Disclaimer: This blog post solely reflects the opinion of the authors and should not be taken to represent the general views of IPPR’s management team or those of fellow authors.
Fyodor Dostoyevsky once said that the degree of civilization in a society can be judged by entering its prisons. I wonder what our prisons might say about us, take the deteriorating conditions in English and Welsh facilities for example. A report by Her Majesty’s Chief Inspector of Prisons finds that living conditions in detention facilities are poor; the cells are too small, unhygienic, and over-occupied. Violence between and towards the prisoners is increasing because of a reduction of prison guards. Many prisoners felt unsafe and rates of self-harm are rising. However, it is not only prisons in England that reveal dire conditions. Germany’s prisons have been accused of violating privacy rights and prisons in the United States of maintaining degrading and inhumane conditions (see reports by the ACLU).
The retributivists among us think that a harsh punishment in prison is what those committing felonies deserve, and thus might see these developments as beneficial for society. Criminals broke the law, the social contract and as rational adults should be held accountable for this. Many others do not believe in retribution but consider punishment to be a technique of deterrence. This is probably the most prevalent view among philosophers, but it also is used by governments in order to justify their criminal law policies. I do not seek to argue against this theory of punishment. While there are other theories that I find more convincing, I maintain that even under a theory of deterrence incarceration – especially when that incarceration is cruel and inhumane – is not proportionate.
The proportionality of a sanction is usually determined by evaluating the severity of the punishment in relation to the crime. A concept like this is, for example, used by Andrew von Hirsch in the Proportionality in the Philosophy of Punishment. For him, the severity of the punishment must reflect the amount of blame a society gives the offender and the proportionality of punishment must orientate around the blameworthiness of the offender’s conduct. There, however, should be another precondition. I think that an essential part of measuring proportionality must be the necessity of the alleged crime. Imagine that you could prevent an attacker from killing you either by shooting her or by breaking her leg. While it would be considered proportionate the kill her in order to save yourself, it is not necessary. Breaking her leg would suffice. Only if the measure is necessary can it be proportionate, and a punitive measurement is only necessary when there is no milder or less invasive measure that can achieve the set aim with the same result.
There are various philosophical theories on how deterrence is justified. For Jeremy Bentham “all punishment in itself [was] evil” and thus only justifiable if it prevented more harm than it caused. This idea has been refined into a theory aimed to generally and specifically deter crimes. General deterrence has two intentions; to deter potential criminals from committing a crime and to enforce the validity of social norms. Specific deterrence, on the other hand, is aimed at the guilty individual and seeks to deter potential future crimes. Deterrence makes society safer.
That imprisonment and especially long sentences have this desired deterring effect is not clear. On the contrary, it is observable that a decrease of imprisonment in a society does not cause a spike in criminality and may actually lead to a drop. Finland here serves as an example. It decreased its incarceration rate drastically after World War II and only witnessed a very marginal and temporary increase of criminality. If deterrence through harsh sentences worked, the crime rate should have increased significantly. Additionally, an increase of criminality was observable throughout Western Europe after the war, independent from the respective policy on crime.
There are further indications that may lead to doubting the deterring effect of incarceration. If a high incarceration rate deters effectively, this should eventually lead to decreasing crime rates, then a sinking imprisonment rate. This so far has not been observable. Take the United States, where the detention rate has spiked since the 1970s. After a few years, the deterrent effect of imprisonment should have been visible, but the country still struggles with its high incarceration rates. Nagin and Durlauf have moreover shown how little evidence for a deterring effect there is in Imprisonment and Crime. Can both be reduced?. Instead of incarceration, higher policing has proved to be more effective in deterring crime. A study from Germany for the years 1977 to 2001 underlines this claim. It shows that the main cause of crime prevention is not the length of the sentence but the probability of conviction.
There seems to only – if at all – be a minimal reduction of crime through long and cruel incarceration. Moreover, there are other measurements that prove effective when it comes to deterring crime. Deirdre Golash names various means that prove to be successful in crime reduction in The Case against Punishment. These include the reduction of inequality and poverty or the creation of social organizations in communities with high crime rates. Prisons thus seem to be doing very poorly in deterring the general public from committing criminal offences. It is not proven to what degree long and brutal incarcerations can, if at all, influence the decision to commit crimes. If there is a correlation it is marginal and other measures seem to be more effective in combatting and deterring crime, especially crime that is committed due to social segregation or poverty.
Punishment can also be used to deter the individual incarcerated. On the one hand it aims to decrease the recidivism rate, on the other hand, it prevents further crimes through incapacitation. Here the criminal is incapacitated by being held in prison and is made unable to commit further crimes or do harm outside of the prison walls. The experience of being imprisoned allegedly shows the guilty that committing a crime is not worth it and thereby prevents them from further committing criminal offences. Many statistics, however, tell a different tale. Imprisonment does not only represent the price a criminal must pay for her behavior, but it is also a harmful social experience in itself. There is evidence that life in prison often deepens illegal involvements. Many former prisoners are often rearrested within years of their release, making society less safe. Noncustodial sanctions do not come with the same kind of experience and could prove to be better suited to address recidivism. Incapacitating someone who poses a grave danger to society might still be necessary. These cases are quite rare and cannot justify inhumane conditions in detention facilities.
What does this data mean for the proportionality of incarceration? Incarceration first has to fulfill the precondition of necessity. The punitive measurement is necessary if no milder or less invasive measure that achieves the established aim with the same result exists. The aim that punishment – in my argument – pursues is deterrence, but incarceration does not seem to be achieving this. There is no strong empirical evidence that the way we punish, bearing in mind the described prison conditions and often lengthy sentences, has a deterring effect.
It is evident that those countries where the conditions in prison are much better in comparison to those for example in the United Kingdom, do not have higher crime rates. If we conclude that prison conditions can be more humane, we must demand facilities that offer proper living conditions, a higher percentage of guards and other measurements to improve inmates’ lives. This would increase the price of operating the facilities. Arguments against transferring the costs of a ‘comfortable incarceration’ onto the victims of crime are often heard. I do not think that criminals lose their right to be treated in a humane way and that most of us want to live in a society where everyone is protected by human rights. Do we not condemn cruel punishments such as flogging as barbaric? We look back at medieval punishment in terror, telling ourselves that we have overcome those gruesome times, that society today is much better in treating our weakest and worst. But as Foucault has already observed in his genealogy in Discipline and Punish, we have only moved punishment away from open spaces. The horror of public executions has vanished as a means of deterrence and was replaced by a higher certainty of being punished. The suffering of prisoners locked away may be overlooked, but this does not mean that it is not there. Foucault observes a shift from punishing the body to punishing the soul; instead of punishing the crime, we correct the criminal and stigmatize her as a delinquent. A society has the duty to treat each individual in a humane and civilised way, no matter the crimes committed by its members. Incarceration facilities cannot deprive prisoners of their fundamental rights, especially when this proves to be ineffective in creating higher deterrence. We thus have a duty to make sure that prisons offer good and safe conditions, irrespective of a higher cost to society.
This leads to the claim that incarceration is seldom necessary for deterrence – unless it is used to incapacitate someone that poses a threat to society – and thus cannot be proportionate. One may argue that the threat of incarceration has another effect on society. It imposes norms and keeps citizens from even considering committing any kind of crime. Empirical studies cannot refute nor prove this effect of prisons. I do not think that we need the fear of cruel punishment to accept and internalize norms. Norm-internalization can be achieved through other more communicative means such as community work. It is not the fear of incarceration that deters the majority of the population from even considering committing a criminal offence but moral judgments.
It could be that a society, that punishes wrongdoers by condemning them to community work, that focuses on minimizing inequality and investing in social work and education or even by depriving her of her freedom of movement, but in a humane and respectful way, would deter citizens from committing crimes. I argue that the mere possibility that the punishments we enforce are necessary to deter and protect is not enough to justify them. Neither is the lack of empirical evidence that could prove other ways to be equally or more effective in creating a system of norm-internalization. Until the option of creating a society that accepts norms and that deters potential offenders from committing crimes with less invasive measures, and a more humane approach has proven to be less effective, incarceration cannot be considered necessary or proportional. Offenders may not be deprived of their fundamental rights when there is no clear evidence that this is the most effective and least invasive way to deter others.
But still these rights are not always granted; budgets are cut, despite the increase of violence and self-harm; the duration of imprisonment for crimes such as theft are increased by politicians that profit from the political message of being tough on crime, empirical data that shows how longer sentences fail to increase deterrence is disregarded. Our societies when looked at through our prison system will appear to have forgotten their values. Our morality, of which we are so proud and which we often use to identify ourselves with, will rightfully seem derailed.
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