September 3, 2001
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Canadian judge Ted Matlow has a point. People who are awaiting trial
shouldn't be locked away in prisons. The law says they're presumed
innocent, until proved guilty. So how can we justify locking them away?
Matlow, an Ontario Superior Court of Justice, wrote an August 22 Op-ed piece in the Toronto Globe and Mail (Why Jail Innocent People?), deploring the widespread practice in Anglo-American judicial systems of jailing the accused, before they're proven guilty.
But it's not only the jailing of the accused that troubles Matlow, it's the conditions of jails the accused are imprisoned in that leaves him burning in indignation. They are "subhuman" and marked by "overcrowding, squalor, violence, regimentation and deprivation." A person awaiting trial remember, still presumed innocent may be forced to sleep on the floor of an overcrowded cell designed for two but holding four, just inches away from an open toilet. An accused should be allowed to remain free while awaiting trial, argues Matlow, or held in a special detention area that offers fewer than the usual discomforts -- "better food, freer telephone access and more liberal visitation rights." To do otherwise, Matlow says, is "tantamount to punishment before trial."
Matlow's argument should be applauded. Those awaiting trial shouldn't be treated inhumanely. But what about convicted criminals? Is it all right to treat them badly? Matlow thinks so.
He says the accused should be "given more comfortable living accommodations than convicted criminals," should not have to be transported to court in "the police vehicles that are commonly used and into which human beings are jammed like animals," and "should be treated with appropriate respect and dignity," but says nothing of convicted criminals, who presumably deserve such treatment. After all, the guilty must be punished.
Matlow's view on the just treatment of convicts isn't unusual. It's part of the received wisdom that it's all right to inflict all manner of deprivations and cruelties on convicted criminals deprive them of the right to vote, force them to live in squalid, overcrowded conditions but the reasons why have never been clear. It just seems to be one of those uncritically accepted beliefs, like the idea that it's okay to throw the accused in jail because they're probably guilty anyway, and like the popular fantasy that unless we're vigilant convicted rapists and murderers will soon be living in country-club luxury.
Invariably, "punishment" is trotted out to explain why convicted criminals must be treated barbarously. "They must be punished. They did wrong," goes the refrain, uttered from tens of thousands of lips in the sure knowledge that if the argument is completely untenable at least everyone else agrees with it. One wonders whether there are deep-seated psychological roots behind calls for penal enlargement....at least on the part of men.
But why punish criminals by making them live under insufferable conditions? What does it accomplish? Surely no one whose synapses fire on a regular basis believes that the cruelties of prison are a deterrent. And if punishment's deterrent value is the reason for making life miserable for convicted criminals, why not a regime of thumbscrews and lashes at the stake? How about bamboo shoots under the fingernails, and electrical shocks to the genitals? Or being forced to listen to Leonard Cohen? Isn't overcrowding, squalor, violence, regimentation, and deprivation wimpy by comparison?
People recoil in horror. Thumbscrews? Lashes? Electrical shock? Why that's cruel and barbaric. Yes it is. But is forcing people "to live in subhuman conditions of overcrowding, squalor, violence, regimentation, and deprivation" not cruel and barbaric, as well? At what point do the cruelties and barbarism we inflict on others become cruel and unusual punishment, distinguished merely from punishment that is deserved?
Matlow thinks the accused should be treated decently, because we don't yet know whether they deserve to be treated inhumanely. His quibble is with those who think it's all right to treat the accused poorly because they're probably guilty anyway. They might be innocent, Matlow cautions. But does anyone deserve to be treated inhumanely? Can you say you live in a civilized and humane society, because we only treat people in an uncivilized and inhumane way when they deserve it? Isn't that like saying you're a Christian...mostly, but not when it's inconvenient to be one, like when you're supposed to turn the other cheek?
What's deserved is a slippery idea, a moral cloak in which all kinds of indefensible cruelties are clothed. Nazi Germany fancied itself a civilized and decent society. The indignities, the cruelties, the horrors it inflicted on Jews, communists, socialists, homosexuals and Roma were said to be deserved. NATO countries boast about their humanity, then dispatch 2,000 Yugoslav civilians to an early grave in a 78-day air war that sees thousands more suffer hideous injuries. They deserved it.
But no one deserves to have their intestines ripped from their gut by a cluster bomb. No one deserves to be herded into a gas chamber. And no one deserves to be shoehorned into a filthy, overcrowded prison cell, denied dignity and respect. There are no valid excuses for uncivilized, inhumane behavior. But sure as there are cruelties, there are contrived justifications, and they usually involve some rationalization about the victims deserving it.
Matlow believes the accused are forced to live in conditions of squalor and overcrowding because "expediency and fiscal limitations" prevent governments from building adequate, and humane, facilities. But isn't it also true that the convicted suffer the same indignities for the same reasons because governments would rather shell out money in other ways -- tax cuts and bloated military budgets being a current favorite -- than in humane accommodations for convicted prisoners? Isn't the claim "they deserve it" just a way of justifying spending money on something else?
You can't be a vegetarian between meals, a pacifist between wars, a defender of free-speech between harangues by those whose views you loathe, and nor can you be civilized and humane between subjecting some elements of the population to indignities and cruelties. But you can fashion arguments to take the sting out of the contradiction. It's called sophism.
Someone once said the degree to which a society is civilized is marked by the conditions of its jails. It may also be marked by the degree to which it grudgingly advocates half measures to remedy its injustices.
Stephen Gowans is a writer and political activist who lives in Ottawa, Canada.
Please, DO NOT steal, scavenge or repost this work without the expressed written authorization of Swans, which will seek permission from the author. This material is copyrighted, © Stephen Gowans 2001. All rights reserved.
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