilocybin mushrooms.
- As the laws go into effect, other U.S. states will be watching to see how the experiment plays out, influencing future votes across the country.
Amid the uncertainty of the unfolding U.S. 2020 presidential election, Americans decided one thing on November 3 with refreshing clarity and unity: It's time to move away from the war on drugs.
In the nine states where ballots featured legalization or decriminalization measures, all passed. That includes recreational and medicinal marijuana in South Dakota, medical marijuana in Mississippi, and recreational marijuana in Arizona, Montana and New Jersey.
But Oregon passed the most sweeping and historic reforms, voting to partially decriminalize all drugs—even heroin, cocaine and methamphetamine. Oregon's measure 109 also legalized the therapeutic sale and use of psilocybin mushrooms, which, as a new era of psychedelic research continues to show, have proven remarkably effective at treating conditions like depression, anxiety and post-traumatic stress disorder.
Of course, drug decriminalization isn't legalization. Oregonians caught in possession of small amounts of hard drugs will be fined $100, whereas they would've been fined up to $6,250 and sentenced up to a year in jail under the previous law. The initiative, called the Addiction Treatment and Recovery Act, also allows people caught with drugs to avoid paying the fine if they undergo a health assessment at an addiction recovery center.
"Today's victory is a landmark declaration that the time has come to stop criminalizing people for drug use," said Kassandra Frederique, executive director of the Drug Policy Alliance, which was behind the measure. "Measure 110 is arguably the biggest blow to the war on drugs to date."
Oregon made history tonight by becoming the first state to decriminalize drug possession! Our c4 @DrugPolicyAct led… https://t.co/s9pNxUn4HI— Drug Policy Alliance (@Drug Policy Alliance)1604462857.0
The new laws aim to reframe drug use as a public health issue.
"People suffering from addiction are more effectively treated with health care services than with criminal punishments," Oregon's initiative says. "A health care approach includes a health assessment to figure out the needs of people who are suffering from addiction, and it includes connecting them to the services they need."
Marijuana and hard drugs remain illegal on the federal level. But as Americans generally continue to shift toward favoring drug reforms, citizens and policymakers will be watching Oregon to see how the experiment plays out, and the outcomes will likely influence voters in other states. Here are a few things to keep an eye on.
Arrest and incarceration rates
Reduced arrest and incarceration rates for drug possession are likely to be the most obvious changes. The Oregon Criminal Justice Commission estimates that the new laws will reduce convictions for drug possession by about 90 percent, from 4,057 convictions in 2019, to a projected 378 in 2021.
The commission's report also estimates that drug convictions among Black and Indigenous Oregonians may drop by 94 percent, and that racial disparities in drug arrests could drop by the same amount.
If more Oregonians stay out of the criminal justice system, it could help more people find employment, housing, addiction services and student loans, all of which can be harder to access with a drug conviction on your record.
It's also conceivable that the new initiative will reduce contentious interactions between Oregonians and law enforcement, which, potentially, could lead to lower arrest rates for other infractions, and create fewer opportunities for police interactions to turn violent.
Alternatively, if the initiative frees up time and resources for Oregon law enforcement, the state could see arrests rise for other types of crimes. That may include arresting more dealers and traffickers, considering the new laws only apply to users carrying small amounts. If police focus on the suppliers, it will likely change the dynamics of Oregon's illegal drug trade.
Drug use rates
How will removing the threat of jail and steep fines change drug use and overdose rates? It's hard to say for sure, but Portugal's 2001 decision to decriminalize drugs provides some clues. In the years following decriminalization, the nation's drug overdose deaths and HIV infection rates dropped significantly, while drug usage either stayed constant or decreased.
That drug use remained constant or decreased may be because Portugal only decriminalized drugs, meaning drugs weren't legally available for purchase at something like a marijuana dispensary. But it's also worth noting that Portugal invested money in addiction treatment services, as Oregon plans to do with tax revenues from marijuana sales and savings on correctional services.
"Most accounts of the Portugal experiment have focused on decriminalization, but decriminalization was part of a broader effort intended to encourage treatment," Hannah Laqueur, an assistant professor in the Department of Emergency Medicine at the University of California, Davis, told The New York Times.
Oregon will be a particularly interesting case study for decriminalization's effects on drug usage, considering the state ranks among the worst for rates of addiction, use, and overdose.
Although Oregon plans to expand investments in treatment programs for drug users, some are worried the new initiative will discourage people from seeking help.
John Kitzhaber, a former E.R. physician in Oregon, called for Oregonions to reject the measure, writing on his blog:
"Measure 110 would eliminate this invaluable tool by reducing the possession of highly addictive drugs like heroin, cocaine, methamphetamine and oxycodone to a "violation," which means the court will no longer have the ability to offer people the choice to pursue treatment. It also means that a teenager caught in possession of heroin or meth will only receive a ticket, which in many counties means that parents won't be informed of their child's drug use."
Still, even if Oregon's measure reduces the number of people who get treatment, that wouldn't necessarily be an indictment of decriminalization writ large, but rather the specific way the state is allocating funds. Kitzhaber concluded his post with a sentiment shared by both drug reform advocates and some of the measure's opponents: "Incarcerating people who suffer from addiction should not be tolerated."