Full paper available upon request
Presented at a multi-disciplinary conference on Thinking About Prisons, October, 2001.
There is a way of thinking about human agency that imagines humans to be sublimely reflective and deliberative, a way that supposes persons to act culpably only after having decided upon a course of action. This "reflective" model presupposes agents who retire into their minds to contemplate what they are going to do before they do it. Such a picture finds its footing in early modern philosophy (in Descartes, Hume, Locke, Fichte, Kant) as well as in later psychological theory (in Freud, Jung, Kohlberg, and virtually the entire encampment of contemporary theoretical psychologists). Attempts to circumvent reflective pictures of agents have resulted in extreme variants of social or cultural behaviorism, transforming agents from autonomous decision-makers into "social dopes," into the unreflective byproducts of external social forces. Such determinism renders many variants of ethics impotent, and is thus quickly rejected by theorists who would like to locate the roots of responsibility in the independently willed actions of human agents.
The reflective model, in contrast to the deterministic model, typically establishes ethics and the law as somehow working in tandem, such that the law is either written as a real-world approximation of the good, or such that laws and policies act as externally imposed constraints on freely willed behavior. As John Rawls famously notes in his "Two Concepts of Rules," this reflective model can carry either retributive or utilitarian justifications for penalizing lawbreakers. Lay-proponents of the reflective model quickly read from these classical penal justifications that the prison is one of the most sensible and humane responses to bad behavior. Criminals, one-time autonomous agents, are stripped of the privilege of legal autonomy, thrown into a cell, and told, effectively, "There, now think about what you have done." Inmates are sentenced to a significant period in which they may contemplate their prior actions and, with some hope, generate new plans for self-betterment. During this time they are denied extensive interactions with other inmates, guards, relatives, lawyers, or outsiders. If we think about prisoners in the reflective way mentioned above, and consider their actions to be wrong because they have simply miscalculated their accountability to the law, then we arrive at the conclusion that the only solution for the cagey criminal mastermind is curtailment of deed (by bodily incarceration) and the state provision of more time to think.
But there are two critical errors here. The first emerges from positivist legal theory (or public disposition thereto) and involves interpreting the law as imposed from outside the agent, as somehow differentiated from that which one might come to understand by means of interacting with others. The second depends on assuming that the individual, or the subject of the law, is somehow independently deliberating on actions apart from the rest of her peers. Recent variants in Kantian ethical theory dictate against these two errors. If instead we consider individuals to be acting within a framework of socially sedimented, but intersubjectively shared and endorsed, background assumptions--that is, if we take seriously Christine Korsgaard's proposition that individuals are motivated to act ethically by appealing to reasons deeply rooted in individually held, though socially upheld, practical identities--then we arrive at the conclusion that retributive and reformatory justifications for incarceration are at best wrongheaded, and at worst, corroborate a form of punishment that is exactly the wrong prescription for social ailments. This is because reasons, as intersubjectively binding and situated within deliberatively adopted practical identities, are expressly denied in most aspects of prison structure.
This paper examines the justification of imprisonment that purports to give convicted criminals time to mull over their misdeeds. It first covers the nature of the problem in terms of Kantian justifications for punishment, and in so doing establishes that justifications for punishment differ from justifications for forms of punishment. It then briefly covers Christine Korsgaard's position that self-legislation, obligation, and moral motivation derive from intersubjectively shared reasons and practical identity (they are, as she puts it, sources of normativity). To supplement this position, it outlines a few common prison techniques for maintaining control over prisoners. Finally, it reasons that imprisonment and incarceration cannot generate the conditions necessary for reflective endorsement of practical reasons, and thus, cannot achieve the goal of providing an environment conducive to becoming ethical via reflection. Ultimately, it claims that the prison system, as a means of "breaking" prisoners--by rejecting them when they speak, by pitting them one against the other, by minimizing their personal belongings and extraneous activities--fabricates exactly the environment imagined by the flawed reflective model. In so doing, the practice of imprisonment further extirpates prisoners from any ties to shared moral reasons, and thereby impedes development of reasons to act ethically. It maintains that prisons are, in a phrase, counterproductive in their very conception.