Inmates, Self-Defense, and Escape

I wrote this piece a couple years ago, while I was still a probationary officer. I was, thus, afraid to allow it to see the light of day, just in case someone without an appreciation for philosophical nuance read it and decided they should fire me. I'm not quite as worried about that now, so here it is. Note: the argument really only matters to someone who accepts natural rights theory. I'm on the fence about it, myself, so I don't even know if the argument is relevant to me. That being said, I think the case should be persuasive to any self-respecting natural rights theorist.

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Any reflective person should give serious thought to her chosen profession. After all, one's profession occupies a large percentage of her life; it (usually) takes up about a quarter each week. One can ask if her profession is ethical, if life lessons can be learned from her job, how her job impacts her worldview, etc. As a Detention Officer in a jail, I feel my profession is positively ripe with opportunities for reflection. My job has, in varying degrees, informed my thoughts on everything from human depravity to the nature of teamwork to the war on drugs.

One such opportunity for reflection arose a couple years ago when a colleague of mine was forced to tase an inmate that was attempting to escape his custody. While walking amongst the inmates one day, I began thinking of what ethical issues may be raised by this incident. I have no doubt that the tasing was both ethically and legally justified. That was never at issue in my mind and I certainly would have acted similarly to the officer involved. The more interesting philosophical question is whether or not the inmate did anything wrong by attempting to escape. The law, of course, would give a resounding “yes” as the answer. Inmates that attempt escape are charged for it just as quickly as they are charged with resisting arrest. The law is clear: there is no legal right to escape or resist arrest. For the record, I think laws that make attempted escape illegal are entirely just. I do not, however, think they find their justification in the fact that escape is an ethical wrong on the part of the escapee. I think their justification comes ultimately in their roles as deterrents against those attempting escape and upholding the public's right to be safe from those who have demonstrated that they pose a risk to the public. So I'm in favor of the laws against attempted escape/resisting arrest. I think the ethical answer, however, is a little trickier than the legal one.

When I was at Bethel, I did my senior thesis on finding a ground to the right to self-defense. One peculiar note on natural rights is in the area of forfeiture. Many would say, for instance, that when one commits a murder (and thus violates her victim's right to life), she in turn forfeits her own right to life. Some natural rights theorists, however, would disagree. Thomas Hobbes is one of them. Hobbes maintained that it was impossible to forfeit one's right to life, going as far as to claim that even a murderer retains the right to defend her life against her would-be executioner. I'm inclined to agree with Hobbes. This conclusion may or may not say anything about the topic of capital punishment. That's not the purpose of this little essay and I have no desire to broach that topic here. In what follows, I'm going to try my best to make the case that it is possible inmates are justified in some cases to attempt escape, regardless of whether or not the state is justified in holding them captive.

My first claim is just that occasionally rights conflict. Judith Jarvis Thompson, in making the case that the right to self-defense holds even against innocent non-aggressors, gives the following example:

“...you are lying in the sun on your deck. Up in the cliff-top park above your house, a fat man is sitting on a bench, eating a picnic lunch. A villain now pushes the fat man off the cliff down toward you. If you do nothing, the fat man will fall on you, and be safe. But he is very fat, so if he falls on you, he will squash you flat and thereby kill you.”

If you shift positions it will mean certain death for the fat man, since you will be taking away his soft landing, thus causing him to land on the hard deck and die. Obviously you have the right to move, so you must have the right to self-defense against even innocent non-aggressors.

Let's modify this slightly. Say your deck is also very narrow, so you don't really have room to just move out of the way. Your only defense against the fat man is to kick him away from you, over the railing on your deck, and down into the ravine below, where he will surely die. Here you are actively performing an action that results in his death, rather than simply moving out of the way and passively allowing his death. You would surely still be justified in kicking him over. Now let's look at this from the perspective of the fat man. Does the fat man still have a right to self-defense? Sure! He's certainly done nothing to forfeit it. If the fat man has a chance to push your kick away to ensure his landing on and killing you to preserve his own life, then he retains the right to do so. Two rights are then in conflict here. Neither trumps the other and both are retained in the conflict. Neither participant would be acting unethically by enacting his own right over against the other's.

I think it is reasonable to ask if the inmate, like the fat man, retains all his rights even while incarcerated, despite the fact that the state also has the right to imprison him. Maybe this is another case where rights are simply in conflict while both parties' rights are all still being retained. In the state/criminal relationship, perhaps whichever party is able to exercise its rights is simply a matter of power rather than forfeiture/possession of rights. I think this way of looking at it is at least plausible given the immense difficulties that come about with forfeiture theory (if there are questions about why I think forfeiture theory is implausible, I'll happily deal with them later. For now, though, that discussion is just beyond the scope of this essay).

If the inmate does not forfeit her rights by committing crimes, then the next question is exactly what rights she has and what rights the state has. I think a pretty common inclination would be to say that at the very least we can follow Locke in saying we all have the natural rights to “life, health, liberty, [and] possessions.” If there are such things as “natural rights,” and if inmates do not forfeit them by the commission of their crimes, they at least retain these rights. Note that liberty is one of them and they are being deprived of it by the state when incarcerated.

The state, of course, must act for the public good. If we are still following the classical social contract theorists at all, we should be viewing the state as the natural result of the social contract whose primary role is to order society for its general well-being. Crime, of course, is a violation of that contract, is contrary to society's well-being, and is thus subject to punitive action by the state. The state then has the right and even the obligation to punish the contract-breakers (criminals/inmates) by limiting their ability to act in ways contrary to society's well-being.

So there definitely are conflicting rights at play here: the inmates' right to liberty (and, in some cases, life) versus the state's right to punish/incarcerate. Hobbes would not find this dueling-rights case persuasive, since he thinks all rights save for the right to life are, in fact, ceded to the state upon the instantiation of the social contract. I would respond in this way: many sentences are either long enough, at a point late enough in an inmate's life, or during a time of harsh enough illness that despite not actually being a “death sentence” qua capital punishment, they may in fact be a “death sentence” qua lifespan. At the very least, the inmate may believe it to be a sentence likely to last the rest of her life. Despite the fact that the state is not actively killing the inmate, it may nevertheless be taking the rest of the inmate's life away from her. If the inmate believes this to be the case, she may believe it is not only her liberty being taken, but her life. At that point, perhaps she has the right to attempt escape by enacting her right to self-defense. Other cases where an inmate could make a plausible case for enacting self-defense may not even be life-threatening, just as most self-defense invocations outside the jail setting are not life-threatening situations. Maybe she does not feel safe in prison. Maybe she is in constant pain and is denied pain medication (and could thereby make the case that the state is causing her undue pain). There are any number of reasons incarceration could be cause for an inmate to enact self-defense. My general belief is that the inmate retains her rights to self-defense even while incarcerated, and thus has an ethical right to attempt escape if the above conditions are met.

Now that I've made my case, I feel this final paragraph is very much in order, if for no other reason than that I don't want to be misinterpreted if my employer were to read this, and lose my job as a result. I cannot possibly stress enough that I believe the state is within its rights to incarcerate criminals in order to provide for the overall good of society! This is a piece of political philosophy, not a political opinion statement. I'm glad criminals are in jail and I'm glad I work in a place where I help keep them there. I love my job. As I said above, in any case of competing rights, it comes down to which party has the power to enact its rights, and the state has more power. I'm glad the state has that power, I'm glad I contribute to that power, and I think the state should continue to use that power. The case I'm making is simply that when an inmate tries (and hopefully fails) to escape, that inmate has not acted wrongly in an ethical way, though she has still acted wrongly in a legal way.