Should we abolish prisons?
Imprisonment is the archetypal restriction on liberty, the paradigm case. Liberty is such an important constituent of individuals' lives that we need exceedingly powerful reasons to throw people in prisons, even if all they did was restrict liberty, like the village in the TV series The Prisoner. But it's increasingly obvious that prisoners are not just unfree, but systematically brutalised in the most shocking ways, as illustrated in this barnstorming call to arms from Christopher Glazek in nplusone magazine:
America’s prison system is a moral catastrophe. The eerie sense of security that prevails on the streets of lower Manhattan obscures, and depends upon, a system of state-sponsored suffering as vicious and widespread as any in human history. Dismantling the system of American gulags, and holding accountable those responsible for their operation, presents the most urgent humanitarian imperative of our time.
The numbers, on prison rape particularly, are truly disturbing:
In January, prodded in part by outrage over a series of articles in the New York Review of Books, the Justice Department finally released an estimate of the prevalence of sexual abuse in penitentiaries. The reliance on filed complaints appeared to understate the problem. For 2008, for example, the government had previously tallied 935 confirmed instances of sexual abuse. After asking around, and performing some calculations, the Justice Department came up with a new number: 216,000. That’s 216,000 victims, not instances. These victims are often assaulted multiple times over the course of the year. The Justice Department now seems to be saying that prison rape accounted for the majority of all rapes committed in the US in 2008, likely making the United States the first country in the history of the world to count more rapes for men than for women.
It is a radical piece, arguing for the complete abolition of prisons:
If, in the popular imagination, the primary purpose of prisons is to keep us safe from (the vanishingly small number of) people like Charles Manson, then we should simply kill Charles Manson. Prison abolitionists should be ready to advocate a massive expansion of the death penalty if that’s what it takes to move the discussion forward. A prisonless society where murderers were systematically executed and rapists were automatically castrated wouldn’t be the most humane society imaginable, but it would be light-years ahead of the status quo. (Interestingly, unlike rape, homicide has one of the lowest recidivism rates of any crime—you can only murder your wife once—suggesting that death row inmates may pose less of a security risk than other categories of offenders.)
Obviously his article is focused on the USA, and uses US statistics—typically the UK system is seen as far less brutal, perhaps because we do not have the deep-seated racial angle seen in the US, and/or because our drug laws are enforced in a slightly less draconian manner. Having said that, according to the Howard League for Penal Reform's new Commission on Sex in Prison the data isn't widely available to make that sort of judgement.
But even if the UK is much better than the US, and even if we don't want to go the whole way to abolishing prisons, the matter is clearly of huge significance, but at the same time bizarrely underreported by most sources, despite the fact that around the world millions of people are in prison (e.g. in the USA, the prison population is bigger than any city except New York, Los Angeles or Chicago). Surely there must be a better way to deal with crime than forcing 15-year old petty thieves together with violent gangs who repeatedly rape them until they kill themselves?
Whether or not whole-life sentences are right, the ECHR is taking over British sovereignty
Jeremy’s Bamber’s successful appeal to the European Court of Human Rights (ECHR), has significance further than simply declaring whole life terms to be against human rights, and therefore allowing those sentenced to have their sentence reviewed and seek appeal. Although many will regard this as a great success for human rights in the UK, this is debatable, whilst it allows familiar concerns about the slow erosion of our sovereignty to emerge.
As seen in the saga of the only very recently successful attempt to deport Abu Qatada, the ECHR reigns supreme over the UK, and as such, it can overrule decisions by British Courts and Parliament. This has only been confirmed by today’s ruling, which clearly illustrates how Parliament has lost its sovereignty, as the laws it has made no longer necessarily take effect in the UK, as illustrated by the alteration of the whole-life tariff today. The fact that we no longer have power over our own sentencing, and that the Parliament, supposedly the most powerful institution in the country, has been usurped, should be a cause for alarm, and illustrates one of the main problems with our relations with that other overbearing European institution—the EU.
Separately, the claims that this is a victory for human rights, are, at best, dubious. Whilst it gives some of this country’s worst criminals a chance for release, it does not consider the rights of the victims of the crimes, or their families, who will either be forced to relive extremely uncomfortable events during retrials, or, even worse, be faced with the prospect of someone who has seriously harmed them or their family being released out into the world again. In addition, the threat of a whole life tariff is significantly diminished by this ruling, as lacks the weight it previously had, and so is less of a deterrent to crime.
Then there is the claim that prison offers the possibility for rehabilitation, and so releasing these criminals back into our society is not necessarily a bad thing. This may be all well and good in the case of more minor offenders, but those on whole life tariffs are hardly what you can call minor offenders, with some of Britain’s most notorious criminals, including Bamber himself, Peter Moore, and the more recently convicted Mark Bridger and Dale Cregan. The prospect of such violent and dangerous criminals being released, on the pretence that they have “reformed” is both unreliable, given their often deceptive characters, and disconcerting, as we may see serial killers returned to our streets.
This ruing, therefore, can be seen to have had a strongly negative impact on both sovereignty, sentencing processes, and even our own safety, and, as such, should be regarded with great concern.
Whole-life sentencing is wrong
The European Court of Human Rights has ruled, sixteen to one that whole-life jail sentences, with no possibility of release are "inhuman" and "degrading". I applaud their judgement. Teddy argues that the ECHR deciding for the UK takes away UK sovereignty, but that's fine with me so long as they make the right decision. Given the justifications we have for prison in general, complete life sentences make little sense.
Why do we keep people in prison? There have typically been four reasons people have given for punishment of any sort: deterrence, direct prevention, rehabilitation, and retribution. I think it's clear that retribution has no place in a just system, and should be dismissed out of hand. In discussing the import of the others in the question it must always be kept in mind that there is a very strong presumption in any instance that someone should not be in prison. Firstly, this is because prison is the archetypal restriction of freedom, and secondly because prison is extremely costly and we know that there are always other good uses for the resources they take up.
If there is any place for prison in a good society, then it is to keep dangerously ill people away from the others. The restriction on their liberty is justified by the extremely high costs they impose on others. But even in these cases we must always be vigilant. Even if someone is incurably violent when sentenced, they may not be five years later. If they are incurably violent deterrence may play little impact, and rehabilitation may not be possible. So the only question is whether they pose further harm to society. If they do not, we lack any justification for keeping them in prison. Given that individuals' circumstances, mentalities, and tendencies do change—and indeed should be expected to change more extensively if we expect more advanced treatments to become available—then we must surely not tie our hands in the future. And bear in mind that the boards deciding these issues are by no means unerring in the first place.
What of deterrence? Certainly it is clear that the prospect of one's entire life spent in prison is more unattractive than say, 25 years. And since it may be impossible to distinguish between incurable threats to society and crimes of opportunity in original sentencing we might need to sentence individuals longer in order to preserve prison's deterrent effect. But I'd question how different the expectation of a long stretch, say 25 years, and life really is to an offender, given how heavily people tend to discount the future. This compounds when we remember there is no certainty an offender will get caught or given the maximum sentence. If the difference in perceived costs to potential offenders is low (as I suspect), then it's likely the benefits from extra freedom, lower costs, and a more rational system outweigh the cost in lower deterrence.
Finally, we turn to rehabilitation. The statistics on recidivism and rehabilitation are fuzzy for various reasons, but 2011 data suggests around half of ex-prisoners are proven to reoffend (unproven numbers may be higher). Given that the same stats show that those who committed similar crimes, but who were given community orders, were much less likely to reoffend, I think there is a basic case for what seems obvious—putting people together with criminals, depriving them of time to gain skills and experience, and stamping with the badge of a convict is unlikely to guide them away from a life of crime. In any case rehabilitation is basically irrelevant for those sentenced to a whole-life, since they will by definition never be released into society.
So rehabilitation doesn't help the whole-life case, prevention by incarceration doesn't either, and deterrence only helps slightly. Therefore I believe the basic right individuals have to liberty, combined with the huge cost of prison means the ECHR is right to bring an end to the practice of life sentences without review.
When the khat is away, the mice will play
The government still hasn’t got the message. On Wednesday I saw that Theresa May has decided to ban khat, a herbal stimulant popular among Somali, Yemeni and Ethiopian communities. This goes against advice from the government’s own Advisory Council on the Misuse of Drugs (ACMD), which claimed there was “insufficient evidence” that khat caused health problems.
I agree with the ACMD that khat should remain legal, but for different reasons. The legal status of recreational drugs should not be decided by their healthiness. They should all be legal. Individuals should be free to harm their own bodies if they wish to do so. The government should be limited to providing information about the risks, providing customer protection through licensing and quality control, and helping those who struggle with addiction.
With this new ban, khat will go the way of other recreational drugs. Where there is demand, there will be a supply, regardless of the government’s ban. People who want to buy khat will now have to go through the black market. They will become involved with drug dealers who they would otherwise have no business with. These dealers will be unregulated, of course, so there will be none of the customer protection found in a legal market.
The BBC report says: "Somali groups in the UK had told the ACMD that use of khat was a 'significant social problem' and said it caused medical issues and family breakdowns."
Banning khat will likely exacerbate this problem. People whose khat habit is causing a problem will be less likely to seek help, for fear of being branded a criminal and punished by the state. The real problem is pushing the drug business underground. Dealers are risking years in jail for responding to a legitimate demand, so the incentive to obey other aspects of the law is limited and some have no qualms about cutting the drugs with more harmful substances, or assaulting their customers to keep them obedient.
These dealers would not exist if drugs were legal. I realise that while cigarettes are still legal, there is a significant black market in them. This is mostly due to the huge taxes the government hits them with: 82% of the price of a packet of fags is tax. But when recreational drug users can only get their highs illegally, the black market is much bigger. As ever, the example of alcohol prohibition 1920s USA is illustrative.
Finally, legalising recreational drugs would help the government’s finances as well: the tax revenues would be huge. In 2011/12, the government received £2.8m through taxing khat. That was £13.8m worth of khat - the overall drugs market is estimated at between £2.15bn and £6.54bn. But instead, the government ignores advice it has requested, as it did in the case of ACMD chairman David Nutt in 2009. Nutt himself uses a clever analogy to refute the khat ban. But it seems that the state’s illogical control freak attitude will stubbornly persist.
The government should legalise not only khat, but all other recreational drugs. This would correct the current infringement on liberty, make it easier for addicts to get help, bring in tax revenue, and destroy the black market and related crime.
Opt-out is a step forward, but it doesn't go far enough
The Welsh assembly on Tuesday voted to allow hospitals to presume individuals have given consent for organ donation, in the absence of an objection from the individual themselves, or evidence from family or friends they would have had an objection. This a step forward. Nudges—non-coercive changes in the presentation of options that result in different decisions—may work. Adults in the UK can expect to wait for over three years for a kidney, and the good transplants do is huge—if we can do anything to cut down on the wait with something as innocuous as a nudge, we should, and let's hope the measure makes it over to the UK as soon as possible.
But it's not enough. Cadavers are not people, and they should not be accorded rights as if they were. A person has the right to guide and direct their life, but once they are dead their body is effectively meat. Given this, no one's wishes, or their families wishes, about what is to be done with their corpse should be taken as gospel. I know this is a controversial position, but really it shouldn't be. Neither of the three main objections I've heard really seems to hold much water at all.
1. But we own our bodies! You are effectively licensing theft of our bodies!
We own our bodies while we are alive. Either we have this right because in general it promotes good consequences, social welfare, human happiness, or we have this right because it protects an important interest of ours, or to protect our choice or will. I deal with the consequences issue below. Neither of the other justifications hold for cadavers. Cadavers don't have any interests in a meaningful sense. They cannot experience suffering, pleasure, pain, or happiness—they can't experience anything. They are things not persons. Nothing can be good or bad for them. And this feeds into what is even more obvious—they can't make any choices so there is nothing for a (transferrable) right to bodily integrity to protect. An objection here might be that the relevant choices are made before they die, but the choice-protecting right would fizz out as soon as they did die, and then we'd lose the reason we had to protect the choice in the first place.
2. The families will find it very difficult to deal with it.
At first glance this objection shouldn't be too compelling; consider that someone's speech causing offence is widely seen as a poor reason to forcibly stop it. But I think we should take these sorts of effects on happiness seriously. Under the Welsh scheme individuals would not dread their organs being used to improve or save lives because they could opt out, similarly families with strong views about retaining a dead body at the expense of real, living people who need the organs could also keep the organs inside the cadaver. But my scheme would appear to ride rougshod over these concerns in a relentless pursuit of keeping innocent people alive (1,000 die each year in the UK alone waiting for a donation).
However, I believe individuals or families should be able to buy the right to not have their body used in this way, if they feel so strongly about it. We know from the Coase theorem, that if transaction costs are low enough, this will be efficient. NICE, or in a utopian future, private medical companies, can decide how much the organs are worth and if individuals feel so deeply they can pay the cost in order to keep the organs from those who need them. If few people want to do this, the price will be low as there will be sufficient organs. The system would actually work pretty much identically if we gave the initial right to the families and let them decide whether to sell the organs.
3. Instituting a norm of bodily integrity is difficult, this will break it down
In general, humans tend to have intuitions that bodily integrity should not be violated except in special situations. It might be that this intuition is coarse-grained—we can either have the intuition for all bodies (dead or alive and human), or for none. Those with the least respect for live humans—the Nazis, Mao, Stalin—tended to bury bodies in mass graves, suggesting they also had little respect for dead bodies. But I don't think this is necessarily the general trend. Respect for the dead has been falling for thousands of years, from when ancestor worship was one of the most prevalent elements of religion, when great superstitions surrounded death and burial, whereas respect for the living is only rising, with the belief we are all basically equal or endowed with the same rights or should all count the same now near-universal. Even if these trends are not linked, it suggests that declaring open season on organs in cadavers does not imply humans will lose all restraint over their actions with real living humans and involuntarily extract their organs. Norms are quite flexible, and we should switch to a more sensible norm, where humans are treated with all the respect they deserve, but where we don't waste life-saving organs due to our reverence of ex-humans.
A sorry reminder of the state of free speech
This morning, I was appalled to see more evidence that free speech in this country is under attack. Emma West, 36, was given a 24-month community order. Her crime? “Racially-aggravated disorderly behaviour likely to cause harassment or distress.” West shouted racial abuse at fellow passengers on a tram between Croydon and Wimbledon. The rant was filmed on Youtube and has over a million views.
I have seen the video, and it’s not pretty. Allow me to clarify that I do not share West’s view that immigration has ruined the UK, and I believe people should not be discriminated against because of their race. Repeatedly swearing in the presence of young children is something else I would always try to avoid doing.
But West’s rant should not be a crime. (At least, not for the reasons given: a case could be made that she should have been expelled from the tram for causing a public disturbance. But the words she used did not deserve an arrest.) Free speech is one of the most important aspects of life in a free country. The extent to which governments infringe on free speech is an indication of their general attitude to the citizens they are supposed to represent. In the UK, it appears we have a nanny state, which takes any opportunity to relieve of us of our right to independent thought.
Having freedom of speech means having the freedom to offend. Passengers feeling “upset . . . disgusted, shocked and horrified” is not a reason for an arrest to be made. Everyone is different, and might take offence at different things. It’s not hard to imagine that West herself was upset, disgusted, shocked and horrified - at the supposed "invasion" of the UK by immigrants. Why were the non-white passengers not arrested for their "crime" of offending West?
Police, lawyers and judges should never have been involved in this incident at all. The only acceptable limitations to free speech are those against threats, and incitement to violence. If the government is willing, "in the public interest", to censor some minority views, what guarantee is there that it won’t do the same to those which it finds difficult to answer? The Chinese authorities might well be ‘upset’ that some of their citizens do not agree with their policies, but they are not justified in silencing journalists because of it.
Furthermore, I believe that allowing "undesirable" views to be aired is the best way to stop them from becoming dangerously prevalent. Censoring fascists, for example, denies them equal participation in the democratic process. This is more likely to result in violent protest, as peaceful debate is not an option. Instead, fascists and other extremist groups should be allowed to speak their minds. If and when their beliefs are rejected by the vast majority of people, the matter is settled – fairly, through reason, not oppression. As soon as they use violence to further their agenda, the full force of the law can be used against them.
When is it wrong to stop someone else committing a wrong? When the method used to stop them is worse than their wrongdoing. Even in the developed world, we must always be vigilant in ensuring that the government does not go too far in its regulation of our lives.
A lunchtime reminder of the golden rule of liberty
During lunchtime last week, I was queuing for a popular street-stall which sells kebabs to the hungry workers of Westminster. I thought the queue had managed to double back on itself enough to avoid blocking too much of the busy street. Apparently, I was wrong. A middle-aged woman (let’s call her “Mary”), who seemed to be otherwise uninterested in the kebab-stall, decided the queue needed to change shape so that it was more compact. We, in the queue, grumbled but obeyed her directions and shuffled around into the new formation. Whether this had any effect on the flow of pedestrians was unclear, but Mary seemed happy and wandered off, leaving us to discuss her sanity and lust for power.
This got me thinking: to what extent are we private citizens justified in ordering each other about? Mary had no authority over us: she wasn’t a government official, company boss or even an employee of the kebab-stall. We were equals in every respect. For deciding how to act, I was glad to see everyone more or less obey the golden rule of liberty: no interference is justified except to prevent harm.
How does that apply to this situation? Mary’s belief that the queue was blocking the street (and thus causing “harm”) provided justification for her intervention. Furthermore, I believe everyone has the right to freedom of speech, so whatever the circumstances, Mary would have had the right to open her mouth. But what if we, the people in the queue, had ignored her directions? Could Mary have been justified in gently tugging sleeves to form a less disruptive queue? While this would hardly be assault, it would go beyond the right to free speech. It could be argued that people who spend their time trying to help society run more smoothly, as Mary did, should be hailed as heroes of “the Big Society”. I certainly think that, in general, people are too passive about minor intrusions in their lives (for example, those selfish individuals who feel it necessary to share their music tastes with the rest of the bus).
But this is what happens in the ideal society: the citizens sorting themselves out, willing to listen to the advice of a stranger without feeling their autonomy is being violated. More important, in my opinion, are the laws that we need for society to operate to a basic level of satisfaction. In this case, Mary’s right to exercise free speech, but not go beyond that into physical involvement. After all, the actions taken to correct an error should be in proportion to the error itself. Physical coercion seems fine when used against criminals, but over-the-top for rearranging a kebab queue. (This isn’t totally accurate: the police may have the authority to physically control crowds at public events, for example.)
Still, the main point is that Mary had the right to suggest that we re-form the queue, but nothing more. If we had ignored her (and assuming that the queue shape was indeed causing a problem) that would have left a small imperfection affecting the flow of the street. This can be applied in a wider sense to government in general. A control-freak large state might iron out inefficiencies in some areas, like Mary reducing the blockage of the street by physically rearranging the kebab queue. But it is not worth giving up individual rights (and the long-term benefits of a limited state) for these small savings.
Think Piece: Good and bad arguments against positive discrimination
The US Supreme Court has just left one Texan affirmative action scheme in place, but it has recently busted schemes elsewhere. I discuss what libertarians should think about positive discrimination and affirmative action.
Many of the arguments libertarians make against affirmative action/positive discrimination do not hold. For example, it neither needs to interfere with equality before the law, nor does it need to imposed by state coercion. And in its favour, affirmative action may be one way to overcome some of unjust forms on inequality in our society. On the other hand, it is clearly not even close to the best way of dealing with unjust inequality. And some evidence suggests that these schemes actually hurt those they are designed to help. But without sufficient evidence perhaps the best short-term approach is to allow universities to experiment with their admissions process, so they can among them discover the best approach.
Adam Smith and distributive justice
Many libertarians are sceptical about the idea of social justice, citing Hayek's argument that social justice is a mirage. Indeed, recently David Friedman had a debate with Jason Brennan, John Tomasi and Matt Zwolinski of the Bleeding Heart Libertarians blog over whether the concept even had a clear meaning. My own view is that social justice is just justice writ large, with particular focus on distributive issues like equality, priority and sufficiency.
Many classical liberals were deeply interested in questions of distributive justice, including Adam Smith, who made his name as a moral philosopher, and often focused on the damaging effects mercantilist and other interventionist policies had on the worse-off. Barry Stocker has recently posted the text of three very interesting talks he gave in Istanbul on the subject of Smith and distributive justice. Stocker highlights the ways in which Smith laid the blame for unjust distributions of society's goods at the state's door:
The cause [of unjust distributions] is largely the activity of the state rather than the results of markets being left free of state legislation and government schemes. Smith sees injustice as resulting from collaboration between merchants in the same sector, but sees this as more the consequence of state intervention than of free commerce. The state enabling, encouraging and even requiring enterprises to form corporate bodies (such as local chambers of commerce in Britain) in the same sector is the biggest reason for merchants conspiring against the public. That is the source of the famous quotation about merchants conspiring against the public, though that quotation is often used to support demands for increased state regulation.
And Stocker also highlights how Smith's concern for social justice did not translate into calls for redistribution; he believed that a good overall institutional structure would generate desirable distributional outcomes:
One of the problems with Smith commentary is that admirable scholars and political theory thinkers, like Rasmussen and Fleischacker, who are disposed favourably to a theory of redistributive justice see it in those elements of Smith which express a wish for distributive justice. There is distributive justice in Smith in the sense that he favours the distribution that emerges from freedom in economic activities, and in the state measures he favours to benefit the poor rather than the rich. However, that is not the same as the kind of belief in a predetermined pattern of distribution of justice which Rawlsians, or egalitarian liberal favour, at the extreme a completely flat distribution as argued for by G.A. Cohen and which is in the basic assumptions of Habermas‘ thought on norms, ethics, and discourse.
A Hayekian argument for equality of wealth
According to Friedrich Hayek, star of interwar economics, and recently star of two excellent rap battles with his contemporary John Maynard Keynes, the type of equality that matters is equality before the law. Equality before the law—and not equality of opportunity, outcome or anything else—is absolutely central to his political philosophy. But I think his economic work, particularly his crowning achievement, "The Use of Knowledge in Society" (cited a mere 9,496 times), points to the importance of a different kind of equality.
In "The Use of Knowledge in Society" and in earlier work in the socialist calculation debate Hayek shows that scientific knowledge isn't the totality of knowledge in society. In fact, a much bigger body of knowledge—information about peculiarities of time and place and preferences—is dispersed extremely widely across individuals. The only effective way of using this knowledge is a market system. Market participants act on the information embedded in different prices, and in doing so send yet more information back in other prices. But each participants learns only what she needs to know.
The market system Hayek envisions is a great practical means of organising society to achieve high social welfare. The flaw with this system is that participants with more money get to send stronger signals than others.
Markets measure how intensely we want things much more accurately than most democratic systems, because individuals have to bid against others for desirable goods or services. But this breaks down if individuals lack equal wealth. Ten pounds spent by a pauper is likely to represent a much more intense preference than that same £10 spent by a billionaire, a millionaire, or even the average middle class homeowner. However, producers will treat these £10s the same, and the economy will be skewed towards satisfying wealthier people's preferences.
Actually, it's not as simple as that. One feature of the market system is that people get rewarded with more money income (and potentially wealth) if they choose less leisure, or a riskier or less satisfying job. These sorts of inequalities, even if they produce wealth inequalities, would not subvert the system. These individuals have paid for their higher wealth with lower utility in work—and extra wealth merely evens out the overall extent to which the economic system is tilted to their advantage.
But endowments of talent or wealth through better upbringing, genetic advantage or inheritance do subvert the system, and undermine Hayek's argument for the efficiency and rationality of the market order by counting some people's preferences as more than one.
Now, by no means am I saying it's easy to disentangle these "good" sources of unequal wealth from the "bad" sources, or even that we ought to try to do so, and then even out endowments. But I do think that the effect inequality of wealth has on the market functions as a strong—and Hayekian—reason to desire a flatter distribution.