incarceration

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Tullianum, the first modern prison, built in 250 BCE.


Incarceration is the detention of a person in jail or prison. People are most commonly incarcerated upon suspicion or conviction of committing a crime. Incarceration rates, when measured by the United Nations, are considered distinct and separate from the imprisonment of political prisoners and others not charged with a specific crime. Historically, the frequency of imprisonment, its duration, and severity have varied considerably. There has also been much debate about the motives for incarceration, its effectiveness and fairness, as well as debate regarding the related questions about the nature and etiology of criminal behavior.

Religious perspectives

Religious opinions have often shaped views towards incarceration.

Talmud Yerushalmi, Talmud Babli, and both the Old and New Testaments describe law as the expression of the will of God. Islam adopts a similar legal posture with Sharia, an Arabic word meaning "path," interpreted as the infallible expression of the divine will that is applicable to all aspects of life.

One of the differences between monotheistic religions is the degree to which they emphasize orthopraxis vs. orthodoxy (i.e., proper conduct vs. proper belief). In comparison with Islam and Judaism, Christianity emphasizes orthodoxy over orthopraxis. Islam and Judaism emphasize orthopraxis more than orthodoxy.

Legal positivism

Those who favor legal positivism maintain that there is no unjust law and no unjust incarceration.

Among the founders of the legal positivism is Jean Bodin, who argued that burning is too lenient a punishment for severe crimes, because the suffering does not last more than one hour. Bodin also approved of torture during the criminal interrogations, including the torture of children to compel them to testify against their parents.

This perspective characterizes the legalistic posture of the influential Thomas Hobbes. Arguing that humans are by nature selfish and aggressive, Hobbes thought that self-interest leads people into a social contract where they surrender their freedom to an authority to protect them from their aggressiveness. Hobbes maintained that:"the essence of law is the command or will. The notion of an "unjust law" is contradictio in adjecto, because law is itself the definition of justice."

Legacy of the Enlightenment

Around the time of the American and French Revolutions, social philosophers started to support the notion that a human law, which violates "natural law," is not a "true" law. In this view, an unjust law is not a genuine law but rather an act of violence, and unjust incarceration is a possibility.

Social philosophers who opposed legal positivism include Hugo Grotius, Gottfried Leibniz, Benedict Spinoza, Voltaire, and Jean Jacques Rousseau.

John Locke's criticism of Hobbesian theory was a forerunner to the modern notions of civil disobedience and human rights. Locke argued that humans in the state of nature are free and equal and that they possess the fundamental rights to life, liberty, and property. Everyone should defend his or her rights and should surrender only such rights as are necessary for the common good. This natural-rights theory provided a philosophical basis for both the American and French revolutions, with Thomas Jefferson substituting "pursuit of happiness" for Locke’s "property" in the trinity of inalienable rights.

Punishment vs. Rehabilitation

The above mentioned opinions often inform debates about the goal of incarceration: should the emphasis be on punishment or rehabilitation? Arguments have been made on both sides of the issues, and larger societal perspectives have shifted from one side to the other over the years.

Those who favor punishment often contend that the practice serves both as revenge for the wronged and as a deterrent against further crime. On the other hand, those who favor rehabilitation argue that by trying to change a criminal's behavior, recidivism rates can be reduced, and both the criminal and society can benefit from improvement.

Justice studies

Fig. 1. The index of the unequal distribution of wealth and the index of family disintegration, the best predictors of incarceration rates.


Penology and justice studies emphasize description and analysis of antecedents of criminal behavior and outcomes of consequences imposed by criminal justice on the criminal behavior. An example of a modern quantitative study of factors influencing the criminal behavior is the study by Krus and Hoehl (1994).

In the study by Krus and Hoehl, variables that might explain differences in incarceration rates among populations were located by a computer-aided search of the compendium of world rankings, compiled by the Facts on File Corporation and the World Model Group, containing over 50,000 records on more than 200 countries.

They argued that predictor variables explained about 69% of variance in the international incarceration rates. Cited as especially important were unequal distribution of wealth (the explanation perhaps favored by liberals), family disintegration (the explanation perhaps favored by conservatives). According to Krus and Hoehl, these variables act in concert: the presence of one variable does not always precipitate crime, but the presence of both variables often does precipitate crime.

Frequency of incarceration

In the United States

Marc Mauer, in his Americans Behind Bars: A Comparison of International Rates of Incarceration (1991), was among the first who called attention to the fact that the United States has higher per capita rates of incarceration than many countries in the world. Sample headlines regarding Mauer's observations were "America, the Land of the Imprisoned" (Santa Barbara News-Press, February 20, 1992), "The World's Top Jailer" (USA Today, February 12, 1992) and "A Dangerous Place to Live" (St. Louis Post-Dispatch, February 11, 1992). On February 22 1992, Boston Globe reported that

few statistics about the United States are more startling than the growth of the prison population during the quarter-century since Americans abandoned the war on poverty.


Enlarge picture
The stats source is the World Prison Population List (6th edition). [1]


and the Houston Chronicle (February 17, 1992) concluded that

a huge potential human resource is being wasted. That is the real crime.


This reported extreme aberrance of the United States with respect to frequency of incarceration as compared with the other nations did not alter the prevailing opinion that favors draconian laws and strict punishments. In fact, arguments have been made that the higher incarceration rates of the U.S. might well explain the nationwide decrease in violent crime in the U.S.. A 1992 study by the office of U.S. Attorney General William Barr asserted:

"...it strains credulity to believe that the lowered crime rates have been unrelated to the unprecedented increases in the nation's incarceration rates, even if there may have been other causes as well."[2]


Arguments have been made to the contrary, as well: Dr. Todd R. Clear writes:

...the expansion of the penal system has not been accompanied by an equivalent decrease in crime. The failure of this extraordinary increase in incarceration to produce a meaningful reduction in crime needs explanation. The purpose of this paper is to argue that the common view of the prison is simplistic because it fails to account for the unintended consequences of imprisonment. These unforeseen effects are subtle and, in some ways, modest, but over time they combine to counteract the positive effects of prison. A broader, more complete understanding of the effects of incarceration would enable us to understand the limits of using prison as a crime-prevention strategy. [3]


Also cited as a possible factor in incarceration rates in the U.S. is the influence of the mass media. It has been argued that the media emphasis on individual criminality does not allow for opinions that society at large might shape crime in the United States.

Enlarge picture
Table 1 from "Prison and Jail Inmates at Midyear 2005". A U.S. Bureau of Justice Statistics report. According to a 2006 OJJDP (Office of Juvenile Justice and Delinquency Prevention) report there were 97,000 held in juvenile facilities as of October 22 2003. [4] [5] Add those to the total inmates.


Similar observations about larger society were made centuries ago: Thomas Jefferson's favorite book by Cesare Beccaria’s (1764) Dei Delitti e delle Pene (On Crimes and Punishments), remains arguably one of the most thought-provoking books on criminal justice. Beccaria documents the relationship between the brutalization of society and its support of severity of punishments, and stresses that the law should not encompass more than what is necessary to maintain the public order.

Duration of incarceration

In the United States

Partly in response to rising crime rates, the average length of incarceration in the United States steadily increased in the 1970s.

Many legislatures continued to reduce discretion in both the sentencing process and the determination of when the conditions of a sentence have been satisfied. Determinate sentencing, use of mandatory minimums, and guidelines-based sentencing continue to remove the human element from sentencing, such as the prerogative of the judge to consider the mitigating or extenuating circumstances of a crime to determine the appropriate length of the incarceration. As the consequence of "three strikes laws," the increase in the duration of incarceration in the last decade was most pronounced in the case of life prison sentences, which increased by 83% between 1992 and 2003 [6][7].

Severity of incarceration

Fig. 4. Distribution of opinions (1998, percents) that severe punishment is justified, excessive, inhumane, or barbaric. (Adapted from Krus, 1999). Six years later, the ABC News/Washington Post poll (2004) found that 46 percent of the U.S. adults endorse the notion that torture is justified.


Severe punishments (such as beatings, prolonged sleep deprivation, sensory deprivation, chaining) have been often inflicted on prisoners. There are many reasons given for justification of such punishment. In the 16th century, the Bishop of Trier, Binsfeld, in his Tractatus de Confessionibus Maleficorum (1596) claimed that

: since the sinfulness of the world increases, God also allows increasing the severity of punishments.


A movement to abolish cruel treatment of prisoners began during the Age of Enlightenment and continued throughout the 19th and 20th centuries. However, there have been continual arguments for severe punishments, perhaps increasing somewhat in the early years of the 21st century. Contemporary justifications for such punishment often revolve around the "rights of the victims". Often underlying these perspectives are opinions that stress the vindictive eye-for-the-eye notions of the Old Testament and Qur'an [1], over the notion that the primary goal of incarceration should be the reform and reeducation of prisoners to facilitate their re-integration into society.

Within the framework of penology, the trend toward increasing the severity of punishments is reflected in publications such as Block's (1997, p. 12) advocacy of policy initiatives aimed at increasing the unpleasantness of prison life that would likely be "a cost-effective method of fighting crime” and Arpaio and Sherman's 1996 book claiming that the increase in the severity of treatment of prisoners will result in decrease in recidivism.[2] Arpaio and Sherman proposed to increase the severity of imprisonment by the construction of tent prison camps in the Mojave Desert where summer temperatures reach 120 degrees Fahrenheit, by serving prisoners foul-tasting food, by humiliating prisoners by cross-dressing, and by reinstatement of the chain gangs. Mauer (1999, pp. 92-93) documents some other the measures used to implement the increasing the unpleasantness of prison life policies that include shooting around prisoners to keep them moving, forced consumption of milk of magnesia, placing naked inmates in strip cells, and handcuffing inmates for long periods of time.

Incarceration and torture

As noted above, cruel treatment has long been a feature of incarceration. Taken to extremes, such treatment might be described as torture.

Torture has, for much of history, been seen as a tolerable or even necessary component of imprisonment, whether performed as punishment or as part of interrogation. Recent controversial cases described by critics as torture of incarcerated persons include the Abu Ghraib military prison in Iraq and the Guantanamo Bay, Cuba scandal.

Please see the main torture page for further information.

References

  • ABC News/Washington Post poll (2004). Conducted by TNS of Horsham, Pa, on a random national sample of 1,005 adults with a three-point error margin.
  • Arpaio, J. and Sherman, L. (1996) How to win the war against crime. Arlington: The Summit Publishing Group.
  • Binsfeld, P. (1596) Tractatus de confessionibus maleficorum et sagarum. Trier, Germany: Heinrich Bock.
  • Block, M. K. (1997) Supply side imprisonment policy. Washington: National Institute of Justice.
  • Beccaria, C. (1764) An essay on crimes and punishments. New York: Gould & Van Winkle, 1809.
  • Daneau, L. (1564) Les Sorciers, dialogue très utile et très necessaire pour ce temps. In Levack, B. (1992) The literature of witchcraft: articles on witchcraft, magic, and demonology. Garland. ISBN 0-8153-1026-9.
  • Geiler, J. (1508) Die Emeis. Strassburg: Johann Grüninger.
  • Kurian, G.T. (1991) The New Book of World Rankings. New York: Facts on File, Inc.
  • Krus, D.J. (1999) Die Harte des Strafvollzugs: Entbindung in Ketten. Zeitschrift fur Sozialpsychologie und Gruppendynamik in Wirtschaft und Gesellschaft, 24Jg/Heft 4, S.12-16 (Request reprint in English,in German).
  • Krus, D. J., & Hoehl, L .S. (1994) Issues associated with international incarceration rates. Psychological Reports, 75, 1491-1495 (Request reprint).
  • Mauer, M. (1991) American Behind Bars: A Comparison of International Rates of Incarceration. Washington, D.C.: The Sentencing Project.
  • Mauer, M. (1999) Race to incarcerate. New York: The New Press.
  • Mǖllendorf, P. (1911) Geschichte der Spanischen Inquisition. Leipzig, Germany.
  • Rhyne, C. E., Templer, D. I., Brown, L. G., & Peters, N. B. (1995) Dimensions of suicide: perceptions of lethality, time, and agony. Suicide & Life Threatening Behavior, 25(3), 373-380.
  • Sindelar, B. (1986) Hon na carodejnice v zapadni a stredni Evrope v 16.-17.stoleti. Prague: Nakladatelstvi Svoboda.

Notes

1. ^ Aslam Abdullah (2006, www.beliefnet.com) in Demystifying Muslim Justice observes that " most Americans' impression of Islamic justice is a rather barbaric image of retribution harshly and violently administered. Ask even educated Americans to explain the law in Muslim countries, and they'll inevitably talk about hands and heads summarily being severed. In fact, Islamic justice shares much with Christianity and Judaism. These similarities are not surprising, considering that our penal systems are influenced by common scriptural foundations. The Qur'an's most basic passage pertaining to punishment is a familiar one to Christians and Jews alike: "And We prescribed for them therein: The life for the life, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds equality." That said, even in Talmudic times, this was never intended for Jews to be taken literally, and has always been interpreted by the Rabbis to indicate that appropriate compensation be paid in the form of money.
2. ^ The opinion that increasing the severity of punishments will result in decrease of recidivism is not supported by some metastudies of this issue. Contrary to this popular opinion, the majority of research studies indicates that penal policies stressing rehabilitation over punishment result in lower recidivism rates. Most empirical studies consistently find that the employment status after the release from prison is the strongest predictor of recidivism. Thus, e.g., Pennsylvania's 2000 Legislative Report on Recidivism concludes that "most studies found that boot camps have not been very successful in achieving the goal of reducing crime" and that the fact that "employed offenders are almost three times as likely to succeed indicates that providing vocational training and employment opportunities for offenders should be a high priority."

See also

External links

Jail, or gaol (especially in Australia), or remand prison, is a correctional institution used to detain persons who are in the lawful custody of the government.
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prison, penitentiary, or correctional facility is a place in which individuals are physically confined or interned and usually deprived of a range of personal freedoms.
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The word crime comes from the Latin crimen (genitive criminis), from the Latin root cernō and Greek κρινω = "I judge". Originally it meant "charge (in law), guilt, accusation.
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Etiology (alternately aetiology, aitiology) is the study of causation. Derived from the Greek αίτιολογία, "giving a reason for" (
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The word crime comes from the Latin crimen (genitive criminis), from the Latin root cernō and Greek κρινω = "I judge". Originally it meant "charge (in law), guilt, accusation.
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The Talmud (Hebrew: תַּלְמוּד) is a record of rabbinic discussions pertaining to Jewish law, ethics, customs, and history.

The Talmud has two components: the Mishnah (c.
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The Talmud (Hebrew: תַּלְמוּד) is a record of rabbinic discussions pertaining to Jewish law, ethics, customs, and history.

The Talmud has two components: the Mishnah (c.
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Old Testament (sometimes abbreviated OT) is the first section of the two-part Christian Biblical canon, which includes the books of the Hebrew Bible as well as several Deuterocanonical books. Its exact contents differ in the various Christian denominations.
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Sharia (Arabic: شريعة transliteration: Šarī‘ah
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Orthopraxy is a term derived from Greek (ὀρθοπραξις) meaning "correct practice" (as orthodoxy means "correct teaching"), referring to emphasis on religious ritual as opposed to faith or grace
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Legal positivism is a school of thought in jurisprudence and the philosophy of law. The principal claims of legal positivism are that:
  • laws are rules made, whether deliberately or unintentionally, by human beings;
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Jean Bodin (1530–1596) was a French jurist and political philosopher, member of the Parlement (not to be confused with the English Parliament) of Paris and professor of Law in Toulouse. He is best known for his theory of sovereignty.
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Torture, according to international law, is "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third
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Interrogation is a methodology employed during the interview of a person, referred to as a "source", to obtain information that the source would not otherwise willingly disclose.
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Thomas Hobbes (5 April 1588 – 4 December 1679) was an English philosopher, whose famous 1651 book Leviathan established the agenda for nearly all subsequent Western political philosophy.
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social contract describes a broad class of philosophical theories whose subjects are the implied agreements by which people form nations and maintain a social order. In laymen's terms, this means that the people give up some rights to a government in order to receive social order.
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Contradictio in adjecto is Latin for a contradiction in itself or a contradiction in terms. It is "the characteristic that is denoted by the adjective stands in contrast to the noun.
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The French Revolution (1789–1799) was a period of political and social upheaval in the political history of France and Europe as a whole, during which the French governmental structure, previously an absolute monarchy with feudal
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Natural law or the law of nature (Latin: lex naturalis) is an ethical theory that posits the existence of a law whose content is set by nature and that therefore has validity everywhere.
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Hugo Grotius (Huig de Groot, or Hugo de Groot; Delft, 10 April 1583 – Rostock, 28 August 1645) worked as a jurist in the Dutch Republic and laid the foundations for international law, based on natural law.
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Gottfried Wilhelm Leibniz
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