After the fall of the Berlin Wall, writer Semyon Lipkin recalled what it was like to live in a state defined by regular unjust imprisonment. “You didn’t just hate Stalin, you hated yourself. Because when your neighbours were being tortured and taken away in the night, you shut your eyes, you shut your ears and acted as though it wasn’t happening”. Today, even in countries we like to call liberal and democratic, our justice system remains fundamentally cruel. The United States has imprisoned 2.3 million of their citizens. Here in the UK , we have almost 100,000 people in jail, higher than any other EU country.
Consider for a moment what that means. It isn’t just to have every single decision you make – when you eat, when you sleep, when you socialise – taken out of your hands. It isn’t just to be confined to a small concrete cell. It is to be taken away from everyone you know and love for years or even decades, and to be placed in a confined, tense communal existence where violence is commonplace. For context; sexual violence in UK prisons has trebled since 2010, and over 31,000 prisoners in the UK reported mental health issues last year. On top of this, recent reports have repeatedly found prisons (especially those in the ‘B’ category) to be overrun with drugs, and infestations of rodents and insects.
The severity of prison suggests that the cases where it can justifiably be applied as a punishment are relatively few. The current reality is quite different – the possession of small quantities of illegal drugs, non-violent robbery and civil infractions like the non-payment of fines are just three minor crimes that commonly lead to prosecution and imprisonment. Of course these kinds of offences require some kind of response, but there are alternative systems available to us. Even with the more severe crimes, those that are either violent or lead to widespread harm in other ways (e.g drug smuggling), which could plausibly justify imprisonment, it is often far from clear that the prison system is the best or fairest way in which punished can be doled out.
The simplest alternative to prison is straightforward: fewer criminal prosecutions which end in a prison sentence. The rehabilitative record of prison is incredibly poor. Not only are education services within prison underfunded and under-attended, but the prevalence of drugs and the growing problem of radicalisation within prisons mean that the odds are you will leave prison far worse-off than you entered it. Even reforming these services, which seems unlikely in itself, is insufficient when you consider that leaving prison with a criminal record prohibits all but the most menial and low level employment for most. Unemployment breeds criminal behaviour, creating a vicious cycle which has trapped the 67% of American ex-convicts who re-offend.
Of course, the problem of deterrence remains, but it is misguided to think that prison is particular successful in this respect either. Most criminals don’t believe that they will be caught and so don’t rationally weigh up the consequences in the way deterrence arguments seem to suppose they do. Additionally, many criminals are victims of circumstance (especially when it comes to crimes like drug possession, low level dealing and non-violent robbery). The motivation to commit those crimes is often either an overwhelming need for income as a result of poverty or coercion at the hands of gangs. Of course some responsibility resides with the individuals concerned, but the point stands that for many people prison is simply not a deterrent when set against such desperate circumstances. On balance, the deterrent effect seems to be relatively insignificant, and we can support that claim with data comparing those states with particularly harsh penalties for drug possession (to take on example), and those that have stopped prosecuting that crime. Little change of any statistical significance emerges even when wildly harsher penalties are introduced, such as with the three strikes and mandatory minimums approach taken by the United States. Are punishments like prison are at all appropriate for these kinds of crimes? We should consider whether alternatives such as community service, fines and other civil penalties might be fairer. And where prison needs to be the final deterrent, it seems reasonable to use it sparingly; only imprisoning those who have been shown to be consistent repeat offenders, and where it is felt that imprisonment would be likely to prevent them causing future harm. Such circumstances are exceedingly rare. More controversially, some argue that reducing imprisonment rates in this way can be justified even if crime does increase moderately. Forcing the extraordinary harm of prison on fewer individuals, even if minor crimes do increase, is a price worth paying. Prison is disruptive, not just to individuals but to communities. Every person in prison, who could be a parent or a sibling or a child, is lost to those who know them. This isn’t just a tragedy, but has a knock on effect which destabilises communities by leaving families with less income and children without role models. Of the 2.3 million people imprisoned in the United States, roughly half are African American. Communities which are shattered by imprisonment become poorer, weaker, and far more vulnerable to drug abuse and rising crime rates. It is easy when discussing prison to overlook the range of less intrusive and more constructive alternatives available to governments. Community service is often mocked as ‘soft’ punishment. What does and doesn’t constitute a ‘soft’ punishment seems both arbitrary and unimportant. What matters is that community service is a straightforward way for states to deter their citizens from doing bad things, and to monitor them so that they are far less likely to break the law, whilst avoiding many of the problems of imprisoning them. But there’s even more to be said for implementing new kinds of enforced state education. An expansion of reskilling and re-education programs, whether conventional forms of academic education or vocational courses (i.e BTEC-style qualifications), whilst simultaneously making attendance mandatory, would likely benefit the country even on economic grounds alone.
Given that crime is often born from economic desperation, a response to crime which offers greater economic opportunity seems appropriate. But what’s more, it is important in the context of social factors that drive crime. Particularly in areas where criminal activity is high, it is an error to approach crime as though it consisted of a series of spontaneous and essentially unrelated actions. Rather, there are social structures (i.e gangs) that facilitate and encourage criminality within these communities. Why is that? Money, of course, but also a system where, in the absence of other forms of success, self-worth is derived from doing well within the context of gang hierarchies. Committing crimes doesn’t just lose its taboo, but becomes both desirable and necessary from a social point of view.
Offering greater education allows individuals the chance to escape those coercive social pressures which constitute the oft-mentioned but rarely analysed ‘gang culture’. Sometimes those opportunities are very straightforward – better education means a better job which means the economic means to leave the areas which previously trapped them. Even if they don’t leave entirely and retain their ties to these areas, when they have a better education and therefore can get a better job, it becomes less likely they will risk reoffending because they simply have much more to lose if they get caught. Educating someone and allowing them to change to improve their own standing also provides an alternative means by people judge their self-worth and social standing.
That isn’t as abstract a claim as it might seem at first, because it’s easy to imagine someone who previously felt valued only in the context of a gang but now is valued as a well-educated employee, without any of the sacrifices and constraints placed upon them by gangs. Of course this won’t happen in all cases and of course some people will re-offend, but at least mandatory education offers some kind of mechanism by which people can be rehabilitated. Locking people up, denying them the chance to learn and often forcing them to join new gangs within prison for their own protection, and then sending them on their way with a criminal record which will deny them any future employment surely makes the odds that someone returns to crime far far higher. Civil penalties and mandatory education could often be paired together. A deterrent exists, albeit more moderate, but significantly rehabilitation is far more likely than in conventional prison systems.
We can see that there are many approaches other than imprisonment that are currently available to us. But we can be even more optimistic about future possibilities. British citizens are arguably the most watched in the world, given the density of CCTV cameras and tracking via our various devices. Now, it is up for discussion as to whether more intense surveillance can be justified in general. It seems reasonable to suggest that it is justified in cases where there is suspicion that someone might do something wrong, and that suspicion is justified in the case of most criminals.
Imagine, for a moment, what kinds of developments we can expect in the next 20 years. At the very least, currently available methods of tracking will become more numerous and more refined. But on top of that, we should also expect new kinds of technolog y become more prevalent – most obviously non-invasive tracking devices of the kind already used by many U.S states (i.e. ankle trackers) and to some extent in the UK .
These devices prevent any realistic chance of getting away with a crime, and so fulfil the duty governments have to protect the general population from people who have previously been a danger to them. ‘Open prisons’, where prisoners are meant to live like ordinary citizens and are allowed significant time away from the prison after they’ve served part of their sentence, are used far more prolifically in much of Scandinavia. As a result, Norway has one of the lowest recidivism rates in the world, at around 20%, whereas around 60% of short-sentenced prisoners in the UK will re-offend. This kind of programme will only become safer as technology progresses.
As important, if not more important, are developments in psychological testing. It’s important to remember, as I have tried to show throughout this article, that not all crimes are committed for the same reason. Some crimes come from genuine psychological imbalances, the most famous of which is psychopathy. Some crimes are a response to circumstances of poverty. Some are crimes of passion, or come about as a result of abuse. It is simply false to assume that all crimes are manifestations of someone’s absolute character. In reality, of course that character changes hugely over time, and the current system of poorly informed and irregular parole board meetings seems bizarre.
Psychological testing is even now a new and imperfect science. But the potential scope for its use in criminal justice seems immense. Rather than relying on spurious claims of someone being a ‘changed man’ or of someone seeming remorseful at a parole hearing, we could use data to assess how likely they are to commit a crime. This isn’t just applicable to deciding when to allow someone out of jail, but also when we’re deciding whether to put them in. Under the status quo, judges are told to consider mitigating or wider circumstances.
Surely that principle extends to considering the psychological state of those they are putting away. Sentencing for the same crime should be dependent on why someone committed the crime – only then will we know how much blame should be attributed to that person. This also removes many of racial and class biases that go into sentencing, and means that less privileged minorities often face additional disadvantages when in the dock.
We can’t easily predict what the future holds technologically. Some of these innovations are effectively available now, some won’t be for many years. But the core point remains – we should be far more radical in pursuing criminal justice reforms to limit unnecessary cruelty and to benefit society as a whole, instead of falsely assuming draconian punishment is an effective or worthwhile means of reducing crime.