5 Punishment Once a person has been found guilty, or has admitted their wrongdoing, the contemporary legal landscape offers a broad range of options. While prisons continue to be a significant presence in popular imagination, political claims and legal processes, other outcomes are also available. Along with prisons, these alternatives are often imposed in a context of debate and controversy. The lack of agreement over appropriate sanctions reflects the more general confusion over underlying philosophies of punishment.
Once a person has been found guilty, or has admitted their wrongdoing, the contemporary legal landscape offers a broad range of options. While prisons continue to be a significant presence in popular imagination, political claims and legal processes, other outcomes are also available. Along with prisons, these alternatives are often imposed in a context of debate and controversy. The lack of agreement over appropriate sanctions reflects the more general confusion over underlying philosophies of punishment.
Those found guilty by the courts are liable to punishment. In the Western world there are a number of contending philosophies behind the idea of punishment. We start by looking at these. Retribution refers to the idea that a price should be paid for crime. Under this model a crime is seen as a moral affront to society and the punishment as a justified outcome for this violation. In a sense society has a normative duty to see that the punishment balances out the harm done by the criminal. Retributive theories of punishment often draw upon Old Testament theories of ‘an eye for an eye’ and suggest that punishments have to be in some way proportional to the severity of the offence. Theories of deterrence or reductivism suggest that the aim of punishment is to prevent crime. According to a leading early advocate of this position, the great eighteenth-century Italian criminologist, Cesare Beccaria (1995), punishments have to make offending unattractive by exacting a price greater than the possible benefits of such action. This kind of model operates with an understanding of the human actor as rational and calculating. If appropriate penalties are codified, potential criminals will work out the equation of probable gains versus probable losses and opt for a life of conformity. Deterrence can work in two ways. General deterrence refers to the belief that a punishment will dissuade the public at large offending. Hence we sometimes understand a sentence as ‘making an example’ of a particular wrongdoer. Specific deterrence involves the punishment of a given individual in the expectation that this will prevent that particular person from offending in future. A judge might hope, for example, that a tough sentence will turn a juvenile offender away from a life of crime. Aside from questions of deterrence, reductivist approaches also assert that offending can be reduced simply by removing malefactors from circulation, thus eliminating their opportunities to commit crimes. If criminals are in prison or under intense surveillance in the community, they will find it difficult to re-offend. The philosophy behind all this is known as incapacitation. Approaches focusing on reform or rehabilitation suggest that the aim of punishment should be to bring about a moral or behavioural change in the offender. In the contemporary era this approach sees punishment as an opportunity for interventions involving health care, education, counselling and training in the expectation that these might turn a bad person into an upright citizen.
Today ideologies about deterrence seem to play the major role in the justification of punitive sanctions against offenders. Yet, amazingly enough, there is little evidence for this (Nagin and Paternoster, 1991). Efforts to demonstrate deterrence usually try to establish a correlation between severity and certainty of penalty and crime rates within a given jurisdiction. For example, we might compare rates for drug offending before and after tough new anti-drug laws are established, or perhaps compare states with divergent sentencing policies. Studies of this kind have usually demonstrated either no support or very limited support for deterrence theory. More sophisticated attempts to look at deterrence try to measure perceptions and mental processes. This is because, according to deterrence ideology, potential offenders weigh up the benefits and risks of crime, or experience fear of possible punishment. Getting at perceptions is methodologically very difficult. In prisons we have a sample of those who were not deterred. A more representative sample would include people who did not commit crimes because they were deterred. Investigating ‘non-events’ such as this is always problematic and usually involves asking respondents to recall decisions about past episodes where they were tempted to commit a deviant act or else asking for responses to hypothetical scenarios. Such strategies are seriously flawed because they rely on selective and faulty mental processes rather than capturing the real-time, real-world experience of criminal decision-making.
Notwithstanding these difficulties, the research looking into deterrence has generated some consistent findings.
- Potential and actual offenders seem to be more concerned that they will be shamed by family and friends than punished in the criminal justice system. This reality has fed into ideas about reintegrative shaming and restorative justice that we discuss on pp. 189–190.
- Perceptions relating to the risk of getting caught may well be more important to offenders than those relating to the severity of punishment. In other words, criminals give priority to whether or not they will get away with a crime.
- Thoughts about punishment have a low priority in the decision whether or not to commit a crime. Many crimes are spontaneous and impulsive and others habitual. There seems to be no rational calculation of costs and benefits as specified in deterrence ideologies. The work of Jack Katz (1988), for example, has argued that people commit crime for emotional and moral reasons, not for rational gain.
- Those who do not commit crime seem to be constrained by morality rather than fear of formal sanctions. For most of us it is unthinkable to commit a major crime because to do so would be wrong.
These kinds of results lend indirect support to the diverse theoretical positions that suggest contemporary punishment has little to do with controlling crime and criminals and might have more to do with broader social processes of which criminal justice actors are unaware. We reviewed some of these in the first chapter – most notably work in the traditions established by Durkheim, Foucault and Marx.
Even though most offences do not result in prison sentences, the prison has such symbolic centrality that it is usually the first thing that comes to mind when we think about punishment today. In Chapter 1 we looked at Foucault’s work on the origins of the prison and how it can be understood in theoretical terms as part of the broader societal shift towards modernity (see pp. 28–32). Here we explore a series of issues that are more specific to the study of prisons in contemporary sociology.
It is amazing how often ‘prisons’ and ‘remand centres’ are conflated in everyday language and how few students know the difference. This section sorts out the distinction. A prison is a place where you will find convicted criminals. A remand centre is a place where people are held pending trial or sentencing. These are often run by distinct organizations. Hence in the United States a remand centre might be run by the sheriff’s office and a prison by a Department of Justice. A considerable proportion of the people behind bars are on remand, not in prison. This can often create confusion when looking at official statistics on rates of incarceration and imprisonment.
An exploration of the history of the prison brings us to the understanding that (like courts and the police) they are a curious accretion of contradictory and competing ideologies and practices. Prisons have emerged as a key component of the criminal justice system during the past 200 years. The conventional history of the prison is one that ties them to the growing power of humanitarian ideologies (for an alternative view, see the discussion of Foucault on pp. 28–32). With the rise of the Enlightenment, punishments such as death and torture came to be seen as barbaric by criminologists like Cesare Beccaria. Advocates and administrators of prisons often had religious motivations. They believed that procedures such as hard labour, solitary confinement and enforced attendance at worship would lead people to repent their sins and become morally reformed. The belief was that lack of discipline and faith were responsible for crime. As the saying goes, ‘the devil makes work for idle hands’. For these sorts of reasons early prisons were sometimes known as ‘penitentiaries’ – a word whose root lies in ‘penitence’.
The Walnut Street Jail in Philadelphia, opened in 1773, is often cited as an early exemplar of an institution carrying a prison ideology of this kind (Rothman, 1995). Although it looks like a harsh place to modern eyes, it was established largely through the efforts of citizens concerned about the cruelty of the then existing punishments. Quaker philosophies had a significant impact upon the prison. It was believed that quiet contemplation would lead to penitence. Inmates were held in solitary confinement in small cells where they also worked. They would be let out only to attend religious ceremonies. This model was later copied elsewhere in the United States and is sometimes referred to as the ‘Pennsylvania System’. Ideas similar to those of the Pennsylvania system could be found world-wide. Thus, half a globe away in the Port Arthur penal colony in Tasmania, Australia, ideas about convict separation were taken to extremes. Here prisoners had to wear hoods to obscure their identities whenever they were outside their cells and were forbidden to talk to one another. Identified by numbers, inmates had to wear their hoods on the way to and from religious worship. Only within the chapel could they remove them. Here they were separated from each other by wooden screens. They could look only forwards at the preacher with possibilities for mutual interaction minimized.
During the first part of the nineteenth century new systems came into place that allowed work to take place collectively during the day. At night prisoners returned to individual cells arranged in galleries within prison blocks. Silence and discipline remained central principles and solitary confinement was still used as punishment for those who broke rules. This regime is sometimes known as the ‘Auburn System’ after the Auburn Prison in New York where it was developed. Everyday life in such prisons was resolutely militaristic. David Rothman (1995: 110) provides a vivid description.
At the sound of a horn or a bell, the guards opened the cells and the prisoners stepped onto the deck and then in lockstep went into the yard. In formation they emptied their night pails, which they then washed; they took a few more steps and placed the pails on a rack to dry. They then move in lockstep to the shop and worked on their tasks while sitting in rows on long benches. When the bell rang for mealtime, they grouped again in single file, passed into the kitchen, picked up their rations … [and] ate their meals while, by regulation, sitting erect with their backs straight.
Fierce debates erupted between advocates of the Auburn and Pennsylvania systems. Apologists for the Auburn systems suggested that it was more cost-efficient, while supporters of the Pennsylvania model argued the newcomer had compromised the purity and austerity of their approach. The Auburn template eventually became prevalent, but towards the end of the century such ideological tussles began to look irrelevant given empirical realities of ‘overcrowding, corruption and cruelty’ (Rothman, 1995: 152). Reform movements started up which slowly pushed prison life towards the form we see today. Pivotal to these was the Elmira Reformatory in New York which opened in 1876 and offered education and vocational training. Inmates were graded and rewarded with privileges. During the twentieth century other innovations fell into place. Recreation was allowed among prisoners during the day and educational and therapeutic programs were introduced. Religious elements became weaker and prisons were increasingly shaped by secular belief systems such as those of managerialism, psychology, health sciences and academic criminology. Prison design and activity today reflect such changes in ideology. There is a strong focus on reducing security within the prison but maintaining it on the perimeter. It is thought that a ‘campus’-style prison will improve prisoner behaviour better than a repressive institution of walls and bars. Such changes have been made possible through the use of new technologies such as security cameras and the re-skilling of prison officers so that they can use interpersonal abilities to maintain order.
Although ideologies may become dominant and then recede, they are not necessarily completely displaced. The practices and policies of Sheriff Joe Arpaio highlight some of the contested claims over the purpose of prisons and their appropriate administration.
Some believe that prisons, and the criminal justice system in general, have become ineffective as they are soft on criminals and offer conditions that are too attractive. One controversial advocate of this position is Sheriff Joe Arpaio of Maricopa County, Arizona. He has instituted a series of reforms within his jurisdiction that have attracted the attention of the media world-wide. These include:
- having inmates wear old-fashioned striped convict uniforms with pink underwear so they feel humiliated;
- serving food that is perfectly nutritious but looks disgusting, most notably a green bologna. The Sheriff also claims to serve the cheapest meals in any US Jail at 45c per person.
- banning pornographic magazines, coffee, smoking and unrestricted television from prisons;
- working male inmates on chain gangs;
- working female inmates on chain gangs (the Sheriff says he believes in gender equality);
- setting up a jailhouse webcam to increase shame and deter crime;
- housing inmates in a Tent City, complete with 60 ft observation tower and a pink neon ‘Vacancy’ sign.
Critics claim that Sheriff Arpaio has violated human rights and has implemented an inhumane prison regime. Despite his tough side, Sheriff Arpaio also prides himself on close ties with the community. One of his programs involves housing juveniles in a replica of his Tent City jail, dressing them in prison uniforms and subjecting them to random searches so they get a taste of life inside and turn away from crime. This is known as S.M.A.R.T., which stands for Shocking Mainstream Adolescents into Resisting Temptation. His Posse Reserve involves 3,200 citizens who do things like look for ‘deadbeat parents’ and try to stamp out prostitution. You can check out his activities at: www.mcso.org/
Are there any similarities between the above practices, and the Auburn and Pennsylvania systems, and more contemporary alternatives and ideologies?
Can you predict the criticisms of Sheriff Arpaio that might be made by an advocate of labelling theory or Braithwaite’s ‘reintegrative shaming’ (pp. 189–90)?
Looking at the history of the prison from the vantage point of social theory, we can see several connections with the themes we explored in Chapter 1. Broadly speaking, we can explain the existence of the modern prison in terms of its congruence with the values and social systems of modernity. It is a rational and bureaucratic institution controlled by the state – a reality that can be explained with reference to the work of Weber on the shift away from local and ad hoc administration of the law (see pp. 36–37). The prison also allows punishment to involve the whole individual and fits in with Foucault’s ideas about shifts in forms of social power from the body to the soul (see pp. 28–32). If we turn to the question of culture, the prison is consistent with Elias’s views on the need to hide punishment from public view and eliminate its more brutal attacks on the body (see pp. 37–39). In short, the cultural and administrative shifts associated with modernity laid the groundwork for this particular criminal justice institution. They made it both organizationally possible and normatively desirable as the pivotal and emblematic form of punishment.
In answering this question we need to think about what it might mean. The first thing to understand is that prisons are based upon conflicting aims and objectives. Meeting all of these at the same time might be an impossibility. As a form of punishment, prisons do indeed seem to work. Felons do not want to go there and they are glad to get out. They also do a good job in terms of incapacitation. Media stories on jail-breaks are newsworthy precisely because they happen so rarely. For this reason, prisons also work as a means of preventing crime. They take offenders out of the community and in effect make it impossible for them to offend (at least outside of the prison). When it comes to reforming the criminal so they do not to commit crime, however, prisons are less effective. Although prisons punish, they do not seem to deter or rehabilitate. Recidivism is the technical term used for offenders who re-offend. Prisons seem to do little to prevent this and we find that around 50–60 percent of people in prison have been there before. Rates of offending within prison are also high. Statistics suggest that around 50 percent of prisoners have broken a prison rule at some point. Critics claim that recidivism and rule breaking take place because punishments are not tough enough. Others suggest that prisons need to focus more on reform. This is currently done via correctional programs. These vary widely in design, implementation and philosophy and can take the following forms.
- Educational opportunities and life skills (e.g. obtaining a high school diploma, learning a trade). The object here is to improve opportunities and life chances, perhaps leading to a job and a stake in conformity.
- Medical interventions (e.g. drug detoxification). These programs try to eradicate the clinical conditions that lead to offending behaviour.
- Therapeutic and counselling interventions (e.g. sex offender programs, substance abuse programs, anger management programs). These aim to encourage personal growth and reflexivity, allowing individuals to understand, recognize and modify patterns of offending behaviour.
Some suggest such programs are an afterthought in the prison system. They cost money to run and are often the first item to be cut when budgets begin to look tight. Access to programs can be especially difficult for women prisoners. Because their numbers are small, it can be difficult to justify extra expenditure on targeted interventions. Moreover, conflicting priorities and clashing objectives mean programs have little chance of working in the broader, hostile prison environment. For example, Russell Dobash, R. Emerson Dobash and Sue Gutteridge (1986) report a ‘chum’ system existed in the Scottish prison that they studied. This meant that younger inmates were expected to team up with a prison officer who would be their mentor and confidante, thus contributing to a therapeutic environment. Such a system was jeopardized by other aspects of the prison officer’s role: the fact that they had to exercise discipline, strip search inmates after visits and report rule infractions. It has been widely argued that placing people in a planned environment and in isolation from the wider society makes them dysfunctional. In prison everything is laid on – food, lodging, work. There is little need for everyday survival skills of the kind required in the outside world. Critics also assert that isolating the prisoner from family, work and the wider community and immersing them in a concentrated criminal subculture creates stigma and a sense of oppositional identity that does not help them reintegrate upon release (see discussion of labelling theory, pp. 26–28, and prison culture, below). Although there is widespread dispute over the best way to organize prisons and prison programs, there is general agreement that more evaluations need to be conducted of specific programs to find out just what works and what doesn’t.
From the perspective of critical sociology, prison programs have been interpreted as yet another attempt at social control rather than as creative and genuine efforts to help. For example, when Dobash et al. (1986) looked at the Scottish women’s prison, they argued that ideals behind psychiatric and drama therapy programs arose from stereotypes. These suggested that offending women were mentally ill or disturbed and were driven by biological forces and emotions rather than reason. Institutional attempts to modify behaviour and personality could be read in Foucauldian terms as something that has ‘enlarged the net of discipline and woven it still finer by extending surveillance and control to even the most intimate and mundane aspects of daily life’ (ibid.: 158). They point out that women were obliged to monitor themselves and appear polite and compliant in order to fit in with the norms of the therapeutic regime. Failure to become a ‘good woman’ – essentially complying with middle-class norms – would result in punishment. Similarly, work programs centred around the idea that the women had failed as wives and mothers. Skills training centred largely on domestic activities and on the needs of the institution. Hence women could work in cooking and cleaning roles, keeping costs down in learning to become the ‘good woman’.
The idea that prisons failed to rehabilitate came to a head with the rise of the doctrine of ‘nothing works’ and the belief that there was no evidence that treatment programs were successful (Martinson, 1974). The idea that ‘nothing works’ is probably mistaken. Meta-analyses of various programme evaluations suggest that correctional programs have modest effects, especially those oriented around cognitive/behavioural skills development (Gaes et al., 1999). However, the idea has been influential. Conservative critics argued that punishment was insufficiently severe to bring change in prisoners and during the 1980s retributive policy started to make headway in tandem with wider ‘law and order’ debates and policies. At the same time, according to David Garland (1991), the search continues among criminologists to locate a guiding philosophy or raison d’être for prisons other than simple punishment. Put simply, prisons exist and continue to be used, but there is no coherent or overarching framework explaining why we have them, how they should be organized and what they should do with offenders.
Regardless of issues of recidivism, reform and mission, many argue prisons are quite simply a bad idea. They are cruel and brutalizing. They are also very expensive. The cost of incarcerating a person in a medium or maximum security prison is around US$20,000–40,000 per annum. This is not very different from the average wage. In the USA the budget equates to around $25 billion that has to be spent every year on keeping people locked up (Blumstein and Beck, 1999). For these sorts of reasons some criminologists have advocated a policy of using the prison only for dangerous and repeat offenders – typically those involved in organized and/or violent crime. This ideology is known as selective incapacitation. Such an initiative is supported by the belief that the majority of serious crime is committed by a small pool of repeat offenders. If they can be identified and put away, then crime rates should drop significantly. However, controversy exists over whether such a group exists, and if so, how it can be defined and identified. In extreme cases, ideologies of selective incapacitation have been tied to thinking about indefinite sentences for dangerous individuals. The idea here it to take volatile offenders out of action permanently if they can be shown to be an enduring threat to the community. At the other end of the scale, selective incapacitation has been broadened out to a wider range of crime than was perhaps intended and tied to philosophies of mandatory sentencing. Such thinking, as we have seen, has been attacked with reference to themes of proportionality and due process.
Some suggest we need to think about the costs of prisons not only in terms of their impact on offenders or on the taxpayer, but also in terms of their impact on others. John Hagan and Ronit Dinovitzer (1999), for example, attempt to itemize the consequences of imprisonment on the children of the inmate. These can include ‘the strains of economic deprivation, the loss of parental socialization through role modelling, support, supervision and the stigma and shame of social labelling’ (ibid.: 123). They suggest that children can consequently suffer adverse mental health, increased involvement in delinquency and educational failure. There are also what Hagan and Dinovitzer call ‘collateral costs’ not only to individuals but to collective forms of human and social capital. These can be thought of in part as opportunity costs, with socially beneficial activities forsaken when available money is spent on prisons. In California, for example, the state spends $6,000 per annum on each college student but about $34,000 per year on each prison inmate (ibid.: 130). In addition, as the next section outlines, minority communities as a whole lose social capital as an entire generation of members are locked away, only to be further socialized into deviant subcultures.
Census information shows that prison populations tend to be comprised of repeat offenders who have been charged with serious offences such as robbery, assault and drug dealing. These are mostly male, from working-class or poor backgrounds. They are usually aged under 30 years. Minorities tend to be dramatically over-represented. These patterns can be illustrated with reference to Australia (ABS, 1998). In 1997 some 28 percent of prisoners were aged under 25. Indigenous people made up 18 percent of the prison population, even though Aborigines are only 2 percent of the wider population. Women made up only 6 percent of Australian prisoners. Some 58 percent of inmates had been incarcerated before, suggesting that prison does not deter or reform very well.
A major problem for some developed economies over recent years has been the growth of prison populations. This is particularly acute in the United States where currently around two million people are incarcerated in jails and prisons – about one person in every 145 US residents (Bureau of Justice Statistics, 2002). Between 1925 and 1975 the US prison population remained remarkably stable at around 110 inmates per 100,000 population. There followed a period of rapid increase in the 1980s and 1990s (Blumstein and Beck, 1999). During the 1990s alone the American prison population doubled, with currently 450 people per 100,000 in prison. This rate is from six to ten times greater than for similar developed countries (Garland, 2001c: 1–3). Of perhaps greater concern is the way that this growth has centred largely on young black urban males. In the United States in 1996 the imprisonment rate for Blacks was 8.2 times that of whites (ibid.: 23). Around one in three black men aged from 20–29 years of age is under some kind of punitive supervision and at current rates about 1 in 3 black males can expect to serve some time during their life span. In 2001 an estimated 12 percent of black males aged in their twenties or early thirties were locked up, compared to only 1.8 percent of whites (Bureau of Justice Statistics, 2002). In other words, policies of incarceration can be seen operating against an entire social group. A negative outcome of this is that prison is seen as an ordinary experience for a large proportion of the population, criminogenic norms are routinized, and inequalities based upon prison are added to those related to race and class.
The literature explaining the rising prison population points to a series of factors which are not mutually exclusive (Caplow and Simon, 1999; Mauer, 2001):