Punishment, Incapacitation, and Rehabilitation

In The Idea of Prison Abolition by Tommie Shelby, he offers a strong critique of the prison system. He begins chapter two with an overview of the varying kinds of incarceration facilities and their purposes: “An incarceration facility whose primary purpose is pretrial detention is a jail. . . whose primary purpose is is prisoner rehabilitation a penitentiary. . . that aims to treat and house those who suffer from serious psychological disorders is a psychiatric hospital. . . that functions to impose punishment is a prison” (48-49). These aims are classified as “detention, rehabilitation, treatment, and punishment” (49). 

But, as Shelby makes clear, “punishment, whatever form it takes [must] be understood as unwelcome and unpleasant treatment” (49). While he discounts the retributivist account, he clarifies that punishment is justified only when it is used to prevent massive crimes themselves. It is important to note, here, that while Shelby claims that there is a difference between imprisonment and incapacitation (protecting others from the severity of one’s crime, or crimes they might commit in the future), the line between both can very easily be blurred by the imposition of “hard treatment”. 

However, the issue I have with Shelby’s argument is not with his distinction between incapacitation and imprisonment, but rather prison as punishment versus penitentiaries as rehabilitation centers. As Shelby claims, when the incarceration of a mentally-ill criminal is in the form of prisoner rehabilitation, “These incarcerated persons are regarded as dangerous enough to justify confining them, but their confinement is not punishment or even akin to punishment” (51). 

Let’s take the example of Anders Behring Breivik, who was found criminally responsible for the murder of 77 people in Oslo. He was initially found criminally insane and diagnosed with paranoid schizophrenia–but this decision was later contested. Breivik was found sane and sentenced to at least 21 years, or as long as he is still considered a danger to society. Per Shelby, I would assume that he would, under the first decision (that Breivik was criminally insane), place Breivik under the supervision of the state within a psychiatric hospital. However, considering the extent of his crimes, the reevaluated sentence would, under Shelby’s framework, place Breivik within a penitentiary (as he was deemed sane). Shelby’s distinction between prisons as punishment and penitentiaries as rehabilitation breaks down cases like Breivik’s where the boundary between sanity and insanity was itself legally contested. If Brevik's placement in a psychiatric facility versus a penitentiary depends entirely on the court’s assessment of his mental state (which is exactly what happened, and the decision was changed), then Shelby’s framework fails to offer a stable criteria for the morally appropriate application of the incarceration institutions. Moreover, the rehabilitative framing of the penitentiary risks obscuring the punitive reality of confinement itself. Breivik’s sentence (though it was orientated towards rehabilitation), remains open-ended because of the crimes that he committed; it suggests that punishment and incapacitation are doing far more work together than Shelby’s clean categorical distinctions allow. 

 

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