Crime and Punishment - Retribution or Rehabilitation
By Ivana Bacik
I want to begin by reminding you of a few catchphrases that I think we should all bear in mind during today's debate:
- THREE STRIKES AND YOU'RE OUT
- ZERO TOLERANCE
- SHORT SHARP SHOCK
- PRISON WORKS!
The scale of the challenge can be gauged by the fact that by the end of last year Ireland had the distinction of having, according to UNHCR statistics, the highest per capita number of asylum seekers in Europe. The increase in numbers, from the handful per annum of the eighties and early nineties to in excess of one thousand every month, happened almost as quickly and with as little understanding as to the root causes as the much-hyped economic miracle of the Celtic Tiger.
How do these catchphrases sound? They sound punitive, they sound retributive. They sum up the approach to crime and punishment on which our penal system is presently based. Retributive sentencing seeks to punish offenders on the basis that this is the morally appropriate response to crime. It claims that those who commit offences deserve punishment, and it is based on the behavioural premise that offenders are rational decision-makers, who commit crime in isolation from their social environment and who are dissuaded from committing crime by the relative likelihood of punishment. Proportionality is usually a key concept in desert or retributive theory, although there is of course nothing proportionate about the 'three strikes' life sentence.
Retribution and Rehabilitation Defined
Apart from three strikes, most retributive punishment systems are however based on the notion of proportionality. That is the accepted convention since the age of Beccaria. He and other eighteenth century reformers advocated that punishment should always be 'the minimum possible in the given circumstances, proportionate to the crime, and determined by the law.' His classical theory of proportionate, retributive sentencing challenged the 'arbitrary and barbarous' system of punishment practised by European despots through the Middle Ages. It has formed the basis for all European sentencing systems until today, and was certainly an improvement on what went before, under the 'bloody codes'. But retributive theory, even when proportionate, is a backward-looking way of justifying punishment. Its success or failure cannot be measured, because it is self-justifying. I propose to argue that it is not an effective sentencing model to adopt, since its behavioural premise is flawed.
By contrast, the rehabilitation model of sentencing is expressed through strategies designed to reform the offender's character. It is based on a different, and in my view a more realistic, behavioural premise. It assumes that criminal offences are to a significant effect determined by social structures, particular individual circumstances or psychological influences. Offenders are seen as needing help to change their behaviour, by changing their circumstances through a range of different programmes such as individual counselling, therapy, family intervention, education and training. This approach to sentencing is particularly forward-looking, since it indicates that sentences should be tailored to the needs of individual offenders.
Development of Rehabilitation
Rehabilitative strategies came to the fore in many Western penal systems in the 1960s. They remain prominent in sentencing policy in many European countries. Although today community-based sanctions would be seen as the most clearly rehabilitative type of sentence, the idea of prison itself having a beneficial reforming effect has had a longer history. Modern-style imprisonment only became commonplace in the late eighteenth and early nineteenth century, replacing corporal and capital punishment regimes and deportation. The main principle on which prisons were established was that of enforced isolation, causing the offender to contemplate his or her sins and need for redemption. Throughout the nineteenth century the rhetoric of reformation persisted even within the harshest penal regimes, as Tim Carey has shown in his excellent history of Mountjoy prison in Dublin. The reformative model then became reinvented in the twentieth century in terms of behavioural science, and reached its high point in the 'medical' or 'treatment' model widely accepted in US prisons in the 1960s.
Rehabilitative programmes are more easily tested for 'success.' Following one such test, support in the US for rehabilitative programmes weakened, after the 1974 publication by Robert Martinson of 'What Works? Questions and Answers About Penal Reform'. Martinson conducted a meta-analysis of over 200 studies that had assessed correctional and treatment programmes to see if they 'worked', using criteria of recidivism. His gloomy conclusion was that 'with few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism'. He then questioned the very notion of rehabilitation itself, suggesting: 'Our present treatment programs are based on a theory of crime as a 'disease' - that is to say as something foreign and abnormal in the individual which can presumably be ignored. This theory may well be flawed.'
Although Martinson's work had a positive effect in supporting 'de-institutionalisation' and reinforcing the expansion of community-based sanctions, his findings were swiftly translated into the buzz phrase 'Nothing works', and this came to dominate a more punitive penal policy. But his conclusions have been subjected to much criticism. Strong claims are still made for the efficacy of rehabilitative programmes in Europe, and many argue that rehabilitative strategies were discarded prematurely in the US. The true position is that certain programmes work for some types of offender in some types of circumstance.
James McGuire, in a highly influential 1995 study, 'What Works; Reducing Reoffending', argued that certain types of treatment programmes are successful, with treatment programmes in the community being about twice as effective as those within prisons. Successful programmes are focused on the reasons why individuals offend, and those employing cognitive behavioural methodology are found to work best. But while prison-based rehabilitation programmes, like the Connect Project in Mountjoy Prison, are very necessary and worthwhile pursuing, they should not overturn the generally accepted proposition that prison itself is not rehabilitative.
Despite these doubts about Martinson's theory, the phrase 'nothing works' fed into an increasingly retributive public culture in the 1970s and 1980s, in which criminal justice had become a political and election issue. Politicians in Europe and North America began to see the adoption of 'tough on crime' policies as an important part in being elected. Imprisonment rates generally began to rise and have continued rising, and in some countries (such as the USA, Russia and Britain) at an alarming pace. Often fuelled by media-generated 'moral panics', political rhetoric invokes and heightens public fears about crime and causes public support for 'get tough' policies
The criminal justice policies pursued by Michael Howard, the previous speaker, during his time as British Home Secretary, 1993-97, should be seen in this context. Prior to his appointment, the Criminal Justice Act 1991, prepared over four years with elaborate consultation, had set out the British government's central thesis that punishment should be awarded according to the 'just deserts' principle. The 1991 Act set the courts' sentencing powers within a framework that required them to consider all alternative methods of disposal before sending an offender to prison - the 'custody threshold'. A system of 'punishment in the community' was developed, and parole and early release were put on a secure basis.
This legislation represented the culmination of a long evolution of criminal justice policy, but it was not long in place before the new Home Secretary made a dramatic announcement that marked the beginning of its dismantling. In a speech to the Conservative Party conference in October 1993, he denounced the 1991 regime as being too far tilted in favour of the criminal and against the protection of the public. He claimed that the 27 measures he announced would mean more people in prison but said, "I do not flinch from that. We shall no longer judge the success of our system of justice by a fall in our prison population." He summed up his new stance, thereby distancing himself from the previous consensus, with the simple phrase 'Prison works.' This policy had many critics. While Howard was Home Secretary, David Wilson, head of the Prison Service, resigned in April 1997 on conscience grounds, citing the shameful state of Britain's overcrowded jails and the 'tabloid, short-term, prison-works' criminal justice policy as the principal reasons.
Despite dissent from within the system, the 'prison works' slogan was put into effect in Britain with the enactment of the Crime (Sentences) Act 1997 and with the initiation of a massive prison-building programme. By the time of the 1997 election, the use of imprisonment was higher than it had been for 50 years. At the time of the 1992 general election, the prison population was about 45,000 and falling; by 1997 it was over 63,500 and rising fast. The prison population in England and Wales today stands at a record 66,000 - an increase of 64% since 1992. The Howard League for Penal Reform recently highlighted the Home Office's own predictions that the number of men, women and children incarcerated in prisons could rise to 83,500 by 2008.
Unfortunately, the Labour government has now effectively adopted the Tory Party's stance on law and order, albeit with a slight softening of tone; as summarised in the phrase 'tough on crime; tough on the causes of crime'. Britain thus presently seems to be moving away from Western European norms for the use of imprisonment, towards a level above that of several of the former Soviet Bloc countries. Even the proponents of present policy must admit that its effectiveness against crime is not supported by the great weight of research over the years; but then such 'get tough' policies are, in practice, usually rationalised in terms of pure retribution.
Consequences of the Retributive Approach
The problem is that once the concept of retribution becomes accepted by politicians and the public, and becomes part of the political culture, it is extremely difficult to reverse this trend. This is so even where the increased use of imprisonment has really been an exercise in retribution that has demonstrably had little to do with crime control.
In the US, this phenomenon has reached immense proportions, with the onset of wht Parenti has called 'Lockdown America', the privatisation of prisons leading to the generation of a massive prison industry (the 'prison industrial complex'), and the creation of the new 'supermax' prisons. In February of last year came the news that the US prison population had reached the two million mark. Five per cent of the world's population live in America, yet its prisons hold 25% of the world's inmates. The statistics on race disparity are equally frightening. Black, Latino and Asian young people are seven times more likely to receive a prison sentence than white offenders.
The Irish Criminal Justice System
The position in Ireland is nothing like as dramatic, but there are many causes for concern here. We have also seen political campaigning around 'zero tolerance' and get tough policies, we have also seen our prison population grow dramatically over the last number of years. First, there is no stated rationale or policy base for our sentencing practice, despite Law Reform Commission recommendations. This means that inconsistencies occur between sentences handed down in similar cases. However, there has been for some time one striking consistency in Irish sentencing; the significant over-use of prison.
Expert reviews of the Irish penal system over the years have all favoured less use of imprisonment, yet its use has increased significantly in recent years. In 1983, a peak of 102,387 indictable crimes was recorded. However, two years later the Whitaker Committee recommended that prison should be a punishment of last resort, and that there should be a ceiling of 1,500 prison places. Crime levels now are at 81,511 (1999) and falling, having decreased by a cumulative reduction of 21% since 1995, yet we now have approaching 3,000 prison places - double the number the Whitaker Committee saw as the maximum ncessary. It is clear that the use of imprisonment is increasing at an alarming and remarkably consistent rate, despite the absence of any stated sentencing policy.
In 1988, this trend in increasing committal rates was ascribed by McCullagh to the ‘increased punitiveness of the judiciary’. He suggests this began in the late 1970s, arguing that the ‘unhampered operation of judicial discretion has produced a penal crisis’, and that the judiciary should be subject to some external control in making sentencing decisions. His warning went unheeded. Between 1980 and 1985, there was a 50% increase in the numbers sent to Irish prisons, and this new higher rate of imprisonment was maintained in the late ‘80s, despite the stabilisation and indeed decreases in crime rates. Between the years 1990 and 1995, the new, higher rate of imprisonment of the 1980s was further built upon, and almost 2,000 more people were sent to prison per annum in 1995 than in 1990.
The way in which prison sentences are imposed is another cause for concern. Compared to most Western countries, we have a relatively small proportion of our population in prison on any given day, yet we send more people to prison every year than virtually any other European jurisdiction. Leading criminologist Dr. Paul O'Mahony describes this as 'the enigma of the Irish use of imprisonment'. While our aggregate detention rate is relatively low by international standards, our imprisonment/committal rate is comparatively very high. This alternative rate measures not the numbers in prison on any one day, but rather the number of persons imprisoned per 100,000 of the population over the course of one year.
O'Mahony writes that in 1992, Ireland imprisoned a greater proportion of its citizens than any other country in the Council of Europe. The imprisonment rate was 328 per 100,000, more than twice the equivalent rate in France and Italy, due to the tendency to impose short sentences of imprisonment for relatively minor offences; in 1993, a striking 35 per cent of committals were for fine defaulters. In 1994, out of a total of 5,398 committals, nearly one-half (2,535) had been sentenced to less than three months' imprisonment. Thus we are sending more people to prison, but most are for shorter sentences. The question should be asked whether these are people who should be in prison in the first place. What purpose is served by sending anyone to prison for three months for shoplifting? Would it not be better to impose a community-based sanction with a clear rehabilitative function?
Indeed, comparative research on the use of non-custodial sanctions confirms that the use of community-based sanctions is seriously under-developed in Ireland. This, despite the range of non-custodial sanctions available to Irish sentencers; community service orders, probation, fines and compensation orders. It is true that we have not developed alternatives to the same extent as other jurisdictions. For example, we could make greater use of principles of restorative justice in sentencing, based on the New Zealand model of victim-offender mediation projects, used especially for young offenders. But it seems that, sometimes through lack of resources in the system, sometimes through lack of will on the part of judges, we are not making good use of the sanctions in place, and we are failing to develop alternative sanctions.
Does Prison Work?
But this brings us to a final and crucial question. What is the problem with all this? Why should the judiciary be prevented from locking up more people, if that leads to a fall in crime? Could it be that the fall in crime rates is because we are locking more people up in the first place, as has been claimed? There are three points to be made in relation to this question, all of which illustrate strongly the danger of over-using imprisonment.
First, international research shows us that decreases in crime rates may be attributed to multiple factors, usually independently of the amount of people put into prison. Secondly, we have seen from our own prison research that prison does not work according to simple recidivism criteria. Research carried out by Dr. O'Mahony in Mountjoy prison showed that each prisoner had on average clocked up ten previous terms of imprisonment - hardly an indication of the potential of prison for rehabilitation. Thirdly, just as imprisonment disproportionately affects ethnic minorities in other countries, so too does it disproportionately affect young working-class males in our society.
This is because offenders do not in fact commit crime as a result of a rational choice, but in the context of their circumstances. Research we recently carried out into the links between economic deprivation and crime found that an apparently significant variation in sentencing exists depending on disadvantage. In total, 29 per cent of those defendants from the most deprived areas were found to receive custodial sentences, compared to 19 per cent of those from the least deprived areas. It was also found that defendants from more deprived areas are 49 per cent more likely to receive a custodial sentence than those from less deprived areas, once other variables are taken into account. In other words, the findings indicate that the economic deprivation of a particular community may be a factor leading to the increased likelihood of a custodial sentence for those defendants, particularly the young men, from that community.
But returning to the question of what causes decreases in crime rates, the idea that it is prison simply does not stand up to analysis. In a very recent analysis of the decrease in Irish crime rates, O'Donnell and O'Sullivan asked the question 'Does more prison mean less crime?'. They referred to recent US research by Spelman (2000) suggesting that an increase of one per cent in the prison population would reduce the crime rate by between .16 and .31 per cent. Applying this calculation to Ireland, one would expect a decrease in crime of between 6.1 and 11.8 % between 1995-99. Since the decrease was actually 21% over this period, they suggested that other factors were to play in explaining reducing crime rates. In particular, they point to research that shows that economic boom is a huge factor in reducing crime rates, in particular property crime (always the bulk of crime figures). They concluded that 'the factors that may have resulted in the decrease in crime are not primarily related to criminal justice policies, but rather to labour market and health policies. Increased employment and consumer expenditure, allied to a growth in methadone treatment, would appear to be more convincing explanations for the decrease.'
Despite the progressive policies being adopted in some countries like New Zealand, there has been a dramatic increase in the use of imprisonment in Western countries since 1970. Mathiesen, the great Scandinavian penologist, has likened this phenomenon to Foucault's 'great confinement' of the 1600s. He advocates a new penal policy involving a de-centreing of the prison, so that 'non-custodial sentences' are prioritised and no longer seen merely as alternatives to imprisonment. It is argued that only by adopting Mathiesen's robust approach to the prison into our own policy, will custodial sanctions truly become penalties of last resort in the Irish penal system.
We need an enlightened and coherent sentencing policy, with less emphasis on imprisonment but with clear guidelines for judges as to non-custodial sanctions; an approach to sentencing which seeks to ensure a greater measure of consistency, while taking into account the need for rehabilitation of individual offenders, and the principles of restorative justice. In short, we need a coherent policy in order to create a just and effective penal system that deserves and retains public trust.