By Blake Plante (PO ’19)
“Thus do I counsel you, my friends: Mistrust all in whom the impulse to punish is powerful.” —Friedrich Nietzsche, Thus Spoke Zarathustra
Nietzsche writes that infliction of punishment unleashes a “festival of cruelty” which reaches its most jubilant form when organized by the state; that the pleasure in punishing must not be forgotten because it is its own warning [1]. “I would bring back waterboarding,” said Trump during the campaign, “and I’d bring back a hell of a lot worse than waterboarding.” Critics were quick to point out that waterboarding, among other intense torture methods, has been found not to work [2]. It is as if Trump was implying that the more macabre the torture, the more effective it will be, despite all indicators pointing otherwise. It is dangerous when the severity of the torture, rather than its effectiveness, becomes its raison d’être. Rather than serving constructive purposes, it becomes a cathartic vengeance which creates more problems than it solves. The same, it will be found, applies to punishment.
Legal macabre is captured in Kafka’s “In the Penal Colony”, which follows a traveller who is shown the colony’s penal system. This system amounts to an officer who declares that “guilt is always beyond doubt”, and his machine which elaborately tortures and kills the condemned by inscribing their sentence on their flesh over the course of twelve hours. The punishment is the same regardless of the offense. The machine exists, presumably, because the former leader of the penal colony found it to be a marvelous spectacle of justice. Kafka’s story presents several questions, among them: how do we measure punishment, and when does it approach justice? What mechanisms exist for carrying punishment out, and is the mechanism—rather than the law or the crime—the system’s rationale for punishment? Is the mechanism the law?
Punishment and justice are relational concepts, observes Robert Ferguson in “Inferno: An Anatomy of American Punishment” (21). He writes that “arguments over the purposes of punishment ignore the practice of it. Insofar as the length of a sentence can be justified, it provides a sanitized gauge for the punisher, not the punished” (Ferguson 25). Time is experienced differently in jail. “One day in prison is longer than almost any day you and I have to endure”, declares Associate Justice of the Supreme Court Anthony M. Kennedy. For former NYPD commissioner Bernard Kerik, “Going to prison is like dying with your eyes open.” We know what years are by our own experience, can we really comprehend what confinement does to time? A length sentence of any length is an arbitrary measure because it only gains its meaning in comparison to the length of time of other sentences. A sentence of a few years sets the template for the sentences of greater and lesser crimes, which will be longer or shorter. Thus “fairness” is achieved in the criminal justice system.
But missing from it is the quintessential basis that would define what the ideal sentence might be. That, indeed, does not and cannot exist, because its answer rests on how we define justice—whether justice is to be found in punishment or rehabilitation, and if it is to be found in punishment, whether that punishment is to be equivalent or overwhelming. In a criminal justice system that forms its basis on punishment, the measure of justice is not upon the accused, but is rather based upon whether or not the society is satisfied. And in this nebulous satisfaction, severity, rather than effectiveness, becomes the prison-industrial complex’s reason for being.
While the Obama administration had decreased the federal prison population and tried to phase out the use of private prisons, Attorney General Jeff Sessions reversed the decision a month into Trump’s administration. Last week, the largest private prison company in the United States held its annual leadership conference at a Miami golf resort owned by President Trump. GEO Group owns or manages about 140 prisons, immigration-detention centers, and other facilities nationwide, and has donated millions of dollars over the last two years in support of Trump. GEO Group has since secured the administration’s first contract for an immigration detention center, tripling its stock price. Washington Post reports that the detention center is expected to generate $44 million per year.
It should not be forgotten, explains Robert Ferguson, that “technological capacity as much as policy has created the enormous size and highly structured security arrangements of the American punishment regime. It can be done because mechanism allows the possibility on an unprecedented scale” (21). And mechanism is no reliable substitute for judgment: though the United States represents about 4.4% of the world’s population, it houses around 22% of the world’s prisoners, nearly 40% of whom are black. America’s recidivism rate, 76.6% within five years of release, is one of the highest in the world. Prison conditions do not generally make the incarcerated any better than they were, and contribute to more crime.
Kafka warns against the worship of the machine, because “no machine, no matter how intricate or refined, can provide the meaning of justice” (Ferguson 21). Yet America is on the move to entrust imprisoning more people to those whose primary concern is profit and shareholder return. A private prison industry with a business model of locking up as many people as possible has much to gain from mass detention of undocumented immigrants. When paired with the capacity for profit, a punishment based on nebulous societal satisfaction becomes a further transmogrification of justice. It is not only cathartic vengeance; it is stock that is bought and sold, worshipped for the value it creates to those who own it without regard for the real people within it.
[1] Nietzsche, Friedrich, On the Genealogy of Morality
[2] Risen, James, Pay Any Price; The War on Decency pg. 163-201
[3] Ferguson, Robert A., Inferno: An Anatomy of American Punishment
[4] Kafka, Franz, “In the Penal Colony”
