A Punishment Beyond the Punishment

John Last 1This past weekend I made a trip to Kentucky with my girlfriend, and on the way back we travelled through the north Georgia mountains. Not far from our route was Lee Arrendale State Prison, in Alto, Georgia. I was incarcerated there from 1985 to 1989, and it was by far the worst prison I did time in. Today it is very different, housing women instead of male teens, and with only a few of the buildings left that I knew.

As I neared the prison my body grew cold and numb, my heart rate and breathing increased, and I seemed to have trouble thinking straight. I observed these changes from a distance, watching my body and mind react to a place that I hadn’t seen for 23 years. Suddenly, it appeared on our right. My dissociation reached a peak, with a low buzz seeming to fill my brain. There was the main building, where I had lived and often worked. Memories suffused me, flickering from one to the next without seeming connection.

I drove on, but turned around to make another pass. Turning the car down a side road I could see a different section of the compound. In my day it housed the Annex, the worst part of the prison. There I had seen the most violence: beatings, stabbings, sexual assaults. We were 20 yards from where “dead man’s curve” had existed, a notorious spot for armed robberies and assaults. Turning around again, we drove away and resumed our journey home. The tension slowly left my body, replaced by relief and an appreciation for living in a different world now.

I recalled the last time that I left the prison. I was being transferred, sitting in a van, bound by shackles, cuffs, and a waist chain. Even though I was in chains, it was as if a huge weight was being lifted off of my body. For nearly four years I had lived in a state of almost constant vigilance and fear. A fierce joy filled me as the prison van pulled away that day in 1989, and I raised my bound hands as high as I could, flipping two birds and cursing that piece of hell for all I was worth. I never expected to see it again.

Since my trip I have been considering with surprise how much I was affected by seeing the old prison. I do not think every day about what happened there. Like everyone else I am caught up in my current life, and I would not have predicted the response I had. I have been wondering and researching what underlay my reaction. I have also been thinking about young men incarcerated today, and wondering what horrors are going on right now in their world. These are places where trauma is a near daily occurrence.

There is reluctance in society to think of prisoners as victims, and people resist hearing that message. This reluctance accompanies the belief that the people there deserve what they get. They are, somehow, disqualified from the moral sphere of protection because they broke the law, perhaps even harming an innocent person in the process. It feels right that they are there, and any indication to the contrary is met with resistance.

It seems to me that these two issues are often confused. The first issue is what should happen to juveniles who commit crimes. There is a wide spectrum of opinion, with some thinking that they should be sentenced without regard to their age and others advocating for consideration of juvenile malleability and a focus on rehabilitation. Let me set aside for a moment my own opinion of whether children should be imprisoned and for how long. I recognize that certain crimes will call for separating the juvenile from society; whether that happens for safety, justice, treatment, or any other reason doesn’t really matter to the second issue: what form should that separation take?

In the current system the norm is a dangerous and abusive environment. Like my own early days in a youth prison, juvenile facilities today remain filled with assaults, sexual violence, intimidation, dehumanization, mental and physical deprivation, lack of decent medical care, little support for maintaining or developing family connections and poor opportunities for personal development. Is this the way that we want it to be? Do we want prisons to be filled with pain? Are we really saying that kids should have to face the possibility of being beaten, raped, or stabbed as a consequence of their actions? If that is the case then let’s just say so. At least that would be better than indifference and feigned ignorance.

Forcing kids to live this way, even ones convicted of crimes, is wrong. Failure to change this situation is the same as endorsement. Even those who advocate for toughness, if they took a moment, would realize nothing good can come from this type of treatment. Most of these kids will see the streets again. How they live while on the inside can have a big impact on how they act when released. Subjecting kids to further harm, who in many cases have already experienced a lot of trauma in their young lives, is extremely unlikely to bring about the kinds of change that we want to see. Deprivation of liberty, no matter how “soft” critics think it is, is already punishment, it doesn’t need to be enhanced.

John Roman On The Calculus of Flogging

Flogging conjures up grotesque images. American slaves flogged by their overseer. Conscripted sailors flogged by their masters. Such an idea wouldn’t get any traction in a civilized society like ours, right?

Maybe. John Jay College of Criminal Justice Professor Peter Moskos has floated a proposal to replace each year of prison with two lashes. His motives seem pure—he believes the American prison system is completely dysfunctional and that millions, maybe billions, could be saved with this simple change in punishment, with no effect on public safety.

Putting aside for a moment the moral baseness of the idea and that pesky Eight Amendment proscription against torture, cruel, inhuman, or degrading punishment(flogging has to be four-for-four on that one), let’s consider if it would even work.

There is a long and fascinating law and economics literature on the relative merits of severity versus certainty as ways to prevent crime. The idea is straightforward. The main aim of punishment is to set society's costs of incarcerating a criminal in prison equal to the benefits of keeping that person from running amuck on the streets. (Rehabilitation can also correct, but that is a separate issue).

Flogging, in this case, is just a different way of meting out a severe punishment that substitutes intensity for duration. The big question, then, is whether criminals will commit new crimes once back on the streets after being flogged -- new crimes that certainly would have been prevented by incarceration in an expensive prison cell.

The answer is, of course, that if the punishments are to be equivalent, then society would have to consider these two choices to be at least about equal (I don’t think flogging advocates want less severe penalties for criminals). But, if the punishment is of the same severity, why would it yield anything different than the status quo?

More important, it’s the wrong question. The right question is whether certainty or severity is the best tool to induce people to self-regulate and desist from crime.

The answer is that question is crystal clear: certainty wins, hands down.

Consider a typical 17- year-old running with some kids who are, however fleetingly, weighing the consequences of beating up a rival. Suppose they know from past experience that they probably won’t get caught and punished, but that if they are, they will get 6 months in a juvenile detention center.

Now suppose the law changes: though the kids are still relatively unlikely to be caught and punished, they can expect to spend one year in juvenile detention -- twice as long for the same crime. Will this change their behavior in that brief moment of self-reflection? Not likely.

Now suppose, instead, that the law changes and through some magic the likelihood that they will be caught and punished doubles. Is that information likely to change their behavior? It just might, which is a big improvement. In fact, the research suggests that if certainty increases, severity can decrease, and outcomes will still improve.

This simple idea is being taken very seriously in criminal and juvenile justice circles at the moment. Flogging? Not so much.

The above story is reprinted with permission from Reclaiming Futures, a national initiative working to improve alcohol and drug treatment outcomes for youth in the juvenile justice system.


Part Five: A Day In Drug Court

Just joining us? This is part five of a five part series. Start from the beginning.

Cobb County, Ga’s., Juvenile Court Judge Juanita Stedman’s office overflows every Wednesday at 4 p.m. For an hour, with therapists and probation officers filling every chair and – with several sitting on the floor – Stedman and her juvenile drug court team do a rundown of every kid currently in the program.

One by one, Stedman calls out the name of each of 30 or so kids. The assigned probation officer and counselor chime in, giving her an update on how the week had gone for the juvenile.

For these kids, failing a drug test, disregarding a curfew or skipping out on house arrest, most likely means the judge isn’t going to let them go home. More often than not, someone shows up on Wednesday night with one or both of their parents, and ends up being taken to the county Youth Detention Center here in suburban Atlanta.

For the most-addicted kids, or the ones with the most rebellious attitudes, a stint in YDC is fairly common. But it doesn’t take long for kids to realize that Stedman, who can be as compassionate and loving a woman as there is, isn’t one to be tested.

"Todd, why do you think I'm so upset with you?" Stedman asked one of the teenagers in a previous class.

"Because I smoked?"

"You smoked pot three days after I released you. Did you not think I looked serious?”

"Yes ma'am, you did."

And she was. Todd went back to jail that day.

Not everyone succeeds in drug court. And almost all of them will relapse at some point along their path to recovery.

Lynn Abney, a licensed professional counselor and part of the drug court team, said watching kids relapse is one of the hardest parts of the job for her and her teammates.

“I’d say more times than not, we expect relapse,” Abney said. “It’s an unfortunate part of the illness. But I’m a firm believer that even with a slip up, the kid is further along than he or she was at the last slip up. A lot of times, it’s two steps up and one step back. If someone is truly an addict, you at least hope that the time between relapses gets wider and wider. Sometimes it’s about managing relapses.”

Abney, and a handful of other counselors working the Cobb County juvenile drug court, make in-home family counseling visits with the kids – maybe weekly at first, then less often. But it’s a way for this to be more than just a justice or law enforcement program.

“To me, the No. 1 reason it is as effective as it is, is the accountability of the legal system and the clinical treatment of therapy,” she said. “It’s like treating someone with a major depressive episode – medicine is OK and therapy is OK. But medicine and therapy is the best, together. Our program is more successful than just incarcerating or just doing therapy.”

Not everyone who goes through the drug court will succeed. The grip of drugs and alcohol can sometimes prove to be too much.

“It’s tough,” Abney said. “Sometimes what you can do is not going to be enough. I think sometimes, we try too long with some families. We’ve seen tragedies where someone did not have long-term success. Still though, we believe that something that was done or said was helpful. It might not have saved them or prevented relapse, but we were planting a seed. If it didn’t help that kid, maybe it helped his brother, or his friend. Those are things we have to hang on to when we see things go bad.”

Continue reading: The Big Trouble with Oxys