“In spite of the many policy failures we have recounted, we remain convinced that diversion and decarceration are desirable and achievable goals”.
Critically evaluate the effectiveness of community forms of punishment in the context of these stated goals.
The simple truth is that prisons do not work, either as effective punishment or as a means of ensuring the safety and stability of the community. Of the primary functions of prison – incapacitation, punishment, deterrence, stigmatisation, and rehabilitation – only incapacitation cannot properly be achieved by alternative methods.
Prisons fail to rehabilitate because their structure and lack of effective programs subverts the rehabilitative ideal. Punishment may make us feel better, but it has no tangible effect on criminal behaviour and moreover, the debilitating conditions of prison may actually increase crime by releasing people even less equipped to deal with their society than when they entered.
Even the incapacitation justification seems only marginally convincing. Less than 40% of victimisation offences are reported to police and only about 20% of known crimes are cleared by arrest. Of those arrested, about 80% are prosecuted, three-quarters of those prosecuted are convicted and about 70% of all convictions result in a prison sentence. Thus, only three offenders are incarcerated for every 100 crimes committed. This, therefore, means that most offenders are simply not ‘incapacitated’ and remain on the streets.
Abolitionists carry a stigma. They are perceived to be unrealistic, naive, and impractical dreamers who believe that if we think nice thoughts, then social menaces will disappear. It is time for ‘realist neo-abolitionism’ to move beyond rhetoric and build on the core ideas of such works as Mathiesen and de Haan. To substitute calls to “tear down the walls” with realistic proposals recognising the need to protect society from the worst predators while offering sensible alternatives for others.
Thomas Mathiesen, and others, have argued that minimally restrictive alternatives to imprisonment should be used to assure public safety. Mathiesen has expressed powerful arguments against prisons and has asserted, inter alia, that prison’s effectiveness in deterring crime is, at best, unreliable and certainly less significant than other social factors that might achieve the same result. Furthermore, Willem de Haan argues that decarceration may enlarge the scope for assessing and developing social responses to social offences; punishment is wrong, and ‘redress’ is better.
Thus, rather than view behaviours as ‘criminal,’ de Haan argues that we should instead reconceptualise them as ‘undesirable events’, which would redirect current thinking away from consideration of punitive measures and toward problem solving. This may be contentious, especially with regard to feminist calls for harsh sentences for crimes of violence against women. However, it is submitted that society should apply the same standards to all offences by asking not how we punish, but rather how we are to respond.
Willem de Haan introduces the idea of ‘communication ethics’, which, he suggests, enables us to construct a rationalist theory based on consensus. He advances the theory that individual morality is sanctioned only through inner conscience and this is made possible within a social system and culture based on free dialogue. Thus reason prevails and the needs of society are satisfied through consensus rather than through the imposition of repressive regimes.
There are, however, some nagging problems with all forms of decarceration. By way of analogy, there is evidence that the policy of deinstitutionalising the mentally ill created more, rather than less, suffering. This challenges the claim that deinstitutionalising the criminal justice system without creating truly effective alternatives would, in fact, lead to less suffering. Would decarceration lead to an increase in other forms of punitive punishment such that it would be a Pyrrhic victory? Nevertheless, it is not always that an issue is advanced clearly, but that it is advanced at all.
“The myth of community creates fuzzy views of solidarity, and neighbourhoods might be as much an ideological fiction as a consensual conceptual reality”.
The vision of the 1960s was diversion. The works of Durkheim, Foucault and others caused much debate and prison was construed as destructive of the human spirit and teaching anything but what it takes to be a contributing member of a civil society. Prisons were accused of systematically stripping conventional identities from prisoners and replacing them with stigma. Furthermore, it was becoming clearer that the process of entering and living in prison reinforces deviant identities and provides few opportunities to shed these and learn to embrace conventional identities.
One emphasis of ‘labelling’ is that official identification and treatment of a person as deviant ‘encapsulates’ them within a deviant life-style. The Criminal Justice process singles people out as accountable for criminal activity and transforms the individual into a moral leper. This in turn leads to mistrust and when an individual is continually under suspicion, that person has fewer legitimate alternatives.
Incarceration harms people and the more people we put in prison who eventually return, the more violent and uncivil we make the community. Thus it was that throughout the 1960’s and early 1970’s, the concept of community corrections proliferated and programs were developed to divert offenders from full involvement with prison. These diversion programs included, inter alia, a comprehensive program of community penalties involving community service orders, extended use of probation, and suspended sentences. Ideas of reparation and restitution were also mooted, in particular for juvenile offenders. Today there is an impressive array of options available and some are intensively supervised, such as certain probation options and effective house arrest in the form of Electronic Monitoring.
To say that prison does not work is one thing; to say that ‘nothing works’ as Robert Martinson did, is quite another. Martinson’s assertion was rather simplistically based almost entirely on evidence of recidivism; however, this is by no means the only method of assessing effectiveness. Each of the three main community penalties is guided to a significant extent by rehabilitative or preventative objectives and is future rather than past orientated. The probation order’s purpose is defined as, (a) securing the rehabilitation of the offender; (b) protecting the public from harm or (c) preventing the offender from committing further offences. The community service order’s purpose is ‘to prevent further offending by re-integrating the offender into the community’. While the aim of the combination order consists of – as might be expected – the purposes of probation and community service added together.
These aims distinguish them from purely retributive responses yet they do involve only conditional liberty by satisfactorily observing a set of rules; violation of which may in itself lead to incarceration. Some of the assumptions behind community corrections have thus been vigorously challenged in that they are not necessarily more effective in terms of effecting true diversion or decarceration. The analogy to the treatment of the mentally ill further concluded that community treatment often
“…amounted to malign neglect, with people left to fend for themselves, unsupported or inadequately supported in a rejecting, uncaring environment”.
There are problems associated with measuring ‘effectiveness’, not least of which is pinning down exactly what the phrase means in terms of clearly defined aims and objectives, in this case, for community penalties. Furthermore, only a handful of studies concerning community penalties generally have been carried out and these have tended to concentrate on juveniles in the US, which may not be especially relevant to the kinds of offenders sentenced to community penalties in the UK.
Probation has always had a reputation for leniency and therefore has had to be defensive. There is a widely held, ‘slap on the wrist’ stereotype and calls of ‘nothing works’ simply fuelled the fire, (albeit that the most recent and most detailed comparative reconviction study suggests that there is indeed little difference in the reconviction rates of the four main penalties). The criminal justice system needed an intermediate form of punishment for those offenders who are too antisocial for the relative freedom that probation offers, but not so seriously criminal as to require imprisonment. What was needed was,
“…a sanction… that would impose intense surveillance, coupled with substantial community service and restitution… structured to satisfy public demands that the punishment fit the crime, to show criminals that crime really does not pay, and to control potential recidivists”.
Intensive supervised probation, however, gives the probation service a chance to “rebuild probation’s credibility and influence”. Even though many probation officers remain committed to a rehabilitative ideal, they have a public relations problem and intensive supervised probation provides them cover. This type of community sentence can be seen as ‘intermediate’ in the way they are presented. They are more restrictive than ordinary probation, but less restrictive than prison. However, they are commonly viewed retributively, and justified in terms of the pain an offender ‘deserves,’ based on his or her actions and his or her prior record. This type of structured sentencing clearly has a retributive orientation
It is clear that community penalties have, within thirty years or so, been justified primarily on the grounds of first, rehabilitation, then as offering diversion from custody and they are currently expected to provide punitive punishment in the community (albeit that rehabilitation appears to be staging a partial comeback). George Mair opines that the straight probation order will, in time, be reserved for only the most minor of offences; the community service order will lose any sense of reparation and become purely punitive and the combination order will become exclusively an exercise in surveillance and control. Moreover, he asserts that this possibility will creep closer with the extension nationally of the curfew order and Electronic Monitoring.
So in terms of effectiveness, it is necessary to ask whether community penalties help or harm offenders or potential offenders? With regard to diversion and the effects of labelling, there is evidence to suggest that self-perceptions of stigma differ only in relationship to peers. It appears that in the case of young offenders, only their peers make the distinction between community punishment and getting the ‘real thing’. A young offender generally feels that in respect of parental relationships, school performance, employment prospects and their likely future involvement with the law, there would be no difference had they received a custodial sentence.
It is ironic that the continued use and potential success of community penalties may well derive from the continuing rise in the prison population. Community penalties may, therefore be seen as alternatives to custody and ensure their survival, but this can hardly be termed true diversion.
“A diversion program widens the net of the court if it extends the system’s reach and increases the number of individuals subject to its jurisdiction”.
Paradoxically, although decarceration shows a reduction in the prison numbers more and more people are brought into the net of social control. In some way, the introduction or use of alternative measures such as community sentences increases the number of individuals subject to official State control and this raises important issues about the proper relationship between the State and its citizens. Such ‘net widening’ operates coercively and reduces individual freedom, increases the number of re-arrests, contributes to behavioural difficulties and facilitates unnecessary intrusions into families.
“Instead of justice, there is diversion”.
In order to avoid imprisonment, a suspect may literally have to choose the lesser of two (perceived) evils. They may feel obliged to acknowledge basic factual issues in the case against them and enter a guilty plea without the State having to prove its case. This will facilitate their participation in a community sentence, the conditions of which, the suspect ‘voluntarily’ accepts. This in turn has worrying ramifications with regard to subsequent charges if there is violation of the (say) probation conditions.
Moreover, such methods of achieving diversionary ‘alternatives’ are a clear danger to civil liberties. The ‘voluntary’ sacrifice of liberties fundamentally alters the nature of the citizen/State relationship, yielding more power to government than is safe or even wise. We ought never to allow government to take short cuts.
A consistent finding from diversion programs is that, put simply, new programs find new clients whereas old programs keep the same clients they had. Community sentences involve the State intruding into the lives of individuals, many of whom, prior to the diversion program, would have escaped official notice. While such programs may be less punitive than prison, the multitude of rules and regulations that affect the individual’s life are usually more extensive than those of an ordinary citizen. Moreover, these rules usually extend to areas that are nothing to do with potential future offending. In light of this, it has been claimed that what is happening, is not decarceration, but trans-carceration; people are being moved between prisons, halfway houses, bail hostels, homeless shelters and even facilities for the mentally ill.
Whether ‘net widening’ is evaluated positively or negatively, depends upon one’s philosophy of government and one’s philosophy of punishment. From one perspective, if it is assumed that human nature is selfish and that people naturally engage in illegal behaviour, unless prevented, then one is likely to support strong social controls; the larger the proportion of the population under official social control, the better.
It is submitted, however, that the better view is that of the civil libertarian who sees the purpose of government as the guarantor of maximum freedom for individuals, unless they have clearly broken the law. People do not naturally engage in illegal behaviour. Illegality is no more natural than exemplary behaviour.
“We have to take the policeman from the offender’s elbow and put him in his head”.
Official statistics and even British Crime Survey figures are calculated and obfuscated, by complex formulae. It is submitted, however, that it is time to move beyond ‘damned lies’ and concentrate on the fact that it is not numbers that we are dealing with here, it is human beings. In order to effect true and meaningful change to the role of community penalties, and thus to the role of the community itself, the myopic attitudes of those in positions of power must be abated. In order to effect a lasting change in those serving community sentences, it is necessary to give them a sense of ownership in the community and to teach them self-discipline and self-worth – control over them is not enough.
Diversion and decarceration are undoubtedly desirable goals. Whether they are achievable depends on political and social will. Depressingly, with the front bench Home Affairs spokesmen of both major parties battling to ‘out-tough’ each other, there appears little prospect of coherent and forward-thinking policy making. Nevertheless, academics like Thomas Mathiesen have given the lead; it is now up to other progressive and radical thinkers to have the courage to advance what will undoubtedly be unpopular and contentious neo-abolitionist theories. But as Kant said,
“Abolitionism would be recognised by all ‘right-thinking’ folk, once they looked at the problem reasonably”.
This, however, assumes that official policy goals reflect those of society. Clearly they do not. It is difficult to deal with a system in which the sentencers produce a steadily rising prison population; a system that fears political embarrassment and revelations in the newspapers about prisoners enjoying themselves watching colour video’s more than it fears revelations about prisoners locked up for twenty-three hours a day in cramped and barely humane conditions. It is difficult to deal with arguments that reject all rational reasoning and fall back on punitive revenge or ‘just deserts’ for its justification.