Is locking people up in prison really the best we can do?
In August 2017, Kenya became the latest country to target the scourge of modern consumer society, that of the widespread use of plastic and its many indestructible products. The African nation did this by introducing a complete ban on plastic shopping bags.
When I first saw a news report on the new Kenyan law, I was heartened to read about such an initiative. Like many people, images of turtles and sea birds choking in swathes of discarded human detritus makes me want to tear up my membership card of the human species. But then the report mentioned something that caused the scrolling finger on my plastic mouse to come to a sudden halt. Anyone found contravening the Kenyan plastic bag law will face a fine of up to $40,000 USD, or a maximum of four years in prison.
Huh? Four years in prison for inappropriately using plastic bags? It’s sounding more like a ‘theatre of the absurd’ piece one might find at the Edinburgh Fringe Festival.
Don’t get me wrong, I’m all for strong measures that help cut down on waste and pollution. But for all my occasional bursts of creative flair, I’m struggling to think of any scenario involving the misuse of plastic bags that would warrant a four-year jail term. What if I entered Kenya with a thousand plastic bags stuffed into my backpack? What if I then travelled around the country as the most reckless of tourists, using one plastic bag at a time to store one banana or one grape, before wantonly disposing of the bag on the side of the road? Would that get me four years in prison? If not, what would?
A. Crime and Punishment, Business as Usual
Of course there’s a simpler explanation for all this and it has nothing to do with plastic bags. In most countries around the world, a custodial sentence remains the default option for punishing those who contravene the law. After the legislature has spent days debating a bill, it’s almost as if the MPs run out of steam towards the end, deciding there is no need to think too long or too hard about appropriate forms of punishment.
Members of the public too commonly express the view that jail is the answer to all of life’s problems. Just lock the nasty blighters up for five years – sweep them under the carpet for five years – and that will sort them out good and proper.
But do all the amateur criminologists ever stop to think if prison really is the best solution? Do we perhaps need to be more creative and find alternative ways to tackle the problem of crime, if indeed ‘crime’ is what we’re dealing with. The tabloid media and the table thumpers focus on the extreme cases only – such as the genuinely innocent or the unrepentant mass murderer – when in reality the criminal courts are filled with small-time thieves, con-artists, naïve tourists, opportunists, benefits cheats, burglars, chronically bored teenagers and shoplifters, those whose crimes are so unremarkable they barely make the local newspaper.
A perfect example of a more ‘extreme case’ came to my attention while writing this post. A nineteen-year old French tourist was locked in jail for two weeks, all because she went for a jog along the beach and inadvertently crossed the border from Canada into the USA. Who needs theatre of the absurd when there are so many absurd bureaucracies about?
Our young jogger, like many others, is a victim of justice funnily enough. The judicial system considers itself as fair and equitable, which in practice means that it treats most people – at least those of modest means – equally as shabbily.
But who benefits from this ‘fair and equitable’ approach, one that fills our jails with people who are in no way inclined to break the law? What does prison achieve for the convicted person, his or her immediate family, and society in general? Once you find yourself incarcerated, how do you atone for your crimes, or even properly defend yourself when you have no easy access to the necessary resources? In a nutshell, does prison actually work?
Consider the problem from the offender’s point-of-view. Regardless of the crime committed, he or she faces the indelible shame of carrying a prison sentence around for life. A sixty year old continues to be haunted by a stupid mistake he did in his teens.
In the late 19thcentury, Franz von Liszt and other leading criminologists of the time began to question the harmful effects of short-term prison sentences. The criminologists argued that not only does prison fail to reform the short-term detainee, but worse still, it scars and impairs a person for life. The practical difficulties following an eventual release – such as an inability to find work and maintain a network of friends and family – demonstrate that one can never escape the stigma of incarceration. All prison sentences are life sentences.
In some twisted cases, prison could even be the means to enhance one’s future prospects. If you wanted to turn a bright young man into a hardened criminal, just send him to jail for a decent length of time. Once he’s been through this finishing school for the criminally inclined, he’ll be a convert for life, forever trying to work the system for his own benefit.
B. Why We Punish
What reasons does the state have for sending people to jail in the first place? Such debates usually revolve around a list of ‘Big Four’ justifications. Let’s briefly consider each of these in turn, seeing how relevant they are nowadays in terms of a custodial sentence.
Retribution is the easiest to understand and possibly the most intuitive. It’s formed part of about every judicial system since the dawn of humanity. The idea is best summed by the famous Biblical quote ‘an eye for an eye, a tooth for a tooth’ (Matthew 5:38). Retribution dictates that the offender must receive a punishment equivalent to the distress and damage caused to the victim. Cutting off a thief’s hand, for instance, is one rather drastic measure.
Not surprisingly, retribution is a favourite of traditional societies, lending itself well to small group justice where everyone knows everyone else. The guilty receives his or her ‘just desserts’ in front of the entire community.
However when applied to larger populations, it’s unclear if retribution has such a positive effect, instead coming across as vindictive and pandering to the most vociferous of society. An eye for an eye is nothing but short-term gratification, aimed at those who take pleasure in the misery of others. The perpetual cycle of blood-lust never actually reaches an end point. According to a famous quote – often attributed to Gandhi – ‘an eye for an eye and a tooth for a tooth will make the whole world blind and toothless’.
Deterrence is aimed at setting an example for the rest of society. People must be sent to prison in order to deter others from committing similar acts.
While deterrence may indeed work well for certain types of offences – such as ‘corporate crime’ and other forms of fraud – many crimes arise from gross negligence or from the heat of the moment, including the so-called ‘crimes of passion’. Deterrence is hardly going to make any difference here. Did Oscar Pretorius think about a lengthy prison sentence when he crawled out of his bed early one morning, loaded gun in hand, thinking an intruder was in his bathroom? Does the drink driver think about prison when he gets into his car after a heavy night at the pub? Many criminally-inclined people operate under the belief that they are cleverer than the average con, so are unlikely to ever get caught.
So at best, deterrence can only have a modest effect on certain types of crime. And perhaps more critically, deterrence can only have a modest effect on certain types of people only, those not so inclined to commit crimes to begin with.
Rehabilitation appears more tempting on the surface. This takes the view that when a crime is committed, society must accept responsibility and try to repair the damage. Prison is an opportunity to reform the man or woman, setting them back on the straight and narrow.
If rehabilitation was even partially effective, it should form the backbone of any progressive penal system. The simple fact of putting a person into a boring, unstimulating environment for months or years should give them plenty of time to ruminate upon their actions.
But in practice, rehabilitation can be difficult to implement. As already mentioned, prisoners come in many varieties. Some might be proudly unrepentant, claiming they are innocent and victims of the system (‘the cops had it in for me’). Others are just blasé about the whole thing, or have deeper, more destructive impulses that need to be addressed, such as dealing with childhood abuse or a life of addiction. This highlights one of the main drawbacks of rehabilitation. Since it must be individually tailored to the needs of each prisoner, it’s an expensive and resource-intensive process.
Possibly the most damning argument against rehabilitation is the doubt as to whether it actually works. Studies indicate that rates of re-offending remain at a disturbingly high level. In the UK, about half of all prisoners released from jail will re-offend, the majority of those in the first year of release. More worryingly still, rates of re-offending are higher for those who serve shorter sentences (less than six months), lending support to the views of Franz von Liszt and the early criminologists. This is hardly a rousing advertisement for prison as a successful means to reform and rehabilitate.
Protecting society is the fourth and final reason for justifying punishment. In this case, the focus is less on the offender and more on society at large. What further damage will be caused if the individual is let loose in society?
In modern times, with large numbers of the population shivering inside their own homes due to a non-stop bombardment of frightening and disturbing images, protecting society is perhaps the most sought after reason for locking up perpetrators in jail. The state must do all it can to protect the innocent and the vulnerable, particularly when violent acts have been performed and the criminals show no remorse for their actions.
Nevertheless, justifying custodial sentences on the basis of ‘protecting society’ can only be relevant for the truly dangerous criminals, those likely to be repeat offenders. But what exactly makes a person dangerous and how can anyone really know whether criminal acts are likely to be repeated? Who exactly should be locked up in jail? Someone who’s spent a life as part of a drug-smuggling syndicate? A smooth talking fraudster who persuades elderly people to give up their life savings? A careless driver behind the wheel of a car? An old-age pensioner who cannot pay her traffic fines? A dog owner who fails to clean up after his dog? It isn’t clear what sort of behaviour would constitute a future menace to society.
C. Alternatives to Prison
One of the main incentives for finding an alternative approach is cost. Prisons are horribly expensive to build and maintain. Although exact amounts differ, prison can cost anything from $40,000 to $80,000 USD per person, depending on the jurisdiction. Reducing our reliance on the prison system would therefore free up funds that would be better spent elsewhere in society.
Fortunately technology has advanced to the point that wearable GPS trackers are now a viable solution. While it might seem inhumane to tag someone as if they were a stray dog, one does have to accept a certain reduction in liberty following a conviction for crime. Nevertheless, with the GPS tracker in use, the convicted person could continue to serve a sentence at home, as well as being granted some flexibility in terms of travelling to a workplace or the local shops. Work should form an integral part of the reformative process. Community service isn’t a terrible option, but from what I gather, most people are likely to do the bare minimum and just get through their hundred hours as effortlessly as possible.
Where it’s appropriate, a normal job should be continued, albeit with strict controls in place. Bank accounts, for instance, could be controlled by a third party, thus ensuring the offender is allowed a certain amount to get by – after all, the objective here is to get people off the public welfare system – with the remainder of the money going to the victim or to charity. While this seems a heavy burden, a life outside of prison does give people scope for making a positive contribution to society, as opposed to sitting in front of a television all day or pacing back-and-forth around a tiny exercise space. Incentives – such as an early release or reduced restrictions – could be based on attendance and performance.
The ‘voluntary jail’ is also starting to make an appearance, especially targeted at women and minority groups who have committed relatively minor offences, perhaps driven by poverty and desperation. These people primarily need support and further education to steer them stay away from making ‘bad decisions’ in the future. A voluntary jail might seem like an oxymoron, but studies have proven they are a successful and less costly option. Some voluntary jails don’t even have prison wardens and staff, operating more as support groups. People can come and go as they choose. If you think these are ‘easy’ options, just think of the alternative – filling our prisons with thousands of otherwise able-bodied people.
These are, of course, only a few brief examples based on real-life experiments. Any group of eager criminology students would undoubtedly have further ideas. If society is going to be so creative in coming up with new laws, perhaps it ought to be as equally as creative when it comes to devising appropriate and effective forms of punishment.
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