The Punishment Begets the Crime
Updated: May 8, 2021
Toledo, Ohio, home of the Rockets and known as the Glass City, hugs both sides of the Maumee River. Toledo is a relatively large city with a population of about 275,000, and it is the fourth largest city in Ohio. Few would call this town a wretched hive of scum and villainy. Still, like most cities, Toledo needs a jail, and the Lucas County Correctional Center has been filling that role for some time.
Eight months ago, Juan White left a review of the facility, saying, “I don’t [sic] encourage going to jail by any means . . . but I have been here . . . this place is a class act . . . I think wardens should come to this facility and watch how these folks move . . . good job!!!”
But five-star reviews have not always been the norm in Lucas County. My father grew up in the suburbs of Maumee, and for a high school project, he examined the American prison system and visited the Lucas County Correctional Center. His findings and his firsthand look into the jail just 20 minutes from his house were haunting. Behind a few doors and a Brutalist façade was an environment of violence and fear that the guards, janitors, and inmates knew well but was utterly alien to the feel-good Americana of a midwestern town in which it hid like an undetected rot.
More recently, the topic of prison violence in America has become something more akin to general knowledge. However, the rate of violence has not necessarily abated even when brought to light. Some estimates for male prison populations place exposure to traumatic violence at a rate of 62.4% to even 100%. Prisons like the South Mississippi Correctional Institute wrestle with violence and staff shortages to the inevitable conclusion that the prisoners might just be running the prison. Following a complaint from a visiting counselor that she didn’t feel safe in the facility, an SMCI official admitted, “It’s not that you didn’t feel safe. You aren’t safe.”
There is no dearth of publications covering the stunning amount of violence in prisons. The Columbus Dispatch lamented the “409 violent incidents” as well as 152 assaults on staff members and 257 on other inmates” that occurred in the Southern Ohio Correctional Facility in 2015. Last year, the New York Times covered incidents of messages smeared in blood on cell walls, begging for help.
All of this trauma does not stay within the confines of razor-wire fences. The United States Sentencing Commission found that approximately 63.8% of violent offenders recidivated for similar or new violent crimes, often within just 18 months of their initial release. Moreover, the actual length of the sentence was virtually irrelevant as the report noted, “Violent offenders sentenced to the shortest terms of imprisonment (less than 24 months) recidivated at a rate (63.9%) comparable to violent offenders sentenced to the longest terms of imprisonment of 120 months or more (61.3%).” Not unsubstantially, 39.8% of nonviolent offenders also recidivated in the same time. The report did not delve into possible explanations for this phenomenon, and the absence of introspection may hint at a larger blind spot.
Clearly, the prison system is releasing individuals who are not reformed. But perhaps more insidiously, the prison system is taking prisoners who are serving sentences for their victimization of others, and creating entirely new victims of intense physical, sexual, and emotional violence. These people inevitably suffer from PTSD, and upon release, are sent home with a great deal of trauma that they are ill-equipped to handle. Some will not just live with the memories of prison, but will be forced to endure the permanent injuries they sustained at the hands of fellow inmates. Indeed, our system may be creating more violent offenders, as among nonviolent prisoners, 1 in 5 were arrested again for a new, now violent crime within three years of their release. Perhaps here the punishment begets the crime.
Much ink, both physical and digital, has been used to decry the state of prisons and the gap between the current state of our prison system and the more reform-orientated and effective prison systems of other countries. But perhaps the solution to what happens within our prisons is just on the other side of the fence.
The 1980 California Supreme Court case of Sindell v. Abbott Laboratories allowed a defendant to sue several pharmaceutical manufacturers who produced a drug that caused her harm although she could not prove which manufacturer had produced the drug that caused her specific harm. In a modified form of industry-wide liability, the court granted damages based on each company’s market share, and the burden of proof was placed on the defendants to prove that they had not sold the drug in question to the plaintiff. Other courts also applied the market share theory to cases involving the same harmful drug. In the 2017 case of Smith v. Providence Health & Services, the Supreme Court of Oregon ruled favorably for the plaintiff’s application of the lost chance theory in relation to medical malpractice. In this context, the lost chance theory contends that a patient who may have had, for example, a 30% chance of recovery or positive outcome had the doctors met their duty of care could potentially seek damages for that 30% chance denied to them by the defendant’s malpractice.
Perhaps a modified combination of both theories could incentivize change in the American prison system. Assuming that 63.8% is the current standard by which we judge violent recidivism rates, that leaves, in theory, a 36.6% chance that a former inmate might not fall back into violent patterns. Could a former inmate, now a plaintiff, bring to court the various prisons he stayed in while serving his sentence and hold them accountable for the violence, trauma, and other deprivations that are now preventing him from effectively rejoining society? Could he argue that between Prison A, B, and C, he was subject to cruel and unusual punishment and terrible conditions that exacerbated the issues that led him into the system in the first place? And that a lack of resources and development within the prisons served only to set him up to fail rather than be reformed? Can he collect damages against those prisons based on the lost chance theory? I think so. Under the current system, a prisoner might, through a tortured and expensive process, be able to sue a prison for the specific abuse and neglect that he suffered. With a new legal theory, he might be able to sue for what that abuse and negligence cost them in the long run.
If said prisoner can utilize this theory in their claim, the prison system might become result-oriented rather than punishment orientated. A prison would be judged by the legal system and the wider community, on the status of its former inmates and their reintegration into society. Suddenly, the much-lauded reformative environments of Nordic and European prison systems become not a pipe dream or an object of ridicule for the tougher skinned, but rather a budgetary necessity. The Chicago School of Economics would likely find that states paying more for psychological resources, educational resources, and more guards to ensure safety for all, is in the long term, cheaper than being the losing party in a sea of lawsuits. The Chicago School of Economics was a free-market based theory, grown and centered at the eponymous university, that made an initial foray into the legal field through anti-trust laws. Boiled down to its simplest tenets, the school of thought is a philosophy of market efficiency, natural market forces, and economic incentives. More importantly, however, it was one of the first schools of thought to distinctly address the interaction between the law and economics. Indeed, such interaction is a staple of court decisions where costs can be used as a deterrence, or liability limited to prevent the hampering of industry growth. See Enright v. Eli Lilly & Co. In such a view, prisons now have an absolute incentive to keep violence to a minimum and move reformative measures and programs to the fore, as they know the standard for the system is now how well a former inmate does outside of the proverbial four walls.
Now immediately, an issue arises from the class of citizen and former prisoner to which this theory applies. The standard should apply to those who can prove that their condition, or potential for recidivism, was exacerbated due to their prison stay. PTSD and trauma are always hard to gauge, and this theory will require a certain degree of analysis and judgment by the court as to the prisoner’s experience and subsequent failures on the outside. Indeed, a prison cannot be held liable just because an inmate struggles to find employment in a down economy. The full extent of measures taken to evaluate the appropriate class of persons and how potential members of that class are assessed is for another article or volume of articles. However, assuming a best-case court scenario, a prisoner will bring various prisons to charge for the real violence and trauma he was subjected to while in their care and the Sisyphean cycle of repeat offending that stems from such failures.
Certainly, damages could be measured by market share of time relative to the prisoner stay at each prison, although admittedly, this would create an incentive to shuffle prisoners in and out as fast as possible to limit that market share. That aside, this model places the burden of proof onto a prison to show that their particular prison was not the facility that caused the trauma and exacerbated or failed to address the plaintiff’s underlying issues. It forces the prisons to reform themselves, if only to avoid litigation. As it is, the individual prisons that are being sued also force the state to identity problem facilities that are draining its coffers through consistent failure and subsequently deserved lawsuits. Again, disciples of the Chicago School of Economics would be first in line to suggest that once identified as the hemorrhage area for state budgets, these poorly run and traumatizing prisons would be quickly reformed.
Times have changed in Toledo. For now, the conditions of the Lucas County Correctional Center have risen with the tide of generally good fortune that has washed over the city that hugs the bank of the Maumee River. And the town my father grew up in gets bigger every year, changing as it grows. Some things for the better, becoming memories that are best revisited rather than relived. But such is not the case for the country writ large. The vast majority of our prison system remains stuck in a cycle of violence and abuse while ostensibly seeking to punish inmates for sins of the past. It is a sentiment that does not, or should not, sit well with the land of the free and must be addressed if American society is to open itself to the opportunities of the future.