Abstract
Bruce A Arrigo, Heather Y Bersot and Brian G Sellers, The Ethics of Total Confinement: A Critique of Madness, Citizenship and Social Justice, Oxford University Press: New York, 2011; 298 pp. including index: 9780195372212
In The Ethics of Total Confinement, Arrigo, Bersot, and Sellers make an impassioned call to re-conceptualize the moral and ethical underpinning of contemporary jurisprudence. They argue that current judicial reasoning lacks the fundamental restorative and dignifying focus rooted in virtue ethics. By focusing on the judicial intentions and decisions in three case studies, the authors’ main thesis is that ‘madness’, citizenship, and social justice are thwarted by an over-concentrated focus on utilitarian and consequentialist forms of moral reasoning. They advocate for incorporating a psychological jurisprudential model that focuses on resorting, dignifying, and repairing harms done by and to youth, the mentally ill, and sexual offenders – only by adopting a virtue ethics approach based on Kantian moral reasoning can the judicial system move away from the ‘madness’ of totally confining particular populations and work to promote active citizenship and social justice.
Situated within an increasingly risk-based and risk-adverse society, the book opens with a brief outline of psychological jurisprudence as an alternative approach to justice, giving primacy to notions of citizenship, restorative justice, and humanizing control. This approach to justice incorporates common-sense justice, therapeutic jurisprudence, and restorative justice. Each of these is conceived of as an alternative to the current consequentialist and utilitarian approaches to justice, which entrench power and continue to dehumanize offenders. The authors argue that a movement toward a virtue ethics approach to justice will repair harm and promote human excellence. They contend that the current uses of total confinement, defined as one that ‘normalizes violence for the kept (prisoners), and their keepers (those who imprison), for their managers (those who administrate imprisonment) and their watchers (the public)’ (p. 3) fundamentally causes harm and ‘madness’ rather than justice. The book investigates this madness created at the current ‘nexus of law, psychology, and crime’ (p. 4).
In Chapter 1, the authors provide a concise, yet comprehensive, overview of the main schools of moral reasoning: formalism; consequentialism (utilitarianism); and virtue-based Kantian ethics. Unlike formalism (which links morality with the intention of the actor) and consequentialism/utilitarianism (which judges moral acts through rational contemplation of the maximum benefits for the maximum number of people), virtue ethics considers morality based on the decisions and actions undertaken by an individual. In this sense, virtue ethics is about building character and promoting self-development, rather than benefitting society. Using a case study approach, this book investigates the moral underpinnings of US Supreme Court cases through two layers of textual analysis: a specific focus on judicial reasoning and an investigation of the deeper rhetoric on which these ethical stances are based.
Chapters 2, 3, and 4 explore the primary moral foundations of judicial decisions using three case studies: youth transfers to adult court; the use of solitary confinement for mentally ill offenders; and the use of civil detention for sex offenders. The authors collected all court cases that dealt with each case specifically, and then excluded cases that did not meet the relevant parameters. Their textual analysis of the remaining court cases revealed that consequentialism and utilitarianism were the primary forms of moral reasoning. They found that in each case, the courts failed to consider social science evidence about the potential harms associated with total confinement. According to the authors, this overt lack of a virtue ethics approach to justice reproduces and entrenches the ‘madness’ associated with these practices: madness is the result of the legal establishment failing to dignify, restore, and heal. Arrigo, Bersot, and Sellers argue that youth transfers to adult court, solitary confinement for mentally ill offenders, and indefinite civil commitment for sexual offenders exemplify how the law reinforces an ‘us versus them’ mentality in which public safety and the betterment of the majority supersedes the limited legal protections of the minority. They maintain that each of these totally confining examples is reproduced as a form of moral panic about the fear of crime and the risk of offender recidivism.
Chapter 5 applies a psychological jurisprudence approach to each of these cases, highlighting how justice could be retooled to promote restoration, dignity, and healing. The authors note that their application of psychological jurisprudence is speculative and suggestive of healing, and offer readers little concrete evidence of actual ways this approach can be applied. Unfortunately, while they inspire the reader to think differently about justice, they provide little by way of strategies to help apply this new understanding.
This book does an admirable job in provoking thought about how to reformulate justice in more theoretical and philosophical terms. The authors expend considerable effort in outlining their justifications for which court cases they included, but the reader is left wondering if the conclusions would have been equally persuasive if a larger sample of cases had been included. Because each case study was premised on such a small number of court cases, the choice of cases may have greatly influenced the eventual conclusions. It would be interesting to know if the forms of moral reasoning were the same in all of the cases initially considered, or whether there is a more generalized commitment to consequentialist and utilitarian approaches to judicial reasoning. Overall, the book is a valuable contribution to the field for anyone interested in moral philosophy and punitive punishment by exploring the ethical underpinnings of judicial intent and reasoning. It provides a novel approach to understanding justice that encourages readers to re-consider the purpose of justice in the first place. However, despite the authors’ noble intentions in promoting a more restorative approach to justice, a wholesale shift in moral decision making may not be feasible given the current punitive climate centered on risk management and ‘tough on crime’ policies.