In a recent article in the Berkeley Journal of Criminal Law, Peter Salib seeks to critique the current prison system in the United States from an economic standpoint and suggest some desired features of an alternative system. Though neither the critique nor the alternative are anarchist in nature, there is still much to be learned and possibly some contributions we can offer.
The arguments against the current system are fairly standard yet in depth and insightful. The most significant one is the problem of restitution and wealth transfer. When a crime is committed, the state receives money and labor (wealth) and the victim receives none (and actually usually pays out as well). The author brings out a further issue here—the destruction of wealth. Not only is there wealth that could be transferred to the victim which is not, but wealth is in fact destroyed. When a ”bad actor” is incarcerated, they are taken out of the marketplace. Salib terms this a loss in ”societal wealth.” This resonates with libertarians’ free-trade globalism: larger markets (more consumers and producers) make everyone wealthier.
The other critiques are towards the Prison Industrial Complex, administrative costs, and failure to deter crime. Examples are cited of the political lobbying by massive health care and food service industries as well as construction companies to keep or improve their contracts with prisons, both private and public.
The alternative offered is alarming to the mainstream, but fairly non-radical in the grand scheme. Salib proposes forced labor (which is, in fact, constitutional under the 13th amendment) as well as old school punishment like flogging, wearing signs, and embarrassing haircuts (also constitutional if you’re an originalist). Such non-monetary punishments are proposed with the goal of deterrence, at the point where monetary retribution has been made and more would incur societal wealth destruction.
The idea is motivated by the fact that it may desirable to limit monetary punishments (reduce perverse incentives, ensure payment) but in order to ”optimally deter” crimes, there may be more punishment necessary. Thus, bodily or psychological harm could be conceivably administered in such way as to only ”destroy non-transferrable wealth of the bad actor” and not destroy any societal wealth or wealth that could have been transferred (labor or money).
However, the proposed system does not escape the standard critique of punishment as deterrence. If the goal of punishment is deterrence, then it does not matter if someone is innocent; all that matters is that they are convicted. This seems to me to be the most perverse incentive possible and one to be avoided at all costs.
The proposed system also faces a sort of economic calculation problem. How can the cost to the criminal of a flogging be calculated? There is even a discussion of punishments being class-based in order to keep a poor person from facing a subjectively harsher punishment than a rich person. This leads to a graduated criminal code which is not only controversial itself, but greatly complicates the calculation of appropriate or ”optimal” punishments. This portion is decidedly anti-individualist and presents a serious problem.
A final worthwhile point is made in the responses to standard objections. One objection against the abolition of prisons is that criminals must be locked up so that they do not commit more crimes. But this is shown to be self-defeating in three ways. First, obviously criminals can still commit crimes in prison. Second, not all prison sentences are for life. They expire, even if the criminal never shows ”improvement” or ”remorse” or whatever arbitrary benchmark means they can safely rejoin society. Thirdly, 80% of prisoners are released on parole, so clearly there are already current practices to contain crime without locking people up.
Additionally, there are studies suggesting parole actually causes lower recidivism rates, despite the fact that parole is terribly archaic at the moment. It could easily be modernized in order to safely allow criminals to walk among us as they pay their debt to their victim.
Sabil’s critique of the current prison is solid and demonstrates the option for alternatives though there may be significant artifacts from the current system in his proposals. Anarchists and libertarians can build on this critique and offer market solutions to broken state and crony systems which are both efficient and individualist.