In the U.S., a statutorily driven shift over the past twenty-five years to much less judicial discretion in sentencing has emphasized punishment being represented as months of imprisonment. Probation, parole, and other alternative sanctions imply different communication capabilities for persons being punished. Developments in communication technologies have greatly expanded possibilities for communicating with prisoners. Nonetheless, across the world, prisoners’ communication opportunities have had little importance in thinking about sentencing and punishment.
Equal sentences to months of imprisonment can lead to large inequalities in punishment. Imagine José, an illiterate immigrant not speaking the dominant local language, married, with five children and with a low-paying job as a dishwasher in a bustling city restaurant. He is imprisoned in a rural area more than 250 miles away from where he had previously lived. By the decision of the prison administrator of the prison to which José happened to be assigned, prisoners are permitted to receive visits only from immediate family, from 8am to 5pm on Saturday and Sunday, and for no more than one hour once per week. Visits are non-contact visits in which a glass partition separates prisoners from visitors.
Imprisonment is harsh, isolating punishment for José. Because visiting José is expensive and burdensome, his family and friends rarely visit him. Those rare visits have a much different communicative structure than the casual in-person communication with family and friends that was a major aspect of José’s life. Moreover, permitted communication excludes friends and extended family that were also a central part of José’s social world. Because José cannot read or write, he lacks the ability to communicate through letters. The relatively high price of inmate telephone service, along with his family’s low income, makes communication by telephone a major budgetary concern. Months of imprisonment for José mean months of exile from his normal world.
Contrast José’s prison sentence with another sentence to the same number of months of imprisonment. Imagine Daniel, who is single, with no children and with a job as a computer programmer. Daniel’s brother and father, who are the only relatives with whom Daniel has an ongoing relationship, live only a short drive from where Daniel is imprisoned. By the decision of the prison administrator of the prison to which Daniel happened to be assigned, prisoners are permitted daily visits, without specific time or frequency limits. No barriers are placed between prisoners and visitors. Prisoners and visitors are allowed to make ordinary bodily contact such as hugging. Any person not specifically found to present a security risk is allowed to visit a prisoner. Moreover, Daniel’s brother and father, as well as work colleagues seeking technical consultation, could each readily spend $100 per month on telephone calls with Daniel.
Imprisonment could have little effect on Daniel’s typical pattern of activity and social interaction. Daniel is an avid science-fiction reader, virtual-world participant, blogger, and email correspondent. Before he was imprisoned, he spent much of his work and leisure time alone in front of a computer. If a computer with a reasonably good Internet connection were installed in a corner of his prison cell, Daniel’s loss of physical freedom in prison would change little the liberty he exercised in the preponderance of his time before he was imprisoned. The cost to Daniel for communicating with his father and brother from prison isn’t economically significant for them. Since outside prison they typically communicated rarely, the actual cost of maintaining their normal level of communication with Daniel in prison is low.
Widely debated purposes of punishment have no clear relation to the communicative dimension of punishment. Incapacitating criminals, such as a murderer considered to present a risk of further physical violence, often does not require tight restrictions on non-physical communication with family, friends, and other persons. Retribution doesn’t imply any particular combination of loss of property, physical suffering, loss of physical liberties, and loss of communication capabilities. Holding constant some composite measure of punishment severity, more communication with persons being punished might promote general deterrence by increasing recognition among other persons of the punishing consequences of doing wrong. On the other hand, if persons being punished were idealized as heroic rebels, communication might weaken general deterrence. With respect to rehabilitation, increased communication with the outside world aids prisoners’ re-entry into that world. It helps prisoners to escape from a cycle of recidivism. Many prisoners, however, have difficult, painful personal and familial relations. Rehabilitation is easier to embrace as an ideal when communication restrictions give persons an opportunity to disengage from difficult relationships and shift responsibility to a separate class of rehabilitation professionals. Rehabilitation professionals have professional incentives to support rehabilitation. Depending on circumstances, communication with such professionals might be more or less effective than communication with family and friends in promoting released prisoners’ integration into law-abiding life.
In high-income democracies, most persons are much more concerned about public safety than fair and just punishment of persons convicted of crimes. Persons who have extensively studied the U.S. criminal justice system have concluded that it’s failing badly to provide fair and just punishment for reasonably defined crimes. The public largely doesn’t care about that failure. Crime and public safety are much more prominent public concerns. With new communication technologies, reasonably ensuring public safety is consistent with a wide range of possibilities for communicating with prisoners.