Fernando suggests (below) that rather than complaining that “the incarceration rate in America is too high,” we should complain instead that “America punishes innocent persons” (e.g. drug users).

Certainly the incarceration of people who have violated no rights is an important part of America’s prison problem. But I don’t think that covers all of it. There are also moral problems, I think, with the incarceration of rights-violators — which means that high incarceration rates are going to be something worth complaining about even when the prisoners are guilty as hell.

First, there are many prison inmates who, while they may have violated somebody’s rights, don’t pose any serious threat of violence to anybody. Seizing them and holding them in cages seems morally disproportionate (to say nothing of the expense). Why not focus on having them pay restitution to their victims?

Second, while there are rights-violators who do pose severe threats to other people, and there might accordingly be a case for incarcerating such people in prisons of some sort, the kinds of prisons that actually exist in present-day society are such nightmarish hellholes that incarceration in that context seems seriously inhumane.

And when we turn our attention from the ill treatment that such prisoners receive to the ill treatment they inflict, it makes little sense to trumpet incarceration as a way of stopping violent criminals from committing assault, rape, and murder, when they are allowed to go on committing assault, rape, and murder against fellow inmates once inside. (Being convicted of a crime does not mean one has forfeited one’s right not to be assaulted, raped, or murdered.)

Now my own view is that punishment per se (i.e., intentionally making criminals suffer — as opposed to doing things that as a matter of fact may displease them, such as forcing them to compensate previous victims or restraining them from attacking new ones) is unjustified, whether for retributive or deterrent purposes. For me this is a plausible corollary of the non-aggression principle: if the use of force is justified only in response to aggression, then any use of force that goes beyond preventing or undoing the aggression must be too much. (See my arguments here and here.)

But I don’t take the points I’ve just been making here to depend on my anti-punishment stand. One can believe in punishment without believing in excessive and inhumane punishment. Locking people in cages, even absent further abuse, seems excessive and inhumane when the crime in question is nonviolent; and incarceration in prisons as they are — rape rooms and torture chambers — seems excessive and inhumane for any case. Hence I think prison reform is a moral precondition for the legitimacy of incarceration of even violent offenders. (As for the best way to achieve prison reform, that’s a subject for another post. But top-down micromanagement is not going to be the answer.)

For those who doubt that incarceration counts as inhumane, ask yourself: if you had a choice between being waterboarded once and being imprisoned for several years, which would you pick?