The Fallacy Of Mass Incarceration
The word ‘prison’ tends to paint a picture of the restraint of evil and wrongdoing within walls that represent the ultimate sanction of criminal justice in most societies. While such an assertion is reassuring, there are conflicting views as to the effectiveness of systematic incarceration. It is by no means inconceivable for offenders to be imprisoned due to the sheer gravity of their crime, but the mass use of imprisonment is open to question.
The purpose of this writing is to problematise the effectiveness of prisonisation in terms of its impact on prisoners, and by extension, future crime prevention. Prison use is only justified if it produces results that fare better than non-custodial sentences. The foregoing proposition would encompass a criminal’s likelihood to recidivate or relapse. Consequently, prisoner recidivation constitutes one – if not the most significant – factor in assessing the success of legal imprisonment.
What does the system of mass incarceration hope to achieve? At the risk of oversimplifying, prison serves three general purposes: a deterrent to future crime, penalising wrongdoers, and rehabilitating the inmate so as to ensure his or her conformity with civil society. However, we may collectively assert that the purpose of prison is, directly or indirectly, crime prevention. But a program of prevention is meaningless without clear-cut, proven methods for developing desirable traits. It would be a simple matter to get rid of all criminals by abolishing all laws since a criminal, by definition, is one who violates the law. Other alternatives would be to release every prisoner, or dynamite every prison in the country, and insist that each local community be held responsible for the conduct of its members.[1] However, since we have both laws and prisons which have been founded upon hundreds of years of lethargic past experience, probably the only alternative for the immediate present is to retain both, and attempt to redefine the relationship between law, order and punishment.[2]
Three schools of thought are prevalent. The first is that prisons definitely suppress criminal behaviour. The unpleasantness of prison life coupled with the negative social stigma associated with incarceration serves as an overriding or primary consideration insofar as it pertains to possible future criminal relapse. Basically, imprisonment scares an offender straight, or in the words of criminologists, has a specific deterrent effect. This is known as the specific deterrence theory.
The second view point essentially propositions the opposite i.e. prisons aggravate criminal behaviour. Having been immersed into a ‘school of crime’, the cold, inhumane and psychologically devastating paradigm renders the subjects of prisonisation, ironically, more likely to recidivate upon release. Inmates who at any given point may have wanted to re-enter society as good Samaritans forego such thought, having developed an intense, almost overpowering contempt for the community and an increased propensity to reoffend. This is known as the labelling theory.
The third school of thought states that prisons are essentially “psychological deep freezes”, in that offenders enter prison with a set of antisocial attitudes and behaviours which are little changed during incarceration[3]. However, we shall not explore this theory further, for it does not seem to have emerged as a major bone of contention.
Although this is a matter of continuing and persistent controversy, it seems that the vast majority of reliable studies propound that prisons do not reduce recidivism beyond that of non-custodial sentences[4]. High rates of recidivism directly call into question the specific deterrence theory. Despite the self-evident importance of the foregoing theory in practical terms, there is a surprising dearth of conclusive analysis in this regard.
However, from the data that is available, the news for prisons is not promising. In one of the most sophisticated assessments of recidivism, Langan and Levin (2002) traced the criminal involvement of state prisoners released in 1994 in the United States of America[5]. Within 3 years of release, 67.5% of the prisoners were in for a new offence, 46.9% were reconvicted for a new crime, and 25.4% were resentenced to prison. Notably, within 3 months of release, roughly 30% of the inmates had been rearrested. For the sample, Langan and Levin also examined the rate of return to prison for either new crimes or technical violations, discovering that 51.8% ended up back behind bars. Furthermore, these figures surely underestimate the extent to which these prisoners recidivated because they include only those cases in which officials detected a releasee committing a crime[6].
Having understood this, it is truly difficult to justify prisons based on the specific deterrence theory, for the costs of systematic incarceration do not seem to be proportionate to the arguably high rate of recidivism. Even harsher prison conditions serve little to remedy the problem. In fact, harsher conditions seem to result in an increased likelihood for post-release criminal relapse[7].
What is truly remarkable is that contemporary times are characterised by an era of mass imprisonment, while, evidentially speaking, no one seems to have a sound justification as to whether placing criminals behind bars makes them less likely to recidivate. Over a century ago, the psychologist Ray Mars Simpson outright asserted that prisons simply fail[8]. He propositioned that fixed routines and schedules akin to military protocol only serve to hammer distasteful acquiescence to a certain situation. This was possibly an attempt to implant a habit of civil obedience, yet it lacked the quite necessary ethical background. In the absence of a routine that explicitly signified a connection to ethics, jails only breed indifference. As Dostoyevsky elucidated, prisons fail to cultivate regret. Furthermore, there was and is simply no guarantee that obedience to penitentiary rules would translate into obedience to societal rules.
Contrast this with the modern example of the Netherlands. In the last few years, it has closed down approximately nineteen prisons[9] with more scheduled for closure. Studies have indicated that the declining crime rates are because of, inter alia, government investments in rehabilitation programs and the use of electronic ankle tags that allow prisoners convicted of more minor offences to go back to work and participate in society, rather than languishing in a cell[10]. Angeline van Dijk, Director of the Prison Service, articulated, “Sometimes it is better for people to stay in their jobs, stay with their families and do the punishment in another way.”
This is not to say that the Dutch have completely abolished the system of imprisonment. However, their system focuses on rehabilitation and often caters to specific individual reform requirements of those jailed. Jan Roelof van der Spoel, Deputy Governor of Norgerhaven (a high security prison in the Netherlands) asserted that less than 10% of those incarcerated return to prison after their release. In England and Wales, and in the United States, roughly half of those serving short sentences reoffend within two years, and the figure is often higher for young adults.
The Dutch seem to have gotten the formulae right, though it is impossible to say this with absolute certainty due to the surprising absence of substantial empirical evidence. Nonetheless, the golden thread seems to be a resort to non-custodial community based or individualistic sentences focusing on rehabilitation with imprisonment as the safety net.
Regardless, one cannot dismiss the obvious incapacitation purpose that jails serve. By simply walling off criminals, you render them incapable of reoffending. By caging them, inmates are physically precluded from contravening the law. Furthermore, it may well be possible that once further research is conducted, it may be discovered that incarceration has variable effects, leading some categories of offenders to recidivate less often. However, even if one concedes to this, it is simply not possible to justify penitentiaries on such a grand scale. Their capacity for locking up offenders is indeed a factor, but one that cannot serve as the ultimate consideration across the complete spectrum of crime, ranging from, for example, petty theft to homicide and terrorism.
It is a moral imperative to question that which seems so obvious to us, especially beliefs or understandings based on common sense, which can undoubtedly be incorrect from the outset, or be rendered so by changing times. It is essential to test our understandings, in this case those that characterise prisons, with the data that contemporary studies offer. Depending on the conclusion that we draw, it is necessary to have the intellectual and moral courage to change both our minds and our policies. This article does not attempt to draw a conclusion on the matter, but only to nudge its readers in the direction that all major studies seem to point to: orthodox prison systems do not serve the objectives that a system of crime prevention must. Even in theory, jails simply do not deserve to be viewed with the degree of certainty and unquestionability that is attributed to them.
———-
References
[1] Ray Mars Simpson, Why Prisons Fail (1934).
[2] Ibid 602
[3] Paul Gendreu and Francis T.Cullen, The Effects of Prison Sentences on Recidivism (1999).
[4] Francis T. Cullen, Cheryl Lero Jonson and Daniel S. Nagin, Prisons Do Not Reduce Recidivism : The High Cost of Ignoring Science (2011).
[5] For similar results, see Beck & Shipley, 1989.
[6] Cullen et al (n 4) 54S.
[7] M. Keith Chen and Jesse M. Shapiro, Do Harsher Prison Conditions Reduce Recidivism? A Discontinuity-based Approach (2007).
[8] Simpson (n 1) 602.
[9] The Dutch Prison Crisis: A Shortage of Prisoners. For more information see http://www.bbc.com/news/magazine-37904263
[10] See http://goldenageofgaia.com/2017/06/08/more-dutch-prisons-to-close-due-to-staggeringly-low-crime-rates/
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.
