Ice Cream and Softball in Prison: What's Wrong with Criminal Justice?

On a summer Wednesday inside a prison in Graterford, Pa., convicted felons must make a tough decision. When they purchase ice cream (two scoops for a dollar), should they choose strawberry shortcake, chocolate chip cookie dough, birthday cake, banana daiquiri water ice or a combination of the flavors?

When they aren't busy eating ice cream, prisoners -- including murders and rapists -- play softball in the yard. Criminal Law Professor Robert Blecker, who has spent thousands of hours in high-security prisons, says there's nothing remarkable about these circumstances. The only thing that made Graterford different from other prisons he's visited is that these prisoners "played a better brand of softball than I'd seen before."

Prisoner umpires wear their own uniforms and get trained on being an umpire, and the A-League has their statistics posted once a month. When they're not playing ball, well-behaved convicted murderers serving life without parole roam free from 6:30 a.m. to 9 p.m., choosing when they want to leave their cells (they cannot unlock their cells, but can ask to have them opened).

Prisoners on death row don't have it so easy - they live alone in single cells, but are permitted to watch television and have a no lights-out policy. Some of the books in the prison library include, "I Did It: Confessions of the Killer," "Death Scholarship," "A Rip in Heaven: A Memoir of Murder," and "Run at Destruction: A True Fatal Love Triangle."

Blecker's findings -- reported before the Pennsylvania House Judiciary Committee, which is considering a moratorium on the death penalty -- contributes to a growing body of evidence about the effects of leniency shown toward inmates in prisons. The idea is that once the prisoners are locked-up, the goal should be to reduce prison violence and keep everyone stable - hence the activities. Of course, this raises a larger question - are we really serving the purpose of justice by allowing prisoners who have committed the most heinous crimes to enjoy these sorts of luxuries -- television, ice cream, organized sports -- when prison is meant to sanction their criminal behavior? What really is the purpose of criminal justice?

Traditionally, we give four answers to these questions: Deterrence, incapacitation, rehabilitation, and retribution. Certainly, prison incapacitates felons and prevents them from committing other crimes while there. Yet, our prisons seem to be failing in every other regard.

Classic deterrence theory discounts the severity of punishment by its certainty and swiftness. The combination of these factors should deter criminals from reoffending. Traditionally, the length of a prison sentence measures the severity of punishment. If you are a burglar, you may receive a prison sentence of a few years. If you commit murder, by contrast, you may be imprisoned for life. However, recent studies -- including a report from the National Research Council -- have found no link between the length of a prison sentence and its deterrence effect. "The threat of enhanced sentences had no apparent deterrent effect," the report said.

The case for giving prisoners perks like television and softball leagues comes from a belief that these civilized activities will help the prisoners better integrate into society. Yet this rarely works; two thirds of prisoners are re-arrested within three years of their release, according to the Bureau of Justice Statistics. In fact, leniency may have the opposite effect, allowing prisoners to fraternize with worse criminals and become better integrated into a criminal community that becomes the prisoner's only support network when they are released. While political attention often turns to prison overcrowding, little to no focus has been placed on finding alternative methods of punishment or changes the environment of prisons to help prisoners gain skills and regain their confidence. Instead, Blecker says that prison systems perceive their role to be that of protector -- to keep society, including staff, safe from criminals and keep the prisoners safe from one another.

The need for revenge is a natural human instinct. It was Locke who first argued that the primary purpose of government is to prevent people from seeking revenge by creating an institution that would seek collective retribution. From this view, the purpose of law is to punish criminal in a way that is fitting with their crime in lieu of personal dispute resolution. As the Bible declares, "The blood of the victim calls out to me from the ground." Blecker - who is a prominent retributivist and death penalty advocate - argues that this is our gravest failure. Should a killer be able to enjoy leisure while his victim is buried and the family mourns?

Criminal justice is inherently tied to philosophy, and our views may differ on the purpose of prison and how the State ought to design the criminals' experience while there. Indeed, it is not entirely obvious who should be able to play softball in prison and who should be denied this privilege. But it should be evident that not all criminals should be treated equally while imprisoned. A convicted killer and a petty thief should not only have prison sentences whose lengths differ, but they should also face different challenges and be exposed to different opportunities while in prison.

The punishment should fit the crime.