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Leisure Time

by Stephanos Bibas

Prisoners should work and learn rather than be idle

Productive, law-abiding citizens work for a living. We encourage schoolchildren to work and study hard to grow into responsible adults. We expect able-bodied welfare recipients to work for their bread. Why, then, do we house convicted criminals in state-sponsored idleness at enormous taxpayer expense?

The problem seems obvious. The vast majority of prison inmates spend their days at leisure — endless television-watching, perhaps weightlifting or socializing with fellow convicts, but little labor. They bear no practical responsibility to make whole the victims they have harmed, or to support the families they have left behind. Instead, we force them to remain inert. Leisure is usually a reward and a break from hard work, not a form of punishment. Citizens across the political spectrum dislike letting prisoners remain idle: An overwhelming number of Americans (87 percent, according to the National Opinion Survey of Crime and Justice) support work requirements, and even more favor the idea if inmates must use their wages to compensate victims and the state. And enforced idleness reduces the likelihood that inmates will be prepared to do anything other than resume a life of crime once they reenter society.

Prison was not always a life of enforced idleness. After penitentiaries were introduced as a substitute for corporal punishment two centuries ago, religious figures hoped to reclaim inmates’ souls through penitence, and penal reformers hoped to rehabituate inmates through structure, discipline, and work. Criminals often gratify their desires impulsively and at the expense of others. Confining them in silence, with only a Bible for companionship, was supposed to shape their consciences and spur repentance. And work, reformers hoped, would teach them to delay gratification and become responsible citizens.

It didn’t quite work out as planned. Quaker and Enlightenment reformers proved far too optimistic about human nature, failing to realize that released inmates would relapse and return to prison. Repentance is a proper goal, but the hope of inducing it on a broad scale was too grandiose.

The hope of structured reform through work lasted longer. For many decades, inmates continued to work in and around prisons, learning discipline and reducing the costs of incarceration. Some forms of work drew understandable objections: Chain gangs evoked slavery; farm labor on former slave plantations in the South did the same; leasing convicts as laborers proved too lucrative to prisons and politically connected employers, encouraging overuse and brutality. But those problems were not inherent in prison labor. Especially in the North, there were plenty of prison industries that gainfully employed inmates in private labor, teaching them trades as they produced valuable goods.

The fatal objection to prison labor was not practical or humanitarian but protectionist. Labor unions grew steadily more powerful after the Civil War, and manufacturers joined them in efforts to suppress cheaper competition. In response, state legislatures gradually restricted the kinds of work that prisoners could do. The protectionism that accompanied the Great Depression accelerated this trend. By 1940, Congress had outlawed interstate commerce in prison-made goods. A later exception, the 1979 inception of the Prison Industry Certification Program, allowed private firms to hire inmates, but only at prevailing local wages (which often translated to union scale). Thus, there was little reason to hire inmates, given their low skills and the security costs incurred.

As a result, inmates today do little to pay restitution or prepare for employment on the outside. Perhaps 8 percent of inmates work in prison industries, and another 3 or 4 percent work on prison farms. (The fraction is higher in the federal prison system and Texas and Louisiana, whose governments are large enough to consume many prison-made goods.) Employed inmates may work on prison farms or make license plates, because these are not goods traded in interstate commerce. Other inmates, not included in these totals, work in prison cafeterias, laundries, and the like. But inmates working for a prison are unlikely to acquire skills and habits that could help them prove themselves to private employers on the outside.

Prison reform has until recently been a liberal cause. In the mid 20th century, the anti-punishment Left embraced rehabilitation, not retribution, as the main justification for incarceration. Reformers pushed education, vocational training, and treatment as silver bullets, as if all that criminals needed were therapy and social work. Liberal victimology blamed poverty and ignorance, not criminals’ own choices, for crime.

Conservatives naturally disagreed, refusing to excuse criminals. Crime was a mark of social decay, and law-and-order conservatives such as Richard Nixon and Ronald Reagan campaigned on getting tough. The last thing prisoners needed, they argued, was more social services or special treatment, such as job training or educational privileges.

But then some conservatives got religion. After Nixon’s special counsel Chuck Colson was imprisoned for his role in Watergate, he became a born-again Evangelical Christian and founded the Prison Fellowship project, intended to reform prisoners and restore them to the community and their churches as contributing members. Unlike liberal advocates, religious conservatives don’t seek to excuse prisoners, blame their poverty and circumstances, or offer them therapy. Rather, they seek to promote reform through religious instruction and discipleship, teaching inmates to accept their sinfulness and work on moral and religious renewal, as well as make amends. And the InnerChange Freedom Initiative, often in cooperation with local congregations, provides structured reentry assistance to help inmates move back to conventional housing and find law-abiding work on the outside.

These private reform programs, while valuable, are incomplete. To complement them, prisons themselves should hold inmates accountable. Rather than offering inmates special rehabilitative privileges, they should impose requirements that are demanding but also likely to encourage responsible, cooperative behavior.

The political obstacles are formidable: It would not be easy to repeal the Depression-era ban on prison-made goods over the objections of protectionist labor and business lobbies. But given the popularity of making prisoners work, the weakening of organized labor, and the massive cost, in a time of deficits, of funding prison idleness, there may be hope for reform.

Prisoners, unless they are seriously disabled, should be required to work. Some inmates would have to work inside the prison; minimum-security inmates and those in halfway houses could work outside, tracked with electronic ankle bracelets. Apart from its economic and educational value, such work would inculcate discipline, collaboration, obedience, and a willingness to delay gratification — virtues that many inmates lack, and whose absence tends to encourage crime.

Further, the fruits of productive labor can help prisoners to pay their debts to society. Some of the money could go to victims, to help make partial restitution. Some of it could go to the government, to defray the cost to taxpayers of investigation, conviction, and incarceration. Some of it could go to inmates’ families. Any money left over could go to the inmates themselves, encouraging them to work.

Making restitution is connected to accepting responsibility. Too often, defendants slide through the criminal system by barely admitting guilt. But as Alcoholics Anonymous and similar twelve-step programs teach, one cannot overcome a problem without first acknowledging it. Accepting responsibility and, better yet, offering an apology also help vindicate and heal victims. Restorative-justice conferences, in which inmates meet with victims (if the latter are willing) to express remorse and apologize, are proven ways to help victims find closure.

Accepting responsibility should go beyond making restitution and apologizing, however. It should also mean putting oneself on a path toward a law-abiding life. Inmates need to prepare to support themselves after release through lawful work. Compulsory drug treatment, job training, and education thus should be considered not privileged treatment, but steps toward becoming a law-abiding citizen.

Even more important, prisons can encourage responsibility by forcing inmates to support their families, instead of making those families rely on government handouts. Responsibilities as husbands and fathers are important factors in taming young men’s wildness and encouraging them to settle down. Empirical studies provide strong evidence that marriage and fatherhood inhibit crime after release; one longitudinal study found that marriage may reduce recidivism by 35 percent. To strengthen family ties, prisons should strive to incarcerate inmates near their families. They should also moderate the cumbersome visiting policies and extortionate telephone rates that cut children off from their fathers and wives from their husbands. For convicts unmoved by the carrot of familial love, tough work requirements and child-support enforcement can serve as sticks.

We could even consider drafting felony convicts into the military. Throughout history, many societies have sentenced convicts to military service, offering them a concrete way to work off their debts and earn freedom. Indeed, that was common in America through World War II, as viewers of The Dirty Dozen will recall. Today, however, the American military services forbid enlistment as an alternative to criminal prosecution or as a form of punishment.

We should again consider requiring or at least allowing suitable convicts to offer military service as an alternative to incarceration. The rigors of military service inculcate work habits, discipline, and social skills.

The military may worry about potential disciplinary problems caused by criminal enlistees. But military service in lieu of criminal punishment has a long history. If one at least screens out the most violent, antisocial candidates and is willing to send miscreants to prison, the disciplinary problems are, history suggests, manageable. During World War II, Illinois paroled nearly 3,000 inmates to serve in the U.S. Army. Of these, only 3.4 percent violated parole, and their recidivism rate eight years later was only 10.5 percent, less than a quarter the rate of those who received traditional parole.

We cannot know whether the same would hold true today, particularly in peacetime and without a draft, but the idea is at least worth trying. The structure, rigor, and sense of purpose in military life might serve the ends of prison labor even better than ordinary work. They have helped many a non-criminal slacker stop playing video games and get his act together.

Citizens and military leaders might also worry that using military service as punishment would demean the voluntary service of law-abiding men and women. But prisoners could come in at lower ranks and receive lower wages than ordinary enlistees. Garnishment and restitution would further reduce their take-home pay, and GI Bill benefits would not vest for some time. They could wear different uniforms and enjoy fewer privileges than ordinary soldiers and sailors — not being allowed leave, for example. They could also be assigned to the lowliest of jobs, such as cleaning latrines, and be punished for the smallest infractions. In other words, they would not start out on equal terms with law-abiding service members, and would have to prove themselves to earn promotion.

Military leaders may resist taking on a social purpose in addition to fighting wars and defending against attacks. But the Israeli military has shown that it is possible: It combines top-notch fighting ability with a mission to integrate immigrants into Israeli society.

Whether in prison industries or in the military, inmates and ex-cons need to be held accountable. Punishment should be tough, but it should also be productive and socializing. Forcing inmates to work and to take responsibility for their crimes and their families is an excellent way to start making sure that it is.

– Mr. Bibas, a professor of law and criminology at the University of Pennsylvania, is the author of The Machinery of Criminal Justice.

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