Should Life in Jail be Worse than Outside, on Principle? By Chris Barker

Sheriff’s House and Jail in Easton, Maryland, c. 1881

Approximately 2.3 million people in the United States are currently in prison or jail. (Prisons are run by federal or state authorities; jails are run locally.) China, a non-democratic regime with a population four times larger than the US, incarcerates fewer persons in per-capita and absolute terms. What’s more, most people in US jails today have not been convicted, meaning that they are being punished without trial. Since US jail admissions number approximately 11 million per year, pre-trial incarceration is, arguably, the real problem of ‘mass incarceration’.

The crucial concept governing carceral practices is something called ‘less eligibility’. The idea dates back to the English Poor Law Amendment Act of 1834, which codified English practices of dealing with the indigent. In 1832, the economist Nassau William Senior described how the ‘first and most essential of all conditions’ in administering relief to the poor (often by moving them into a workhouse) is that the indigent’s ‘situation on the whole shall not be made really or apparently so eligible as the situation of the independent labourer of the lowest class’. That is, the conditions in the workhouse should be awful: worse even than the poorest of the poor.

But even before Senior’s famous line, a different carceral ideal was afoot: equality. In 1791, writing specifically about criminal offenders, the English utilitarian philosopher Jeremy Bentham argued that ‘the ordinary condition of a convict doomed to a punishment that few or none but the individuals of the poorest class are apt to incur, ought not to be made more eligible than that of the poorest class of subjects in a state of innocence and liberty’. As the historian Janet Semple observed in Bentham’s Prison (1993), his rule of severity is not ‘less eligibility’ but a more commonsense equality principle – offenders should have access to no more resources than they had while free. ‘Bentham,’ Semple wrote, ‘did not envisage grinding his convicts down to below the level of the poorest of the poor.’

Other countries do not run their jails and prisons according to a principle of less eligibility. German prisons operate under an ‘approximation’ principle, wherein offenders’ rights to privacy, dignity and property are protected. Norwegian prisons use a similar ‘normality principle’, which holds that daily prison life should be, as far as possible, no different from ordinary life. Fellow Englishman and Bentham disciple James Mill embraced the normality principle in 1825 by arguing that inmates in pre-trial incarceration should be allowed to lead the same life that they enjoyed prior to arrest, including access to employment and freedom to make small purchases with their own money. Today, US jails and prisons have rejected these examples in thrall to ‘less eligibility’, and not just for the poorest of the poor.

Why are the carceral practices in the US so harsh? Part of the reason is the vestige of a Christian-inspired desire to reform the offender’s soul. Around the time of the Revolution, the penitentiary’s ‘unsocial manner of life’ based on order, obedience and silence could seem plausible only to those who thought that they could achieve a ‘new victory of mind over matter’. Today, prolonged solitary confinement is coming to be seen for what it is: torture. Another reason, identified in James Whitman’s book Harsh Justice (2005), is populism. Elected prosecutors and judges are guided by popular, punitive attitudes in a way that unelected bureaucrats in countries such as Germany (or Canada) are not. Survey research shows that Canadian and US attitudes about punishment are similar, but Canada has much more lenient sentencing policies than the US because bureaucratic appointees, not elected officials, make decisions about punishment. Another layer is race. Warehousing black males is clearly an outcome, and perhaps also an important aim, of US criminal justice. The result of this grab-bag of influences is segregation without soul-craft, and discipline and surveillance without reform.

If, as I think, the aim of punishment is rehabilitation, it is hard to justify less rather than equal eligibility. But not all agree that rehabilitation is the primary aim of punishment. Deterrence theorists think that controlling crime is the most important aim of punishment. Retributivists hold that punishment should repay the harm done to another in a like manner: an eye for an eye, a tooth for a tooth.

As evidence that precisely the opposite happens in US prisons, The End of Punishment (2013) by the present-day retributivist Robert Blecker’s recounts an interview with a Tennessee Death Row correctional officer who feels like a waiter, and a guard who complains that Florida’s Death Row is ‘the best deal in the building’. Blecker is right that we should classify offences and offenders according to the severity of their crime. Perhaps the ADX Florence supermax prison should even be, as its ex-warden described it to CNN, ‘far much worse than death’ for the worst of the worst. But think about this: county jail is ‘hard time’, and harder than state prison, as I am told by a local jail administrator. Almost 500,000 held in US jails are being held pre-trial. The average jail time served is short. Offenders quickly return to their communities, but they are not prepared for re-entry. Even the average jail and prison time might actually help offenders to become worse.

Too often, the US conversation about criminal justice is about principles and theories of punishment: rehabilitation, retribution, deterrence. What I am arguing here is that these theories amount to little if we ignore less eligibility, or how we punish. Visiting a jail without an outdoor yard, where offenders have no physical contact with friends and family during their incarceration, or a prison where life unfolds within coils of obtrusive razor wire, is not a normal life, and doesn’t prepare you to return to normal life. As opinion in the US starts to move away from some punitive strategies such as solitary confinement, we should reconsider which of our other carceral practices meet or violate the crucial secondary principles (leniency, proportionality, egalitarianism) of a just criminal justice system.

In Germany, there are restrictions on types of uniforms, on partitioning visitors from offenders, and on the use of bars and peepholes in cells. There are also protections of offenders’ rights to privacy, information, public exposure, and leisure and culture, that do not exist in the US. In the US, courts have upheld the constitutionality of expressive punishments that demean offenders, pre-trial incarceration that looks punitive, and denials of privacy and dignity.

It is a tragedy if the attempt to have a just society with a suitable criminal justice system has been transformed into criminogenic warehousing, based on surveillance and discipline, which achieves few or none of the goals of punishment. It is foolishness to countenance such a system merely because it has not yet touched you. The road to the present state of affairs leads through less eligibility, which, on the surface, is a principle that makes sense: treat offenders to a life that is worse than life on the outside. After all, why should offenders have air conditioning if the farmer ‘living in innocence and liberty’ does not? But the answer is that it is too easy to forget the other constraints on the dignity, privacy and autonomy of those incarcerated in jails and prisons.

Our present system is costly and ineffective; it creates aberrant economies and empowers prison gangs that in turn influence street gangs. Prisons reproduce the cultural inadequacy of life on the inside on our streets and in popular culture, and when offenders are released into communities, their lack of rehabilitation justifies further segregation and other collateral consequences, such as employment and housing discrimination.Aeon counter – do not remove

This article was originally published at Aeon and has been republished under Creative Commons.

~ Chris Barker is assistant professor of political science at Southwestern College in Kansas. (Bio credit: Aeon)

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Are Human Rights Anything More than Legal Conventions? by John Tasioulas

Eleanor Roosevelt and The Universal Declaration of Human Rights

We live in an age of human rights. The language of human rights has become ubiquitous, a lingua franca used for expressing the most basic demands of justice. Some are old demands, such as the prohibition of torture and slavery. Others are newer, such as claims to internet access or same-sex marriage. But what are human rights, and where do they come from? This question is made urgent by a disquieting thought. Perhaps people with clashing values and convictions can so easily appeal to ‘human rights’ only because, ultimately, they don’t agree on what they are talking about? Maybe the apparently widespread consensus on the significance of human rights depends on the emptiness of that very notion? If this is true, then talk of human rights is rhetorical window-dressing, masking deeper ethical and political divisions.

Philosophers have debated the nature of human rights since at least the 12th century, often under the name of ‘natural rights’. These natural rights were supposed to be possessed by everyone and discoverable with the aid of our ordinary powers of reason (our ‘natural reason’), as opposed to rights established by law or disclosed through divine revelation. Wherever there are philosophers, however, there is disagreement. Belief in human rights left open how we go about making the case for them – are they, for example, protections of human needs generally or only of freedom of choice? There were also disagreements about the correct list of human rights – should it include socio-economic rights, like the rights to health or work, in addition to civil and political rights, such as the rights to a fair trial and political participation?

But many now argue that we should set aside philosophical wrangles over the nature and origins of human rights. In the 21st century, they contend, human rights exist not in the nebulous ether of philosophical speculation, but in the black letter of law. Human rights are those laid down in The Universal Declaration of Human Rights (1948) and the various international and domestic laws that implement it. Some who adopt this line of thought might even invoke the 18th-century English philosopher Jeremy Bentham, who contemptuously dismissed the idea of natural rights existing independently of human-made laws as ‘rhetorical nonsense – nonsense upon stilts’.

Now, it is true that since the middle of the previous century an elaborate architecture of human rights law has emerged at the international, regional and domestic levels, one that is effective to wildly varying degrees. And for most practical purposes, it might be that we can simply appeal to these laws when we talk about human rights. But, ultimately, this legalistic approach is unsatisfactory.

To begin with, the law does not always bind all those we believe should abide by human rights. For example, some states have not ratified human-rights treaties, or have ratified them subject to wide-ranging exceptions (‘reservations’) that blunt their critical edge. A country such as Saudi Arabia can have a seat on the UN Human Rights Council yet persist in severe forms of gender discrimination – for example, prohibiting women from driving – because it made its acceptance of human-rights treaties subject to an override in the case of conflict with Islamic law.

Moreover, the international law of human rights, like international law generally, almost exclusively binds states. Yet many believe that non-state agents, such as corporations, whose revenues in some instances exceed the GDP of all but the wealthiest nations, also bear grave human-rights responsibilities. When manufacturers such as Nike use 12-year-olds to stitch soccer balls in Pakistan, or internet service providers such as Yahoo secretly hand over the emails of dissidents to the Chinese government, many critics decry not just corporate malfeasance but human-rights violations. And this is so even if the corporation has complied with the laws of the country in which it is operating.

It is precisely in response to the threat to human rights posed by corporations that the ‘Guiding Principles on Business and Human Rights’ (2011), the brainchild of the Harvard political scientist John Ruggie, were established. Endorsed by the UN, the principles are not legally binding either on states or corporations. Instead, they aim to provide an authoritative statement of human-rights responsibilities that apply directly to corporations, quite apart from any legal obligations they might also bear. Ruggie’s ambition is that the principles will eventually inform corporate decision-making at all levels, illustrating the fact that human rights go beyond law and its enforcement.

Yet there is a deeper problem with identifying human rights with existing laws. Laws are the creations of fallible human beings. They might be good or bad, and so are always subject to interpretation and criticism in terms of independent moral principles. The international law of human rights, on this view, does not establish which human rights exist; instead, its goal is to implement moral rights we already possess, simply by virtue of our humanity. Slavery, torture and racial discrimination did not suddenly become human-rights violations only when they were legally prohibited. It is the other way round: we have human-rights law in order to give force to human rights that in some sense pre-exist their legal recognition. Unfortunately, no consensus has yet emerged among philosophers or anyone else on how human rights are to be defended as objective truths, independent of law.

The late American philosopher Richard Rorty sought a way out of this impasse. Although a staunch liberal, he turned his back on the philosophical enterprise of attempting to give a rational justification for human rights. He judged that activity to be pointless now that human rights are a deeply embedded fact of our culture, not just our law. How can we justify human rights when they seem more compelling to us liberal Westerners than any other idea we might use to justify them? The real task that confronts us, Rorty thought, was the practical one of enhancing compliance with human rights worldwide, not the intellectual one of grounding rights in the fabric of reality.

A similarly dismissive attitude is adopted by Ruggie, who conceives of his Guiding Principles not as reflecting ‘true’ moral demands, but as rooted in empirically measurable ‘social norms and expectations’. At a more sophisticated level, the late American political philosopher John Rawls, in his last work The Law of Peoples (1999), insisted that in a pluralistic world we cannot build our public commitment to human rights on any controversial account of the ‘truth’ about humanity or the good. We have to return, instead, to shared ideas embedded in the culture of a liberal democracy.

But is it enough to rely on the supposed fact that human rights are embedded in a liberal democratic culture? Or do we need to be able to step back from that culture and offer an objective justification for the principles embedded in it, as the philosophers have long supposed? The problem is that social expectations and cultural assumptions not only vary significantly across societies, but that they are fragile: various forces ranging from globalisation to propaganda can cause them to change dramatically or even wither away. Would rights against gender or racial discrimination disappear if sexist or racist attitudes come to predominate?

The question is not fanciful. Once apparently settled beliefs about the impermissibility of torture or the rights of refugees have recently suffered a backlash. There can be backsliding as well as progress, with no guarantees either way. Social expectations and deep cultural assumptions are no more a sufficient basis for human rights than the law is. There is a fatal contradiction in defending human rights against the rising authoritarianism of a ‘post-truth’ era while simultaneously abandoning the belief that our commitment to those rights is itself grounded in the truth, and being prepared to defend it on that basis.

My own view is that human rights are rooted in the universal interests of human beings, each and every one of whom possesses an equal moral status arising from their common humanity. In other words, in defending human rights, we will need to appeal to the inherent value of being a member of the human species and, in addition, the interests shared by all human beings in things like friendship, knowledge, achievement, play, and so on. And we will need to ask whether these considerations generate duties that are owed to each and every human being. This proposal is hardly uncontroversial. The appeal to the inherent value of humanity will be contested by some as a brute prejudice – a ‘speciesism’ on a par with racism. Similarly, the appeal to universal interests will be contested by those who think that human rights are ultimately about respecting individual freedom regardless of whether it advances the right-holder’s well-being.

Whether I’m right or not, I am convinced that we cannot sustain our commitment to human rights on the cheap, by invoking only the law or the assumptions of our liberal democratic culture. Only a deeper justification can explain why we are right to embody them in the law, or maintain a liberal democratic culture, in the first place. This has precisely been the aim of philosophical defences of human rights from the 12th century up until very recent times. To keep our human rights culture in good order, we cannot avoid engaging with the question of justification. And we should think of this not as the exclusive domain of professional philosophers, but as a process of public reasoning to which all citizens are called to contribute.Aeon counter – do not remove

This article was originally published at Aeon and has been republished under Creative Commons.

~ John Tasioulas is the inaugural Chair of Politics, Philosophy and Law, and director of the Yeoh Tiong Lay Centre for Politics, Philosophy and Law at King’s College London. He is working on his latest book, Human Rights: From Morality to Law (forthcoming, OUP). (Bio credit: Aeon)

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!

Happy Birthday, Jeremy Bentham!

Jeremy Bentham's Auto-Icon at University College London, 2003 by Michael Reeve, GNU Free Documentation License Version 1.2

Jeremy Bentham’s Auto-Icon at University College London, photo 2003 by Michael Reeve

Jeremy Bentham, the great English moral and legal philosopher born on February 15, 1748, was a very strange man. A brilliant one, but strange nonetheless. He was a precocious child and advanced in his studies very early, finding Westminster and Queen’s College at Oxford too easy and therefore rather boring. He was trained as a lawyer but decided not to practice law after hearing William Blackstone’s lectures. Blackstone’s treatise Commentaries on the Laws of England is still considered one of the most authoritative and foundational works on English law, so for a guy to consider them so flawed that he’d want to give up his career seems a bit… well, presumptuous. But he demonstrated his own great intellectual capacities through his lifetime of prolific writing, mostly on legal theory, moral philosophy, and social reform. In the end, he earned the right to a certain degree of arrogance.

Bentham is generally considered the father of utilitarianism, the moral philosophy which judges anything that can be judged as right or wrong, good or evil, according to how conducive it is to ‘the greatest happiness of the greatest number.’ Utilitarianism, then, is a type of consequentialism, which holds that a thing is right or wrong based on its consequent harms or benefits. Bentham did not invent the principles of utilitarianism; he discovered them in the writings of Cesare Beccaria (who authored the ‘greatest happiness’ axiom), David Hume, Claude Helvétius, and Joseph Priestley. But he spent a lifetime synthesizing these principles into a cohesive, fleshed-out moral philosophy founded on utility, whether a law or action increases or decreases pleasure or happiness. This principle can seem too subjective to apply to matters of law or public policy; after all, what makes one happy can make another less so, and how can we determine whether the happiness of one is greater, or more important, than the happiness of another? Bentham, careful and systematic in his approach to this as he was to everything else, devised his ‘Felicific Calculus’ to solve this problem. Bentham believed that pleasure, a natural phenomenon like everything else in the world, was likewise quantifiable. He hoped his method of assigning unitary measurements to pleasure, then determining their relative values through mathematics, was a way to make his moral philosophy practicable, conducive to real social reform.

To many, the idea that pleasure and happiness could be reduced to mathematical formulas seems very strange; some think he may have had Asperger’s syndrome or another cognitive feature that caused Bentham to view emotion with such scientific detachment. But as socially awkward as he and his ideas often were, his utilitarian philosophy led to him to some moral conclusions that we now consider extremely progressive and much more caring than those typical of his times. For example, he was an early proponent of racial equality, women’s rights, and animal rights. As to animal rights, just as for all classes of human beings, considering only the pleasure and pain of some sentient beings and not others when it comes to morals is unscientific and therefore unjustifiably biased. After all, animals, like all human beings, have feelings too, and their feelings are just as important to them as ours are to us. So, a moral system based on feelings must consider all equally important, so that one unit of pig happiness, for example, is just as morally significant as one unit of human happiness. The only correct way to balance them out in matters of morals and public policy is to apply the Felicific Calculus to determine how much pleasure or pain each experience in any given situation.

At the end of his long and productive life, the committed naturalist arranged to have his body publicly dissected, both for scientific inquiry and to provide an example to others; he believed that a perfectly good body should never go to waste and that everyone should donate their body to science. He also arranged to have his head and skeleton preserved, dressed in his clothes and stuffed to look as lifelike as possible, to be displayed in some public place. The preservation of Bentham’s head, with its glass eyes he had purchased some years before, left much to be desired; the expression it ended up with creeped people out. So his Auto-Icon, as he called it, sits today in its glass case at University College, London with a nice lifelike wax head in its place. His real head is safely stored away where students, prone to stealing over the years in a series of pranks, can no longer get to it.

Read more about the brilliant and eccentric Bentham at:

Jeremy Bentham – by James E. Crimmins for The Stanford Encyclopedia of Philosophy

Jeremy Bentham – University College London website

Jeremy Bentham on the Suffering of Non-Human AnimalsUtilitarianism.com

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!