Few human experiences drip with more emotion and ritual than the process of criminal accusation, a trail, and imprisonment. There is a lot of instinctive thinking going on, and it starts very early in human development. Think of kids playing and one of them gets caught and has to go to jail. And it isn't something we grow out of. Think of how popular crime and courtroom drama are as part of our entertainment. The hot emotions surrounding these activities flow many ways. Many critics of the current system call for speedy trials and swift justice. Many other critics point out how many bad decisions are made at trials and how barbaric the punishments can be. In sum, because the emotion in these experiences is so high, the ritual is high and so is the waste.
This section will look at some of the emotions powering the criminal justice system and how they have evolved from their Neolithic Village roots. It will then look at how they have gotten quite twisted around in the process of adapting to the civilized environment, and then offer some suggestions to help make the processes more cool-headed.
The roots of our current incarceration system lie in Neolithic Village activities:
These public functions have transformed into goat sacrificing in the form of the modern criminal justice and incarceration systems. These waste a lot of time, money, and attention. Part of the waste is because we haven’t looked hard at what we want and need these activities to accomplish. Another part is that we do not formally recognize the deeply instinctive entertainment value of courtroom drama.
In the Neolithic Village environment a person parties too heartily, gets angry, and starts taking swings at those around him. (This is frequently considered a form of temporary insanity.) The group he is with restrains him and puts him somewhere safe to sleep it off. The next morning the reveler can think more rationally (if groggily) and is permitted to return to normal social functions.
For a while, “sleeping it off” evolved into spending a night in jail. Think of jails in cowboy movies of the 1940's and 50's. But the evolution of jails did not stop there. It continued. Jail is now a place to hold those who are accused of a crime, and the facilities and rituals concerning their use have become much more elaborate. In the process the quick-in/quick-out sleeping it off for a night functionality has been lost. Instead, jails are a place where rituals involving the accused, law enforcement types, along with criminal lawyers and judges are played out over months and years.
In the Neolithic Village environment, when an intra-community dispute could not be resolved and the parties involved looked like they would become or remain violent, the common solution was to exile one or more of the people involved. They would be sent far away, to some other location where they could start fresh and contribute to that new community's welfare. (The far away part was to keep the disputing parties from engaging in weekend cheap shots.) If the disruptive actions they had taken were too violent or too scary (such as betraying the community), the person would be executed instead of exiled. Sometimes the judgment happened quickly, but often a kind of ritual trial was used as a way to make the choice, and it would be followed with another ritual surrounding exile or execution.
In the civilized environment the exile ritual has become the prison ritual - prison time is the civilized version of exile. And in many civilized communities, it also replaces execution as in a life sentence.
A person sitting in a room twiddling their thumbs is not productive. The intent of this practice is to give the person some time to think things through, and decide to reform their ways, and then be released to return to being a productive member of the community. When an actual exile is hard to arrange, this is supposed to be the lower cost alternative. But it’s not cheap. The expense of feeding, caring for, and guarding this person, as well as the cost of building the prison complex in the first place, is substantial. And if this person gets more disenfranchised, rather than more enfranchised by this experience, the expense becomes a big waste.
Bottom line: in civilized conditions this is a no longer a cheap way to resolve a dispute. The expense grows even larger because the prison culture is disconnected from mainstream community awareness. The average person and those who make choices about how a community is run have little awareness of what is happening in the prison culture. This makes it easy for delusion to support overly elaborate policies that greatly affect how prison life is actually conducted - and that is always expensive. Jack’s experience, mentioned earlier in the Unions and Professional Guilds chapter, is an example of this.
US incarceration statistics for 2007:
The rituals surrounding criminal accusations are not simple or free. This article 19 May 14 NPR article, “As Court Fees Rise, The Poor Are Paying the Price” by Joseph Shapiro, talks about the numerous fees that are assessed. From the article, “The common thread in these cases, and scores more like them, is the jail time wasn't punishment for the crime, but for the failure to pay the increasing fines and fees associated with the criminal justice system. A yearlong NPR investigation found that the costs of the criminal justice system in the US are paid increasingly by the defendants and offenders. It's a practice that causes the poor to face harsher treatment than others who commit identical crimes and can afford to pay.”
There are periodic calls for prison reform, and these are often heeded. But the current situation, especially in the US where the per capita prison population is record-breaking, needs another wave of reform.
Here are my recommendation:
TV and movies are full of courtroom drama. It is so popular because it is resonating with powerful emotions. Public dispute resolution, involving a council of elders who have a crowd of interested spectators watching them, has been a routine activity for humans since prehistory, and lots of instinctive thinking has developed around it. It was interesting entertainment for the Neolithic Village community. The result is this is something lots of people get into. In truth, today courtroom drama is a ritual. Rituals are fine when the main purpose of the activity is to make people feel good and this is its recognized purpose. The experience of going to church on Sunday or celebrating a birthday with a birthday party are examples of rituals doing just that. But rituals are a waste when the main purpose is to make a choice on how to handle a dispute and move on.
Dispute resolution has been a core human activity ever since humans began cooperating. It is done in many ways, some simple, some elaborate. One of the early-life encounters humans have with dispute resolution is when parents resolve the question of who gets a toy when two children are arguing over it. Later life examples are arguments over whether a customer received a proper product or service in a commercial transaction.
The more the whole community gets involved with dispute resolution the more the process becomes ritualized. As mentioned above, a common structure for the ritual is a group of elders who listen to the two disputants plead their case while many members of the community watch. The elders make a choice, and then there may be more ritual as the choice is enacted - an execution ritual following a murder trial ritual. In the US and Britain, a popular variant is trial by jury. In this variant the judge (elder) acts as referee, not decision maker.
It is not talked about much, but one of the purposes of dispute resolution is community entertainment. It was a big part of the function in Neolithic Village times, and it remains so today in trials that become high-profile. Think of how many people followed the OJ Simpson trial in 1994 and the Oscar Pistorius trial in 2014.
Entertainment is why trials sometimes have large audiences and some have courtrooms packed with reporters. This is why American TV now has a dozen or so “Judge [X]” shows. This is fine, as long as the entertainment purpose is recognized as being an important one in a dispute that goes high-profile.
But here we run into a thinking divide similar to the one that people experience when standing in line versus paying more money (as was discussed in the Time is Money chapter). If the primary purpose of the dispute resolution is making a choice and getting on with life, then deciding quickly is more important than entertaining the community. This difference in goals is partly why we have many forms of dispute resolution. Overtly recognizing this, and recognizing the entertainment criterion as part of the process for venue determination, would help make dispute resolution more efficient and effective. (Think of how much maneuvering lawyers do these days to pick the venue for a dispute.)
Going to jail in the 2010's is an experience that has a lot of goat sacrificing built into it. The whole process needs to be carefully reexamined to make it simpler, more direct, and most important, more in line with the goals of what a civilized community needs from an exile process. The most important goal of the process needs to be building feelings of enfranchisement, not disenfranchisement. Recognizing how ritual-infested the current process is and modernizing it with the goal of enfranchisement as top priority would reduce a lot of waste.
Likewise, the community needs to be a lot more overt about which legal processes are performed to resolve a dispute, and which are performed to entertain the community. The clearer these functions are to the community the less the legal system will waste time, money, resources, and enfranchisement.