This House would limit prison to violent offenders

A recent study conducted among prisoners in Florida found that from 1997 to 2010 the proportion of new inmates who had committed violent crimes (collating both state and federal prisons statistics) fell by 28%[i]. Meanwhile, the number of first time prisoners who had committed non-violent offences rose by 189%[ii].

It is argued that imprisoning individuals found to be guilty of non-violent crimes is a disproportionate response to their actions and does not serve the objectives of criminal sentencing set out above.

Criminal sentences must deliver a punishment in proportion to the crime an offender has committed. A disproportionate sentence- using the death penalty to punish theft, for instance- is less likely to be perceived as a fair or rational response to criminal behaviour. An offender who is punished excessively is more likely to see himself as the victim of injustice, and less likely to consider the impact of his own conduct. A law abiding individual who that fears that jaywalking may result in jail time will have no confidence in the criminal justice system, and may begin seeking other sources of security.

There are many alternatives to penal sentences available to magistrates and judges. Using fines and curfews to restrict financial and personal liberty, alongside restorative forms of punishment such as community service, can provide a much more efficient way of condemning an individual’s criminal behaviour.

[i] “Rough Justice in America”, The Economist, July 22 2010, http://www.economist.com/node/16636027

[ii] “Rough Justice in America”, The Economist, July 22 2010, http://www.economist.com/node/16636027

The victims of non-violent offences may suffer as much as the victims of violent offences. A large scale financial fraud, such as that perpetrated by Robert Maxwell or Bernard Madhoff, may deprive thousands of individuals of their savings and pensions, condemning them to a life of poverty. A petty drugs dealer may be supplying a habit that drives an addict to steal and attack others in order to find money.

Moreover, fraud, deception and drug dealing draw on the same predatory, cynical and exploitative attitudes that motivate violent theft, organised crime and violent rape. An individual who has committed only non-violent offences is not necessarily in a better position to appreciate the harm that violence may do, or to understand that others may suffer as a result of his actions.

It may be proportional to hand down a severe prison sentence to a “white collar” criminal, who has abused a position of trust or wealth for personal gain. Such crimes are aggravated by the fact that their perpetrators have often led privileged, secure lives, free from the deprivation and poverty that drives most criminals. Confidence in the justice system may be harmed if it is felt that those of professional standing or a high social class are subjected to softer punishments. 

The prison environment is harmful to many offenders. Consider the risk of developing a drug or alcohol addiction while incarcerated in the UK (15% of the inmates of one of the UK’s largest jails tested positive for drugs in 2006)[i]; the risk of being subjected to sexual violence in an US prison (217,000 prisoners were subjected to sexual violence in American prisons in 2008)[ii]; the rise in gang motivated violence and killings within prisons on both sides of the Atlantic.

Prison brings together individuals with a wide range of social and behavioural problems that incline them towards deviance and violence. These individuals are placed in closed conditions with restricted access to productive activities. In many western nations, a lack of funding and staff means that most prisoners have little to fill their time, and may be confined to their cells for up to twenty three hours a day. The privations of prison make prisoners more, rather than less likely to engage in violent or exploitative behaviour. Prisoners in overcrowded, understaffed jails are more likely to develop mental illnesses and less likely to have such conditions diagnosed and treated. The brutality of their surroundings makes prisoners more likely to seek the protection and comradeship offered by gangs or the comfort of intoxicants.

Furthermore, the shame and isolation associated with incarceration cause prisoner’s non-criminal social networks to decay. Relationships with partners or spouses may break down. Contact with children may be limited. Families may shun the offender, leaving him with a social circle comprised mainly of fellow inmates. These associations can prove toxic, leading offenders to validate each other’s behaviour and share knowledge about criminal activities.

Finally, the stigma of criminality extends to employment. Businesses may be unwilling to employ those with criminal records, limiting ex-offenders’ opportunities for social reintegration.

[i] “Inspector finds gangs and high level of violence in jail”, The Guardian, 11 July 2006, http://www.guardian.co.uk/uk/2006/jul/11/ukcrime.prisonsandprobation?INTCMP=SRCH

[ii] “Combating  rape in prisons”, The Economist, May 5 2011, http://www.economist.com/node/18651484

Although prisoners may associate closely with other criminals within jail, many more offenders were introduced to crime outside prison. A deprived social background, a family life disrupted by domestic violence and family members with histories of criminal behaviour can all lead an individual to become involved with crime.

For many young men, prison can become a sanctuary from links with gangs or a chaotic and damaging home life. Once placed within the regulated, disciplined environment of the prison, they can be introduced to the essential skills and educational opportunities that they may have been denied in the outside world.

Prison can give an individual the opportunity to develop the practical and psychological skills they require to escape social alienation. Many prisons in Europe, the UK and the States achieve this objective. US prisons may also operate special units that offer help and protection to offenders who want to leave gangs.

Under-staffing and a poor understanding of inmates’ needs are arguments for reform of the prison system, not arguments against incarceration itself. Where these issues are addressed, rehabilitation programmes have had many successes. Once political prejudices about building and funding rehabilitation oriented prisons are overcome, the benefits of penal supervision will become more accessible.

Many of the rehabilitation and intervention schemes made available in prison are replicated in community settings by social services and charities. The cost of delivering these programmes in prison originates from the concept of prison itself. The expense of building, equipping, staffing and monitoring a prison vastly outweighs the cost of rehabilitative activities. Research conducted by Steve Aos has shown that rehabilitative programs designed to reduce crime can be cost-effective[i].

Prisons should be used only where the imperative to protect society from criminal behaviour cannot be met by the imperative to rehabilitate. A minority of offenders will be incorrigibly violent and uncontrollable, but under the status quo, these dangerous offenders not represent the majority of the prison population (see statistics above).

The yearly cost of incarcerating a young offender in the UK is now £140,000, almost three times the annual fee charged by an elite public school[ii]. Diverting this money to intervention programmes delivered to families, in homes and in schools would avoid the harms of incarceration (described above), while retaining the benefit of rehabilitation. The focus should therefore be prevention and early intervention rather than punishment. 

[i] Aos, S., The Comparative Costs and Benefits of Programs to Reduce Crime, Washington State Institute for Public Policy, May 2001, http://barry.mo.networkofcare.org/library/costbenefit.pdf

[ii] “Punishing Costs” The New Economics Foundation, 2010, p18

As noted above, the consequences of non-violent crimes can be just as damaging as those of violent crimes. More over, non-violent criminals can also present an immediate danger to society.

The cost of constructing a prison is outweighed by the benefit of preventing individuals from committing crimes. Rehabilitation programmes are not a panacea – they are not instantly or reliably effective. Even if an individual refuses to engage with any rehabilitative activities in prison, they are still restrained from engaging in further criminal activity.

Consider the senior members of organised criminal syndicates. These individuals may only be involved in using deceptive accounting or front-companies to conceal the activities of their colleagues, but by doing so they enable and encourage multiple violent offences.

Similarly, drug dealers may create conditions in which social deprivation and family break-down flourish. As noted both above and on side proposition, these same conditions can cause others to turn to criminality. In this instance, drugs dealers can present a danger to their communities, and an obstacle to the rehabilitation of addicts. Arguably, the most effective solution to this particular form of criminal behaviour is the removal of the dealer from that community.

The deterrent effect of prison is uniformly overstated. It is popularly thought that the indignity and strictness of the prison environment will discourage criminal behaviour. Further, exposure to the harsh realities of prison is thought to discourage former inmates from re-offending. These assumptions do not reflect most offenders’ reasoning, nor do they reflect the contexts in which most criminal behaviour occurs. Punishment of the type offered by prisons doesn’t meet the criteria for reinforcement of behaviour that one would associate with behaviour change; the punishment happens long after the behaviour, and is therefore futile[i].

Firstly, it should be noted that among many inmates, especially young men, criminal actions, including public order offences, assault and petty theft, are carried out on impulse. Impulsive behaviour is often influenced by alcohol and peer pressure. Under these circumstances, deterrence is ineffective.

Secondly, empirical evidence indicates that it is the likelihood of being caught performing a criminal act, rather than the sentence for that crime, that deters potential offenders. If a potential offender believes he is more likely to be caught and convicted, he is less likely to engage in criminal behaviour. Meta-analyses such as the Cambridge Study on Deterrence[ii] have shown that the severity of a sentence only has a marginal effect on an offender’s decision to break the law.

In the light of these findings, deterrence can be seen as a matter of policing and detection, rather than a set of misleading assumptions based on an over-simplification of rational-actor theory.

[i] Andrews, D.A. & Bonta, J., “Rehabilitating Criminal Justice and Policy” in Psychology, Public Policy and Law (2010, Vol. 16, No.1). Page 42

[ii] “Criminal deterrence and sentence severity: an analysis of recent research”, von Hirsch, A, and others

It is unrealistic to expect the police to act as the sole deterrent to criminal behaviour. The majority of police work concerns the detection rather than the prevention of crime. Only a massive and unfeasible expansion of police numbers and powers could provide a real deterrent to criminality.

The purpose of deterrence is to reduce the likelihood of damaging behaviour without dramatically raising the cost of enforcing the law. Deterrence relies on individuals acting in a rational manner and being able to regulate their own behaviour. Property crime often results from the offender performing a rational balancing of his likely gains against the likely costs of incarceration. Limiting the use of prison sentences means that calculating offenders will be much more likely to engage in property crime.

Finally, the proposition is unable to deal with the threat posed by habitual and compulsive petty criminals. The actions of such individuals often straddle the boundary between outright criminality and anti-social behaviour. Their offences may never be severe enough to attract a penal sentence, but it is the continuous and repeated nature of their criminal acts that causes harm. Once again, the best response to such conduct is the forcible segregation of the offender inside a prison.

A recent study conducted among prisoners in Florida found that from 1997 to 2010 the proportion of new inmates who had committed violent crimes (collating both state and federal prisons statistics) fell by 28%[i]. Meanwhile, the number of first time prisoners who had committed non-violent offences rose by 189%[ii].

It is argued that imprisoning individuals found to be guilty of non-violent crimes is a disproportionate response to their actions and does not serve the objectives of criminal sentencing set out above.

Criminal sentences must deliver a punishment in proportion to the crime an offender has committed. A disproportionate sentence- using the death penalty to punish theft, for instance- is less likely to be perceived as a fair or rational response to criminal behaviour. An offender who is punished excessively is more likely to see himself as the victim of injustice, and less likely to consider the impact of his own conduct. A law abiding individual who that fears that jaywalking may result in jail time will have no confidence in the criminal justice system, and may begin seeking other sources of security.

There are many alternatives to penal sentences available to magistrates and judges. Using fines and curfews to restrict financial and personal liberty, alongside restorative forms of punishment such as community service, can provide a much more efficient way of condemning an individual’s criminal behaviour.

[i] “Rough Justice in America”, The Economist, July 22 2010, http://www.economist.com/node/16636027

[ii] “Rough Justice in America”, The Economist, July 22 2010, http://www.economist.com/node/16636027

The victims of non-violent offences may suffer as much as the victims of violent offences. A large scale financial fraud, such as that perpetrated by Robert Maxwell or Bernard Madhoff, may deprive thousands of individuals of their savings and pensions, condemning them to a life of poverty. A petty drugs dealer may be supplying a habit that drives an addict to steal and attack others in order to find money.

Moreover, fraud, deception and drug dealing draw on the same predatory, cynical and exploitative attitudes that motivate violent theft, organised crime and violent rape. An individual who has committed only non-violent offences is not necessarily in a better position to appreciate the harm that violence may do, or to understand that others may suffer as a result of his actions.

It may be proportional to hand down a severe prison sentence to a “white collar” criminal, who has abused a position of trust or wealth for personal gain. Such crimes are aggravated by the fact that their perpetrators have often led privileged, secure lives, free from the deprivation and poverty that drives most criminals. Confidence in the justice system may be harmed if it is felt that those of professional standing or a high social class are subjected to softer punishments. 

The prison environment is harmful to many offenders. Consider the risk of developing a drug or alcohol addiction while incarcerated in the UK (15% of the inmates of one of the UK’s largest jails tested positive for drugs in 2006)[i]; the risk of being subjected to sexual violence in an US prison (217,000 prisoners were subjected to sexual violence in American prisons in 2008)[ii]; the rise in gang motivated violence and killings within prisons on both sides of the Atlantic.

Prison brings together individuals with a wide range of social and behavioural problems that incline them towards deviance and violence. These individuals are placed in closed conditions with restricted access to productive activities. In many western nations, a lack of funding and staff means that most prisoners have little to fill their time, and may be confined to their cells for up to twenty three hours a day. The privations of prison make prisoners more, rather than less likely to engage in violent or exploitative behaviour. Prisoners in overcrowded, understaffed jails are more likely to develop mental illnesses and less likely to have such conditions diagnosed and treated. The brutality of their surroundings makes prisoners more likely to seek the protection and comradeship offered by gangs or the comfort of intoxicants.

Furthermore, the shame and isolation associated with incarceration cause prisoner’s non-criminal social networks to decay. Relationships with partners or spouses may break down. Contact with children may be limited. Families may shun the offender, leaving him with a social circle comprised mainly of fellow inmates. These associations can prove toxic, leading offenders to validate each other’s behaviour and share knowledge about criminal activities.

Finally, the stigma of criminality extends to employment. Businesses may be unwilling to employ those with criminal records, limiting ex-offenders’ opportunities for social reintegration.

[i] “Inspector finds gangs and high level of violence in jail”, The Guardian, 11 July 2006, http://www.guardian.co.uk/uk/2006/jul/11/ukcrime.prisonsandprobation?INTCMP=SRCH

[ii] “Combating  rape in prisons”, The Economist, May 5 2011, http://www.economist.com/node/18651484

Although prisoners may associate closely with other criminals within jail, many more offenders were introduced to crime outside prison. A deprived social background, a family life disrupted by domestic violence and family members with histories of criminal behaviour can all lead an individual to become involved with crime.

For many young men, prison can become a sanctuary from links with gangs or a chaotic and damaging home life. Once placed within the regulated, disciplined environment of the prison, they can be introduced to the essential skills and educational opportunities that they may have been denied in the outside world.

Prison can give an individual the opportunity to develop the practical and psychological skills they require to escape social alienation. Many prisons in Europe, the UK and the States achieve this objective. US prisons may also operate special units that offer help and protection to offenders who want to leave gangs.

Under-staffing and a poor understanding of inmates’ needs are arguments for reform of the prison system, not arguments against incarceration itself. Where these issues are addressed, rehabilitation programmes have had many successes. Once political prejudices about building and funding rehabilitation oriented prisons are overcome, the benefits of penal supervision will become more accessible.

Many of the rehabilitation and intervention schemes made available in prison are replicated in community settings by social services and charities. The cost of delivering these programmes in prison originates from the concept of prison itself. The expense of building, equipping, staffing and monitoring a prison vastly outweighs the cost of rehabilitative activities. Research conducted by Steve Aos has shown that rehabilitative programs designed to reduce crime can be cost-effective[i].

Prisons should be used only where the imperative to protect society from criminal behaviour cannot be met by the imperative to rehabilitate. A minority of offenders will be incorrigibly violent and uncontrollable, but under the status quo, these dangerous offenders not represent the majority of the prison population (see statistics above).

The yearly cost of incarcerating a young offender in the UK is now £140,000, almost three times the annual fee charged by an elite public school[ii]. Diverting this money to intervention programmes delivered to families, in homes and in schools would avoid the harms of incarceration (described above), while retaining the benefit of rehabilitation. The focus should therefore be prevention and early intervention rather than punishment. 

[i] Aos, S., The Comparative Costs and Benefits of Programs to Reduce Crime, Washington State Institute for Public Policy, May 2001, http://barry.mo.networkofcare.org/library/costbenefit.pdf

[ii] “Punishing Costs” The New Economics Foundation, 2010, p18

As noted above, the consequences of non-violent crimes can be just as damaging as those of violent crimes. More over, non-violent criminals can also present an immediate danger to society.

The cost of constructing a prison is outweighed by the benefit of preventing individuals from committing crimes. Rehabilitation programmes are not a panacea – they are not instantly or reliably effective. Even if an individual refuses to engage with any rehabilitative activities in prison, they are still restrained from engaging in further criminal activity.

Consider the senior members of organised criminal syndicates. These individuals may only be involved in using deceptive accounting or front-companies to conceal the activities of their colleagues, but by doing so they enable and encourage multiple violent offences.

Similarly, drug dealers may create conditions in which social deprivation and family break-down flourish. As noted both above and on side proposition, these same conditions can cause others to turn to criminality. In this instance, drugs dealers can present a danger to their communities, and an obstacle to the rehabilitation of addicts. Arguably, the most effective solution to this particular form of criminal behaviour is the removal of the dealer from that community.

The deterrent effect of prison is uniformly overstated. It is popularly thought that the indignity and strictness of the prison environment will discourage criminal behaviour. Further, exposure to the harsh realities of prison is thought to discourage former inmates from re-offending. These assumptions do not reflect most offenders’ reasoning, nor do they reflect the contexts in which most criminal behaviour occurs. Punishment of the type offered by prisons doesn’t meet the criteria for reinforcement of behaviour that one would associate with behaviour change; the punishment happens long after the behaviour, and is therefore futile[i].

Firstly, it should be noted that among many inmates, especially young men, criminal actions, including public order offences, assault and petty theft, are carried out on impulse. Impulsive behaviour is often influenced by alcohol and peer pressure. Under these circumstances, deterrence is ineffective.

Secondly, empirical evidence indicates that it is the likelihood of being caught performing a criminal act, rather than the sentence for that crime, that deters potential offenders. If a potential offender believes he is more likely to be caught and convicted, he is less likely to engage in criminal behaviour. Meta-analyses such as the Cambridge Study on Deterrence[ii] have shown that the severity of a sentence only has a marginal effect on an offender’s decision to break the law.

In the light of these findings, deterrence can be seen as a matter of policing and detection, rather than a set of misleading assumptions based on an over-simplification of rational-actor theory.

[i] Andrews, D.A. & Bonta, J., “Rehabilitating Criminal Justice and Policy” in Psychology, Public Policy and Law (2010, Vol. 16, No.1). Page 42

[ii] “Criminal deterrence and sentence severity: an analysis of recent research”, von Hirsch, A, and others

It is unrealistic to expect the police to act as the sole deterrent to criminal behaviour. The majority of police work concerns the detection rather than the prevention of crime. Only a massive and unfeasible expansion of police numbers and powers could provide a real deterrent to criminality.

The purpose of deterrence is to reduce the likelihood of damaging behaviour without dramatically raising the cost of enforcing the law. Deterrence relies on individuals acting in a rational manner and being able to regulate their own behaviour. Property crime often results from the offender performing a rational balancing of his likely gains against the likely costs of incarceration. Limiting the use of prison sentences means that calculating offenders will be much more likely to engage in property crime.

Finally, the proposition is unable to deal with the threat posed by habitual and compulsive petty criminals. The actions of such individuals often straddle the boundary between outright criminality and anti-social behaviour. Their offences may never be severe enough to attract a penal sentence, but it is the continuous and repeated nature of their criminal acts that causes harm. Once again, the best response to such conduct is the forcible segregation of the offender inside a prison.

Distinctions between violent and non-violent offences are not useful when deciding which offenders should be imprisoned and which should receive more lenient, rehabilitative sentences. The severity of a crime can only be defined by its context and consequences, not by semi-arbitrary labels such as violent and non-violent.

All forms of criminality, and not just violent crimes, can have disturbing and traumatic consequences. The effect of a robbery on the physical health and psychological stability of an elderly person can be as pronounced as the effects of a violent assault on a healthy young man.

It is disingenuous to claim that the nature of a criminal act can be separated from that act’s effects on a victim. As the widely known common law maxim states, a victim should be taken as he is found. A reasonable adult citizen will not be excused from responsibility for what he knew to be a harmful criminal act simply because he did not foresee the extent or type of harm he would do.

A judicial system that takes the concept of proportionality seriously should be free to decide that the consequences of a robbery committed against an impoverished, frail widow should result in a more severe sentence than a teenager’s impulsive attempt to shop-lift alcohol.

Similarly, the outcome of a wide ranging financial fraud is likely to be more harmful than the outcome of a fist fight between two drunken football fans.

Judges are allowed to exercise discretion so that they can adapt the broad rules and objectives of sentencing to the nuances of each case brought before them. The context and consequences of criminal activity should inform sentencing decisions, not an artificially narrow definition of “violence”.

The opposition argument assumes that punishment must be proportional only to the suffering caused to the victim of a particular crime. Opposition state that for a sentence to be truly proportionate, it must reflect the subjective responses of the victim. This analysis fails to acknowledge that the definition of proportionality extends beyond the victim.

The four objectives of criminal sentencing are complimentary, not mutually exclusive. The aspect of a sentence that seeks to punish should be proportionate to offender’s crime, but in addition, it must not obstruct the functioning of the other objectives of sentencing.

A burglary may be upsetting for the victim, and incarceration of the burglar may seem a proportionate response. However, when that sentence is weighed against the imperative to rehabilitate the burglar, we discover that rehabilitation in prison would be less effective than rehab in a community setting. When custodial punishment is weighed against the imperative to protect the public, we discover that non-violent criminals who have been incarcerated are more likely to engage in violent crime following their release. The greater cost of incarceration- to the criminal and to the efficacy of the rehabilitative process- renders the sentence disproportionate.

The comparative popularity of imprisonment has distorted our understanding of which criminals it is most suited to. 

Rehabilitation programmes are not a panacea – nor are they instantly or reliably effective. The risk of an individual committing crime can only be reduced by long-term engagement with such schemes.

Under these circumstances, the best location in which to rehabilitate offender is prison. Prison serves, in some cases, to separate prisoners from poverty and desperation, and to help them access training and education that they may have failed to engage with previously. Prison can also quarantine offenders from the influence of gangs and other sub-cultures that may compete with the positive behaviours fostered by rehabilitation. This is particularly the case for high risk offenders.

It seems ridiculous to assume that dramatic changes in an individual’s behaviour can be brought about without a correspondingly dramatic change in their environment and lifestyle. Criminality frequently develops as a survival strategy within hostile or chaotic social environments.

For many crimes, family may also be the root cause. Problematic relationship with relatives can further hinder the rehabilative process. How can we still expect family members to help facilitate the rehabilative process when they may be the reason reason why the offender committed crimes.

If there are minimal restraints put on an offender’s freedom while he rehabilitates, it will be easier for him to avoid complying with rehabilitation programmes. It will also be easier for the offender to avoid complying with other, more punitive measures, such as fines and community service orders.

As a last resort, a prison term prevents offenders who refuse to engage with rehabilitation from committing crimes for the length of their sentence. Given that a UK home office survey conduct in 2000 found that, on average, offenders committed 140 crimes a year, even a brief sentence represents a significant disruption of criminal activity[i].

[i] Civitas, Fighting Crime: Are Public Policies Working?, February 2010, p.1, http://www.civitas.org.uk/pdf/CrimeBriefingFeb2010.pdf

Families and other social networks can play an important role in supporting and encouraging an offender as they rehabilitate. Wives, husbands and children can effectively monitor the behaviour of an offender when trained staff are unavailable. Given that the imprisonment of an adult family member is emotionally traumatic and financially damaging, families have a strong incentive to ensure that rehabilitation is successful.

Disruptive family environments are also catered for by the proposition resolution. Where family breakdown is a cause of criminality, social workers and rehabilitation specialists will be able to “treat” the family alongside the offender. Underlying drug or alcohol addictions can be addressed. ‘Therapeutic programs’, as they are termed, enable offenders to be rehabilitated by and within the community in a ‘living-learning situation’[i].

Prison on the other hand is an unsupportive environment where offenders are blamed for their behaviour and sometimes coerced into rehabilitation programs[ii]. In a prison context, an offender would be treated in isolation, without the opportunity to address underlying familial issues that might cause reoffending. Prison can  be iatrogenic (increase risk) by removing offenders from their source of social support, families, jobs and accommodation; rehabilitation is more likely to be effective when it is used in conjunction with those factors, not apart from them. Furthermore, the available evidence suggests that prison staff hold ‘rather unsympathetic’ attitudes towards prisoners[iii], inferring a culture unfavourable to effective rehabilitation.

Although an offender may be prevented from committing crime for the duration of a prison sentence, this does not represent a significant advantage over the proposed resolution. For the reasons set out above, a prisoner released from a custodial sentence is likely to be incentivised to engage in crime (due to a lack of employment opportunities and social isolation), and will commit more serious types of crime.

[i] Day, A., Casey, S., Vess, J. & Huisy, G., “Assessing the Social Climate of Prisons”, February 2, 2011 from Australia Institute of Criminology, Page 8/Page 32

[ii] Day A. & Ward T., “Offender Rehabilitation as a Value-Laden Process” in International Journal of Offender Therapy and Comparative Criminology (June 2010: Vol 54. N.3) Page 300

[iii] Day A. & Ward T., “Offender Rehabilitation as a Value-Laden Process” in International Journal of Offender Therapy and Comparative Criminology (June 2010: Vol 54. N.3) Page 294

A custodial sentence has strong symbolic value, for offenders, for victims and for society as a whole.

Exclusion from society and confiscation of freedoms that the state would normally protect at any cost is a powerful message, one that can be understood easily by both white collar fraudsters and semi-literate muggers. There are few more effective ways of communicating society’s disapproval and indicating the boundaries of its tolerance.

For all side proposition’s talk of long term consequences and proportionality, there remain a significant number of offenders and potential offenders who would perceive the resolution as a weakness to be exploited. We give up the symbol of incarceration at the cost of emboldening criminals.

Confidence in the state is founded on the state’s ability to protect its citizens and their property from physical harm. This is something on which all but the most extreme ends of the political spectrum would agree. Even if the state is no longer willing to wield violence against a criminal minority in protection of a law abiding majority, it should still be prepared to project the power that contemporary constitutional settlements have allowed it to retain. If it does not, the state risks being accused of forgetting its core duties in favour of more abstract notions of “harm”.

A modern liberal state’s duty is to pursue policies and promote values that will have a real and lasting impact on its citizen’s lives. The resolution is such a policy. The opposition’s argument has been tried and failed; in the US, ‘increasing punitive measures have failed to reduce criminal recidivism and instead have led to a rapidly growing correctional system that has strained government budgets’[i].

Pandering to populist thinking in the name of maintaining confidence in a particular government is a short-term strategy. It is an approach designed to win elections rather than bring about social change. The most effective way for a government to fulfil its obligation to protect its citizens is to reduce deviance effectively and efficiently, even if that change has to come at the expense of political capital.

The penal system operating under the status quo brutalises individuals and entrenches criminality in communities in the name of law and order.

[i] Andrews, D.A. & Bonta, J., “Rehabilitating Criminal Justice and Policy” in Psychology, Public Policy and Law (2010, Vol. 16, No.1). Page 39