Against the Criminal Justice System, Pt. IV: Free All Prisoners

Jason Lee Byas | @jasonleebyas | Support this author on Patreon | December 7th, 2020

Originally published on the Students For Liberty blog on February 6, 2015. You can read the full collection of SFL re-posts here.

The last three posts of this series have been focused on the injustice of punishment and criminal law, and the justice of a tort-based pure restitution system. Even if punishment itself were legitimate, however, we would still have reason to reject the main form of punishment that exists today.Prisons– especially as they exist in the United States– can be attacked from several angles. For instance, their inherent tendency towards abuse, how they feed recidivism (freed prisoners’ relapse into criminal behavior), or the way they break up families. There are also the economic incentives they provide, both to prison guard unions and the owners of private prisons, to further lobby for increased criminalization.While these factors combined might warrant prison abolition on their own, it’s worth honing in on the most fundamentally immoral aspect of prison: To sentence someone to prison is to condemn one to slavery.

Since this is no small claim, it should be immediately clarified what’s meant by “prison.” Not all instances of forcibly confining someone seem to be instances of imprisonment, and surely some instances of defensively confining someone can be legitimate. By prisons, I refer to large compounds where people are involuntarily confined (typically with many other criminals) in response to their having committed a crime, without the right to voluntarily transfer to another location if that other location would confine them just as well, and where the administration has almost total control over those confined.

A given prison might not clearly and precisely fit all of these conditions exactly, but this at least gives us a general idea of what we’re talking about, and how it differs from confinement more generally. As for slavery, its distinguishing feature isn’t physical brutality– not only would that imply that a slave who’s never actually beaten is not a slave, it would also mean that all victims of brutal violence are slaves. Nor is it defined– contra Nozick– by the fact that the products of one’s labor are taken from them. This would make someone who is regularly mugged a slave, and it would mean that slaves whose owners allowed them to use most or all of what they produced weren’t really slaves.

What actually distinguishes slavery is the fact that the slaveholder claims a right to do with the slave as he or she wishes, without the slave’s consent. It is the relationship that allows slaveholders to take however much or little of the slave’s property as they wish, and to torture them for whatever reason they see fit. In short, slavery is when one person holds a property claim over another person.

In prison, the convict effectively becomes the property of the prison administration. If the administrators believe that they’ve been disobeyed, they reserve the right to swiftly punish the convict, sometimes with practices widely considered to be torture. If the administration disapproves of their convicts owning certain goods, they can declare those goods contraband. If the administration is getting tired of a hunger strike, they can force-feed convicts.

One objection to categorizing prisoners as slaves might be that prisoners still do retain some rights. Even if those rights are often ignored, this seems to mean the prisoners haven’t become property of the state.

Yet the fact that there are regulations on what you are legally allowed to do with something doesn’t mean it isn’t legally seen as your property. In fact, there were some things that even slaveholders were not legally allowed to do to chattel slaves in the United States. Of course, those laws were almost never enforced, but even if they had been, this would not have amounted to freedom.

Unfortunately, the slave status of prisoners is also apparent from their depiction in popular culture. Flippant jokes about prison rape are pervasive. Especially brutal treatment is met with indifference or even applause. The average person simply does not see the prisoner as a fellow human being.

Within the United States, there are a number of unsettling historical connections between chattel slavery and the development of the prison system. As Angela Davis chronicles in her short but powerful Are Prisons Obsolete?, the criminal justice system ensured that racial exploitation survived the abolition of chattel slavery. The first step came from the black codes, which made a whole host of things (from firearm ownership to neglecting one’s job) illegal specifically for blacks. The second came from the system of convict leasing, which allowed the penal system to sell rights to forced labor from its (overwhelmingly black) prisoner population. Looking at prisons we see today, which still exploit artificially cheap convict labor; and are still predominantly filled by people of color and sometimes literally built on former slave plantations, it is not difficult to come away with similar conclusions.

Yet, while critiques of the American prison system that focus on its history are important, they should also not be overemphasized. That prisons are a form of slavery goes beyond their history, and not specific to the United States.

Consider the words of Nils Öberg, director-general of Sweden’s prison and probation service. While explaining their emphasis on rehabilitation, he stated that his department’s “role is not to punish. The punishment is the prison sentence: they have been deprived of their freedom. The punishment is that they are with us.”

Even when prisons are described in their most humane terms, there is a subtle admission that to send someone to prison is to make them a slave. Öberg assures us that his government has merely deprived inmates of their freedom, and that their possession of the convict is all the punishment they need.

Despite Öberg’s good intentions, it is not enough that a slaveholder is relatively kind to his slaves, or genuinely has the slave’s interests at heart. Slavery, in any form, is an absolute evil that requires abolition, not reform.

We are clearly a long way away from abolishing prisons, punishment, and criminal law, or instituting a purely tort-based system geared towards achieving restitution for victims. So, how should any of this influence the way we look at real world politics? To conclude this series, the next installment will give some possible answers to that question.

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