What wins the battle of incarceration vs. restitution?
Incarceration refers to being in jail; restitution means restoring an injured party to the preinjured condition.
Incarceration locks an offender away in a remote guarded prison. In general, restitution allows the offender to continue operating in society.
Incarceration indirectly benefits the wronged by removing the bad apples from society, thus preventing them from enacting any further damage. Restitution directly benefits the wronged through restoration, reimbursement, and remuneration—the exception, of course, would be cases that involved the loss of life.
Many people find comfort that our current legal system can “deal with” those individuals who err and deviate from the legal framework that guides societal operation. But is that system working? Is the American criminal justice system’s philosophy of prosecuting and then incarcerating criminals (1) making our society safer by decreasing crime and (2) actually reforming the criminals themselves, measured by recidivism? The answer to both questions is a resounding no.
According to the Sentencing Project, the number of individuals incarcerated has increased by more than 500% since the 1970s. This phenomenon has occurred while the U.S. population has increased by less than 50% over the same time period. From 1920 to 1970, the U.S. population roughly doubled, and the U.S. prison population increased in line with the population rise. Since the 1980s, we have seen a dramatic and swift increase both in the number and rate of persons being incarcerated. As it stands today, more than 2.3 million people are in prison, making the United States the world’s most jail-loving country, with more than 1 in every 100 adults locked up behind bars (the Chinese, for comparison, have more than a billion people in its country, but less than 2 million in its prisons). In fact, in America, 1 in every 31 adults is either incarcerated, on parole, or on probation.
The United States has 5% of the world’s population but has 25% of its prisoners, and this perverse system costs the taxpayers more than $60 billion annually, or approximately $30K per inmate per year to keep them behind bars.
Furthermore, the relationship between incarceration and crime is complex, but by no means is the latter inversely related to the former. There is no direct link, and history has demonstrated that crime has both increased and decreased when incarceration rates have steadily increased. In the 1980s, for example, rates of incarceration increased by 65% while crime rates increased by 17%. Additionally, there has been a gradual decline in the crime rates nationwide since the mid-1990s despite astronomical increases in the prison population (more than 500%).
In fact, in one study of specific American communities, only about 25% of the decline in violent crime under analysis could be attributed to increased incarceration. Hence, 75% of the crime drop was attributable to factors other than incarceration.*
One reason to explain this phenomenon is the “replacement effect.” The surge in incarceration has largely been due to drug-related offenses, and once one person is locked away, they can be easily replaced by another susceptible individual.
The Pew Center has also released a state-by-state study on recidivism detailed here. In the results of this examination, “45.4 percent of people released from prison in 1999 and 43.3 percent of those sent home in 2004 were reincarcerated within three years, either for committing a new crime or for violating conditions governing their release … recidivism rates between 1994 and 2007 have consistently remained around 40 percent.”
If four out of every ten prisoners will return to prison within three years of release, the conclusion to be drawn is troublesome: our correctional system does not rehabilitate prisoners, and their chances of heading back into a life of crime is slightly better than flipping a coin. Even if the system had been painstakingly engineered and tinkered to rehabilitate its inhabitants, the system is now broken.
Let us also not forget that once someone has been incarcerated for whatever reason, they will have a permanent stain on their record that will invariably follow them wherever they go. So even if they have in fact been rehabilitated, the society to which they will return to will place little to no value on them, making reintegration harder. The hard-hearted reader may then say, “Well, then they shouldn’t have gotten into trouble in the first place. Tough luck!” There is some truth to that, but the whole idea of being punished and paying a penalty is that it should be time-specific, explicitly quantifiable, and proportional to the offense—not a persistent, ceaseless, and limitless judgment that torments you even after penance has been made. George Bernard Shaw once said, “Imprisonment is as irrevocable as death.”
The causes of crime are multifactorial and beyond the scope of this blog post, but we should all consider that the prison system, especially prison privatization, is a business, and with any business, the goal is to make a profit. Sadly, profit in this case entails feeding more and more inmates into the system. There is no reliable data on the exact costs to taxpayers for private prisons, but consider all the different sectors building and then running a prison encompasses—construction, subcontractors, in-house personnel, food services, electronic security, housekeeping, linens, medical doctors, and counselors, just to name a few. Now also consider what would happen if private prisons had a lobbying interest where politicians would allocate public money to subsidize their private institutions.
In some despicable cases, states have even gone as far as to sign contracts with privately run prisons that guarantee the states will keep a certain number of prison beds filled with alleged “convicts.” This obligation has been deemed a “prison-bed occupancy guarantee” and is further detailed here. So even if a municipality is improving and crime is decreasing, the state will have a financial incentive to put more people in jail in order to fulfill contract obligations. If the state fails to meet its quota, they will have to pay a penalty.
As one of the largest private prison operators in the country, the Corrections Corporation of America (CCA) has several long-term binding contracts that obligate states to maintain a 90% or greater occupancy rate in their jails.
With profit as a motivating force in the penal system, law enforcement and lawyers will be incentivized to find, charge, arrest, and convict people of more serious crimes in order to fill vacancies. It also persuades the courts to direct convicts to private jails instead of public ones, and encourages the powers that be to send nonviolent people who commit less serious crimes to jail (e.g., income tax evasion) in lieu of alternatives like probation or community service. I guess that might explain why the population of private prisons have shot up by more than 1600% in the past 20 years, even though they have been shown to be more expensive and less cost-effective than public jails.
Taking all of this in, I think the most objectionable trait of the American criminal justice system is its focus on punishment, a penalty that is exclusively reserved for and enacted by the local, state, and federal authorities. Consider this scenario: Mr. Robber steals money from Mr. Jones. Jones calls the police, who then track Robber down and arrest him. Robber is convicted of theft and is sentenced to prison. Jones, being a respectable taxpayer, foots the bill to incarcerate Robber (along with every other taxpayer) since it is public money that funds jails (and if Robber goes to a private jail, the same conditions apply since the private institutions receive state subsidies). Oh, and by the way, while Robber is in jail providing the government with free labor, Jones is still working and paying taxes to support Robber in jail. Jones never gets his money back, and Robber in no way shape or form gets rehabilitated as he toils at making license plates in the prison yard.
There is no justice in this paradigm: Jones never regains what was lost, the government gains, and the data tells us that Robber has no decent chance of turning toward a path of righteousness.
So if incarceration doesn’t work, then what would? Restitution.
Restitution repairs the damage that the crime has inflicted. It does not indirectly rely on a vague and indistinct entity to enact “justice,” nor does it increase the total amount of harm suffered by all involved. Restitution sets as its goal to directly repair and reimburse the victim, at the offender’s direct expense. Unlike punishment that can set an arbitrary set of limits of what and how long a penalty is enacted, with sentencing discretion given to one person, restitution is an exact formula and calls for an equal penalty that is directly related to the offense. Restitution also forces the offender to acknowledge that a wrong has been committed and mandates that the one who erred is the exact and only individual to initiate restorative action, quenching the thirst for vindication on the part of the victim. Note also that restitution would prevent the offender from carrying any type of stigma in society at large, less the immediate friends and family of those parties involved. It allows for real and genuine repentance, rehabilitation, and reintegration without being the subject of perpetual punishment.
Restitution has its roots in the Bible (the books of Exodus and Leviticus) and provides specific remedies for specific offenses. What differentiates the biblical model from other and more ancient models of legal frameworks (e.g., Hammurabi’s code) is its emphasis on egalitarianism. Hence, if you commit X, then the penalty is Y. The penalties transcend all human boundaries, no matter if you are a king, sheepherder, slave, or free person (Notably, even though the word “slave” has been selected to be the appropriate English translation from the original Hebrew, the institution in the Israelite tradition was vastly different compared to contemporary perceptions of slavery. For instance, striking a “slave” meant their immediate release from bondage). For example, if you were to steal an animal, the thief must pay back the animal taken plus a penalty (sometimes well and far beyond what was taken). In the case of money, the general rule is to return the stolen sum plus 20%. Mosaic law protected victims from all forms of theft, fraud, and negligence and mandated that restitution be done quickly (the same day) and made directly to the offended party; no court or judge was involved. All the people were required to know what not to do, and when an accusation had been made, confirmatory testimonies of at least two witnesses were required in order to safeguard against giving false testimony and to dilute the influence of those who may have taken bribes (the book of Deuteronomy). Furthermore, before an Israelite could approach God for forgiveness, they had to restore their neighbor first; then it was allowable to make peace with the Lord. God has a vested interest in people treating their neighbors with love and respect.
In the case of a death, capital punishment was allowed, but only in circumstances when someone was murdered—a premeditated act of malice—as opposed to someone being killed—an unintentional, spur-of-the-moment accident. The words for kill and murder are separate and distinct in Hebrew (the language the first part of the Bible was written), and the proper translation of one of the more famous instructions in the Ten Commandments is “Thou shall not murder.”
In cases of murder, it became the responsibility of the deceased’s family to enact punishment or “life for life.” In the cases of unintentional killings, cities of refuge were designated for the alleged offender, specifically for the purpose of shielding them from angry and zealous family members who would unjustly seek to enact their own revenge.
Dr. C.H.E. Sadaphal
* Spelman, W. (2000). The limited importance of prison expansion. In A. Blumstein & J. Wallman (Eds.), The crime drop in America (pp. 97-129). Cambridge, UK: Cambridge University Press. (pp. 97-129)