Padraig Colman

Rambling ruminations of an Irishman in Sri Lanka

Tag: Victor Hugo

Cruel and Unusual Part2

This article appeared in Ceylon Today on Wednesday August 13 2014.

 

Colman's Column3

An examination of  issues relating to capital punishment, continued from last week.

What Do the Philosophers Say?

Immanuel Kant wrote: “But whoever has committed murder, must die. There is, in this case, no juridical substitute or surrogate that can be given or taken for the satisfaction of justice. There is no likeness or proportion between life, however painful, and death; and therefore there is no equality between the crime of murder and the retaliation of it but what is judicially accomplished by the execution of the criminal.”

Nietzsche recognised cruelty in Kant’s position. Cruelty can be, and often is, masked as morality. Base pleasure in inflicting cruelty can be, and often is, rationalised as moral duty. “Whence comes this strange hypothesis or presumption of an equivalence between two such incommensurable things? What can a wrong and a suffering have in common?” Nietzsche sees the origin of this “strange hypothesis” in commercial law – “debt, the market, the exchange between things, bodies and monetary signs, with their general equivalent and their surplus value, their interest.” Commercial contracts provide a model for the social contract, which requires that humans undergo an internalisation of their aggressive drives. This has a psychological effect causing what Freud would call a neurosis. Nietzsche describes it as that “serious illness that man was bound to contract under the stress of the most fundamental change he ever experienced – that change which occurred when he found himself finally enclosed within the walls of society and of peace”. Nietzsche warns that this psychic formation (or deformation) brings the risk of the subject becoming her or his own executioner.

Nietzsche suggests that abolitionists are not immune to cruelty. By preferring imprisonment to the death penalty (protracted cruelty, that is, over immediate death) they are making an aggressive attack on aggression which paradoxically preserves, or redoubles, aggression even as it seeks its eradication. As I mentioned last week, Yanna Brishyana, when sentenced to death in the Colombo High Court, appealed to the court to have her executed immediately.

Victor Hugo was a staunch abolitionist. He travelled across Spain as a young boy. Along the roadside, heads of convicted robbers were displayed as warning to others; one man had been dismembered and re-assembled in the shape of a crucifix. As Voltaire put it: Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres. In his short novel, The Last Day of a Condemned Man (1829), written when he was 27, Hugo writes about a man who has been condemned to death by the guillotine in 19th century France. He writes down his thoughts while awaiting his execution. Hugo had witnessed executions and told a story about the blade sticking halfway through a condemned man’s neck. The man freed himself and stumbled off holding his spurting head in place with his hand. The executioner’s assistant jumped on his shoulders and finished hacking his head off with his pocketknife. Baudelaire did not agree with Hugo. The poet celebrated capital punishment as a supremely sacred and religious proceeding.

Albert Camus deals with the “eye for an eye” trope: “But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.”

Jacques Derrida addresses Baudelaire’s criticism of Hugo’s abolitionism. Hugo argues that the death penalty should be opposed because the right to life is absolute. Derrida says abolitionists “are afraid for their own skins, because they feel guilty and their tremulations are a confession; they confess, with the symptom of their abolitionism, as it were, that they want to save their lives, that they tremble for themselves because … unconsciously, they feel guilty of a mortal sin… ‘I want to abolish the death penalty because I am afraid of being condemned.’”

Derrida tries to expose the way that the abolitionists are implicated in the death drive, suggesting that opposition to the death penalty can quickly be converted into its opposite, unleashing a celebratory affirmation of its destructiveness. He suggests that abolitionists are like anti-pornography campaigners who end up exciting their supporters with their graphic descriptions of pornography. Derrida himself opposed the death penalty, but could still ask whether some abolitionists are committed to other forms of cruelty that are masked by elegant moral formulations, ones that rationalise prolonging the time of cruelty and the tenure of sadistic delight. Abolitionists have made sure to promote the punishment of life without parole as the alternative to execution, taking care of the question of the worst of the worst being allowed out to commit fresh crimes.

Democracy and Death Penalty

Edmund Burke, told his 18th century constituents in Bristol that, while he would attentively listen to their opinions, he would reject any talk of “authoritative instructions” or “mandates issued” which he might be expected to obey. The death penalty is normally cited as the classic example of the disconnect between politicians and the people they represent. I have written often about the lack of democracy in the EU. The EU has made abolition of the death penalty a condition for membership of the club. In every Western democracy that has scrapped the death penalty, politicians have acted against the wishes of a majority of voters. A European politician running on a platform of restoring capital punishment would be wasting his and the voters’ time, unless he was willing to leave the EU as well.

In the UK, a majority of MPs have consistently opposed the death penalty and a majority of the public consistently supported it. It used to be over 70%, but these days roughly half of the UK population support the death penalty for “standard” murder. Overall US public opinion remains clearly in favour of the death penalty, with around 60% or more of Americans saying they want it retained as a punishment for murder. Michael Dukakis’s opposition to capital punishment in a televised debate sank his 1988 presidential run.

The most combative abolitionists openly assert that they know better than their voters, and are saving them from themselves. Former governor of New York, Mario Cuomo, defended his position: “Capital punishment raises important questions about how, as a society, we view human beings. I believed as governor, and I still believe, that the practice and support for capital punishment is corrosive; that it is bad for a democratic citizenry and that it had to be objected to and so I did then, and I do now and will continue to for as long as it and I exist, because I believe we should be better than what we are in our weakest moments.”

Cuomo could only block capital punishment until he left office – it was reinstated. Yet in states whose state legislatures have voted in recent years to abolish it, after long debate, there are no signs of it being brought back on to the statute books.

It is a strange state of affairs when politicians are moral arbiters acting in our best interests and keeping us on an ethical path.

 

 

Privatisation of Punishment for Profit

This article appeared in Ceylon Today on June 30 2014.

I have written before about the American prison system. Those articles were prompted by the irony of American politicians and NGOs criticising Sri Lanka for keeping 350,000 displaced people in camps in 2009. There are more than 2.3 million people in US prisons, more than any other nation on earth, a half million more than China, which has a population five times greater than the US. America has 751 people in prison or jail for every 100,000 in population. African-Americans account for 12% of the US population, but 40% of the US prison population. In 2005, 8.1% of all black males aged25 to 29 were in prison.

Does the Punishment Fit the Crime?

Americans are locked up for crimes that would not warrant incarceration elsewhere. One is shocked to read in Dickens or Hugo about people being executed or transported to Australia for stealing a loaf of bread. Bill Clinton’s “three strikes” law means that a lengthy sentence can be imposed for stealing a slice of pizza. The law made it necessary to build 20 new federal prisons. One prisoner received three 25-year sentences for stealing a car and two bicycles.

More than 200,000 youths are tried as adults in the US every year, and on any given day, 8,500 kids under 18 are confined in adult prisons. Only 34% of those in juvenile detention are there for violent crimes; many are confined for running away from abuse at home. 12.1% of young people questioned in a survey said that they had been sexually abused at their current juvenile detention facility during the preceding year. Rates of HIV/AIDS are several times higher inside US prisons than outside, just as they are much higher among black Americans than white. As rape is a common in US jails, incarceration for trivial offences can amount to an unadjudicated death sentence.

The Prison-Industrial Complex

The US prison system is a multimillion-dollar industry with its own trade exhibitions, conventions and websites. At least 37 states have legalised the contracting of prison labour by private corporations, including Microsoft and IBM, to operate inside state prisons. The number of prisoners in private prisons tripled between 1987 and 2007. By 2007, there were 264 such prison facilities, housing almost 99,000 adult prisoners. Prison bonds provide a lucrative return for capitalist investors such as Merrill-Lynch, American Express and Allstate. Prisoners are traded from one state to another for profit.

The highest-paying private prison company is CCA (Correctional Corporation of America). CCA’s prisoners receive 50 cents per hour for “highly skilled positions”. For any infraction, CCA inmates get 30 days added to their sentence, which means more profits for CCA. Between 1982 and 1994 the prison population of the USA rose 2.7-fold and most of the newly convicted were fit young people, mainly unemployed. Was this coincidence or was the increase in the prison population deliberately engineered to provide a large but very cheap work-force to meet the needs of labour-intensive industries?

There was certainly one example of a judge who was a major shareholder in a private prison who had no compunction about sentencing young men to work in his prison to increase his profits.

Reducing Prison Population

However, things may be changing. In the past few years, politicians from both major parties have begun to turn against mass incarceration. Attorney General Eric Holder has routinely condemned the “inadvisable and unsustainable” policies that have made America’s prison population by far the largest in the world. Even Republican presidential contenders are having a rethink. In New Jersey, Governor Chris Christie has denounced a “failed war on drugs that believes incarceration is the cure of every ill.” In Texas, Governor Rick Perry has redirected two billion dollars from the prison economy toward alternatives like drug treatment. Incarceration rates have slowly declined since 2010; conventional private prisons may no longer be a growth industry.

Offender-Funded Justice

There are still ways to turn a profit. Sarah Stillman, (who once vividly described the plight of Sri Lankan migrant workers in the Middle East) in an excellent article in the New Yorker, recounts the tale of a woman who was arrested and jailed for a string of traffic tickets that she was unable to pay.

(http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc).

A judge sentenced the woman to two years of probation with Judicial Correction Services, a for-profit company. She would owe JCS the sum of two hundred dollars a month, with forty of it going toward a “supervision” fee. She paid whatever she could, but when she lost her job, she often could not pay. Her total court costs and fines soared from hundreds of dollars incurred by the initial tickets to $4,713, including more than a thousand dollars in private-probation fees.

Federal law in the eighteen-thirties abolished debtors’ prisons. However, people across America are routinely jailed for fees and fines that they are too poor to pay, fines and probation that are supposed to be an alternative to prison.

Many courts allow probation officers to decide whether an offender possesses the financial means to pay their fines and probation fees. When that probation officer is the employee of a private company, this creates a direct conflict of interest. A probation company’s revenues are entirely derived from the fees probationers pay them. Companies’ financial interests are often best served by using the threat of imprisonment to squeeze probationers and their families as hard as possible.

 

Profitable Alternatives to Prison

Private-prison corporations themselves have seen the opportunity for profit in alternatives to prison. The industry aims to shift the financial burden of probation directly onto probationers. Often, this means charging petty offenders for a government service that was once provided free. These probationers are not just paying a court-ordered fine; they are typically paying an ever-growing share of the court’s administrative expenses, as well as a separate fee to the for-profit company that supervises their probation and enforces a payment schedule.

Correctional Healthcare Companies claims that it deals with the “full spectrum” of offenders’ lives: “pre-custody, in custody, and post-custody.” The GEO Group runs private prisons all over the world (including the UK). There have been many deaths in their premises. They are now expanding into “community re-entry services”, treatment programmes and electronic-monitoring. In 2010, Judicial Correction Services made the magazine Inc.’s list of “the fastest growing private companies in America,” for the third year in a row. JCS’s fees included $240 for a course in something called “Moral Reconation Therapy.” CCA bought a California-based enterprise called Correctional Alternatives.

Human Rights Watch

Human Rights Watch recently published a harrowing survey. The report was based largely on more than 75 interviews conducted with people in the states of Alabama, Georgia, and Mississippi during the second half of 2013. It describes patterns of abuse and financial hardship inflicted by the “offender-funded” model of privatised probation that prevails in well over 1,000 courts across the US. It shows how some company probation officers behave like abusive debt collectors.

 

http://www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pdf

Blood from a Stone

 

The courts issue thousands of arrest warrants for offenders who fail to make adequate payments towards fines and probation company fees even though the original offence carried no real threat of jail time. In Georgia, Thomas Barrett pleaded guilty to stealing a can of beer and was fined US$200. He was jailed for failing to pay over a thousand dollars in fees to his probation company, even though his entire income—money he earned by selling his own blood plasma—was less than what he was being charged in monthly probation fees.

 

Legal Challenges

Legal challenges to “offender-funded justice” are mounting, amid concerns about abuse, corruption, conflicts of interest and the use of state penalties to collect private profits. In a wide range of cases, “offender-funded justice” may not result in justice at all.

The business of many private probation companies is built largely on the willingness of courts to discriminate against poor offenders who can only afford to pay their fines in instalments. It is a blatant conflict of interest when the companies making a profit are allowed to determine how much an offender can afford to pay. Financial incentives colour their judgement.

In Alabama, people know the town of Harpersville as a speed trap, a stretch of country highway where the speed limit changes six times in roughly as many miles. Traffic fines were the biggest business in the town of 1,600. In 2005, the court’s revenue was nearly three times the amount that the town received from a sales tax.

In July 2012, Judge Hub Harrington of Shelby County, Alabama halted Judicial Correction Services’ aggressive pursuit of fines owed the Harpersville Municipal Court. He stated:”From a fair reading of the defendant’s testimony, one might ascertain that more apt description of the Harpersville Municipal Court is that of a judicially sanctioned extortion racket.”

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