Link to the Original Essay

If there was one word to define the nature of the current U.S. prison system it would be "punishment."

The U.S. prison system is often referred to as a system of retributive justice.

The underlying notion behind our system is the idea that all humans are individuals with total autonomous free will and that when they act criminally, they have done so out of personal choice—the assumption is that they could have acted otherwise.

In light of this, "responsibility" takes the form of punishment, from a place of retribution. "Payback," so to speak. As the philosopher, Friedrich Nietzsche phrased it, "the criminal deserves to be punished because he could have acted otherwise."

Such retributive forms of handling misbehavior are clearly cultural; they span beyond the context of U.S. prison systems: parents and teachers punish children, people are punished for saying the "wrong" things and we treat a great number of criminals harshly upon their exit from prison, through severely limiting their individual rights and liberties.

Both the philosophers John Locke and Nietzsche were skeptical of the notion of "punishment" and for similar reasons. In essence, they believe that punishment simply served to embolden those who were subjected to punishment. For Locke, this is especially the case with punishing children in the process of their early education, noting, "slavish discipline makes a slavish temper."

For Nietzsche, his bone to pick with retribution is explicitly with respect to criminality: Retributive justice, par Nietzsche, is when justice shifts from the impersonal to the personal.

Punishment derives from what Nietzsche called the debtor-creditor relationship; punishment is a venting of anger toward harm that is done, with the implicit idea that there is an equivalent harm that can be inflicted in order to pay back the debt incurred from the injury.

The problem with this is that the moment one becomes subject to owing a debt, the person they owe that debt to can "inflict every kind of indignity and torture upon the body of the debtor." And the peculiarity here is that the recompense is generally some form of pleasure for the creditor—the enjoyment of the punishment of the debtor.

All of this might sound self-evident.

Don't we want criminals to be punished? Don't we want them to feel guilty? Shouldn't we feel good when they feel pain? From an American cultural perspective, these questions all too naturally arise.

It might be jarring for some readers to hear this, but such impulsive affirmation is actually the core of the problem. That we are, without reservations or second-thought, sanctioning cruelty and revenge as a form of compensation. There is something at the very least strange, and at the very worst morbid about this. Reality must draw us toward the latter morbidity.

Strange and morbid in a twofold sense: On the one hand, punishment simply doesn't solve the problem of criminal behavior. And on the other, there is little to no basis for the notion of free will, which undergirds our collective justification of retribution.

On the former, there is ample evidence suggesting that the retributive justice system actually exacerbates criminal behavior; hence its morbidity. Through punishment, we are celebrating cruelty, which ultimately emboldens those who we think we're receiving compensation from, which in turn creates a paradox of more criminality.

We can take this from the purview of what most crime actually is—or, more precisely, what most crime that actually goes punished is. At least in the U.S., despite recent reports of increases, violent crime is the exception, not the rule.

Think about who exactly is in prison at the moment: According to the U.S. Department of Justice in 2019, 46 percent of sentenced federal prisoners were imprisoned for a drug offense, whereas 8 percent were serving time for a violent offense.

Granted, of that 46 percent, 99 percent were drug trafficking-related charges. This is not a product of the wickedness of drugs: Drugs aren't bad, but poor drug education leads to irresponsible drug use, which is bad, as the neuroscientist Carl Hart has bravely pointed out in his new book Drug Use for Grown-Ups; rather, this is a product of the U.S. war on drugs, which creates more crime than it solves.

In light of the fact that nearly 50 percent—a conservative statistic from William F. Buckley Jr., mind you—of the trial time in courts handle drug-related crimes, it is clear that the priorities of our justice system are vague and opaque.

In any case, how much can we say about the retributive justice system working when the recidivism rate for criminals in the U.S. is astonishingly high? And how much can we truly justify this in light of the fact that in countries that opt for rehabilitative systems of justice, like Norway, the recidivism rate is very low? In light of Nietzsche's creditor-debtor scenario, how is any compensation being paid to victims of crime, when many of these criminals repeat their crimes, due to the very motivation of revenge that is inherent to our justice system? They aren't.

Cruelty is merely the illusion of payback, wherein the reality is that one is simply placing criminals in a position to inflict their misbehavior unto others—whether inside of prison or when they get out of prison.

Could a criminal have acted differently? Do we have freedom of will?

The philosopher Martin Heidegger had a term he called "thrownness." Thrownness is the fact that we are "thrown" into this world, and who we are as people is shaped almost entirely by things that are not in our control—our parents, genetics, socio-economic status, educational opportunities, etc.

How can we be in full control of our actions when the very fact of who we are as people has very little to do with our individual volition? Our bandwidth of individual volition is even something that is largely out of our control. Our actions and thoughts are produced by events in our brain that we are completely unaware of and which seem to spring out of the void of consciousness—something one can notice if they are truly paying close enough attention.

As the philosopher Baruch Spinoza noted, the only reason we think we have free will is that it feels like we do, because we understand some of the causes of our volitions—once we grasp that most of these causes are out of our volitional reach—the illusion of free will vanishes. And consider who commits crimes: Over half of criminals that are incarcerated are reported to have a personality disorder. Is this something we should punish or something we should treat?

Does this mean we should abdicate people of responsibility when they commit crimes? Absolutely not, but the notion of stripping criminals of responsibility is heavily associated with rehabilitative justice. And understandably so.

In post-World War II America and Britain, rehabilitative systems of justice were tried. These systems did away with notions of punishment and responsibility and replaced them with notions of diagnosis and treatment.

The problem is that a huge part of the treatment of any pathology—whether social or psychological—is adopting responsibility for one's actions. Any form of rehabilitative justice needs to entail the ability of the criminal to truly own up to their crimes and take responsibility for them.

Just because somebody has a personality disorder doesn't mean they are not moral agents. Almost all psychological treatments agree that the clinical aim is to modify unstable patterns in a positive direction; successful therapy is the ability to take responsibility and accountability for one's bad behavior, even despite mental illness—something which people should not be blamed for.

Is there absolutely no place for punishment? No. Minimum effective dosage is something psychiatrists often recommend to new patients: so too with punishment toward criminals who refuse treatment.

What about those who are not recoverable? They surely do exist, but most psychologists agree that most people have the capacity to change for the better. In any case, those that cannot change should not be treated through the lens of cruelty and revenge—which, as we have seen, only creates more crime and more pseudo-justification for such cruelty; rather, they should be treated through the lens of harm reduction. Sometimes this might even include the death penalty—do we really want irrecoverable rapists and murderers in the same place as non-violent drug offenders, which is what often happens in prisons?

None of this is to diminish the experience of those who have been severely impacted by harsh crime. These individuals deserve nothing but sympathy and recompense, but creating more crime and cruelty in the world is not true recompense—even if it feels like it at the moment.

What would truly repay crime is to reduce it through reforming people who would otherwise be causing more harm.