Cruel – willfully causing pain or suffering to others, or feeling no concern about it.

Cruelty is pleasure in inflicting suffering or inaction towards another’s suffering when a clear remedy is readily available. …affirmative violence is not necessary for an act to be cruel. … are four distinct conceptions of cruelty. … first … above in degree and beyond in type the [suffering] allowed by applicable norms. … second … fault of character consisting in deriving personal delight from causing and witnessing suffering … punishment or other violence is a means to restore the offset in the cosmic order of the universe caused by a wrongdoing. Anything that goes beyond what is necessary for this restoration, then, is cruel. … third … the pain or the sense of degradation and humiliation experienced … fourth … accumulation of all the prior conceptions. (More)

A great many things seem quite wrong with the U.S. legal system, especially in criminal law. I’ve tried to work out comprehensive solutions, but I should also identify more modest changes, more likely to be adopted. And one big way our criminal law seems broken is our huge prison population, which is near a world and historical peak of residents per capita.

Many people say we define too many acts as crimes, that we make it too easy for authorities to prosecute people, and that we punish many crimes too severely. And while those seem like fine issues to explore, I see an even clearer case that jail is usually the wrong way to punish crime. Let me explain.

In principle jail can serve many functions, such as education, reform, isolation, and punishment. But prison is now more expensive than college; few see it as a cost effective way to learn. And few believe that US jails actually reform many convicts. Yes, convicts do tend to commit fewer crimes over time, but that’s mainly due to age, not reform efforts. Jail cuts residents off from their prior social connections, such as jobs and family, and connects them instead to other criminals. Which seems bad for reform. 

Jail does isolate convicts, making it harder for them to commit many crimes. But we can isolate most convicts nearly as well and far more cheaply with curfews, travel limits, and ankle bracelets. Whole isolated towns might be set up for convicts. And if isolation were the main issue setting who we sent to jail and for how long, then for each person we put into jail we’d keep them there until we saw a substantial decline in our estimate of the harm they might do if released. 

But in fact the median time served in state prison is 1.3 years, way too short a time to usually expect to see much change. And even if there is a substantial decline soon after a peak crime age, we don’t vary sentence lengths in this way with age.

Furthermore, exile offers a much cheaper way to isolate. Let convicts leave the nation for a specified period if any other nation will take them. Not every one would be taken, but each one who is taken represents a big savings. Worried about them sneaking back unseen? Just make severe punishments for that. Maybe even make them post a bond on it.

So if education, reform, and isolation are poor explanations of jail, that leaves punishment. Ancient societies used fines more often, which they often took from family members if the convict couldn’t pay, and they often enslaved convicts to make them pay. But as we aren’t willing to do these things, we can’t get much money out of most convicts, which is why we need other punishments. 

Note that I’m not saying that jail could not in principle achieve other ends, nor even that jails do not to some degree achieve other ends. I’m saying instead that the widespread popular support for using jails today mainly comes from a widespread perception that jails achieve punishment, which most see as a desirable end. 

The classic logic of criminal punishment is that most people are less likely to commit a crime if they anticipate a substantially higher chance that doing so will result in their experiencing a “punishment” that they will dislike. (Relative to the chance if they don’t commit the crime.) Yes, this effect may be weak, but most people aren’t convinced of other approaches, and they aren’t willing to give up on this approach. 

But a big problem with using jail to punish is that our jails are terribly expensive, relative to feasible alternatives. For example, most of our jails are relatively “nice” and comfortable, with nice food, beds, climate control, entertainment, etc. At least compared to other jails in history. But typically X years in a nice jail gives the same expected punishment (i.e., anticipated dislike) as Y years in a mean jail, for Y < X. So if a mean jail costs no more per year than a nice jail, this is a cost savings.

Our history and the world today clearly demonstrate that it is possible to create jails that are less nice than ours. Furthermore, corporal punishment (often called “torture”) is even cheaper than mean jails. This was quite common in ancient societies, and is still used in some places today. For any sentence of X years in jail, there is some amount of corporal punishment, e.g., N lashings, that gives the same expected punishment at a far lower cost. 

Some say that torture and mean jails are more “cruel” than nice jails, and thus immoral, and thus forbidden. But as you can see from the above definitions, when the amounts of these things are adjusted to produce the same amount of anticipated dislike for each, then some of them cannot be more “cruel” than others in the sense of the dislike convicts expect to experience. The only grounds then offered for saying that some are more “cruel” is that some might induce more inappropriate “delight from causing and witnessing suffering”. 

Yet I can find no evidence suggesting that observers achieve more inappropriate delight from criminal punishments in the form of mean jails or corporal punishment. Yes, we can see many people taking delight today in the suffering of convicts in the jails that we now have. And those people would likely switch their design to focus on other forms of suffering, if those happened instead. But I see little reason to think that those who today do not delight in seeing convicts suffer from existing prisons would start to so delight after a switch to other punishments. 

An interesting way to vividly show everyone that our jails today are in fact just as “cruel” ways to punish as these alternatives would be to give convicts a choice. A convict who is sentenced to X years in ordinary jail might be offered the choice to switch to Y years in mean jail, or to N lashings (or other corporal punishment). Or perhaps even to E years in exile. A simple standard mapping function between X and Y,N,E could be used, one that is adjusted continuously to get pre-determined fractions of convicts to choose each option.

(With enough data, these mappings might depend on age, gender, etc. Some small fraction of convicts might be forced into each option, to induce reliable data on option effects on convicts. Over time, the pre-determined fractions could be adjusted toward the cheaper options if their outcomes continue to seem acceptable relative to costs.) 

Under this system, it seems harder to complain that it is more cruel to give convicts the option to choose something other than ordinary jail, relative to just forcing convicts into ordinary jail. And the fact that many convicts do choose other options should yell a big loud lesson to all: convicts suffer a lot in ordinary jail. They lose big chucks of their lives, including their careers, friends, and families. If you see a person suffering under torture, and you realize that this person chose torture over ordinary jail, that tells you just how much they hate and dislike ordinary jail. It tells you that you should not on empathy-for-them grounds feel good about yourself for instead forcing them into the option from which they ran. 

Yes, when each convict picks their favorite punishment option from a set, that will on average reduce their expected punishment. But not usually by a lot, and the X in sentences of X years of ordinary jail could be adjusted up a bit to compensate. In this situation, one reason to exclude an option is if we are much more uncertain about how much each person dislikes that option, relative to other options. It is better to know how much we are punishing a convict. 

But I see no reason now to think that we are now much more certain about dislike for ordinary jail, relative to mean jail, corporate punishment, or exile. When the judges who sentence convicts do know something about the option preferences about a particular convict, they might on that basis exclude some of those options for that particular convict. For example, exile might be a weaker punishment for someone who recently lived abroad. 

Yes, there’d be a tendency by those who embrace a criminal culture to take the “toughest” punishment option available, to signal toughness to associates. But this would on average hurt them, and isn’t that different from many other things they do to show toughness. Doesn’t seem a big problem to me.

So that’s my pitch. Let’s stop wasting so much on expensive jails, when we could instead produce the same punishments at a lower cost by giving convicts a choice between types of punishment. This would also show everyone just how cruel we have been by putting convicts in our current jails. A majority of those who answer my Twitter polls approve; what about you?

So why do people see the other options are more cruel? My guess is the representativeness heuristic is at fault. People imagine a random moment from within the punishment, and neglect how many minutes there are in each punishment.