Alternatives to Prison (Part 1 of 3)

Introduction:  For almost 200 years, the treatment and punishment of convicted criminals was defined by blending the Pennsylvania System and the New York System.  And, of course, it did nothing to remediate either the offender or the harms.  People came out of prison worse than when then went in.  They re-offended.  And their victims often were the same people they hurt before.  It is a cliché in corrections that prisoners are returned to within 100 yards of where they were arrested.  However, we have made progress.  Community corrections, moral reconation therapy, and reintegrative shaming are among the new modes that provide successful outcomes.

Failure Modes

Historically, transgressors were exiled.  The modern prison solves that problem with topology: we lock them in, not out.  However, the modern prison system does not have deep roots in history.  Until America in the 18^th century, prisons were only for holding people until they were brought forward for punishment.  Some people might never leave prison, but incarceration was not the intended punishment for the crime. 

The modern prison began in 1788 with the Penitentiary House of the Walnut Street Jail in Philadelphia.  The purpose was specifically to reform the penitent.  The intention to remake and rehabilitate the offender led to the construction of the Eastern State Penitentiary in 1829.  Separating convicts into solitary cells was a radical idea, consistent with the social theories of the Enlightenment.  Cesare Beccaria’s On Crimes and Punishments (Dei delitti e delle pene, 1764) launched the modern study of penology within criminology.  Beccaria argued against capital punishment and torture. His ideas were incidentally consistent with Quaker theory on salvation.  For them, solitary confinement was supposed to allow the penitent to come to terms with God.

However, an alternate model also informed penology:  convicted offenders should live and work communally under close supervision coupled with physical punishment for non-compliance.  That was the Auburn System created in New York following the appointment of Elam Lynds as warden of the prison in 1821. When flogging finally was prohibited in 1847, different punishments were invented. The striped uniform was another innovation in the Auburn System.

From chain gangs and work farms to separate facilities for low, medium, and high-risk offenders, prisons in America achieved little except to keep some people out of the sight of others.  Generally, prisoners themselves controlled their daily routines, usually with the most violent preying on anyone less aggressive.  Illegal drugs passed into prisons through corrupt guards.

Radicals and Reformers

Following the intellectual ferment of the 1960s, new methods for remediating harms slowly advanced within criminology; and they have found some success.  The basic assumptions of their sociology often are informed by some school of socialism, whether Marxist, neo-Marxist, or postmodern.  For them, crime is a response to oppression. For the classic Marxist, economic exploitation reduces the proletariat to criminal activity.  In point of fact, we have found that when the economy improves, crime goes up.  The current long recession (from 2001 to the present) has seen crime go down. 

However, their point is well-made because the outcomes of criminal action are different for different classes. And class correlates with race, though correlation is not cause.  See Our Kind of People: Inside America's Black Upper Class by Lawrence O. Graham (HarperCollins, 1999).  When suburban kids are caught shoplifting, or shooting out streetlights with a pellet gun, or using drugs, their outcomes are different from that of their inner city cohorts. Suburban offenders receive many of the treatments and remediations outlined here.  The poor get prison. 

Moreover, we all offend.  Newt Gingrich once said that for most Americans, the posted speed limit is a benchmark of opportunity.  The only relevant questions are: Whom did you hurt? And what are you going to do about it?

ALSO ON NECESSARY FACTS

Firefighters

All Volitional Beings Deserve Rights

Eyewitness Testimony: Popper, Wittgenstein, and the Innocence Project

Wolf DeVoon

Stand Up and Be Counted

Electronic voting makes election fraud even easier. Here in Travis County, no audit trail exists. The process of voting leaves no physical traces.  Moreover, no "red team" or "capture the flag" tests have been conducted. Instead, county clerk Dana DeBeauvoir repeatedly insists that adhering to good specifications removes the need for security tests. This is a logical outcome of the secret ballot. The secret ballot is called the "Australian ballot" because Australia was settled by criminals who did not trust each other.  That can be a bedrock foundation for social structures of laissez faire and laissez passer individualism. But in America, it is different. When you know that your rights will be respected by your neighbors, you can voice an unpopular opinion. 

Massachusetts still has open town meetings.  And they are serious about it.

Selected Case Law
District Attorney for the Northern District v. Wayland School Committee, 455 Mass. 561 (2009). "Prior to conducting an open meeting, the school committee commenced a private e-mail exchange in order to deliberate the superintendent's professional competence. This violated the letter and spirit of the open meeting law. Governmental bodies may not circumvent the requirements of the open meeting law by conducting deliberations via private messages, whether electronically, in person, over the telephone, or in any other form." -- http://www.lawlib.state.ma.us/subject/about/openmeeting.html

An open vote is also easier to audit because everyone present can see the tally.  Of course, that works best in a village of a few thousand where a few hundred show up and a few dozen actually lead the process.  With about 700,000 people in the average Congressional district, open voting would be held in stadiums. But that is workable, given some new social norms.  Certainly, for local matters, every community has several venues that can serve a few hundred people.

If the concept were extended to juries, they would be held liable for wrongful convictions. The history of innocent people released from prison by DNA evidence suggests that right now about 80,000 innocent people are incarcerated.  For most crimes, DNA is not an issue.  Williamson County, Texas, prosecutor Ken Anderson was given ten days in jail, fined $500, and agreed to resign from the bar, for his wrongful conviction of Michael Morton, charged with killing his wife 25 years ago. (KVUE News here.) Back then, Anderson stood before the jury, with tears running down his face in grief for the victim, though he knew that he had been withholding exculpatory evidence. Of course, the jury bought it, also, allowing themselves to be swayed despite a lack of any physical evidence or eye-witness testimony.  As the innocent man served 25 years in prison, it seems fitting that the jury should be awarded the same consequences.  We know from the basics of criminology that very few perpetrators suddenly commit a causeless heinous act. While we all make mistakes, the fact is that for about 20% of us, crime is a lifestyle.  When considering the prosecutor's actions, it makes sense to review all of his cases and investigate his lifetime career for hidden crimes.

ALSO ON NECESSARY FACTS

Another Example of Unlimited Constitutional Government
The Fallibility of Fingerprinting

Eyewitness Testimony and the Innocence Project

An Objective Foundation for Government

Eyewitness Testimony: Popper, Wittgenstein, and the Innocence Project

News traveled quickly within academic philosophy that on the night of October 25, 1946, in Room H3 (number 3; staircase H) of the Gibbs Building, at Kings College, Cambridge, Ludwig Wittgenstein and Karl Popper had gone at each other with red-hot fireplace pokers.  Of course, that is not what happened.  Yet, the true sequence of events remains uncertain and contested. 

Wittgenstein’s Poker: The Story of a Ten-Minute Argument Between Two Great Philosophers by David Edmonds and John Eidinow (HarperCollins, New York, 2001).

Juries are swayed by eye-witness testimony.  Yet it is highly unreliable – and is known to be subject to simple error as well as police misconduct and prosecutorial fraud.  Over the past 15 years, thanks largely to the Innocence Project, and the advocacy of academic criminologists, some changes in police procedure have been written into law.  However, on the streets, in the lock-ups, in the courtrooms across America, at the local level, tradition rules.  (If you do not know the case of Jennifer Thompson and Ronald Cotton - “What Jennifer Saw” PBS Frontline show here – you need to understand the limits of witness identification.  The Innocence Project page on this case is here.)

·                                 

In the matter of Wittgenstein’s Poker, an audience of perhaps 30 academics - students, dons, professors - fifteen professional philosophers at one of the world’s best universities, all of them at some level specialists in the theory of knowledge, did not agree on the details of a 10-minute drama. 

Beneath this is the foundation of science.  Sir Karl Popper invented the theory of falsification, presenting it in his 1935 work, The Logic of Scientific Discovery.  Simply put, a broad theory based on some evidence can explain much.  Astrology works like that.  You are a Libra; your partner is a Capricorn.  You think you are in love, but the charts say you are incompatible.  An astrologer will delve into your rising signs and conjunctions and aspects, and ultimately can produce almost any result you want.  Popper felt that this was true of Freudian psychology, which he called a pseudo-science.  Science is subject to disproof.  According to Popper a complete theory suggests its own testable limits.  This was revolutionary in 1935 but is accepted without question today. 

But social theories are largely not subject to disproof.  The failures of communism (and before that of fascism) are argued away by true believers, just as astrologers and creationists present ever more explanation to overcome difficulties.  (The easiest claim is that the USSR was not practicing true communism, but only state capitalist revisionism.  Actual communism would be successful.  Any failure must not be real communism.)  Ultimately, this applies to radical feminism, to postmodernism, to the broad spectra of both the left and the right.  The true believer finds no reason to be tolerant of other opinions because they are not interested in being proved wrong in the search for truth. 

That expresses Popper’s political philosophy, expounded in The Open Society and Its Enemies, for which he was knighted.  Written before World War II, but published only afterward, the book calls for tolerance based on ignorance.  We cannot know for certain that we are right.  Our ideas might be falsified.  Thus, we are mindful of the sensibilities of other people, even as we disagree.  In his essay “What Does the West Believe In?” (delivered as a lecture and then added to a compendium, In Search of a Better World: Lectures and Essays from Thirty Years) Popper notes that unlike the Marxists of that time, or too many other creeds and their variants, the West largely has no single doctrine.  The strength of our society, the source and expression of our freedom, is that we do not "believe in" any one thing.  Rather, we accept many things as being true, for as long as they stand up to scrutiny. 

How then did Popper come to promote his idea of falsifiability?  What if it later were falsified?  That would be a paradox, of course, as is his intolerance of intoleration.  It is ironic, then, that he denied the validity of the ideas of Ludwig Wittgenstein.  Wittgenstein claimed that there are few (if any) real problems in philosophy, but only apparent problems from loose language.  Clarify your concepts and problems disappear.  Wittgenstein’s Tracticus Logico-Philosophicus was nicely organized in outline form and relied heavily on the symbolic logic of Russell and Whitehead. 

The easy resolution is that word games aside (falsifying falsification; not tolerating intolerance), it is usually better to reserve judgment and be open to those who would prove you wrong. Ultimately, of course, right and wrong do exist; and the wrong is discarded for failing a single test, while the right stands up to probe after probe.  Unfortunately, the criminal justice system does not work that way. 

The incident is described on pages 16-20 in Chapter 2, “Memories are Made of This.” 

Both Popper and Wittgenstein are at the tops of their careers.  Both are accustomed to holding the attention of those to whom they speak. Popper is the guest speaker, but Wittgenstein will not yield.  They argue. 

“Consider this poker,” Peter Geach hears Wittgenstein demand of Popper, picking up the poker and using it in a philosophical example.  But, as the discussion rages between them, Wittgenstein is not reducing the guest to silence (the impact he is accustomed to), nor the guest silencing him (ditto).  Finally, and only after having challenged assertion after assertion made by Popper, Wittgenstein gives up.  At some stage he must have risen to his feet, because Geach sees him walk back to his chair and sit down.  He is still holding the poker in his hand.  With a look of great exhaustion on his face, he leans back in his chair and stretches his arm toward the fireplace.  The poker drops to the the tiles of the hearth with a little rattle.  At his point, Geach’s attention is caught by the host, Richard Braithwaite.  Alarmed by Wittgenstein’s gesticulating with the poker, he is making his way in a crouching position through the audience.  He picks up the poker and somehow makes away with it.  Shortly afterward Wittgenstein rises to his feet in a huff, quietly leaves the meeting, shutting the door behind him.”

Michael Wolff sees that Wittgenstein has the poker idly in his hand ... Peter Munz watches Wittgenstein suddenly take the poker - red-hot - out of the fire and gesticulate with it in front of Popper’s face.  Then Russell - who so far has not spoken a word - takes the pipe out of his mouth and says firmly, “Wittgenstein, put down that poker at once!” His voice is high-pitched and somewhat scratchy.  Wittgenstein complies, then, after a short wait, gets up and walks out, slamming the door.   From where Peter Gray-Lucas is sitting, Wittgenstein seems to be growing very excited about what he obviously believes is Popper’s behavior and is waving the poker about. ...  Stephen Plaister, too, sees the poker raised. ... To Stephen Toulmin, sitting only six feet from Wittgenstein, nothing at all out of the ordinary is occurring; nothing that in hindsight would merit the term “incident."

According to Edmonds and Eidinow, Hiram McLendon’s account is corroborated by Bertrand Russell: they remember that Wittgenstein became agitated, grabbed the poker and waved it.  John Vinelott supports Popper’s story published in 1974.  Popper recalled that when asked for an example of a moral principle, he replied, “Not threatening visiting lecturers with pokers.”  Defeated, Wittgenstein threw down the poker and stormed out. 

Several points are at issue, not the least of which is the threat with a red-hot poker. Did Wittgenstein leave abruptly, slamming the door, after he asked Popper for an example of a moral rule?  According to most retellings, Wittgenstein left the room before Popper offered the example.  It may remain forever impossible to falsify any explanation of the events. 


ALSO ON NECESSARY FACTS
"Karl Popper and the Black Swan"
The Fallibility of Fingerprinting
Systemic Injustice
The CSI Effect