Stuart Greenstreet on the abysmal failure of theories about crime and punishment.
Prison doesn’t work. Theories about the punishment of lawbreakers fail in practice because they disregard the real conditions of people’s lives.
The apparatus of criminal justice exists to secure a society in which everyone is free to do pretty well as they wish so long as they don’t inhibit others from doing as they wish – provided, that is, that we all obey the law. Nevertheless, prison does not work for the great majority of offenders because all the evidence shows that far from cutting the level of crime, prison actually increases it. I display some facts about offenders’ lives in the panels below. They are from a report called Reducing Re-offending by Ex-prisoners (2002) prepared by the Social Exclusion Unit (SEU) of the British government, but the pattern is similar all over the Western world.
The SEU’s research helps us to see why most criminals go on offending again and again. The empirical evidence it offers supports the hypothesis that entrenched criminal habits are strongly associated with the worst kinds of upbringing.
The typical prisoner seen in the SEU’s data was raised in a family used to crime and imprisonment. His school life was ruined by truanting, exclusion and being taken into care. (95% of the UK’s prison population of 94,000 is male.) He is too illiterate and innumerate for all but the most menial employment. His bad state of mental and physical health is aggravated by addiction to drugs or alcohol or both. He is poor, dependent on state benefits, and constantly in debt. He has no settled home-life.
Here is the SEU’s own conclusion:
“Many of those in prison come from the most socially excluded groups in society. Many will have grown up in backgrounds where serious violence, drug and alcohol abuse are commonplace experiences. Few may have known the security of a stable home or done well at school. Crime may be seen as a survival strategy, as inevitable, or the only means of getting the things that others have.” (para.11.1)
In large measure, then, prisoners are more sinned against than sinning. Is it right that they alone should be held responsible for offences they would probably not have committed but for their bad luck of being born into the kind of circumstances that dispose men to crime?
If an offender is not ultimately responsible for the way he is, perhaps he shouldn’t be jailed for what he does. But are character traits immutable? Perhaps someone with a bad moral trait should respond to reasons to change – should see why that trait is spoiling his life. But how realistic is it to expect hardened re-offenders to go straight? They were brought up in poverty and chaos, starved alike of love, order and discipline, some even mentally scarred by violence and sexual abuse. Recall the SEU’s conclusion: a career of crime is their ‘survival strategy’, or they see it as ‘inevitable’. Maybe these men in many cases really are incapable of change. Two out of three offenders are reconvicted within two years; each released prisoner who gets reconvicted commits at least five crimes while he is free. Do we need more evidence of this widespread incapacity? A childhood of abuse and neglect can leave a person psychologically damaged to such an extent that it is naïve to hold them morally responsible for their traits, or expect them to change their ways. Ill nurture tends to predispose men to crime, and imprisonment to make them persist in it. The SEU found that having a job, a home and a stable family are strongly associated with reducing the likelihood of ex-prisoners re-offending, and that a jail sentence actually weakens these protective factors:
“Too often a prison sentence does not cure the causes of crime, but aggravates them. Instead of helping prisoners to connect with jobs and become included in society again, it can take away the employment, housing and family links, and leave prisoners virtually destitute, on the road back to prison.” (para. 16.2)
One ex-prisoner told the SEU, “It’s true what they say: your sentence begins the day you get out.” It’s not irrational for a destitute prison-leaver to choose to return to crime if it is his only survival strategy.
At work in Sing Sing with the warden and friends
Sing Sing Prison Picture © Baines News Services
The disastrousness inherent in the failure to develop political and social theories based on a firm grasp of the real conditions of people’s lives is nowhere more plain than in the practice of punishing lawbreakers. It is clear that the quest for an ideal theory of legal punishment – a theory constructed without reference to such conditions – is futile. This futility is perhaps most highly evident in the social contract theory of punishment, which holds that punishment is justified not because it is either retributive or rehabilitory, but because it is a necessary means of defending freedom.
The Injustice of John Rawls
The American philosopher John Rawls defended this ancient doctrine in his classic work A Theory of Justice (1971). There could be no just society if lawbreakers were allowed to go unpunished, he argued, since it is a prerequisite of a just society that every citizen should be held responsible for their conduct. We must understand that “the principle of responsibility is not founded on the idea that punishment is primarily retributive or denunciatory. Instead it is acknowledged for the sake of liberty itself” (p.212). This may be right as a theory of punishment. But when it is applied to the real conditions of offenders’ lives, its defects are appalling, as we have seen in the statistics quoted.
Rawls is best known for a thought experiment he invented to try to establish the principles of justice which should govern a society. We must imagine ourselves in an ‘Original Position’ behind a ‘Veil of Ignorance’. This means that to establish the just principles for society, we have to imagine what principles we would choose if we did not know anything about the position we would hold in it – whether we were rich or poor, male or female, black or white, etc. Rawls says that until the veil is lifted we know nothing about how well each of us is fitted by natural endowment, health, education, or social position, or even gender, to achieve the best outcomes. We are disposed by a risk-averse nature to guard against the worst possible outcomes, he argues, so that our own rational self-interest drives us to choose principles of justice which would favour the worst off. Rawls is thus led to his ‘Difference Principle’: that unless there is an unequal distribution of income and wealth that makes both the most advantaged and the least advantaged better off, then an equal distribution of benefits is to be preferred.
According to the Difference Principle, the gains garnered by naturally gifted or socially privileged individuals do not belong exclusively to them, but should be treated to as a common fund, and available for redistribution. The Principle is in effect an agreement to treat the spread of the natural talents and acquired abilities among all individuals as collective assets. But here Rawls’ principles of justice clash harshly with his social contract justification of punishment. In Rawls’ own words, the Difference Principle would ensure that:
“no one gains or loses from his arbitrary place in the distribution of natural assets or his initial position in society without giving or receiving compensating advantages in turn… That we deserve the superior character that enables us to make the effort to cultivate our abilities is also problematic; for such character depends in good part upon fortunate family and social circumstances in early life for which we can claim no credit. The notion of desert does not apply here.” (A Theory of Justice, pp. 87 & 89)
Now contrast this passage with the following lines about crime, later in the same book:
“a propensity to commit such [illegal] acts is a mark of bad character, and in a just society legal punishments will fall only upon those who display these faults.” (p.277)
But if some people owe their ‘superior character’ to fortunate family and social circumstances, then isn’t it equally the case that others owe their ‘bad character’ to unfortunate circumstances? And if the fortunate do not deserve the advantages from having a good character, why should the unfortunate deserve the disadvantages from having a bad one?
Rawls actually grants that they do not deserve them. To lawbreakers “one can only say: their character is their misfortune” (p.504). It is their misfortune because they do not deserve punishment for offences which they were led to commit by a badness of character for which they themselves are not to blame. It is their bad luck to have punishment fall upon them, since none of us deserve our initial starting place in society, nor how we were raised. Unfortunately, however, offenders have nevertheless to be punished in order to preserve liberty in a just society.
The parties to the (theoretical) Original Position where the principles for society are chosen would surely agree that laws must be enforced. But if they agree to share one another’s fate for the distribution of income and wealth, shouldn’t they agreed to do so for the purpose of criminal culpability as well? The reasoning is entirely symmetrical. Behind the Veil of Ignorance no one can know if they will be born into the kind of circumstances that lead to a life of crime, so shouldn’t the parties behind the Veil apply the Difference Principle to punishments as well as to the sharing of assets? Shouldn’t they, logically speaking, agree to treat the distribution of natural and social defects as a collective liability, just as they treat natural and social benefits? Because character traits depend in large part upon family and social circumstances in early life, favourable or otherwise, for which we can claim no credit or deserve no blame, it is therefore unjust to let retribution fall exclusively upon persons of bad character. Rawls’ reasoning on punishment obviously contradicts the rest of his argument. Rather, the arbitrariness of talents and character undermines desert in respect of both the distribution of wealth and of criminal punishment. It would be just to share the misfortune of offenders. And since offenders are punished even if they don’t personally deserve it, imprisonment, especially, is unjust.
Rates of incarceration and re-offending (approx.) prisoners / 100,000 population
The evidence in the SEU’s report points to an overwhelming conclusion: crime is largely the penalty of poverty and ignorance, just as typhoid is the price of foul drinking water. Imprisonment tinkers with the symptoms of crime, aggravates the causes of crime, and thus perpetuates crime.
It would be very foolish to suppose that poverty and ignorance could be wiped out in the lifespan of even several governments. That result would require a set of policies, consistently maintained over many decades, and purposely designed as a Grand Project to eradicate the conditions in which people feel driven into criminal careers as their only survival strategy. For such a project to be fulfilled it would need to be backed up by a binding compact between the major political parties.
One possible analogy is with a great flood prevention project in Holland known as the Delta Works. In January 1953, all of south-west Holland, from Rotterdam to Flushing, was covered by a North Sea flood that killed around two thousand people in one night. The South Holland coast region is home to four million people, most of whom live below normal sea level. The loss of life in a catastrophic flood here was very great because there’s hardly any warning time with North Sea storms, so mass evacuation wasn’t a realistic option. In response to the flood, the Dutch government decided to build a storm surge barrier that would reduce the length of coastline exposed to the sea by 700 kilometres (435 miles). This work was sustained until the work was declared officially finished nearly sixty years later in 2010. The Dutch people were politically committed to see the project through, no matter how long it took, or which government was in power, or what it cost. The Delta Works has been called one of the Seven Wonders of the Modern World.
If imprisonment were the answer to crime we would be closing prisons not opening more. On the contrary, all the evidence shows that imprisonment tends to induce re-offending. It is absolutely evident from the SEU’s research that prison produces negligible impact on re-offending at enormous social and economic cost: in Britain the government has put the cost of crime by re-offenders alone at around £11billion a year to victims and the nation.
Men are sent to prison by judges not connected socially or even geographically to those they sentence, and who are thus insulated from the consequences of their decisions. ‘How to punish?’ is instead best answered where the offenders and their victims live. Every community should accept its share of responsibility, and work to eradicate local conditions that foster bad character and crime. Education, housing, healthcare and job programmes prevent offences and reintegrate offenders. It is on these things and on reparations that money should be spent, not on imprisonment.
© Stuart Greenstreet 2014
Stuart Greenstreet earned his living as a business manager and writer before taking up philosophy at Birkbeck College, London. After graduating from the Open University he did further philosophy at the University of Sussex.
Family Background of Convicted Prisoners
Prisoners are far more likely than the general population to have grown up in care, poverty, or an otherwise disadvantaged situation. Compared with men and women in the general population, prisoners were:
• 4 times more likely to have run away from home as a child.
• 13 times more likely to have been taken into care as a child.
• 2.5 times more likely to have a family member convicted of a criminal offence.
The latter two characteristics interact. Around 125,000 children in Britain are affected by imprisonment each year. Many are taken into care, fostered, or adopted as a result of a parent’s imprisonment, and this increases the likelihood of their becoming offenders themselves.
Nearly half of all prisoners say that they have lost contact with their families since entering prison. Many are sent to prisons far from their homes.
Education and Employment of Convicted Prisoners
Most prisoners have had their experience of school disrupted by truanting and exclusion, and leave school at the first opportunity, with no qualifications. Compared with the general population, convicted prisoners were:
• 10 times more likely to have been a regular truant.
• Nearly 25 times more likely to have been excluded from school.
• Nearly 3 times more likely to have left school at sixteen or younger.
• Nearly 4 times more likely to have left school with no qualifications.
• 23% of male and 11% of female prisoners attended a special school compared to only one per cent of the general population.
• 48% of prisoners have a lower level of reading ability than an 11-year-old; 65% have lower numeracy skills; and 82% have lower writing skills.
Low skills feed into low employability: only half of prisoners have the reading skills, less than one-third the numeracy, and one-fifth the writing skills necessary for 96% of all jobs.
Employment reduces the risk of re-offending by between a third and a half. But two-thirds of prisoners arrive in prison from unemployment. Unemployment in the general population is normally between 5% to 8%. Among prisoners (in the 4 weeks before imprisonment) it is 67%.
The same proportion have never experienced regular employment or having a job that was really worth having. Over one in seven say that they have never had a job at all.