In the 4th century, Augustine of Hippo asked the seminal question about rule of law: “In the absence of justice, what is sovereignty but organized robbery?”
Historically, justice systems evolved in complexity alongside other societal institutions. On the whole, this has not necessarily led to an improvement in dispensing justice. Justice in more primitive societies was more direct, and therefore often more just than modern law enforcement and justice: institutions which are inherently impersonal and often inept, if not downright corrupt.
Every modern state is a police state. The only distinction between countries in this regard is effectiveness.
Incarceration is the immediate fate of those who wrongly cross the police. This is manifestly contrary to the spirit of the law. At least from the time of Justinian I, presumption of innocence has been a legal right of accused criminals.
Despite its obvious injustice, preemptive incarceration is the norm in all countries. One is de facto guilty until proven innocent. 60% of those in American jails have yet to be convicted of a crime.
The gross injustice of the American ‘justice’ system has no limits. Crime victims may themselves be incarcerated indefinitely for refusing to cooperate with prosecutors (by not publicly testifying about their victimization).
The state only fails when it cannot make its case, and the system is rigged to favor prosecutors. Only those who can afford an excellent defense, such as O.J. Simpson, may reasonably hope to evade punishment, let alone get away with murder. As US Attorney General Loretta Lynch noted: “People are behind bars only because they are poor.”
This situation is nothing new. In the 6th century BCE, Scythian philosopher Anacharsis wrote: “Written laws are like spiders’ webs: they will catch, it is true, the weak and poor, but would be torn in pieces by the rich and powerful.”
The US constitution requires that those accused of a crime be afforded legal representation. Public defenders, paid with public funds, defend the indigent. Almost all American states do not sufficiently fund staff to provide decent legal defense to those accused who cannot afford to defend themselves.
Private lawyers are terribly expensive. Accusation of a misdemeanor infraction can easily cost a half-year’s wages or more for the working poor. The story is much the same around the world.
In local jurisdictions, where most criminal trials take place, there is an inherent conflict-of-interest in the system: law enforcement, prosecutors, public defenders, and the courts themselves are funded in part by punitive fees and fines for alleged malfeasance. With justice as a money-making venture, there is ample incentive to find people guilty. In Louisiana, 2/3rds of the funding for the so-called justice system is earned from this extortion racket.
Unethical punishments are common. A judge in Alabama ordered defendants to donate blood in lieu of paying their fines. An Arkansas judge granted leniency for sexual favors. The police and courts milking poor communities has been a major factor in civil unrest in many cities across America.
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Police ostensibly act to keep order and apprehend those who violate property rights, especially violence against persons. In modern states supposedly governed by rule of law, policing illustrates the nature of a nation. The illustration of law and order painted by the police is seldom flattering.
In America and much of the industrialized world, police feed the so-called justice system with accused criminals; a minority of whom are convicted, but all of whom are traumatized and economically spent by the experience.
Meanwhile, most crimes go unsolved. The epidemic of violent sex crimes that plague all societies show how useless the police are, especially for the fairer gender. The frequent crimes perpetrated by the police are never even recorded.
By not solving crimes and creating more crime than they prevent, police are societal parasites: harassing and brutalizing the populace, particularly the underclass and dark-skinned; and filling their coffers through seizure and extortion, most frequently by stopping motorists for insignificant or imagined infractions.
Despite the harsh critique, few doubt that their society would be better off without a police presence. That the police are as much a criminal element as they are the supposed solution does not detract from the fact that societies are rent with criminality, even as most people are law-abiding to a great degree.
The police are simply symptomatic of a much larger problem: societies are not organized to produce humane, orderly people. Capitalist economies acting as inequity machines is largely the culprit; pathetic parenting with regard to morality is another factor, though it pales in light of a global culture ridden with greed as its main modus operandi, incentivizing crime. That societies function at all owes to ill-founded perpetual optimism, and resignation when hope falters.
To state that the socialization process is insufficient underwhelms the issue. People may be largely institutionalized, but they remain insufficiently civil. The shortcomings of the police reflect the inadequacies of humanity generally.
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Justice for crimes has always embraced punitive requital. During tribal times, recompense went to those wronged. Since then, retribution has belonged to the enforcer of justice: the state.
Especially for those without means to compensate victims or the state for transgressions, punishment became the norm. English novelist George Orwell insightfully observed that “the whole idea of punishment is a childish daydream.” Such is the emotional stature of modern states.
The recorded use of prisons dates to the 2nd millennium bce. Like many other ancient kingdoms, Egyptian pharaohs preferred public beatings and imprisonment to the death penalty. Like much of the modern world, ancient Egyptian prisons alternately resembled fortresses with cells and dungeons or labor camps. Forced labor has long been used as a way for prisoners to pay the state back for their incarceration, and as punishment.
The ancient Hebrews had a different take on crime and punishment. They were a people with a covenant with God. Crime was a contract violation.
The principal punishments by the early Hebrews were exile and death. Both removed the offender from the community. The death penalty was employed to eliminate those whose offense disrupted public order and purity, and thereby threatened to bring down the wrath of God.
Deuteronomy 19:19 in the Bible instructs: “You must purge the evil from among you. The rest of the people will hear of this and be afraid, and never again will such an evil thing be done among you. Show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot.”
The main means of Jewish execution were stoning to death, forcing the mouth open and pouring molten lead down the throat, decapitation, and strangulation. Bodily punishments included beating and mutilation. Compensation, fines, and compulsory sacrifices might be ordered.
Prisons had no place in early Hebrew tradition. Confinement was limited to the period before a sentence was carried out. The first mention of incarceration as punishment appeared around the year 400 in the common era, in the Book of Ezra.
Like the Hebrews, the ancient Greeks had little use for extended imprisonment: better to be rid of evil than confine it. Condemned men were held until their execution was carried out.
The ancient Greeks and Romans had fines for those who could afford to pay. Both cultures had distinct capital punishments depending upon the nature of the offense. An arsonist was likely to be burned alive. Slower, more painful deaths were typically reserved for more heinous or consequential crimes. This apportionment of pain served as a legal substitute for private revenge.
The only instance of imprisonment in Roman times was for debt. Debtors might be held for 2 months before they were sold into slavery or executed.
Being incarcerated for decades, as is common in modern practice, was practically impossible in ancient Roman times. For one, an inmate was unlikely to last that long under the fetid and tortuous conditions that prison presented.
The Germanic tribes that fell Rome and took over much of Europe crafted simpler laws. There was little need for the learned law of a lost empire. Germanic laws were chiefly concerned with establishing the rights of kings and regulating the settlement of private disputes. Public law had a rudimentary place. Prisons merited only occasional mention.
As in medieval Europe, physical punishments were the norm for transgressors in the far East. Showing an early inclination for innovation, medieval Japanese creatively executed criminals. A condemned man might alternately be impaled, beheaded with a metal saw, or strung up and repeatedly skewered before the finale of slashing the throat to bleed out.
Prisons as punishment became more common throughout Europe from the late 16th century. It was an evolution away from the more immediate physical abuse for non-capital crimes common in the Middle Ages. From the 18th century, in presumably locking away the problem, prison became the chief institution for combating crime.
While the early modern period at first saw a rise in capital punishment which peaked during the 16th century, enthusiasm for the death sentence then ebbed. At the same time, courts redefined the crimes that earned termination. Property offenses that had been capital crimes became imprisonable instead. Death was increasingly reserved for more serious crimes against a person.
In addition, judicial torture, commonly used to elicit confession, came under sustained attack during the 18th century. By the end of the century, most European countries had abolished court-sanctioned torture.
Well into the 19th century, the conventional idea prevailed that death and physical punishments were necessary as a moral deterrent. Those who advocated prolonged imprisonment spoke most strongly against the scaffold, and they were to prevail. By the mid-19th century, most non-lethal corporeal punishments had been forsaken; or at least, as with flogging in England, removed from public witness.
In recent times, the criminal system hardened horribly in the UK and US.
At the turn of the 20th century, England established preventative detention: keeping habitual offenders behind bars out of proportion to their misdeeds. That practice continues.
Conditions in British prisons are as bad as they were in medieval times. Inmate riots against the wretched conditions are common.
Quoting American criminologists Todd Clear & Natasha Frost: “From the 1970s, virtually every aspect of the punishment system, from the way people were processed before trial to the way people were confined after conviction, grew harder. Thresholds of punitiveness people never thought American democracy would ever have became official policy: life without parole and death penalties for young people; lengthy detention before trial; humiliation and long periods of extreme isolation during confinement; decades behind bars for minor thefts and possession of drugs.”
In the 1990s, the United States revived the practice of unjustly institutionalizing criminality on minorities and poor whites: prolonged punishment irrespective of crime. Being black, poor, or mentally ill was sufficient reason to land up in jail. Doing something that irked the police or court could mean instant death or a long spell in prison.
American police summarily execute over 1,000 people a year, mostly black men, and maim and abuse those in minority groups as a regular practice.
English psychologist Jim Sidanius & American social psychologist Felicia Pratto state that “The law must be seen as a mechanism by which the privileges of dominant groups are protected, and the continued subordination of weaker groups is enforced and maintained. Because the instruments of state power are disproportionately manned and controlled by dominants, the net results of the legal system are the substantial overrepresentation of subordinates within the prisons, dungeons, and gallows of all surplus-producing social systems.”
The social effects of incarceration are harrowing. 2/3rds of the American families with a loved one in prison struggle to meet basic needs.
The US spends ~$80 billion on incarceration every year. This is a small fraction of what it costs American society, which is estimated at ~$1 trillion annually: 11 times what it costs to keep people locked up.
Owing to discrimination once set free, the possibility that imprisonment might bear reformative fruit has proven impossible. Prison deeply scars prospects for a decent life. Hence, recidivism is high. 2/3rds of discharged prisoners are back behind bars within 3 years.
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The original justification for prison may well have been incapacitation: the removal of an offender from the community. To this extent, prison reduces crime. But extensive research in different countries fails to correlate increasing the rate of imprisonment with reducing the rate of crime. It is difficult to attribute prison with a deterrent effect.
Sadly, one sure statement may be made about requital: whatever practices are followed by a society at any time, a majority of the citizenry feel them too lenient. Criminal acts are matched by a brutal lack of empathy in the hearts of the populace, especially those with a religiously righteous bent. Sanctimony is easier than compassion.
If suffering is the retributive goal, then prison is by far the most expensive option. The corporeal punishments common in medieval times were more immediate, better suited to the purpose, and considerably cheaper.
Economic crimes are largely the product of an inequitable society. The irony comes full circle when the state profits from prison labor, which is nothing but slavery and a mockery of retributive justice.
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The failure of modern societies to take care of its peoples culminates with the profusion of prisons that dot every country. That crime is tolerated and then punished by extended incarceration damningly demonstrates the cruel inanity of injustice pervading humanity.
Punishment is the mightiest power that the state exercises over its people. Extensive and prolonged incarceration, as is common, especially in the United States, demonstrates deep-seated moral corruption.
Savagery is hard at work in a so-called ‘justice’ system where imprisonment is the norm for a substantial minority of the population. Prisons are as logical for criminal justice as capitalism has proven itself to be for maintaining economic equity and environmental quality.