To say that a person deserves punishment for wrongdoing is, in contrast to the condescending therapeutic alternative, to pay that person a kind of compliment.
Mourn no more, children. Those to whom
The night of earth gives benediction
Should not be mourned. Retribution comes.
—Oedipus at Colonus, Sophocles
It is now widely accepted that there is something deeply wrong with America’s criminal justice system. Too many social problems are dealt with through criminal punishment, problems such as the “war on drugs” for which the system is manifestly ill suited. This partly explains why the United States has 25 percent of the world’s prison population and only 5 percent of its total population. Also, many of those who are incarcerated in the system are often sentenced to terms of excessive length in prisons that are rampant with cruelty—rape and rule by gangs being the order of the day—or subjected to such soul-destroying treatment as long-term solitary confinement.1 Such conditions are likely to make inmates worse people when they come out than when they went in. This is of concern not just to those who might be dismissed as bleeding-heart-soft-on-crime sentimentalists but also to those whose credentials as hardheaded realists cannot be doubted. Consider, for example, the comments Richard Posner (chief judge of the US Court of Appeals, Seventh Circuit, and one of the founders of the very unsentimental law and economics movement) in his dissenting opinion in the 1995 prison conditions case Johnson v. Phelan. This was a case addressing a situation in which prison inmates were frequently observed naked—in their cells, in the showers, and in the toilet—by female guards, and counsel for the plaintiff argued (without persuading a majority of the judges) that this was a constitutionally prohibited violation of their privacy. There are, Posner wrote,
different ways to look upon the inmates of prisons and jails in the United States. One is to look upon them as members of a different species, indeed as a type of vermin, devoid of human dignity and entitled to no respect.… I do not myself consider [them] in this light.… We should have a realistic conception of the composition of the prison and jail population before deciding that they are a scum entitled to nothing better than what a vengeful populace and a resource-starved penal system choose to give them. We must not exaggerate the distinction between “us,” the lawful ones, the respectable ones, and the prison and jail population; for such exaggeration will make it too easy for us to deny that population the rudiments of humane consideration.2