Is Prison a Necessary Evil or Can It Be Just?

A Friendly Response to Rebecca Lowe

Rebecca Lowe, in The Pursuit of Liberalism, posits that classical liberals should be far more concerned about imprisonment than they are. Her argument rests on three pillars: free agency, well-being, and equality of moral status. She’s right to remonstrate against the indifference many classical liberals have about prison. There is no doubt that jail infringes on an individual’s agency and the well-being of prisoners is held in such little regard that jokes about rape in prison are ubiquitous. I even think her last pillar has weight for the Christian; equality of moral status mirrors the Christian doctrine of the Imago Dei. For all of this strength, her piece has two shortcomings. First, she does not address the rights of the victimized. If it’s a violation of the prisoner’s rights to put them in jail, how do we ameliorate the rights violations of those the prisoner wronged? Second, her definition of justice is concerned with what justice is not. There’s not a positive vision of what justice is.

My shorthand definition of justice, drawing on Biblical frameworks, is simply rightly rewarding good conduct and punishing the bad. I think Rebecca would agree with the first half of that definition, but not the second. But her disagreement is undone by her own view of rights. Simply put, giving preference to victimizer rights over victim rights is a serious problem by her own moral concerns. None of this sinks Lowe’s critique, but these are shortcomings that need to be addressed.

The Rights of the Victim

Lowe’s critique of widespread imprisonment is grounded in her conception of human rights. She is passionate in her defense of the rights of those in prison. She rightly notes that 2.1 million people are imprisoned in the U.S. and U.K. This is a staggeringly high number. Those in prison have their free agency taken away; they cannot leave. On its face, this many unfree people in a society that claims to love freedom should be cause for concern. Likewise, by imprisoning people, you at least impugn some of their equality of moral status.

By ‘equality of moral status’, I’m referring to two foundational liberal ideas. First, the idea that all human beings, regardless of circumstance, share a fundamental equal status, as a matter of moral truth. This kind of equality is grounded in features particular to being human, including the capacity for free agency.

Lowe’s solution is to treat prison as a tool for defensive purposes, meaning that only the defense of people from violence is a valid reason for imprisonment. She argues that non-violent offenders shouldn’t be put in prison because of the horrors of prison against those persons.

That said, if releasing these non-violent people really were too much for you, then of course we could start instead by refraining from locking up any more of them. And if even that felt like too much, then I suppose we could expand our focus beyond violent threat. I mean, sure, keep the swindlers locked up, if you really can’t find another way to deal with them! Why not put them in the cells alongside the granny who sends offensive tweets, if you really think she also needs the same constraints as Mr X.

But this is left wanting. First, there is not a moral equivalence between offensive tweets and grand theft auto. But second, and more importantly, this proposal offers few solutions for the rights of victims of non-violent crime. She gestures at solutions being necessary, noting the crime is bad and people suffering from crime is bad, but is scant on the details. Lowe contends that the solutions are a different question than whether imprisonment is justified. But they are inextricably linked as a question of justice. The refusal to address it undermines her entire endeavor.

If Lowe’s first supposition quoted above, that all people have rights to free agency and moral status, what’s to be done on behalf of the victims who have their rights violated? For instance, if someone swindles another, according to Lowe, they should not go to prison, but should be dealt with in other ways. But let’s play this out, the swindler takes money and instead of jail is compelled to repay, but is unable to, or refuses to, and every non-prison option does not work. Then what? The victim has had his or her property rights violated, and there’s no recompense. Should they simply stand wronged with no recourse? This is a violation of their rights. Lowe doesn’t give much to contemplate there. And the concept of justice is quietly lurking in the background. Rights and the violation of those rights are inextricably linked to conceptions of justice.

An Incomplete Conception of Justice

The question is, how do justice and rights connect? This brings forth further disagreement. Lowe is convinced that punishment is not part of justice. But I’m not. I’m compelled by the Christian perspective that justice does require something of the wrongdoer. Throughout the Scriptures you see the principle of wrongdoers incurring debt repeated. One example, Exodus 22:1, if a man steals an ox or a sheep, he must repay it fivefold. The repayment is greater than the theft because of the offense done against another person, or in Lowe’s parlance, a violation of their rights. Isaiah 1:17 calls us to correct oppression. And of course, the cross of Jesus Christ is paying debt incurred by sinners on our behalf. Justice, in a Christian worldview, necessarily includes the right punishment of evil, not for retribution, but because it is grounded in the moral order established by God.

I’m not going to simply posit that the Christian worldview triumphs over all others (though I believe that personally), but this conception of justice left me unsatisfied with what Lowe presents. And I think her argument is incomplete on its own terms. There’s congruence between Christian conceptions of justice and the human rights principle in Lowe lays down. The concept of the Imago Dei is critical here, as it is in all discussions about liberal philosophy and Christian theology. Human beings are expected to follow commands like love others as yourself because every one is made in the image of God. Lowe’s rights principle has the corollary of equal moral status for all human beings by virtue of being human. But Scripture has the principle of punishment, even though it may harm an image bearer because when someone violates the moral order of the universe, they thereby surrender some (and occasionally all) of the protections that come with being made in the image of God. This does not mean they lose the image of God ontologically, it only means that the innate protections that should be afforded image bearers are removed in these circumstances. This is important and in the next section will lead to strong areas of agreement between Lowe and I. Nevertheless, I think Lowe’s rights principle demands the same sort of reciprocity that exists in the Imago Dei.

When a wrongdoer violates the rights of another, they surrender some portion of their own rights. Caveats abound*, but if a wrongdoer freely chooses to violate another’s rights, the principle stands. This is why someone who unrepentantly murders dozens of people forfeits his right to free agency, and even his life. So when Lowe claims

Well, you can surely accept both of the premises above — that imprisonment is generally bad and wrong, and also that at least some instances of imprisonment are required — without concluding that millions of people need to be locked up!

Or

Retribution arguments tell us things like: ‘punishing someone in order to wreak vengeance on them for committing a crime is permissible’ and ‘you can rely on vengeance as a justification for punishment’. These arguments often make liberals anxious, not least because they depend on the idea that it can be a good thing — the right thing, even — to intentionally do something bad to someone who’s under your control.

I stand unconvinced that prison is always wrong in such circumstances because something truly morally grievous has happened; the rights of a human being have been violated. Lowe acknowledges that prison is sometimes practically necessary but still wrong. I would simply eliminate the moral claim of it generally being wrong. This does not mean that all non-violent offenses require prison, both liberal and Christian principles affirm the idea of proportionality. The right punishing of the bad means a punishment that is rightly fitted to the offense. There is prudence needed in assessing such things. The role of a judge is one of the most crucial in a liberal society. Nevertheless, in some cases prison is the apt punishment for non-violent offenses and is in fact the right thing to do.

Practical Reflections

So what does any of this mean practically? My main claim is that imprisonment for non-violent offenders is not morally wrong, and is consistent with rights-based liberal principles. Yet, it has to be recognized that classical liberals ought to have serious concern with imprisonment because Lowe is right, prison is an abrogation of free agency and the prisoners’ well-being. It also has serious problems when prison so abases human beings that their humanity is damaged, or to use Christian framing, the image of God in them is assaulted. Things like rape, physical assault, abuse by guards and more all should be things that are guarded against in prison. Yet, these things happen all the time. So if I’m going to argue that imprisonment is sometimes morally necessary to guard the rights of the victims, I also have to guard the rights of the imprisoned, even as they’ve surrendered some of their rights. This means that I have sympathy and agreement with Lowe that more non-prison options should be explored. Further, that prisons should be reformed so that they are concerned with rightly punishing the guilty, this means in proportion, not gratuitously. And in some way, prison should be for the good of the imprisoned, something more than just holding them has to be done. And working for the good of someone is loving them. The cantilever for reforming prisons is love for neighbors, both the victim and the victimizer. Lowe’s incompleteness and error in her argument is prioritizing love for the victimizer over love for the victim.