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I consider myself a generalist. More specifically, I try to find patterns in one part of reality which are replicated elsewhere, in order to understand reality better. I filed “criminal law” under “science” in my mind when I recognized the epistemological similarities between falsification in science and “beyond a reasonable doubt” in criminal laws.
My belief in “beyond a reasonable doubt” was somewhat shaken by having watched the TV series “Bull”. However, I was fairly confident that American law, by and large, gets it right. Until today, when I ran across this article on LessWrong. Basically, there are so many confounders in most experiments that actually learning something new is unlikely if the experiment is made to test one variable.
If criminal law and science are twin methods of knowing, both based on eliminating all reasonable doubt, I no longer have faith in the death penalty except in the most absolutely obvious and clear-cut of non-cherrypicked cases.
Criminal justice reform can be somewhat of a snarl phrase because it’s generally used by people who seem to not believe in prison as a concept, or more charitably, are blank statists enough that they believe almost everyone can and should be rehabilitated with enough time and effort.
I’m not really in that camp and think we can and should lock people up for as long as we need if they’re violent menaces to others. That said, prison conditions in the US are appalling and I get extremely uncomfortable when people righteously gloat about how a criminal will be violently raped in prison as retribution for his crimes.
Someone who goes to prison for a minor or nonviolent offense often finds himself joining up with a prison gang just to have protection. Once you’re out, your criminal record hurts your employment chances, but it’s okay because you just networked with a group of hardened criminals… it’s like we designed the system to both maximize suffering and crime.
I’ve seen a few suggestions for reform on here that I really like. One was from a rather controversial user who used to post here named Penpractice, who suggested public corporal punishment instead of jail time for minor offenses. Basically, humiliate and let the criminal resume his life, rather then send him to prison to meet worse criminals.
I like this idea, but since I don’t believe the optics of this could survive for a minute in the US, a better solution came from 2cimirafa, who basically said “keep violent offenders in prison until they’re 60 and give them fast food and video games to keep them humanely fat and sedated.” If that could survive the inevitable Republican swipe of “Democrats want to buy Playstations for every felon in prison” it seems to be a good idea. Keeping violent offenders comfortable and sedated and off the streets should cut down on violence for prison guards, less hardened prisoners they would prey on, and of course the average person.
Obviously, both ideas would take a lot of work from concept to execution, but they seem a lot better than the current system.
I also think the people who valorize prison rape are doing a bad thing.
Because the brutal parts of prison life are "technically not supposed to happen," we get to have our cake and eat it, too, with regards to sentencing people to tortures and feeling innocent about it. It is, at the least, not in-line with most people's professed ideals, I think.
In my view, effective self-defense is a natural right, and any reasonable approach to imprisonment abridges that right pretty harshly. I am not therefore opposed to imprisonment! There are contexts where natural rights may be properly abridged, and this is one of them.
However, you can't abridge a natural right without consequences, and in this instance, I believe that the state takes on the moral responsibility for the prisoner's defense, since the state has so sharply limited his ability to provide that for himself. The state--and in a democracy, the people--can't shirk this moral responsibility by just shrugging and saying, "shit happens." The state should prevent prison rape where and when it can, in balance with its other responsibilities, and punish the inevitable failures.
How would that reasoning not lead to getting rid of jails completely? You could similarly argue that if the state takes away someone's freedom, they are obliged to provide him with freedom.
(If your answer is that the state only needs to provide some, but not as much as it took away, that would affect your original argument too.)
Imprisonment, as a punishment, is intended to restrict a prisoner's ability to commit crimes, by separating him from the rest of society and putting him under the supervision of guards. This is a direct, and intended, removal of liberty.
However, there are also second-order effects, that are not intended, but are--practically speaking--inevitable. One of those is the limitation on the prisoner's right of effective self-defense. This limitation isn't justified by the standard philosophical defenses of imprisonment-as-punishment, so in my view, the state needs to step in to replace what it has taken without justification.
More precisely, I'm arguing that if the state takes away someone's freedom without justification, they are obliged to provide him with something in exchange. In this case, if you remove someone's right to effective self defense without justification for removing that right specifically, then you're obliged to step in and make a reasonable effort to provide protection.
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