Prisons systems around the world have been pursuing an expansionist course for decades. There are more than 9.8 million people held in penal institutions around the world (Walmsley, 2008). Prison systems are having an increasingly difficult time dealing with the number of offenders that are sentenced to imprisonment as evident in the overcrowded living conditions and understaffed institutions. At a time when public expenditure is under pressure, governments are faced with the daunting task of finding funding to build new prisons and manage existing ones. Not surprisingly, prison is increasingly becoming regarded as a scarce and expensive resource.
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Some theorists have argued that there prisons should be abolished altogether given that they do not fulfil the justifications for punishment. Other theorists have contended that prisons are the only solution for the most serious crime but they are used much too often and for minor offences. The term ‘reductionist’ refers to significant reductions in prison population size (Rutherford, 1984). While there have been recent increases in the incarceration rate in Scandinavia and the Netherlands, they have traditionally been regarded as successful examples of a reductionist policy. This essay will argue, not for the abolition of prisons, but for a drastic reduction in their use by using strategies proposed by Rutherford (1984) applied universally. Strategies to reduce the use of prison should start with the prison itself and substantially reduce the capacity of the prison so that prison is a scarce resource. Only then will alternatives to prison be used instead of prison and not in addition to prison.
America has the highest incarceration rate in the world at 748 per 100,000 of the population (Bureau of Justice Statistics, 2009). There are approximately 2,297,400 people held in state and federal prisons and local jails throughout the U.S Bureau of Justice Statistics, 2009). This is almost a quarter of the world’s prisoners and yet America is home to less than five-percent of the world’s population (Adam Liptak, 2008). The state of California houses around 171,275 prisoners which is more than any other U.S state Bureau of Justice Statistics, 2009). California is a prime example of the country’s growing prison population and the unsustainable prison costs. In California alone, the prison system costs the government $10 billion a year (Trachtenberg, 2009). By 2012, the government will be spending more money on its prison system than its university system (Trachtenberg, 2009).
The construction of new prisons has not reduced the unprecedented level of overcrowding or improved conditions in California prisons. There are 33 adult prisons in California and each prison is holding many more inmates than it was intended for (Specter, 2010). Some are reaching 300% of their capacity. The extreme overcrowding has meant that prison gymnasiums, hallways and cafeterias are being used to house inmates, and in some cases the inmates are triple-bunked (Specter, 2010). The inmates sleep in close confinement with one another, and there is nothing that protects them from being sexually and physically abused by fellow inmates. The crowded and unhygienic conditions, mean inmates are more likely to get sick, stay sick, and pass illnesses onto others. Prison overcrowding is directly related to the inhumane conditions that prisoners live in inside many of the worlds’ prisons.
England and Wales also have a high prison population rate of 153 per 100,000 of the national population. Although the prison population rate in England and Wales is much lower than in America, many countries have rates of below 150 per 100,000. There are 83,392 people in prison in England and Wales and new and existing resources will need to accommodate a planned prison population of 96,000 by 2014 at an enormous cost (Walmsley, 2008; House of Commons, 2010). Recent research shows that prison expenditure in England and Wales increased dramatically between 2003 and 2009 from £2.868 billion to £3.982 billion respectively (Centre for Crime and Justice Studies, 2010). A large number of prisoners are sharing cells that were only intended for single use (Millie, Jacobsen & Hough, 2003). If this forecast is realised then England and Wales will have the highest imprisonment rate in Western Europe at 169.1 per 100,000 people (House of Commons, 2010). The public expenditure is under great pressure in England and Wales and the government needs to decide if it will continue with its prison building programme or invest in the prevention of crime (House of Commons Justice Committee, 2009).
Overcrowded prisons like in America and England and Wales are a symptom of the expansionist movement. The prison population rates are likely to increase annually and because it takes years to bring a new prison into commission the existing prisons are filled over and above their capacity (Rutherford, 1984). To deal with the expected increase in the prison population rate expansionist systems tend to have prison-building programmes in place to increase the size of their existing prisons and build new ones (Rutherford, 1984). Rutherford (1988) argues that serious overcrowding can attract political attention and lead to closer inspection of the prison system. In California, attention has been drawn to the state of California’s prisons by the various lawsuits that have been filed against the governor and corrections officials by prisoners. In the case of Plata v. Davis in 2002, the state acknowledged that it had not been providing adequate medical care to meet the needs of prisoners throughout the prison system (Specter, 2010). Based on this and other cases, a court was set up to address California’s prison crisis which concluded that overcrowding in the prisons prevented the state of California from providing adequate mental and medical health care to its prisoners (Specter, 2010). Following the investigation, the court imposed a population cap of 137.5% of the prisons capacity (Specter, 2010). According to Rutherford (1984), these types of orders can have several types of consequences.
First, prison overcrowding can initiate a reductionist movement. Policy makers could be encouraged to make use of early release mechanisms or set-up more community-based punishments. For example, in California the state has launched a programme to trial shortening the period of time that parolees remain under intensive supervision which can last for years following their release from prison (Muradyan, 2008). The strict parole conditions mean that offenders are often returned to prison for parole violations such as missing their appointments (Muradyan, 2008). If minor-offenders are able to “stay clean” for six-months after their release from prison then their supervision will end early (Muradyan, 2008). In England and Wales, a report on the overcrowding of prisons strongly recommends that the government reinvest in community based sanctions for prisoners who are only sentenced to prison for a short time to reduce the prison population and reduce re-offending (House of Commons Justice Committee, 2009).
Second, prison overcrowding can encourage officials to make use of prison facilities in neighbouring jurisdictions (Rutherford, 1984). When the court imposed a population cap on California’s prisons the state began to transfer around 8,000 of its prisoners to facilities outside of California. This solution only succeeds in shifting the problem of overcrowding elsewhere and as we will see in the case of California, it is a short-term solution to a larger problem. The authorization to transfer California’s inmates to facilities in other states expires in July of 2011 (Muradyan, 2008).
Third, overcrowding can contribute to the expansion of prison systems. When resources are stretched it can help to secure more resources for the expansion of existing prisons and the creation of new ones (Rutherford, 1984). In response to the prison crisis in California, the state borrowed $7.4 billion make room for 40,000 more prisoners in state prisons and to create 13,000 new county jail beds (Muradyan, 2008). This was a controversial move because the government obtained the financing through lease-bonding, a move that saves the state from having to gain voter approval and costs more than other types of bonds (Muradyan, 2008).
It is clear from this example that there is big money involved in the expansion of prison systems. Most prisons are built with borrowed money like in California. The funding for prisons can produce big profits for the private companies that are involved in prison systems throughout the world in one way or another (Christie, 1994). Health care, food services and construction are all sectors that are expanding fast and providing big profits for private firms (Christie, 1994). Private sector involvement can also be seen in the private-prison itself. In his book, ‘Crime Control as a Product’ (1994), Nils Christie raises the important point that “with this amount of interplay with private profit interests, even up to the level of private prisons, we are building an important growth factor into the system” (pg. 111). The profits associated with private prisons mean big money for private companies who are able to build and run prisons for a fraction of what it costs the government and the government is able to avoid asking the voters permission to build a new prison (Christie, 1994). Christie warns that an expansionist policy will lead to private prisons and in turn, a focus on financial rather than humanitarian aims.
Although Governments have been geared towards expansion for decades, a large number are becoming increasingly aware that prison is a scarce resource that is too expensive to maintain. In some countries, this perception is based on the understanding that prison is not fulfilling its key aims of punishment. Perhaps other countries are not comfortable using the restriction of liberty as the main form of punishment. But for a lot of countries, it would seem that a reductionist policy makes more sense than an expansionist one in economic terms.
For example, in the Netherlands the judiciary believe that prison is ineffective as a punishment and should be used as a last resort (Downes, 1988; 81). The Netherlands has maintained a low prison population in the post-war period, a time when other prison populations have sky-rocketed. This is likely due to the short length of sentences compared with countries like America (Downes, 1982). There are a number of factors that are likely to have helped to maintain a certain level of penal capacity in the Netherlands.
First, penal sentencing and criminal justice policy in The Netherlands has traditionally enjoyed a culture of ‘tolerance’. The culture of tolerance lead to less prejudice, less discrimination, and reduced the need for harsh punishment (Downes, 1988). A glance at the history of the Netherlands illustrates the long tradition of Dutch tolerance towards minority groups, deviants, and religious beliefs and points of view that strayed from the norm. During the eighteenth and nineteenth centuries The Netherlands was less inclined to use capital and corporal punishment than its European counterparts and notably fewer wartime collaborators were killed after the war compared with countries such as Belgium and France (Downes, 1988).
Second, the ‘culture of tolerance’ in The Netherlands was allowed to operate in the setting of a ‘politics of accommodation’. Criminal justice policy, for the most part, operated out of the public eye and was free from public opinion. Criminal justice policy was largely determined by a small group of professional elites who made accommodations with other smaller groups to support tolerant policies. A range of different groups, even those that supported abolitionism, were a part of the penal reform. Although criminologists with extreme views such as Bianchi, would have been excluded from advisory roles in England and Wales or the United States, in The Netherlands radical views on criminal justice are welcomed and the participation of elites with such views serves to lead debates in a direction that would not have been considered otherwise. The criminal justice process also remained free from unnecessary public interaction. The criminal justice system was run by a small number of highly professional and well educated practitioners.
Other theories assert that a combination of social developments contributed to the sentencing trends in the Netherlands. There are five major social developments that may have impacted on the situation; the comprehensive range of social services, a large number of youth centres, a large number of client-oriented welfare and social-service agencies, responsible reporting by the mass media, and the pressure group activities on behalf of the penal reform by the social service agencies (Hulsman, as cited in Downes, 1988; 344). Another factor could be that many Dutch people were imprisoned during the War and that this made the Dutch less inclined to administer sentences of imprisonment as they understood the pains that imprisonment can cause (Downes, 1988). Downes (1988) argues that these factors occurred alongside the sentencing trends but that they did not necessarily influence the trends.
The trends in the sentencing policy of the Netherlands have remained rather constant. The mild reactions of the Dutch to crime and the co-operation of political parties made it easier for a small group of elites to implement criminal justice policies free from public opinion. welfare However, maintaining such a stable prison population would not have been possible without the co-operation of the judges. The legal training which places a negative value on imprisonment seems to be important in maintaining the use of imprisonment as a last resort.
The reductionist policy was not peculiar to The Netherlands at this time. Scandinavian countries have also enjoyed low levels of imprisonment and humane prison conditions. Although the levels of imprisonment in Scandinavia are also on the rise, the rate of 66 per 100,000 of the population is still significantly lower than many countries around the world (Pratt, 2008; Walmsley, 2008). Pratt (2008) attributes the low prison population rates and humane prison conditions to a culture of equality and generous welfare state. The Scandinavian welfare state provided support for anybody that needs it. There were no limits to who could apply for assistance and no shame involved in asking for it (Pratt, 2008). The people of Scandinavia afforded the state a large amount of power and paid high taxes in exchange for high levels of security. The state provided security for its people by guaranteeing work and unemployment benefits, social services (medical care, care for the elderly, and improved living conditions for its citizens (Pratt, 2008). People’s individual interests were secondary to shared common and political goals (Pratt, 2008).
In Scandinavia, there was a generally held belief that a strong welfare state could reduce the problem of crime the way it had reduced other social problems (Pratt, 2008). Crime was viewed as an illness that could be treated like any other illness and so the rehabilitation of offenders was an important part of the criminal justice process (Pratt, 2008). The job of the criminal justice system was to treat offenders and then reintegrate offenders back into the community. While in prison, offenders were treated humanely and there was no need for further degradation because the loss of liberty was the punishment (Pratt, 2008).
Furthermore, the social solidarity in Scandinavia meant that offenders were not seen as a dangerous class, merely as another group of welfare recipients (Pratt, 2008). The Scandinavian public seem to be an exception to the increasingly punitive attitudes and policy towards offenders that exists in many countries around the world. Although the support for the rehabilitation of offenders is on the decline, while the use of sentencing and the length of sentences is increasing they are still more inclined than their European counterparts to believe that prevention programmes can reduce crime (Demker, Towns, Duus-Otterström & Sebring, 2008. In addition, less than half of the Swedish public still believe that tougher jail sentences can reduce crime (Demker et al., 2008).
The Netherlands and Scandinavia demonstrate that prison populations can be reduced and sustained at low levels. Some general themes have emerged: the criminal justice policies are expert and research driven; the criminal justice system is not influenced by public opinion or political motives; a strong welfare state. Perhaps the most important conditions for a successful reductionist approach are a questioning of the prison system and the purposes it serves and an understanding that the prison population is less to do with the amount of crime that occurs than the response to crime by the criminal justice system (Rutherford, 1984).
According to Rutherford (1984) the reductionist policy can be applied more universally. Before looking at the ways Rutherford (1984) has proposed to reduce the prison population it is important to acknowledge that the items on the agenda need political support. Politicians need to acknowledge that there are alternatives to prison available, as demonstrated in Scandinavia and the Netherlands. Instead of forecasting an increase in the number of people in prison, new low targets should be set. In addition, there must be a desire to push forward with the reductionist agenda even during hard times (Rutherford, 1984).
Rutherford (1984) acknowledges that the ideological concerns of officials within the criminal justice system significantly influence the policies and procedures that are made. In many countries, there is a political consensus that an approach to crime and criminality should be tough. For example, in England and Wales, the prison system has expanded under both the Labour and Conservative governments. Both Labour and Conservative governments seems to ascribe to the Great Expectations [1] ideology as illustrated by their investment in the prison system. To gain political support for the reductionist agenda, people must be made not to like the great expectations approach so that it loses its vote-winning potential. Before any items on the reductionist agenda can be introduced there is a lot of work that will need to be done.
Rutherford (1984) proposes nine ways to reduce the prison population according to the reductionist approach (Rutherford, 1984). They are as follows:
The physical capacity of the prison system should be substantially reduced.
There should be a precise statement of minimum standards as to the physical conditions of imprisonment and these should be legally enforceable.
The optimal prison system staff-to-prisoner ratio should be determined and implemented.
The prison system should have at its disposal early release mechanisms and use these to avoid overcrowding.
Certain categories of persons sentenced to imprisonment should, if the space be not immediately available, wait until called-up by the prison system.
Sentencing discretion should be structured towards use of the least restrictive sanction.
Breach or default of non-custodial sanctions should only exceptionally be dealt with by imprisonment.
The range of non-imprisonable offences should be widened to include certain categories of theft.
The scope of the criminal law should be considerably narrowed (Rutherford, 1984: p. 175-176)
To control overcrowding, Rutherford (1984) encourages the use of early release mechanisms. Parole as a form of early release can play a major part in determining sentence length and the size of the prison population. Parole is already being used in places like Australia, United Kingdom, Canada, and New Zealand (Ministry of Justice, 2010). Generally speaking, parole is the release of an offender on the grounds that they adhere to conditions decided upon prior to their release and that these conditions are in effect until the full term of their sentence is up.
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Narrowing the scope of the criminal law and widening the range of non-imprisonable offences is important because the majority of people in prison are not serious offenders, they are people who have committed minor crimes or created a social nuisance (Rutherford, 1984). Rutherford (1984) argues that as long as prison is used instead of providing welfare to these people, governments will not try to find more effective ways of dealing with this behaviour. At one point in time, social nuisances such as sleeping on the streets and begging were imprisonable offences. According to Rutherford (1984) certain categories of theft should also be made non-imprisonable. He proposes that: “On economic and philosophic grounds, property offences where the amount involved is less than, say £100, should be non-imprisonable.” (Rutherford, 1988: 182). Perhaps the value of the property stolen is not the best way to decide whether an offence is serious or not especially when it is as random and subjective as Rutherford (1984) has suggested. It would make more sense to make all minor thefts non-imprisonable and would also be likely to have a more significant effect on the size of the prison population.
An alternative suggestion is decriminalisation. Decriminalisation has the potential to reduce the prison population substantially if it is applied to drug use. In 2000, a report blamed the US drug contol policies for the soaring incarceration rate (Schiraldi, Holman & Beatty, 2000). In that same year, nearly a quarter of people imprisoned were imprisoned for a non-violent drug-related offence (Schiraldi, Holman & Beatty, 2000). These findings suggest that the decriminalisation of drugs and perhaps other minor non-violent offences could significantly reduce the number of people that enter the criminal justice system.
Rutherford (1984) advocates the structuring of sentence discretion towards the use of the least restrictive sanction. To achieve this, Rutherford suggests a commission be set up to determine sentencing guidelines. A sentencing commission would have the difficult task of determining the seriousness of offences. The judiciary are generally given a lot of discretion when it comes to deciding sentences. For sentencing policy to have an impact on the prison population it requires the co-operation of the judiciary.
Despite the introduction of non-custodial sentences prison populations have continued to rise. This raises doubts about whether non-custodial sentences are being used in the ways that they were intended. In some cases non-custodial sentences are used in addition to imprisonment or in instances where a custodial sentence would not have been handed down in the first place (Rutherford, 1984). Another concern is that strict conditions often accompany alternative sanctions. If the strict conditions are breached then the person can end up in prison anyway.
An example of this is the suspended prison sentence which was introduced into English law in 1967 (Bottoms, 1981). The suspended prison sentence was supposed to be used instead of a prison sentence but it was largely used in cases where a fine or probation would have been previously handed out (Bottoms, 1981). Only about half of the people who received the suspended prison sentence would have actually been sentenced to prison if it were not for the suspended sentence (Bottoms, 1981). In addition, judges began to hand out longer sentences to people that received the suspended sentence than they would have if the same person was actually sentenced to prison (Bottoms, 1981). These figures provided a strong argument for the removal of the use of the suspended sentence in England. However, the suspended sentence was implemented in Japan and the Netherlands more successfully. An important difference is that in Japan and the Netherlands, a breach of the suspended sentence does not result in imprisonment (Rutherford, 1984). Rutherford (1984) suggests that this difference might explain why the suspended sentence has contributed to the prison population in England but not in the Netherlands or Japan.
The inherent danger of alternative sanctions is that they will supplement rather than replace sentences of imprisonment. Rutherford (1984) recommends establishing a clear understanding of when the non-custodial sentence should be used and what will happen if further offending occurs while the non-custodial sentence is in place. Failure to pay attention to these important issues can have the unintended consequence, as seen in England, of widening the scope of the criminal justice system.
Often, strategies to reduce the prison population focus on decisions at the rear of the criminal justice process that deal with the prosecution stage. It is important to note that the decision of who enters the criminal justice system is largely outside the control of the government (Rutherford, 1984). The police are involved in crime prevention, recording of crime, and investigating crime. They are the gatekeepers of the criminal justice system and are afforded a great deal of discretionary power in deciding who enters the criminal justice system and who does not. In England, the police decide who to stop and search, who is guilty, and who to prosecute (Poyser, 2004). The decisions that they make have a huge impact on prison practice and policy.
Perhaps the best way to restrict the reach of the criminal justice system is to significantly reduce the physical capacity of the prison system. There are three main ways to reduce the prison capacity; cease new prison building, phased closing of existing prisons, and refurbish existing prisons. In the Netherlands, prior to 1975, there was a large reduction in the prison population from 6,500 inmates to less than 2,500 inmates. The decrease in prison population size was associated with the closure of sixteen of the country’s prisons. If prison capacity is reduced and no new prisons are built, provided countries do not tolerate overcrowding, prison will be a scarce resource that should be reserved for the most serious crime.
A logical extension of the reductionist argument is that prisons should be abolished altogether. Although it may seem a radical idea, a glance at the history of the death penalty tells us that abolition is indeed possible (footnote). This idea has received considerable attention within the field of criminology especially by criminologist Thomas Mathiesen. Over the years, arguments in defence of prisons have focused on claims about the purposes of punishment and prison. According to these arguments the purposes of punishment are: rehabilitation, general prevention, collective and selective incapacitation, and justice (Mathiesen, 2000). Mathiesen addresses each one in turn in his book ‘Prison on Trial’ (2000).
First, Mathiesen (2000) examines recent research on rehabilitation in prisons. The CDATE project is a review of a large number of studies on the rehabilitation of offenders in prison and the effects of interventions on drug use and recidivism (Mathiesen, 2000). The project found that correctional interventions were not effective in reducing recidivism (Mathiesen, 2000). Interestingly, community based sentences such as parole and probation did not do much better at reducing recidivism. Some of the programmes included in the study actually produced more problems. It is worth noting that a number of studies on interventions with an emphasis on developing social skills found positive results (Mathiesen, 2000). However, these studies are few and far between. Rutherford (1984) and Matheisen (2000) both express concern over the use of correctional interventions in the prison context. The kind of ideology that supports the use of prison to rehabilitate offenders ignores the history of research on the topic. Rutherford (1999) is also concerned that rehabilitation is based on the idea that prison works and that offenders can be ‘diagnosed’ and then ‘treated’.
Then, Mathiesen (2000) addresses the idea that prison serves the function of general prevention. The effectiveness of prisons in producing enough fear in people to convince them not to commit crimes has been hotly debated in criminology. Mathiesen refers to Richard Wright’s (1994) review of studies on deterrence. Wright (1994) concludes that the greater a persons perceived and actual chances of getting caught are, the less likely they are to commit crime (Wright, 1994). This is also true for later crime. Changes in policy that increase the perceived chances of being caught will reduce crime in the short-term but will not have a lasting effect (Wright, 1994). Furthermore, the expected and actual severity of crime has no effect on offending (Wright, 1994). Taken together, these findings provide no evidence of a preventative effect of the severity of punishment.
Next, Mathiesen (2000) looks at incarceration. There are two ways that prison can be used as incapacitation; collective incapacitation and selective incapacitation. Collective incapacitation refers to the use of prison to incapacitate offenders based on the seriousness of the crime and to a lesser extent, their prior convictions (Wright, 1994). Selective incapacitation refers to the use of prison to incapacitate certain offenders who continually offend and pose a risk to law-abiding citizens (Wright, 1994). Wright (1994) argues that a small group of ‘chronic offenders’ are responsible for the majority of crime committed. Although, prisons do not deter the offenders from committing crime, it can atleast incapacitate them and protect society from ‘the crime of the chronics’ (Wright, 1994: 112). On the other hand, Mathiesen (2000) contends that research provides no support for incapacitation in defence of prisons. Incapacitation does not have a significant effect on the rate of crime nor does it increase the safety of citizens (Mathiesen, 2000). In a review of the related literature, prison and more specifically incapacitation only had marginal effects on crime (Mathieson, 2000). It is also important to note that even though new generation of criminals will only replace those that are incarcerated and incapacitated. To lock the new ‘chronic offenders’ away would only serve to swell the prisons more. The idea of selective incapacitation is even more controversial. Selective incapacitation raises methodological, legal, and moral concerns about the accuracy of predictive measures used to estimate the probability of future behaviours. The problem of “false positives” (people predicted to continually reoffend that do not) is central to these arguments. The number of false positives, from prediction instruments, is still very high (Mathiesen, 2000). If the various instruments were put into practice despite their inaccuracy, they would influence the decision making process in court. The chance that a person will re-offend is only one feature that the courts take into account when making their decisions. Courts also need to consider mitigating circumstances, fairness, and history amongst other things.
Finally, proponents of the prison system endorse retribution as an ethical and fair goal for prisons. These beliefs date back to the influential writings of Cesare Beccaria (1964) in ‘On crimes and Punishments’. Beccaria disagreed with the barbaric and extreme punishments that were so commonly used in 18th century Europe. Retributivists believe that punishment should be proportionate to the crime. In this case, offenders are punished not for rehabilitation, or to prevent them commiting more crimes, but to give them their ‘just desserts’. The just desserts model requires that crimes are ranked according to severity, punishments are ranked according to severity, and then the crimes and punishments are matched (Wright, 1994). Ranking punishment
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