PART I	ETHICAL CANONS CONCERNING WAR
	Chapter  1	About Ethical Canons and War
	Chapter  2	Decisions Precipitating War
	Chapter  3	Human Sacrifice
	Chapter  4	Amiriyah Shelter
	PART II	ETHICAL CANONS CONCERNING EQUALITY
	Chapter  5	Slavery
	Chapter  6	Arens' Atrocity Attribution Theory
	Chapter  7	Genocide of Native Americans
	Chapter  8	Intermarriage
	PART III	ETHICAL CANONS CONCERNING JUSTICE
	Chapter  9	Incarceration
	Chapter 10	Reemergence of Torture
	Chapter 11	Witchcraft Trials
	Chapter 12	Trials of Heretics
	PART IV	ETHICAL CANONS CONCERNING RELIGION
	Chapter 13	The New and Old Testaments
	Chapter 14	Transplanted Mentality
	Chapter 15	God and His Messengers
	PART V	ETHICAL CANONS CONCERNING EMPATHY
	Chapter 16	Karla Tucker and George W. Bush
	Chapter 17	A Girl with the Almond Eyes
	Chapter 18	Beyond Partiality: Building a World of Laughter and Love

Incarceration

The first prison, Tullianum, was erected by Romans in 250 BCE. Since then, the frequency of imprisonment, its duration and severity considerably varied, as did opinions about the nature of the criminal behavior and its etiology. Incarceration is an eventual outcome of a crime and the questions "what is crime" and "why the crime" were asked since the ancient times. While various doctrines stressed the punitive and the moral side of this issue, the opposing opinion was perhaps best expressed by Francois Villon in his Le Testament (1461) as

necessite fait gens mesprendre
et faim saillir le loup du bois

that can be translated that poverty people into villains turns / and because of hunger wolves leave the woods.
 
Religious perspectives  Religious opinions have often shaped views towards incarceration. Talmud Yerushalmi, Talmud Babli, and both the Old and New Testaments describe law as the expression of the will of God. Islam adopts a similar legal posture with Sharia, Arabic word meaning "path," interpreted as the infallible expression of the divine will that is applicable to all aspects of life. One of the differences between monotheistic religions is the degree to which they emphasize orthopraxis vs. orthodoxy (i.e., proper conduct vs. proper belief). In comparison with Islam, Judaism and Christianity emphasize orthodoxy over orthopraxis, Islam emphasizes orthopraxis more than orthodoxy.
 
Legal positivism  The legal positivism maintains that there is no unjust law. This perspective characterizes the legalistic posture of the influential Thomas Hobbes. Arguing that humans are by nature selfish and aggressive, Hobbes thought that self-interest leads people into a social contract where they surrender their freedom to an authority to protect them from their aggressiveness. Hobbes maintained that: "the essence of law is the command or will. The notion of an unjust law is contradictio in adjecto, because law is itself the definition of justice." Among the founders of the legal positivism is Jean Bodin who claimed that

burning is too lenient a punishment for severe crimes,
because the suffering does not last more than one hour.

Bodin also approved of torture during the criminal interrogations, including the torture of children to compel them to testify against their parents.
 
Legacy of the Enlightenment  Around the time of the American and French Revolutions, social philosophers started to support the notion that

an unjust law is not a genuine law
but rather an act of violence.

Social philosophers who opposed legal positivism include Hugo Grotius, Gottfried Leibniz, Benedict Spinoza, Voltaire, and Jean Jacques Rousseau. John Locke’s criticism of Hobbesian theory was a forerunner to the modern notions of civil disobedience and human rights. Locke argued that humans in the state of nature are free and equal and that they possess the fundamental rights to life, liberty, and property. Everyone should defend his or her rights and should surrender only such rights as are necessary for the common good. This natural-rights theory provided a philosophical basis for both the American and French revolutions, with Thomas Jefferson substituting "pursuit of happiness" for Locke’s "property" in the trinity of inalienable rights.

Fig. 1. The index of the unequal distribution of wealth and the index of family disintegration are the best predictors of incarceration rates.

Punishment vs. Rehabilitation  The above mentioned views often underlie debates about the goal of incarceration: should the emphasis be on punishment or rehabilitation? Arguments have been made on both sides of the issues, and larger societal perspectives have shifted from one side to the other over the years. Those who favor punishment often contend that the practice serves both as revenge for the wronged and as a deterrent against further crime. On the other hand, those who favor rehabilitation argue that by trying to change a criminal's behavior, recidivism rates can be reduced, and both the criminal and society can benefit.

Justice studies Penology and justice studies emphasize description and analysis of antecedents of criminal behavior and outcomes of consequences imposed by criminal justice on the criminal behavior. An example of a modern quantitative study of factors influencing the criminal behavior is the study by Krus and Hoehl (1994). Predictor variables that might explain differences in the international incarceration rates were located by a computer-aided search of the compendium of world rankings, compiled by the Facts on File Corporation and the World Model Group, containing over 50,000 records on more than 200 countries of the world. The predictor variables, explaining about 69% of variance in the international incarceration rates, were the index of the unequal distribution of wealth (the explanation favored by liberals) and the index of the family disintegration (the explanation favored by conservatives). These indices also displayed properties of the cooperative suppressor variables, i.e., these variables act in concert:

Impoverishment or breakdown of family by itself does not always
precipitate crime, but poverty and a lack of family support often do.

Fig. 2. International incarceration rates per 100,000 population in 2004 (inset) and Growth of the incarceration rates in the United States between 1925 and 2004.

Frequency of incarceration Marc Mauer (1991) in Americans Behind Bars: A Comparison of International Rates of Incarceration, who was among the first who called attention to the fact that the United States is the nation with the largest per capita rate of incarceration in the world generated only brief attention in national newspapers and on public radio. Sample headlines were "America, the Land of the Imprisoned" (Santa Barbara News-Press, February 20, 1992), "The World's Top Jailer" (USA Today, February 12, 19992) and "A Dangerous Place to Live" (St. Louis Post-Dispatch, February 11, 1992). On February 22, 1992, Boston Globe reported that

few statistics about the United States are more startling than the growth of the prison
population during the quarter-century since Americans abandoned the war on poverty.

and the Houston Chronicle (February 17, 1992) concluded that

a huge potential human resource is being wasted. That is the real crime.

Duration of incarceration  Since the mid-1970's, the average length of incarceration steadily increased and the legislatures continued to reduce discretion in both the sentencing process and the determination of when the conditions of a sentence have been satisfied. Determinate sentencing, use of mandatory minimums, and guidelines-based sentencing continue to remove the human element from sentencing, i.e., the prerogative of the judge to consider the antecedents and circumstances of the crime to determine the appropriate length of the incarceration. As the consequence of the three strikes laws, passed with the intent to "turn career criminals to career inmates,"

the increase in the duration of incarceration in the last decade was most
pronounced in the case of life prison sentences that increased between
1992 and 2003 by 83 percent.

Severity of incarceration  Severe punishments such as beatings, prolonged sleep deprivation, sensory deprivation, chaining, have been often inflicted on prisoners. There are many reasons given for justification of such punishment. In the 16th century, the Bishop of Trier, Binsfeld, in his Tractatus de Confessionibus Maleficorum (1596) claimed that

Since the sinfulness of the world increases,
God also allows increasing the severity of punishments.

A movement to abolish cruel treatment of prisoners began during the Age of Enlightenment and continued throughout the 19th and 20th centuries. However, there have been continual arguments for severe punishments, increasing in the early years of the 21st century. Contemporary justifications for such punishment often revolve around the "rights of the victims". Often underlying these perspectives are opinions that stress the vindictive eye-for-the-eye notions of the Old Testament and Qur'an [1] over the rational humanistic notion that the primary goal of incarceration should be the reform and reeducation of prisoners that would facilitate their re-integration into the society.

Within the framework of penology, the trend toward increasing the severity of punishments is reflected in publications such as Block's (1997, p. 12) advocacy of policy initiatives aimed at increasing the unpleasantness of prison life that would likely be "a cost-effective method of fighting crime” and Arpaio and Sherman's 1996 book claiming that the increase in the severity of treatment of prisoners will result in decrease in recidivism.[2] Arpaio and Sherman proposed to increase the severity of imprisonment by the construction of tent prison camps in the Mojave Desert where summer temperatures reach 120 degrees Fahrenheit, by serving prisoners foul-tasting food, by humiliating prisoners by cross-dressing, and by reinstatement of the chain gangs. Mauer (1999, pp. 92-93) documents some other the measures used to implement the increasing the unpleasantness of prison life policies that include

shooting around prisoners to keep them moving, forced consumption of milk of magnesia,
placing naked inmates in strip cells, and handcuffing inmates for long periods of time.

Retrospect and prospectus  Harold Pinter, in his Nobel prize acceptance speech, observed that

"the United States is without doubt the greatest show on the road. Brutal, indifferent, scornful and ruthless it may be but it is also very clever. As a salesman it is out on its own and its most saleable commodity is self love. It's a scintillating stratagem. Language is actually employed to keep thought at bay. You don't need to think. Just lie back on the cushion. The cushion may be suffocating your intelligence and your critical faculties but it's very comfortable. This does not apply of course to the 40 million people living below the poverty line and the two million men and women imprisoned in the vast gulag of prisons, which extends across the US."

Among the other reasons for the extreme aberrance of the United States with respect to frequency of incarceration as compared with the other nations (cf. Fig. 2) is the stress put by the media on the individual criminality and virtual absence of mediated opinions that society, as well as individuals, may engage in acts of violence that may be viewed as criminal. The increase in pressures toward augmentation of severity of punishments, including the imposition of torture and death penalty, is likely due to the same reasons. Over the last decades, the humanistic traditions of the Enlightenment, including the notion that an unjust law is not a genuine law, but rather an act of violence and that those who press for such laws (as contrasted with individual criminals) may as well be considered social criminals were supplanted by the punitive ethics of the legal positivism and by disregard of the differences between malum in se and malum prohibitum. Similar observations were made centuries ago: Thomas Jefferson's favorite book by Cesare Beccaria’s (1764) Dei Delitti e delle Pene (On Crimes and Punishments), remains arguably one of the most thought-provoking books on criminal justice. Beccaria documents the relationship between the brutalization of society and its support of severity of punishments and stresses that the law should not encompass more than what is necessary to maintain the public order.

Notes
 
1] Aslam Abdullah (2006, www.beliefnet.com) in Demystifying Muslim Justice observes that

“most Americans' impression of Islamic justice is a rather barbaric image of retribution harshly and violently administered. Ask even educated Americans to explain the law in Muslim countries, and they'll inevitably talk about hands and heads summarily being severed. In fact, Islamic justice shares much with Christianity and Judaism. These similarities are not surprising, considering that our penal systems are influenced by common scriptural foundations. The Qur'an's most basic passage pertaining to punishment is a familiar one to Christians and Jews alike: "And we prescribed for them therein: The life for the life, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds equality."

2] The opinion that increasing the severity of punishments will result in decrease of recidivism is not supported by meta-studies of this issue. Contrary to this popular opinion, the majority of research studies indicate that penal policies stressing rehabilitation over punishment result in lower recidivism rates. Most empirical studies consistently find that the employment status after the release from prison is the strongest predictor of recidivism. Thus, e.g., Pennsylvania’s 2000 Legislative Report on Recidivism concludes that

most studies found that boot camps have not been very
successful in achieving the goal of reducing crime"

and that the fact that

"employed offenders are almost three times as likely to succeed indicates that providing
vocational training and employment opportunities for offenders should be a high priority."

3] Among the ecclesiastic writers, Lambert Daneau, professor of Calvinist theology at Geneva in his (1564) book Les Sorciers, dialogue très utile et très necessaire pour ce temps proposed the final solution of the witch problem. He held that witches represent a major danger for humanity and recommended their "mass extermination," often done in the bruloirs, large ovens built to expedite the burning of victims of the criminal justice proceedings (Mǖllendorf, 1911, p. 100; Sindelar, 1986, p.182). In Spain, these ovens were called "quemadero" or "brassero." This method of torture is likely close to the upper limit of methods designed to inflict pain. In a study on the agony of dying (Rhyne, et.al., 1995), according to forensic pathologists,

the most excruciating way to die is by fire, followed by
cutting the throat, and stabbing the abdomen.

4]Similar recommendations, made centuries earlier, were disputed by Johann Geiler who maintained in his (1508) book Die Emeis (The Ants) that

devil anesthetizes his adherents
so they would not feel any pain.

References
 
Arpaio, J. and Sherman, L. (1996) How to win the war against crime. Arlington: The Summit Publishing Group.

Binsfeld, P. (1596) Tractatus de confessionibus maleficorum et sagarum. Trier, Germany: Heinrich Bock.

Block, M. K. (1997) Supply side imprisonment policy. Washington: National Institute of Justice.

Beccaria, C. (1764) An essay on crimes and punishments. New York: Gould & Van Winkle, 1809.

Kurian, G.T. (1991) The New Book of World Rankings. New York: Facts on File, Inc.

Krus, D. J., & Hoehl, L .S. (1994) Issues associated with international incarceration rates. Psychological Reports, 75, 1491-1495 (Request reprint).

Krus, D.J., Sherman, J.L., & Kennedy, P.H. (1977) Changing values over the last half-century: The story of Thurstone's crime scales. Psychological Reports,  40, 207-211 (Request reprint).

Mauer, M. (1991) American Behind Bars: A Comparison of International Rates of Incarceration. Washington, D.C.: The Sentencing Project.

Mauer, M. (1999) Race to incarcerate. New York: The New Press.