Inside Story

On the morality of imprisonment

A philosopher considers the case for abolishing prisons

Maggie Hall Books 26 July 2023 1928 words

Go straight (back) to jail: high rates of recidivism prevail in most countries. iStockphoto

We like to think we imprison people not just to punish them but also to reform them, and in the long run to prevent crime. But what if we are simply brutalising people who will eventually be released into the community, with all the consequences that come from that?

Here in Australia, despite hopes of rehabilitation, around 50 per cent of ex-prisoners serve another term in jail. As criminologists joke, this kind of statistic would have led to radical change in any other policy area. Yet until recently abolition movements have been sidelined as a utopian hangover from the 1960s.

In the past few years, however, campaigns in the United States and Australia have highlighted police brutality against minority populations. Coalescing in the Black Lives Matter movement, they have brought into the public arena calls for the abolition of police and, by extension, prisons.

In his latest book, The Idea of Prison Abolition, American philosopher Tommie Shelby considers the arguments in favour of abolishing prisons by analysing the work of well-known abolitionist and activist Angela Davis. The idea of prison abolition has a long tradition, probably since prisons themselves came into use. This is more recent than you might think: imprisonment as a penalty for wrongdoing has only been used since the late 1700s, which may well be the best argument for taking the idea of abolition seriously.

There is nothing inevitable or natural about imprisonment as a response to offending. It produces many undesirable outcomes, not the least of which is huge disruption to families. Family support is one of the most powerful elements in preventing reoffending, but when I interviewed prisoners in eight NSW prisons about their sentences, it didn’t seem to be a priority for the system. As one prisoner, Dave, told me, “[My kids] want to come and see me but I don’t want to bring them here, to this place.” “This place is horrible,” said Chris, whose family lived hundreds of kilometres away. “My missus — just because she’s associated with an inmate she doesn’t get treated well.”

Shelby’s book approaches abolition as a legitimate social movement and a coherent set of theoretical principles. In some ways the title is a misnomer: it could equally have been called “Arguments Against the Idea of Prison Abolition.” Short of accepting Davis’s ultimate conclusion, though, Shelby agrees with many aspects of her analysis. Mass incarceration as currently practised in the United States is difficult to justify from any perspective — moral, philosophical or practical. Rather than abolition, Shelby argues for imprisonment to be used sparingly, contingent on the achievement of social justice goals. Throughout the book he engages with the need to tackle inequality as a precondition for prison reform.

Bombarded as we are with representations of the US criminal justice system, our obsession with crime sometimes blinds us to the differences between the two countries. If we elide the distinction between the American and Australian systems, we miss the point of Shelby’s work, and Davis’s too. Both reflect deeply on the intersections between slavery and criminal justice in the United States.

More importantly, the impact of Australia’s history of colonisation needs a very different analysis, starting with the symbiotic relationship between the colonisation of Aboriginal and/or Torres Strait Islander people and the continuing over-policing and over-incarceration of those communities. The effect may be the same — over-incarceration and racially distorted policing and criminal justice practices — but the aetiology and therefore the solutions could well be different. With that proviso, Shelby’s work provides some good thinking tools for us to interrogate our own system.

Shelby’s basic position is that, if incarceration provides a way for society to prevent or reduce crime — particularly crime that causes “great and irreparable harm” — then abolition is not justified, no matter what other arguments, moral or practical, can be marshalled. Put another way, if imprisonment can reduce the harm that crime causes to society then, no matter the harm to the offender, it can be morally justified.

Acknowledging the considerable disagreement as to whether prisons reduce crime, he points out that there is little evidence that “alternatives” fare any better. If, as he puts it, “background conditions are just” then, for him, incarceration has legitimate uses.

While she has written widely on many aspects of the criminal justice system, Angela Davis’s abolitionist views are distilled in her 2003 book Are Prisons Obsolete?. To an extent, Shelby reduces that book’s complex matrix of thought to a single theme: that imprisonment is, to put it somewhat crudely, a tool of capitalist domination. This oversimplifies a more nuanced argument, but for Shelby her revolutionary Marxist standpoint lessens the power of her calls for abolition.

Is Davis taking an abolitionist position because prisons lack a moral basis, he wonders, or simply as a part of a radical project of abolishing institutions that shore up the capitalist society?

Tommie Shelby writes as a professor of African and African-American studies expert in a broad range of issues, including the ghetto, hip-hop culture and now prisons. As a philosopher with a political focus he is mainly concerned with justifying imprisonment from a moral point of view — indeed, he accepts that jail’s harmful effects mean the onus lies on those arguing for its retention to provide arguments supporting it.

While he critiques Davis’s functional approach, which sees imprisonment’s function as supportive of capitalism, he approaches the subject in a similarly functionalist way. Even if a practice is morally or philosophically justified, he asks, does it work? Does it do what we want it to do in the real world? Then he turns the point around, using the functional argument to justify the philosophical one — if it works then it is philosophically and morally justified.

In attempting to examine imprisonment through the prism of the aims of the criminal justice system, Shelby takes on a Sisyphean task. Sentencing can feel like a downward spiral of impossibly conflicting ideas that cancel each other out. The somewhat exasperated pronouncement of the High Court of Australia that our sentencing aims are like “signposts pointing in opposite directions” sums it up well. Philosophy can’t reconcile the fact that, in practice, it is very difficult to rehabilitate someone while you are also causing them pain by punishing them.

But that is not the level at which Shelby engages abolitionist arguments. He takes the aims he thinks can and should be fulfilled in a society where the types of inequalities present in the United States have been defeated and leaves the others alone. To establish the preconditions of social justice, he implies, would allow a more integrated approach to often-conflicting aims.

With high rates of recidivism a feature in most countries, whether in high-imprisoning societies like the United States or relatively low ones like Australia, it is difficult to find evidence of specific deterrence: imprisoning an individual does not seem to make them less likely to offend in the future. General deterrence — the idea that the mere existence of the criminal justice system prevents crime — is more defensible.

That latter fact supports one of Shelby’s most persuasive propositions, that imprisonment serves a valuable symbolic function as a “linchpin” of the criminal justice system serving to “anchor” other penalties, with the threat of prison producing compliance in people undertaking less restrictive penalties like probation. The existence of the prison provides the “enforcement tool” for these other penalties, which, as he rightly points out, are perfectly compatible with imprisonment and therefore not really alternatives. Our system ostensibly functions this way already.

But Shelby does rather gloss over concerns about “alternatives” as a way back into the prison — the idea that even more benevolent forms of punishment like community service or probation can, if administered poorly, impede rehabilitation by setting up a “back door” to imprisonment. Social workers know all about how people can be set up to fail. They also know that rehabilitation is more complex than it may seem, which makes Shelby’s suggestions about how prisons could be made less “criminogenic” seem somewhat naive and curiously remote from how prisons actually work. In this and other areas his self-admitted focus on theory (or vision) rather than praxis is evident.

Shelby is careful to state that he doesn’t believe that retribution is a morally justifiable rationale for imprisonment, although he implies that some degree of harsh treatment is necessary to avoid vigilante-style revenge on the part of victims.

As for rehabilitation, the view that prison may be a time of reflection and a chance to change antisocial habits hints at the aims of the early prison builders in the United States, the term “penitentiary” meaning just that, a place for penitence. As one schooled in praxis, I find it difficult to reconcile this rosy view with the scarcity of good prison rehabilitation anywhere in the world except perhaps the Nordic countries.

Ironically, given that abolitionist thought is often characterised as utopian, Shelby’s imagined prison system is itself quite utopian, although he sees the need for coercive rehabilitation. Drawing a distinction between prison work as slavery and as fair exchange for bed and board is similarly difficult in practice. But Shelby is in the business of the possible and these things are, theoretically, possible.

Shelby carefully examines Davis’s early personal experiences with the criminal justice system during her involvement with the Black Panther movement. He is happy to treat urban ghettos as sites of oppression alongside prison, which involves accepting that Black prisoners in the United States are “political prisoners” jailed for their opposition to injustice. This does not mean that prison has no utility, rather that it should not be used as a site for political oppression.

Like Davis, Shelby sees the necessity of dealing with the unequal social conditions that underlie the overrepresentation of people of colour in the US prison system. He examines in some detail how these matters could be tackled, with prison remaining as a penalty of last resort. He engages with issues of victimisation, pointing out that it is necessary to respond to both the future risk the perpetrator may pose to others and the need to avoid actions of revenge on the part of victims if the punishment is not considered adequate. Incapacitation may certainly be justified on the first condition, but it seems possible to deter vigilante behaviour without necessarily using imprisonment.

Shelby’s admiration for and agreement with Davis on many levels is evident, but his characterisation of her vision sets up the familiar binary of reformist versus abolitionist. If we believe reform efforts are always counter-revolutionary because they integrate potentially positive moves into the ultimate project of exploitation, then it is a choice between the two. But perhaps it is possible to challenge this binary while still taking an abolitionist perspective.

In fact, much current “abolitionist” writing is not inconsistent with this approach — and in many ways this is what Shelby has done in his sensitive and approving examination of the many questions on which he and Davis agree. If abolition is seen as a way of thinking about punishment rather than an “all or nothing” goal, then reform needn’t be inconsistent. As prominent writer and activist Brea Baker says, “Abolition is an ongoing process of assessing and replacing any system that doesn’t serve all of us.” If abolition is a process, then what happens along the way may be just as important as the final outcome. •

The Idea of Prison Abolition
By Tommie Shelby | Princeton University Press | $49.99 | 224 pages