In order to understand the nature of imprisonment, this chapter will briefly look at the historical origins of prison, and then it will move onto justify their theoretical legitimacy: punishment/retribution, deterrence, incapacitation, and rehabilitation. These theories/ideologies will re-occur through the thesis like themes- what we refer to them as ‘meta-concepts’. The final section of this chapter will examine the strategies employed by the Prison Service to reach its ultimate goal of protecting public and reducing re-offending.
ORIGINS OF PRISON
Prisons do not exist in a vacuum. They exist because society decided that they should be used as a method of responding to crime. The early 12th century prisons served a custodial function, mainly detaining people until civil debts were met. A prison’s effectiveness was measured by its success in holding people (Muncie, 2001: 159). And in the 18th century, though the prison population remained mainly debtors, the rationale behind prison changed to one of punishment rather than containment. The end of the 18th century saw the rise of the penitentiary in which prisoners were categorised into groups in a regime of punishment, and were subjected to severe physical labour and moral reformation (Muncie, 2001: 164). Things changed drastically over time, and issues such as justice and rehabilitation ascended in the prison system. Benevolent societies were committed to ushering in better conditions, useful employment and good habits of behaviour through discipline and compassion (Muncie, 2001: 169). Perhaps this formed the inspiration of contemporary rehabilitative yet punitive National Offender Management Service (NOMS)- which is a law enforcement agency formed by the integration of the headquarters of prison and probation service to improve effectiveness and efficiency.
JUSTIFICATIONS FOR IMPRISONMENT
In his speech to the Conservative Party Conference, Michael Howard who was the Home Secretary in 1993, argued that for many crimes, imprisonment was the response demanded by victims in the interests of retribution. Hence, the first given purpose of imprisonment is to punish persons for the crime(s) they have committed. Punishment, in essence, is the practice of ‘getting even’ with the wrongdoer. It is justified on the ground like a payment of what is owned: that is, offenders who are punished are “paying their debt to society” and offenders have a right to go free once they have “paid their debt” (McGraw, 2005:54). This is in some ways the complete antithesis of reductivism which justifies punishment on the ground that it helps to reduce the incidence of crime. Garland (1990:17) defined punishment as “the legal process whereby violators of criminal law are condemned and sanctioned in accordance with specified legal categories and procedures”. In Her Majesty’s Prison Service’s (HMPS) statement of purpose, which was adopted in 1988, punishment is defined as “keeping in custody those committed by the court” (cited in McGraw, 2005:39). There is a general agreement that the restriction of liberty would only be included for crimes like murder and other serious offences of violence against the person, such as rape. In the early times, systems of retribution favoured lex talionis, calling for “an eye for an eye, a tooth for a tooth, and a life for a life” (Hudson, 1996:38). It claimed that it is morally right to return evil for evil, and that two wrongs can make a right (Bean, 1981: 16). It looked only at the crime: it made no allowance for the mental state of the offender or for any mitigating or aggravating circumstances associated with the crime. Contemporarily however lex talionis is seen as a crude formula because it cannot be applied to many of today’s crimes. For instance, what punishment ought to be inflicted on a rapist under lex talionis? The failure to inflict the same on the offender as the offender has inflicted on his or her victim has forced the retributive tariff to be considerably more lenient than it used to be in Biblical times (Hudson, 1996). Being required to stay behind the walls of a prison for the specified period, not permitted to go out from the prison other than in approved circumstances, is now the most punitive sentence which a court in England and Wales can impose. The criminal law is quite specific in restricting the court’s authority to impose a prison sentence:
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The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine lone nor a community sentence can be justified for the offence (Criminal Justice Act, 2003: Section 152 cited in Scott, 2007: 42)
A sentence of imprisonment is imposed, in principle, to deprive the individual of his or her freedom. Although some would argue that the prison is a refuge from the pressure and severity of normal life, for many prisoners the pains of deprivation of liberty and separation from family are almost unbearable. Furthermore, the coercive punitive element of imprisonment extends beyond the mere deprivation of liberty: typically, the offender’s family who have not been found guilty of a crime have also seen to be punished (McGraw, 2005). This is not a big concern for some ideologies. According to the utilitarian theory, moral actions are those that produce “the greatest happiness of the greatest number of people” (Hudson, 1996:54), inferring that if punishment is effective in reducing crime, then the pain and unhappiness caused to the offender and to the relatives may be outweighed by the unpleasantness to other people in the future which is prevented.
‘Prison works’ because “it ensures that we are protected from murderers, muggers and rapists” (Howard, 1993 cited in Cavadino and Dignan, 2002: 67)- a reference to the second justification of imprisonment known as ‘incapacitation’. Incapacitation enables the prison service to protect public because offenders are in prison, and they are prevented from committing other crimes. In some respects this argument is valid, particularly in respect of specific neighbourhoods where a significant proportion of crime is committed by identifiable individuals. However, this type of crime tends to be low level, attracting relatively short prison sentences. The person concerned may be taken out of their community for a short period of time but they are likely soon to return. Some of them may still give indication that, if they were to return, they would continue to present a threat to the public. A more problematic group includes those who have not committed a serious crime but have been identified by experts as likely to do so. It may well be necessary that these people should be in prison for as long as they present a threat. However, in order to justify holding these men in custody, the state has to derogate from Article five of the European Convention on Human Rights (ECHR), which guarantees the right to a fair trial. Hence, although punishment for imaginary crimes in the future might not be essentially wrong for utilitarianism, it is a serious objection for retributivism and human rights theory. This is because, “our powers of prediction are simply not up to the job, whether we use impressionistic guesswork, psychological testing, statistical prediction techniques or any other method” (Ashworth and Redmayne, 2005: 206) – inferring that a number of persons will suffer incapacitation who would not have committed further crimes if left free.
The third justification of imprisonment is deterrence. There are two types of deterrence: individual and general. The former involves deterring someone who has already offended from reoffending where as the latter involves dissuading those who might be tempted. Becarria expressed his early conception of deterrence and argued that “the aim of punishment can only be to prevent the criminal committing new crimes against his countrymen and to keep others from doing likewise” (cited in Bean, 1981: 30). Michael Howard (1993 cited in Jewkes and Johnston, 2007:84), took a similar position to Beccaria and argued that “prison works â€¦ it makes many who are tempted to commit crime think twice” because people fear the punishment that they may receive if they offend. The greater the punishment, the greater the deterrent. It can be argued, for example, that the prospect of one month in prison might be enough to deter someone from stealing £100 but not from stealing £100,000. To deter someone from stealing that amount of money, the prospect might have to be several years in custody.
On the contrary to punishment, another justification for imprisonment is to rehabilitate. The rehabilitation of prisoners became a prime concern for the penal system in the late eighteenth century when the demands for labour were high. The rehabilitation of prisoners in the early years of its origin was unsophisticated. The development of human sciences of psychology, physiology and sociology enabled today’s rehabilitative ideal to include an examination of the offence and the criminal, and a concern for the criminal’s social background. The rehabilitation of offenders “to re-join society, as useful and law-abiding members of the community” (House of Lords, 2004:12) is attractive on a number of counts. Firstly, it provides a positive justification for what would be an otherwise negative form of punishment of the criminal, although there are some who would argue that punishment has already got a rehabilitative effect on the offender; as a result of punishment is a change on offender’s values and beliefs which refrains him or her from committing further offences (Cavadino and Dignan, 2002). Secondly, rehabilitation is reinforced by the notion that it can reduce crime by altering the individual’s character or behaviour. The rehabilitationist theory regards criminal behaviour as a social disease rather than a personal choice and sees the reasonable solution as curing that disease through psychological therapy, education and training (Cavadino and Dignan, 2002). This is attractive to those who work in prisons and who wish to do more professional work than merely deprive prisoners from their liberty. However, unwarranted assumption that crime is related to a disease and that social experts can diagnose that condition is a weakness because treatment programmes are open-ended and do not always relate to the offence (Farrall, 2002). Furthermore, there is also a room for prisoners to ‘cheat’ by participating in programmes they had no faith in, by expressions of remorse they did not feel, and of intentions to refrain from crime to which they had no commitment.
UNDERSTANDING CONTEMPORARY PENALITY
As can be seen, there is relative clarity that prisons are not merely to lock up particular types of offenders for specified periods. There also seems to be a relative clarity that there are problems with the functions of prisons- retribution, incapacitation, deterrence, and rehabilitation- when considering the high recidivism rates. Official figures show that when the Labour party came into power in 1997, more than a third of criminals reoffended within six months, 50% almost within a year, and 58% reoffended within two years of being released (Ford, 2005). More recent statistics showed that of the offenders who were discharged from custody in 2000, 20% had been reconvicted within three months, 43% within a year, 55% within two years, and 68% within five years (BBC News, 2010a). The offenders convicted of ‘theft’ took the shortest number of days (90 days) to reoffend in 2000, where in 2008 it was offenders convicted of ‘other’ (91 days) (MoJ, 2010a: 49). The official statistics based on the latest data show that the proportion of offenders reoffending decreased by 6.8% from 43% in 2000 to 40.1% in 2008 (MoJ, 2010a: 21). However, the number of reconvictions classified as ‘severe’ within this period rose by 14.7% (MoJ 2010a: 9). Despite that however, the severity rate has remained broadly stable at between 0.6 to 0.9 offences per 100 offenders between 2000 and 2008: this is equivalent to less than one serious offence being committed per 100 offenders in the cohort (MoJ, 2010a: 9). The majority of the most serious reconvictions committed by the 2008 cohort were in the ‘violence offence’ group, with 21% accounting for sexual-related crimes. The 80% of the most serious offences were committed by offenders who had never before committed an offence classified as serious (MoJ, 2010a:15). The reconviction rates for individual prisons published for the first time revealed that there are fourteen prisons in England and Wales which have reconviction rates of more than 70%. The Dorchester prison, in Dorset, has the highest at 74.7% for adult male prisoners and New Hall, in Yorkshire, has the highest reconviction rates for female prisoners at 76% (The Guardian, 2010). However, it is highly questionable whether searching for an association between recorded crime statistics and usage of official punishments can provide satisfactory answers to the question of whether prison ‘works’. This is partly because of the unreliability of crime statistics, and also because “â€¦ there is every reason to assume that extralegal conditions play a major role in criminal etiology” (Gibbs, 1988: 28).
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As can be seen, the statistics above underline a long-term ineffectiveness of the criminal justice system at diverting persistent offenders from a life of crime. Thus the emerging question is why prisons are not working? It would be fair to assert that prisons are impacted by developments, trends, and changes that occur with regularity in the larger society (Saunders and Billante, 2002). The complex set of changes in politics, economics, social and cultural life has had a fundamental influence on the way prisons operate. For instance, in the mid-1990s, escapes from prisons, particularly by highly dangerous offenders, emphasised on improving security, and thus enabled community safety to become a prominent political agenda at central and local level. Michael Howard prioritised public protection and thereby played a central role in the introduction of “Prisons Works” philosophy because “It is a deterrent. Criminals fear it. And it takes criminals out of circulation”(cited in Farrall, 2002: 5). This took much of the necessity of tackling prisoners’ behaviour and lessened the rehabilitation initiatives: the movement was all away from individualised, indeterminate sentencing which considered offenders’ circumstances towards standardised, tariff sentences, which valued consistency, proportionality and predictability. Consequently, this led to a rise in the prison population (Saunders and Billante, 2002). In May 1993, the prison population used to be 43,500 but this figure rapidly increased to 60,000 within four years (McGraw, 2005:9). The labour government did little to dispel the prison population but favoured tough regime and introduced harsher sentence outcomes for violent and non-violent offences. As a result, “while it had taken four decades from 1958 to 1995 for the prison population to rise by 25,000 it had taken New Labour only eight years to match that 25,000 increase” (McGraw, 2005:1). On 22 February 2008 the total population exceeded the useable operational capacity of the prison estate for the first time in history. The number of offenders in prison at the end of February stands on 85,206. Of the population in prison custody, 80% comprised males aged 18 or older while 16% were on remand either awaiting trial or sentence (House of Commons, 2010:2). Approximately one-third of the total sentenced prison population are serving sentences of more than 12 months, with a further 18% serving indeterminate sentences (House of Commons, 2010:4). Of the sentenced population, the violence against the person offence group accounts for the largest proportion (28%) (House of Commons, 2010:4). Importantly, unlike in the past, a higher proportion of the sentenced female population are now serving sentences for violence against the person offences rather than drug offences.
At a glance, the incapacitation of offenders might be a good idea (as it removes offenders from circulation), but the truth is that it is an ineffective strategy towards crime. The public rightly expects someone who is convicted of a serious crime to receive a suitably severe punishment, and in particular expects protection, but the evidence about the incapacitation effect of prison has concluded that the degree of incapacitation resulting from a sentencing policy has a marginal effect on the crime rate (Blumstein and Farrington, 1986). The best calculations suggest that incapacitation effects of imprisonment are only modest partly because most ‘criminal careers’ are relatively short: by the time offenders are locked away they may be about to give up crime (Green et al 2005 cited in Cavadino and Dignan, 2002). Where crime was once viewed as a ‘social problem’ facilitated by the failure of the society to provide for its members, today the society is blameless and the individual offender is seen as a wholly volitional creature who makes ‘rational choices’ to engage in crime. When imprisoned, despite the existence Rehabilitation of Offenders Act 1974 which discloses criminal convictions, ex-offenders experience serious difficulty in readjusting to society after they have served their time and paid the dues that the law required of them because the stigma of imprisonment and long absences from work often puts employers off hiring ex-prisoners (Giddens, 1999). This exacerbates social exclusion and increases the risk of a return to crime and a life dependent on social benefits. Another effect of imprisonment, according to Western (1999 cited in Street, (no year:), “prisoners are likely to develop certain attitudes, mannerisms and behavioural practices that ‘on the inside’ function to enhance survival but are not compatible with success in the conventional job market”. McGuire and Priestley (1985) told that to reduce the actual crime rates by one-third the prison population in England and Wales would have to rise to 300,000- an approximate fourfold increase. The capital and revenue costs of this enterprise would be enormous. To arrest the required extra numbers, many more police and prisons officers would be needed, and to process them through the courts there would have to be a rise in the numbers of court personnel. The ‘law-and-order’ would not just be the biggest item of public spending; there might well be nothing left over for anything else.
There also exist doubts about the effects of deterrence. According to Lefton (1991) freedom is the most valuable thing for every human being, and people will do anything to avoid putting that freedom at risk. Lefton’s claim may sound acceptable at first sight but there is little evidence that offenders are deterred by longer or more frequent prison sentences. Because the deterrence theory is based on classical criminology, ie, individuals must, before they act, weigh up the benefit of carrying out the offence against the possible disadvantage of going to prison, one of the problems is that we cannot calculate how many crimes are avoided because potential criminals are deterred by the prospect of imprisonment. But in terms of deterring those convicted from reoffending, the statistics do not give a great deal of cause for optimism, as discussed above. After carrying out a comprehensive review of studies, Beylebeld (1979 cited in Hudson, 1996: 23) concluded that “implementing an official deterrence policy can be no more than a shot in the dark” because “much crime is committed on impulse, given the opportunity presented by an open window or unlocked door, and it is committed by offenders who live from moment to moment” (The White Paper cited in Cavadino et al, 1999:186). An alternative deterrent strategy has been put forward by Bachman et al (1992 cited in Farral, 2002). They told that potential offenders are more likely to be deterred by the certainty of detection than the prospect of punishment. At the other end of the spectrum, for McGraw (2005), punishments that are designed as deterrents can increase, rather than decrease, delinquency. In support, West’s (1982:104) research study on boys growing up in London found that if a boy offends, the best way to prevent him from offending repeatedly is not to catch him in the first place. This research evidence may seem contrary to common sense, but such finding suggests that punishment has other effects which may cancel out and even outweigh its deterrent effects. The ‘labelling theory’, for example, contends that catching and punishing offenders ‘labels’ them as criminals, and stigmatises them. To make matters worse, harsher penalties can change offenders’ self-image from that of a law-abiding person to that of a deviant because custodial institutions are notoriously ‘schools for crime’ where offenders can meet each other, learn criminal techniques and enter into a criminal subculture. In support, Woolf’s (2001) investigation into English prisons found that some prisoners who were not addicted to drugs before admission were later drug addicts by the time of their release (cited in House of Commons, 2005). This process upon release is “sufficient to elicit pathological behaviour” (Zimbardo, 1982:249) which can in various ways make it more difficult for prisoners to conform to a law-abiding life in future (Cavadino and Dignan, 2002). If labelling theory is correct, then an essential area which needs to be tackled in order to lower the crime rate is to change the way the society interacts with criminals, including those released from prison, to avoid these stigmatised labels from sticking.
An institutional transition from being ‘soft’ on offenders to ‘get tough’ agenda which incorporated retribution, deterrence and incapacitation does not mean that the rehabilitative ideal is totally taken away from the justice system. Contemporary imprisonment is also about helping offenders’ to “lead a law abiding lives in custody and after-release” (Crawley, 2004:65). Over 700 National Vocational Qualifications (NVQ) schemes are being implemented in prisons. Research-based offender rehabilitation programmes do not only offer viable alternative for reducing recidivism, but they have also shown to be an economically efficient strategy (Farrall, 2002). It is widely accepted that rehabilitation programmes give the opportunity to harness prisoners’ strengths, make amends to their misdemeanours, earn their redemption, and restore their relationship with the society (Maruna and LeBel, 2002). Today, many rehabilitative programmes are based on ‘cognitive behavioural’ approach, which attempts to alter how offenders think by improving their cognitive and reasoning skills so that they change their attitudes towards breaking the law. Leading empirical reviews of the literature on prison based rehabilitative programmes (Lipsey and Wilson, 1998; MacKenzie, 1997) told that the most effective way to reduce offending and re-offending is through education and employment, along with behavioural or cognitive programmes. In support, Marques et al (1994:55) gave an encouraging result by reporting that offenders in their study who did not volunteer for “treatment” were 8.5 times more likely to be arrested for a violent crime in the first twelve months after release from prison or discharge from parole. Less dramatic but equally encouraging results were reported from Patrick Carter (2003): “well-designed, well-run and well-targeted cognitive behavioural programmes can reduce reconviction rates by 5-10% (cited in House of Commons, 2005:24). However, despite the positive effects of rehabilitation on recidivism, rehabilitation remains secondary to the facilities’ primary functions: control and confinement. Carter’s (2007: 146) research into prisons found that more than two-thirds of prisoners did not agree that they were being helped to lead a law-abiding life on release in the community; and only 28% of prisoners agreed that sufficient efforts are made to help prisoners stop committing offences when they have been released from custody. On the contrary however, Linden and Perry’s (1988) review of research studies on the effectiveness of prison education programmes showed that although inmates have made substantial alterations to their behaviour, the changes did not necessarily have an impact on post-release employment and recidivism rates (cited in Ryan, 1990). Crawley (2004) argued that the pessimism that ‘nothing works’ and that ‘whatever you do to offenders makes no difference’ (Martinson, 1974) has destroyed the reformative aim of the penal system by encouraging policy makers and legislators to abandon the idea of rehabilitation as an objective of punishment- not because it had been shown to be true, but more because the disappointment of the high hopes invested in reform led to an over-reaction against the rehabilitative ideal.
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