Ethics and prison:
Selected issues 16
John T. Whitehead and XXXXX XXXXX
disproportionate minority prison populations
Prisons are a source of fascination for many of us. Although prisons are intended to
repel us, they instead sometimes seem to be a source of mysterious interest. Moviemakers
have capitalized on this interest with countless movies set in real or fictitious
prisons, especially traditional "Big House" prisons such as Sing Sing or
Walla Walla. Another testimony to the uncanny attractiveness of prisons is the
conversion of Alcatraz, the former disciplinary prison of the federal prison system,
to a museum where tourists can walk around and even be locked in a cell for a few
minutes of imaginary incarceration.
This chapter examines some of the ethical issues about prison. It discusses
prison composition, discrimination, prison conditions, treatment, victimization,
elderly offenders, women in prison, and privatization. Guard corruption is not considered
because that issue was discussed in Chapter 15.
WHO BELONGS IN PRISON?
A basic ethical question about prison is: Who belongs there? What kinds of offenders
deserve to be sentenced to prison? A number of critics contend that many of
the people sent to prison do not need to be there. According to these critics, these
prisoners are neither violent nor career criminals, and most citizens do not really
Justice, Crime, and Ethics.
© 2012 Elsevier Inc.. All rights reserved.
want such people incarcerated. Irwin and Austin (1997:58-59), for example, cite
1992 prison admission statistics that show that only 27 percent of prison admittees
that year were admitted to prison for a violent crime conviction. This is especially
evident in the federal prison system, where less than 9 percent of inmates sentenced
in 2007 were convicted of violent crimes and 53 percent of prison admittees
were drug offenders (West & Sabol, 2009).
Conservatives, however, applaud the growth in the prison population. DiIulio,
for example, argues that average citizens want prisons to be used and that prison
incapacitates and saves money: "‘prison pays' for most prisoners: it costs society
about twice as much to let a prisoner roam the streets in search of fresh victims
as it does to keep him locked up for a year" (DiIulio, 1995:41). DiIulio (1994) also
argues that greater use of incarcerative sentences will reduce crime in our nation's
A complete analysis of this issue is beyond the scope of this chapter,1 but some
consideration is necessary. First, critics of increased incarceration fail to mention
several crucial points about prison/prisoner statistics. For example, critics often fail
to note that approximately 15 percent of the offenders admitted to prison each year
are admitted for burglary (Maguire & Pastore, 1996:567). Although prison critics
conventionally label burglary as a "property" crime, many citizens regard this crime
as a much more serious crime than other property crimes, such as shoplifting. Burglary
involves trespass into one's personal space (one's "castle," or home), and it
also involves a very real potential for violence. Either the burglar or the victim
may have a weapon at hand and resort to using it. A qualitative indicator of the seriousness
with which some people regard burglary is the criminal law allowance
of deadly force against burglary in at least one state (see, e.g., Alabama Code,
13A-3-23). Another connection of burglary to violent crime is that many burglars
are looking for guns (Wright & Decker, 1994:144). Clearly, there is some probability
that these guns will be fenced or otherwise transferred to other criminals directly
engaged in violent crime. Furthermore, many of the "nonviolent" offenders admitted
to prison in any year were repeat offenders and/or offenders who had been under
community supervision of some sort. In 1991, for example, 45.9 percent of all state
prisoners were either probation or parole violators at the time of their admission to
prison (Cohen, 1995). In 1992, parole violators represented 29 percent of prison
admissions (Maguire & Pastore, 1996:567). Thus, it is misleading to argue that only
27 percent of new admissions to prison are violent when another 15 percent are burglars
and another 29 percent are repeat offenders (parole violators).
In addition, in giving admission statistics, critics may overlook composition
statistics. For example, in 2005 more than one-half (53%) of the prisoners in state
prisons were in prison for violent crimes (West & Sabol, 2009). Another 10 percent
were in prison for burglary. Thus, approximately 6 of 10 prisoners were in prison
for either burglary or violent crimes.
Moreover, drug offenders may be more threatening than Irwin and Austin consider
them to be. One investigation found that many crack cocaine users were
involved in both crack dealing and other crime. Inciardi and his colleagues
(1993) studied serious delinquents in Miami at the start of the crack epidemic in the
mid-1980s. They found thatmore than one-half of the crack users in their sample were
dealers and 18 percent were "dealers plus" (i.e., they also manufactured, smuggled, or
wholesaled the drug). More important, these dealers were far from innocent, recreational
purveyors: "Degree of crack-market participation was also related to earlier
and greater general crime involvement, including violent crime (emphasis in the original)
(Inciardi, Horowitz, & Pottieger, 1993:178). Furthermore, a number of studies
"have shown that lethal violence is used commonly by drug traffickers in the pursuit
of their economic interests" (Brownstein, Spunt, Crimmins, & Langley, 1995:475).
On the other hand, prison proponents also omit or fail to emphasize some important
points about prison composition. For example, the contention that the average
citizen wants criminals incarcerated (see, e.g., DiIulio, 1995) is only partially correct.
There is substantial agreement in the literature that the public is not as punitive
as surmised but rather still wants rehabilitation and will opt for nonincarcerative sentences
for many offenders. For example, in 2003, 72 percent of a national sample
agreed that the criminal justice system "should try to rehabilitate criminals, not just
punish them" (Sourcebook of Criminal Justice Statistics, 2010). Similarly, in 2006,
65 percent of Americans stated that more money and effort should go to attacking
social problems, whereas only 31 percent favored more spending on law enforcement
to lower the crime rate (Sourcebook of Criminal Justice Statistics, 2010).
Research in California found that citizens did indeed initially express a preference
for prison for 25 hypothetical cases varying from petty theft to rape. After being
informed of costs and alternatives to incarceration, however, these same citizens
wanted only 27 percent of the hypothetical offenders to be incarcerated (DiMascio,
1995). Recent research in Ohio showed that on a global measure of support, 88 percent
of the sample favored a "three strikes and you're out" law. On more specific
measures, however, only 17 percent of the respondents favored life sentences; most
favored sentences of five to 15 years in prison. Thus, it is safe to say that "underneath
more punitive global attitudes, in specific situations, the American public
tends to be less punitive and to favor a more diversified response to crime than simply
locking up offenders . . ." (Applegate, Cullen, Turner, & Sundt, 1996:519).
Similarly, the matter of incapacitation is much more complex than many prison
proponents portray. Spelman (1994) found that collective incapacitation is at best a
"gamble" that "may pay off" (p. 289) and that the effect of selective incapacitation
is at best-and under ideal conditions-only 4-8 percent (p. 289). This led Spelman
to caution that "the crime problem can never be substantially reduced through
incapacitation alone" (1994:312). Instead,
. . . criminal justice policies that deter and rehabilitate individual offenders;
broader-based policies aimed at ameliorating continuing social problems such
as chronic poverty and unemployment, teenage pregnancy and child abuse,
and the like; and entirely different approaches aimed at reducing the number
of criminal opportunities rather than just the number of criminals, all deserve
continued attention. (Spelman, 1994:312)
In summary, the debate about who should go to prison is often clouded by partisan
positions that fail to consider some important pieces of information. Critics of
prison tend to overemphasize the use of prison for nonviolent offenders. Proponents
oversell the alleged benefits of prison and ignore polling research that indicates the
public's willingness to use nonincarcerative options. Hopefully, a peacemaking
approach mindful of as much clarity as possible will help to resolve the debate.
Learn More on the Internet
Go to www.loc.gov for images of prisons and prisoners throughout U.S. history.
DISPROPORTIONATE MINORITY PRISON POPULATIONS
A more specific concern in the larger question of prison composition is the disproportionate
number of African Americans, especially black males, behind bars.
In 2008, African Americans made up 12 percent of the general population but
39 percent of state and federal prison populations (U.S. Census Bureau, 2010; West
and Sabol, 2009). Disturbingly, 1 in 15 black men age 18 or older were behind
bars, compared to 1 in 106 white men of the same age group (Warren, 2008).
Although the black imprisonment rate is decreasing (Sabol, West, & Cooper,
2009), disproportionate minority representation is still a concern.
The overrepresentation of African Americans in prisons is nothing new. This
group made up 30 percent of the prison population in 1940, more than 40 percent
in 1980 (Walker, Spohn, & DeLone, 1996), 46 percent in 1985, and 49 percent in
1990 (Mumola & Beck, 1997). However, one aspect of the problem that is new is
the increased number of African Americans incarcerated for drug offenses
(Mumola & Beck, 1997). Several observers argue that police "target minority communities-
where drug dealing is more visible and where it is thus easier for the
police to make arrests-and tend to give less attention to drug activities in other
neighborhoods" (Walker et al., 1996:209).
A few cautions are in order. Drug offenders may be more threatening than some
of the critics of the incarceration of drug offenders consider them to be. As noted in
the previous section, drug use may also mean involvement in drug dealing, criminal
activity, and violence, including lethal violence (Brownstein et al., 1995;
Inciardi, Horowitz, & Pottieger, 1993).
These observations are not meant to justify discriminatory policing and/or sentencing
of African-American drug offenders. They are simply offered to show that
there is some reason for society to be concerned about drug offending, no matter
which racial or ethnic group is involved.
It would seem that the ethical course of action is to pursue a drug policy that
treats all races the same. It would also seem that any drug policy should not
discriminate or give the appearance of discrimination. At the very least, our
nation's drug policy has failed on the latter account. A number of observers have
judged the drug war to violate the appearance of impartial handling. Steps need
to be taken to correct that appearance. If the famous O. J. Simpson murder trial
said anything, it is that the way the criminal justice system treats African Americans
is clearly under scrutiny, and even the perception of bias can have harmful
consequences. Continuing the recent drug policy runs the risk of alienating still
further minority members who are already substantially alienated.
Space limitations here do not allow for a complete discussion of whether discrimination
leads to disproportionate minority representation in prison or if disproportionate
criminal involvement accounts for the overrepresentation. Whatever the
sources of disproportionate minority prison populations, the issue needs to be
PRISON CONDITIONS: CODDLING OR TOUGHNESS?
Another fundamental ethical issue concerning prisons is the question of what kind
of prison environment society should provide for prisoners. A number of voices are
calling for tough, spartan-like prisons with no "frills" such as television, recreational
facilities, or athletic equipment. More traditional voices think that prison
intrinsically involves a number of pains or deprivations and that we do not need
to make it much tougher than it is. To these people, what looks like a frill may
in fact be justified for one or more logical reasons.
Van den Haag (1975) is an example of a critic who argues for spartan prisons.
He argues that prisoners should work many hours each day for the purpose of punishment
and that such hard labor should be sufficient to tire them out. At night,
they would be so exhausted that they would just rest before bed. This type of
prison would serve retributive, incapacitative, and deterrent objectives. It would
be tough punishment for crime, it would keep offenders off the streets and away
from opportunities to commit crime, and it would serve to frighten potential offenders
from committing crime because people considering crime would not want to
be sentenced to a hard-labor prison.
Bidinotto (1997) has criticized our nation's prisons for coddling prisoners. In an
article originally published in Reader's Digest, he alleged that hard labor was out
of fashion. In style, he said, were electronic exercise equipment, horseshoe pits,
bocce, conjugal visits (even at such supposedly spartan prisons as Attica Correctional
Facility in New York), and opera appreciation classes.
More extreme critics argue for even tougher prisons. In addition to removing any
frills or amenities from traditional prisons, these individuals contend that prison
should be made as tough as possible. Possible changes would be very limited diets
and the introduction of chain gangs. Chain gangs would add humiliation to prison
labor. Prisoners would be chained to each other and forced to work outside prison
walls so that the public could see them at work. In this scenario, scorn would return
to the criminal justice system. (See the separate section on chain gangs that follows.)
Perhaps the most well-known advocate of this position is Maricopa County
(Arizona) Sheriff Joe Arpaio, who the media named "America's toughest sheriff."
Arpaio proudly notes that the cost of an inmate's food at his facility is approximately
60 cents per day, and inmates are fed only twice daily (Griffin, 2001).
More traditional voices note that prison already contains numerous painful features
that are sufficient punishment for offenders. These inherent pains of prison
are harsh enough to make prison punitive and also serve as a deterrent to potential
offenders. Sykes (1958), for example, noted more than 50 years ago that prison
involves a number of pains or deprivations. These are deprivation of freedom,
autonomy, possessions, security, and heterosexual contact. Deprivation of freedom
or liberty is self-explanatory; inmates lose their freedom to come and go as they
please. Deprivation of autonomy refers to the removal of choices; inmates are told
what to do and when to do it by virtue of a schedule that governs every minute of
the day. Unlike free citizens, inmates have no choices about when to get up in the
morning, when to go to meals, what to eat, what to wear, when to watch television,
and when the lights go out. The prison dictates the decisions that those of us in the
community take for granted each day and treats the inmate like a child who is incapable
of making autonomous decisions. Likewise, with possessions, the administration
allows only minimal possessions such as a picture or poster or two and
no distinguishing clothing. In a society that exalts material possessions as signs
of status, accomplishment, and individuality, the prison restricts possessions to
the minimum and thereby depersonalizes each inmate. Security is far from a given
in prison. Inmate assaults are a real possibility, especially for the weak. Even the
strong have to fear attacks from groups of inmates who can overpower any one
individual (more on this shortly). Finally, deprivation of heterosexual contact is
the norm in most prisons. Very few prisons allow conjugal visitation, and a prisoner
must be married to participate.
Guenther (1978) has noted some additional deprivations or pains. The subjective
experience of time in prison can be very painful. For example, weekends are periods
of "hard time" because the inmate does not have to go to a job that helps him or her
pass the time during the week. Through the holiday season, inmates see holiday shows
and advertisements that remind them that they are missing contact with loved ones at a
special time of the year. Even letters from home can be painful because sometimes the
letter writer expresses anger or hurt at the offender for the things the offender did to
the writer. Children, for example, may express anger at their father for abandoning
them and not being with them to do simple things like take them fishing. Visits can
be occasions for other inmates to offer taunts. Other inmates may tease the inmate
who receives a visit from his or her spouse, reminding the offender that the spouse
is free and might be seeing other people behind the offender's back. Or a visit from
a spouse may cause the inmate "to question how ‘the government' can deny him sexual
access to his spouse" (Guenther, 1978:602). At the very least, visitors have to be
searched, and they see the offender in prison clothing that reminds both the visitor
and the offender that he or she is a lawbreaker who has been arrested and convicted.
Traditionalists argue that these inherent pains of prison are sufficient suffering.
Additional torments such as removing exercise equipment or televisions and radios
are unwarranted. Traditionalists also argue that amenities can serve to keep
inmates occupied and thereby help prevent restlessness, attacks on other inmates,
attacks on guards, and, ultimately, prison riots.
Conrad (1982:313) frames the question aptly: "What do the undeserving
deserve?" His answer is worthy of consideration. He argues that they deserve
"safety, lawfulness, industriousness, and hope" (Conrad, 1982:328). Safety and
lawfulness are self-explanatory; unfortunately, they are often lacking in our prisons.
Inmates often fear that they will be victimized in some way while behind bars.
By industriousness Conrad does not mean mere busywork but that "everyone puts
in a full day of work at jobs that are worth doing and paid accordingly" (p. 328).
Hope is the most important consideration: ". . . where everyone has some reason
to hope for better things to come-or could have such a reason if he or she were
willing to look for it-the prison will not only be safer, but it will also be a place
in which its staff can take some pride" (Conrad, 1982:328).
Sometimes the debate over prison conditions can make it sound like prisoners
are living in expensive luxury resorts in which every whim is satisfied, but "f
our prisons are such resorts, simply open the gates and see how many run out
. . . and how many walk in" (Taylor, 1997:92).2
Related to the issue of the appropriate conditions for prisoners is the issue of
whether treatment opportunities should be provided for prisoners. Although rehabilitation
was once routinely provided, many voices question providing anything
other than punishment to inmates.
There is no question that most prisoners are in need of various types of assistance.
Many prisoners are high-school dropouts, do not have employable skills,
had alcohol or other drug problems prior to entering prison, and may suffer from
psychological difficulties such as lack of self-esteem.
An argument for providing services to offenders is that such services may help
reduce recidivism when the inmate is released. Employment, for example, has been
shown to be a clear correlate of success on parole (Pritchard, 1979). Similarly,
recent studies of correctional rehabilitation have demonstrated that offenders who
received treatment for various problems recidivated less (were less likely to reoffend)
than offenders who did not receive appropriate treatment (Lipsey & Cullen,
2007). Such empirical evidence for the efficacy of treatment (see also Aos, Miller,
& Drake, 2006) suggests that the ethically correct course of action is to provide
In spite of its effectiveness, some still argue that treatment is not appropriate for
prisoners. One argument is the principle of least eligibility, which maintains that
prisoners do not deserve anything better than what is given to the least eligible
in our society. Because many people cannot afford college or vocational training or
psychological counseling, a strict adherent of this principle might argue that prisoners
should not benefit from any such treatments. To do so would give them
something better than that had by a significant minority of the free population.
One response to this is that the deprived status of the neediest in U.S. society is
not sufficient justification for depriving inmates. The answer is to address both
problems. Law-abiding citizens deserve the opportunity to attend college or learn
a vocational trade. Prisoners, too, should have such opportunities, which will hopefully
help prevent any return to crime. Years ago, the Vienna Correctional Center
in Illinois attempted to solve the problem by opening up a number of prison programs
to any interested citizens from the community. That way, the area residents
did not feel that the inmates were benefiting from programs that were not available
to them (Silberman, 1978).
Another argument against services for inmates is that the prison environment is
highly likely to sabotage such efforts. Drawing on the prison research of Sykes
(1958), the mental hospital research of Goffman (1961), and other research, some
argue that so much suspicion, distrust, and animosity arise between inmates and
prison staff that it is impossible to offer meaningful treatment options in the prison
environment. In Goffman's terms, inmates are so involved in seeking secondary
adjustments that mitigate the intended punishments of prison that they would not
benefit from treatment programs. In Sykes's terms, inmates are so busy trying to
soften the pains of prison by such strategies as making home-brewed alcoholic
beverages, achieving status by boisterousness or physical prowess, or prowling
for sexual conquests that any treatment efforts would fall on deaf ears. The counterargument
is that prison officials have often failed to implement rehabilitation
programs as needed. Instead, wardens and guards put custody concerns over treatment
concerns in terms of both dollars and emphasis. Thus, prison staff get what
they want: custody rather than rehabilitation.
An important reminder in any debate over providing treatment is that most
offenders will be released back into society. If society makes no effort to educate
or train offenders for gainful employment after release, the offenders will not have
a legal means of support and may well resort to crime. Releasing offenders without
any improvement of their condition seems highly unlikely to improve their chances
For a discussion of faith-based programming in prison, see Box 16.1.
Chain gangs were reintroduced in Alabama in 1995, but the move was followed by
court challenges. Governor Fob James justified their use as a way to save money
and to make incarceration tougher. He argued that a prison guard can supervise
only 20 unchained men on a road crew, but the number doubles to 40 prisoners
if the men are shackled. Concerning toughness, he argued that some men were
Chain gangs 293
BOX 16.1 RELIGIOUS PROGRAMMING IN PRISON
Some states, such as Florida, and the federal prison system have invested heavily in faithbased
programming for prisoners. Two concerns stand out.
First, a major concern is whether faith-based programming is effective. This usually
translates into whether faith-based program graduates recidivate less than other prisoners. To
date, most studies have found no impact of faith-based programming on recidivism (Aos
et al., 2006). One study, however, found that lower proportions of inmates in faith-based
programming in federal prisons committed serious misconduct than did non-faith-based
prisoners. For some reason, there was no difference in less serious acts of misconduct (Camp
et al., 2008).
Measuring recidivism is a utilitarian concern: a search for positive consequences. One
religious writer argues that this utilitarian perspective is misguided when it comes to faithbased
programs. He argues that faith-based programming is justified as a means of seeking
religious redemption or conversion for the inmate. He thinks religious outcomes are not
necessarily measurable-that you cannot measure grace or redemption, or it may take years
for the process to take effect. This writer thinks we should offer such programs to prisoners
based on religious principles, not out of a concern to reduce criminal activity (Hewitt, 2006).
A second concern is that any research that attempts to measure the effectiveness of a
faith-based program needs to attend to the fact that inmates who volunteer for faith-based
programming might very well be more motivated inmates. In other words, they may be the
inmates most motivated to change, and so therefore self-motivation might be the true cause
of any positive results. It is critical to measure the motivation levels of inmates going into
such programs as well as that of the comparison inmates in other programs or undergoing no
programming (Camp, Daggett, Kwon, & Klein-Saffran, 2006).
What do you think? What place should religious programming have in corrections?
declining parole because they thought incarceration was easier (Morris, 1997). An
argument can also be made that chain gangs are constitutional because the Thirteenth
Amendment to the U.S. Constitution prohibits involuntary servitude "except
as punishment for crime." The only current chain gangs are in the Maricopa
County jail in Arizona, where Sheriff Joe Arpaio (mentioned in a previous section)
operates voluntary boot camps as a step to return from disciplinary lockdown
A major argument against chain gangs is that they are discriminatory or, at best,
give the appearance of discrimination. Observers have noted that 70-90 percent of
the Alabama chain gang prisoners were black (Corsentino, 1997). For African
Americans, chain gangs are a reminder of the Reconstruction Era in the South,
when racism was still rampant. After the Civil War, the South needed to rebuild
railroads and roads, and prison labor was leased out to contractors to engage in
such direly needed projects. Many of the prisoners were blacks, since the South
used its criminal justice systems as a way to get around the legal abolition of slavery.
As in slavery, the offenders were classified as "full hands" or "half hands,"
tacit recognition that slavery had simply taken another form (McKelvey, 1997).
A constitutional question is whether the use of chain gangs violates the cruel and
unusual punishment prohibition of the Eighth Amendment.
294 CHAPTER 16 Ethics and prison
Another argument against reintroducing chain gangs is von Hirsch's (1990) principle
of acceptable penal content. What he means is that sanctions are only acceptable
if the offender can endure them and still maintain his or her human dignity. von
Hirsch, who argues that punishments such as bumper stickers on the cars of drunk
drivers proclaiming their DUI (driving under the influence of alcohol) status are
too demeaning, would oppose chain gangs because they are intrinsically humiliating
and do not allow the offender the necessary minimum condition of human dignity.
Finally, it is important to consider what emotions might be generated in offenders
by the use of measures like chain gangs, especially after release. Do we want
offenders living next to us who have been humiliated and scorned? Or do we want
offenders who feel that prison was a painful but appropriate punishment for the
wrongs they committed?
SAFETY/SECURITY IN PRISON
As noted, Sykes (1958) listed deprivation of security as one of the pains that prisoners
suffer. There is some controversy about how much lack of security prisoners
should undergo. A number of studies have detailed the victimization that many
prisoners have had to face. For example, Wolff, Blitz, Shi, Siegel, and Bachman
(2007) found that 21 percent of an inmate sample had been a victim of physical
violence in the previous 6-month period. Wachtler (1997), former chief judge of
the New York Court of Appeals, reported being stabbed in a federal facility. Therefore,
it appears that although federal facilities are supposed to be relatively safe
and secure, even a prominent white-collar criminal has a considerable risk of being
attacked in prison. Sexual violence is also of concern, although difficult to measure
accurately. Official statistics show that 4.5 percent of inmates report being the victim
of sexual violence, whereas some studies have shown this percentage to be as
high as 21 percent (Beck, 2007; Struckman-Johnson, 2000).
More generally, Bowker (1980) provides a thorough (but now dated) catalog of
the various types of victimization that prisoners suffer. Irwin and Austin have
argued that prison produces harmful effects on offenders: "The disturbing truth is
that growing numbers of prisoners are leaving our prisons socially crippled and
profoundly alienated" (1997:82). They are also concerned that the increasing use
of maximum-security confinement compounds the harmful effects of prison so that
contemporary prison systems are "spewing out such damaged human material"
(Irwin & Austin, 1997:106). Indeed, a survey of prisoners revealed disciplinary
practices, including beatings that were characterized as capricious and brutal
(Hamm, Coupez, Hoze, & Weinstein, 1994).
Several studies, however, have painted a less negative picture. A study of coping
in New York prisons concluded that "most prisoners serve fairly trouble-free
terms" and that their overall experience in prison is "no more overwhelming
to them than other constraining situations they have encountered in their lives"
(Toch & Adams, 1989:254). A longitudinal study of the incarceration experience
in Canada led Zamble and Porporino to compare a prison sentence to a "deep
freeze," after which the offenders are unchanged: "As they had done on the outside,
most of the inmates in this study followed a path of least resistance, and they
focused on the fine line of present time passing" (1988:150). A 1990 review of
prison studies failed "to show any sort of profound detrimental effects" (Bonta &
In summary, a number of studies have shown that victimization is problematic
in at least some prisons or for some prisoners in many prisons. Other studies have
shown that a number of prisons are relatively secure and safe and that a considerable
number of offenders come out unscathed. The ethical mandate is to make all
prisons safe and lawful. Even the undeserving deserve this minimal guarantee
With longer sentences, mandatory sentences, and "three strikes and you're out"
laws, state prison systems and the federal prison system can expect an increase
in the number of elderly offenders. In fact, the number of federal and state inmates
age 55 and over increased 55 percent from 2000 to 2005 (McCaffrey, 2007). This
increase raises some ethical issues.
A basic question concerns the release of elderly prisoners once they are no longer
a danger to others. In other words, given some of the changes in sentencing in
the last 10 years, it is reasonable to expect that prison officials will see increasing
numbers of prisoners in their 60s, 70s, or 80s. As prisoners become elderly in
prison, it is clear that many of them will pose little or no danger to society. A prisoner
who has Alzheimer's disease, arthritis, or heart disease is hardly at risk of
engaging in burglary, armed robbery, or murder. At some point, age reduces the
risk of further criminal behavior to zero or close to zero.
If there is little incapacitative or rehabilitative value in keeping such prisoners
locked up, should we release them? Or does the goal of retribution dictate that they
stay in prison for as long as their original sentence dictated? If a prisoner gets to
the point at which he or she does not even understand where he or she is (e.g.,
due to a disease such as Alzheimer's), does it make any retributive sense to keep
the prisoner confined? Doesn't the concept of punishment require that the prisoner
understand what is being done to him or her?
Conversely, society may want to release elderly offenders to save money.
As prisoners age, it is logical to expect that their health care expenses will rise.
They generally will need increasing medical care. As a result, it now costs about
$70,000 a year to house an older offender, compared to about $24,000 per year
for a younger prisoner (Warren, 2008). Should society keep these offenders in
prison so that they can receive the medical attention they need, or should society
release them to save money? Parenthetically, a system of national health care could
eliminate this dilemma by removing any incentive to release them.
296 CHAPTER 16 Ethics and prison
WOMEN IN PRISON
Women make up a small but significant proportion of the U.S. prison population.
At year-end 2008, there were 114,852 female prisoners in state and federal institutions,
constituting 7.1 percent of the total prison population (Sabol, West, & Cooper,
Although prison conditions are not as violent for women as for men, there are
some problems that are unique to women's prisons. Because women constitute a
much smaller proportion of any state's prison population, there are usually fewer
prisons for women and also fewer opportunities for education and training. Part
of this situation is related to stereotyped conceptions of the appropriate role for
women in society. Traditional notions of appropriate roles have played a part in
providing programs to train women to become cosmetologists or cooks instead
of auto mechanics or television repair workers. Traditional notions of appropriate
female behavior have also led to prison disciplinary practices that can be more dictatorial
than those found in men's prisons. Beliefs that women should be "prim and
proper" have influenced many officials to enforce rules against arguing and talking
back to guards more stringently in women's prisons than in men's prisons. Thus,
whereas women's prisons may look more pleasant than men's, the appearance of
a softer regime may in fact belie an institution that oppresses by intruding into
more dimensions of behavior than occurs in the typical male prison.
Perhaps the fundamental ethical question is that suggested by Durham (1994):
Would it be right to treat women exactly like men when such a shift in orientation
might very well take away some of the benefits-such as single rooms rather than
cells-that have benefited many women prisoners? Equal treatment would mean
some positive changes, such as increased opportunities for vocational training,
but would the overall results be beneficial for women, or would equal treatment
actually mean generally worse conditions for women?
Another ethical issue is whether states should privatize prisons or continue to keep
them public. As noted in Chapter 13 on ethical issues in probation and parole, proponents
of privatization argue that there are several benefits for turning over prisons
to private corporations. One alleged benefit is budgetary savings. Proponents
claim that private enterprise can do things more efficiently and less expensively
than the government. Government operation is equated with waste and inefficiency.
Some of this is attributed to the civil service system that guarantees job tenure
except in extreme circumstances when jobs are abolished. Civil service
workers are not under the same pressures as workers in private industry who must
constantly show a profit. Competition forces private industry to be effective, efficient,
and accountable (Logan, 1990).
Opponents of privatization argue that government agencies can be efficient and
effective. Government offices can adopt strategies that enhance efficiency and
effectiveness just as can privately run agencies.
A number of states have turned over some of their prisons to private corporations.
Several evaluations of private prisons, jails, and juvenile facilities have been
conducted. In most of these studies, a private prison and a public prison from the
same state are compared in terms of costs and inmate and/or staff satisfaction.
One reviewer of a number of such studies concluded that the results are very inconclusive
(Perrone & Pratt, 2003). The reviewer went on to note that although some
studies have shown a small cost savings in private prisons, many of these studies
did not account for important factors such as the number of inmates, the facility's
age, and the facility's security level. Perrone and Pratt thus agree with the conclusion
of the General Accounting Office study that private prisons have not yet been
Perhaps the main argument against privatization is whether it is appropriate for
the government to turn over functions as basic as correctional supervision of offenders
to private businesses. Many question whether the symbolic task of punishing
offenders can be handed over to workers who wear uniforms that say "Acme Corrections
Company" rather than the "State Department of Corrections" (American
Bar Association, 1986). The most dramatic example would be for "Brand X Corrections"
to carry out capital punishment. Should the state surrender the symbolism
of the state executing an offender? Less dramatically, is it right for the state to
allow private companies to impose deprivation of liberty and serious disciplinary
measures such as solitary confinement? Or does incarceration involve a basic right
that ought not to be relinquished by the government? Going further, is it right to
bring the profit motive into this area? One answer is that it is wrong to do so; "it
can be found morally troubling that corporations will try to make a profit on the
punishment of people (which is a deliberate cause of suffering by representatives
of society)" (Shichor, 1995:258).
Another concern regarding privatization is whether the profit motive can
debase corrections. For example, would private prisons be under pressure to keep
clients incarcerated beyond an appropriate release time so as to keep prison populations
and reimbursements high? Would these companies begin to lobby for
lengthier sentences and fewer release opportunities? Would private prisons try to
pay guards fair salaries or would profit pressures work to minimize salaries and
benefits for officers? Would private agencies try to cut services for inmates
(counseling, drug treatment) to a minimum?
In the nineteenth century, the profit motive did operate to cause significant problems
in many state prison systems. In one juvenile system, for example, boys
were leased out to private contractors for their labor. Hard-working boys would
be kept under supervision longer than necessary because the contractor did not
want to lose their productivity (Pisciotta, 1982). Evidence has also substantiated
some of the other concerns, showing that the private sector offers a lower starting
salary, less potential for salary advancement, and larger inmate-to-staff ratios than
public prisons (Blackely, 2005)
A response to such problems is spelling out a private agency's responsibilities
to offenders in a carefully devised contract and then monitoring the implementation
of the contract. If state inspectors enforce the contract conditions, problems
can be prevented or quickly resolved. If a private agency does not resolve any problems,
it is in violation of the contract and the agency can be dropped. Opponents
of privatization contend that there is a problem with this argument. If the state
wants to end a contract, there might not be another service provider willing and
able to step in and take over the contracted service. At the very least, it would take
some time for another company to be ready to do so.
Still another problem with privatization is that private agencies can be overly
selective of the clients (offenders) they want to manage. Private agencies in corrections
and in areas such as welfare have been criticized for picking the most capable
clients (Rosin, 1997). The criticism is that these individuals may have been able to
succeed on probation or in getting off public assistance with little or no help. Statistics
showing them to be success stories are thereby misleading. The private agency
selected the individuals most likely to succeed and ignored the individuals most in
need of intervention. The state is left to deal with these more difficult cases.
Proponents of privatization argue that contracting of services can make spending
on correctional services more visible. When the government operates its own prisons,
the prisons "have been ignored by the public and given . . . ‘hands-off' treatment
by the courts" (Logan, 1990:256). Because there has been some criticism of contracting,
there would be a number of eyes scrutinizing the privately run prisons.
In summary, proponents of prison privatization argue that private agencies can
provide needed services more effectively and more efficiently than the government
has done in the past. Opponents argue that government agencies can become more
effective and efficient. Opponents also contend that there can be serious problems
with privatization and question whether it is right to allow the state to give away
the highly symbolic function of depriving citizens of their freedom and supervising
that deprivation of liberty.
This chapter has examined a number of ethical issues pertaining to prisons. Probably
the most basic question is Conrad's: What do the undeserving deserve? One's
choice of answer to this question permeates most of the other issues raised in this
chapter. At this moment in our nation's history, it appears that many answer that
prisoners deserve little or nothing. Because they treated their victims with no compassion,
they deserve no compassion in return.
The three theories that form the framework for this book, however, suggest that
the current answer to Conrad's question may not be the ethical answer. Kant's categorical
imperative urges us to treat others as subjects. Utilitarianism urges us to
consider the consequences of our actions, including the consequences of treating
inmates very harshly for years and then simply releasing them back onto the
streets. The peacemaking perspective reminds us that we are all connected, including
offender, victim, and public, and that caring is a basic ethical principle. It
seems that all three ethical theories suggest that though punishment is appropriate,
we cannot lose sight of the humanity of offenders, even when they have appeared
to lose sight of their own humanity and the humanity of others.
The challenge for the next century is to try to punish offenders in ways that are
fitting and to remain mindful of the need to treat offenders with dignity. The Quakers
and others tried to do this 200 years ago. It is not an easy task.
1. For a more thorough analysis of the issue of prison composition, see Irwin and Austin
(1997) and Braswell and Whitehead (1997). This section of the chapter relies heavily
on the latter source.
2. Ironically, one conservative critic of soft prisons, former Governor J. Fife Symington III
of Arizona, who removed many frills from his state's prisons, recently pleaded guilty to
fraud. He may be forced to experience firsthand the tougher prison environment that he
Alabama Code, 13A-3-23.
American Bar Association. (1986). Section of Criminal Justice, Report to the House of Delegates.
Chicago: American Bar Association.
Aos, S., Miller, M., & Drake, E. (2006). Evidence-based adult corrections programs: What
works and what does not. Olympia, WA: Washington State Institute for Public Policy.
Applegate, B. K., Cullen, F. T., Turner, M. G., & Sundt, J. L. (1996). Assessing public support
for three-strikes-and-you're out laws: Global versus specific attitudes. Crime &
Delinquency, 42, 517-534.
Beck, A. J., & Harrison, P. M. (2001). Prisoners in 2001. Washington, DC: U.S.Department
Beck, A. J., & Harrison, P. M. (2007). Sexual victimization in state and federal prisons
reported by inmates, 2007. Bureau of Justice Statistics Special Report, December 2007.
Bidinotto, R. J. (1997). Prisons should not coddle inmates. In C. P. Cozic (Ed.), America's
prisons: Opposing viewpoints (pp. 85-92). San Diego: Greenhaven Press.
Blackely, C. (2005). America's prisons: The movement toward profit and privatization.
Boca Raton, FL: Brown Walker Press.
Bonta, J., & Gendreau, P. (1994). Reexamining the cruel and unusual punishment of prison
life. In M. C. Braswell, R. H. Montgomery, & L. X. Lombardo (Eds.), Prison violence in
America (2nd ed., pp. 39-68). Cincinnati: Anderson.
Bowker, L. H. (1980). Prison victimization. New York: Elsevier.
Braswell, M., & Whitehead, J. (1997). The middle way: The debate about prisons. Paper
presented at the 1997 annual meeting of the southern criminal justice association,
Brownstein, H. H., Spunt, B. J., Crimmins, S. M., & Langley, S. C. (1995). Women who kill
in drug market situations. Justice Quarterly, 12, 473-498.
Camp, S. D., Klein-Saffran, J., Kwon, O., Daggett, D.M., & Joseph, V. (2006). An exploration
into participation in a faith-based prison program. Criminology&Public Policy, 5, 529-550.
Camp, S. D., Daggett, D. M., Kwon, O., & Klein-Saffran, J. (2008). The effect of faith
program participation on prison misconduct: The life connections program. Journal of
Criminal Justice, 36, 389-395.
Cohen, R. L. (1995). Probation and parole violators in state prison, 1991. Washington, DC:
U.S. Department of Justice.
Conrad, J. P. (1982). What do the undeserving deserve? In R. Johnson & H. Toch (Eds.),
The pains of imprisonment (pp. 313-330). Beverly Hills, CA: Sage.
Corsentino, M. (1997). Inmate chain gangs are an improper form of punishment. In C. P.
Cozic (Eds.), America's prisons: Opposing viewpoints (pp. 120-127). San Diego: Greenhaven
DiIulio, J. J.Jr., (1994). The question of black crime. The Public Interest, 117, 3-32.
DiIulio, J. J.Jr., (1995). White lies about black crime. The Public Interest, 118, 30-44.
DiMascio, W. M. (1995). Seeking justice: Crime and punishment in America. New York:
Edna McConnell Clark Foundation.
Durham, A. M. (1994). Crisis and reform: Current issues in American punishment. Boston:
Goffman, E. (1961). Asylums: Essays on the social situation of mental patients and other
inmates. Garden City, NY: Anchor Books.
Griffin, M. (2001). The use of force by detention officers. New York: LFB Scholarly.
Guenther, A. (1978). The impact of confinement. In N. Johnston & L. D. Savitz (Eds.), Justice
and corrections (pp. 596-603). New York: John Wiley & Sons.
Hamm, M. S., Coupez, T., Hoze, F. E., & Weinstein, C. (1994). The myth of humane
imprisonment: A critical analysis of severe discipline in U.S. Maximum Security
Prisons, 1945-1990. In M. C. Braswell, R. H. Montgomery & L. X. Lombardo (Eds.),
Prison violence in America (2nd ed., pp. 167-200). Cincinnati: Anderson.
Hewitt, J. D. (2006). Having faith in faith-based prison programs. Criminology and Public
Policy, 5, 551-558.
Inciardi, J. A., Horowitz, R., & Pottieger, A. E. (1993). Street kids, Street drugs, street crime:
An examination of drug use and serious delinquency in Miami. Belmont, CA: Wadsworth.
Irwin, J., & Austin, J. (1997). It's about time: America's imprisonment Binge (2nd ed.). Belmont,
Lipsey, M., & Cullen, F. (2007). The effectiveness of correctional rehabilitation: A review
of systematic reviews. Annual Review of Law and Social Sciences, 3, 297-320.
Logan, C. H. (1990). Private prisons: Cons and Pros. New York: Oxford.
Maguire, K., & Pastore, A. L. (Eds.), (1996). Sourcebook of criminal justice statistics 1995.
Washington, DC: U.S. Department of Justice.
McCaffrey, S. (2007, September 30). Aging inmates clogging nation's prisons. USA Today,
Retrieved from www.usatoday.com/news/nation/2007-09-29-254009484_x.htm.
McKelvey, B. (1997). American prisons: A study in American social history prior to 1915.
In J. W. Marquart & J. R. Sorenson (Eds.), Correctional contexts: Contemporary and
classical readings (pp. 84-94). Los Angeles: Roxbury.
Morris, R. L. (1997). Inmate Chain gangs are a proper form of punishment. In C. Cozic
(Eds.), America's prisons: Opposing viewpoints (pp. 111-119). San Diego: Greenhaven
Mumola, C. J., & Beck, A. J. (1997). Prisoners in 1996. In Bureau of justice statistics
bulletin. Washington, DC: U.S. Department of Justice.
Perrone, D., & Pratt, T. (2003). Comparing the quality of confinement and cost effectiveness
of public versus private prisons: What we know, why we do not know more, and where
to go from here. Prison Journal, 83(3), 301-321.
Pisciotta, A. W. (1982). Saving the children: The promise and practice of parens patriae,
1838-98. Crime & Delinquency, 28, 410-425.
Pritchard, D. A. (1979). Stable predictors of recidivism: A summary. Criminology, 17,
Rosin, H. (1997). About face: The appearance of welfare success. New Republic, 217
(August, 4), 16-19.
Sabol, W. J., West, H. C., & Cooper, M. (2009). Prisoners in 2008. Washington DC: U.S.
Department of Justice.
Shichor, D. (1995). Punishment for profit: Private prisons/public concerns. Thousand Oaks,
Silberman, C. E. (1978). Criminal violence, criminal justice. New York: Random House.
Sourcebook of Criminal Justice Statistics. (2010). Available online at www.albany.edu/