Sentencing and the Allure of Imprisonment

Sentencing and Benevolent Imprisonment: why Rehabilitation Should Not be a Ground for Custodial Sentencing

Cyrus Tata is Professor of Law and Criminal Justice, Centre for Law, Crime and Justice, Strathclyde University Law School.

The Scottish Prison Service is transforming itself by focusing more on rehabilitation. This is a welcome development. Yet there is an unintended consequence of that transformation: custody may become a more alluring sentencing option. Against a background of increasing cuts to budgets for community-based services, this creates a serious risk that more non-dangerous people will end up going to prison, not because the seriousness of their offending requires it, but because of a benign desire to address their needs. To preclude this unintended consequence the first step is to enunciate publicly two clear principles. The first should clarify that the decision to imprison hinges on the seriousness of offending. The second principle should spell out that no one should be sent to custody for the specific purpose of rehabilitation, unless warranted by the seriousness of offending.

In its aspiration to build “the most progressive justice system in Europe”[1], the Scottish Government has stated for almost a decade its commitment to a radical reduction in the prison population. Scotland has one of the highest per capita rates of imprisonment in Europe. Echoing his predecessor, the Cabinet Secretary for Justice has repeatedly said that there is no good reason why this should be so.

Those wishing to reduce the number of people in custody have to grapple with the fact that custodial sentences are not only passed to denounce and exclude the individual. One of the reasons why we are so attached to imprisonment derives from the enticing belief that a positive programme of institutionalisation can improve the lives of the people sent there.

That non-dangerous people should be confined in large part for their own good is not a new sentiment. Victorian society believed strongly in the power of institutions to reform the individual. Vulnerable people convicted of non-violent crimes who have long been thought to benefit from benevolent imprisonment. Prison seems to offer a seductive combination of help, protection and control. As psychiatric institutions, (which had for decades confined people ‘for their own good’), closed during the 1980s and 1990s so the people who once populated them are ending up before the courts and in prison.

This is a particular problem in relation to women in the criminal justice system. The motivation to imprison such women is normally benign. It is not uncommon for practitioners to talk about women who have repeatedly committed relatively minor offences, or not complied with the terms of their community-based orders, as benefiting from a spell in custody as a place of help, protection and sanctuary, or, because nothing else seems to work. Similarly, it is tempting to think of young people as in need of detention for the purpose of retraining. Vulnerable men with chaotic lives, but whose offending behaviour is troublesome but does not pose a danger to the public, may be thought to be helped insofar as imprisonment so that their complex needs can receive attention, or, even because there appears to be nowhere else for them. Occasionally, it is noted that some vulnerable people would even prefer prison because life in the community has become too difficult.

It is all too easy to imagine that custody, if creatively reconfigured, can represent a sort of kindness which, if not required by the seriousness of offending itself, is best placed to address complex personal issues such as drug and alcohol misuse, homelessness, family breakdown, mental health issues, illiteracy and even unemployment. Yet we also know that the best way to help vulnerable people struggling to cope with life in the community is to support them in that community, rather than incarcerate them.

The Re-Birth of Benevolent Prison Sentencing?

The Scottish Prison Service (SPS) has been embarking on a radical transformation of imprisonment. Prison conditions are becoming far less degrading than they used to be. Prisons in Scotland are being overhauled. This is surely a very good thing. People are, after all, sentenced to imprisonment as punishment not for punishment.

And yet there is also a very real danger in this transformation. The danger is not in the welcome transformation of prison regimes, but in the unintended consequences for penal sentencing policy and practice.

Unintended consequences

As the experience of custody is being re-imagined as a positive, constructive, even creative experience so it will be hardly surprising if prison becomes a more alluring place to send people – not because of the seriousness of their crimes, nor because they are a danger to the public, but in large measure for their own good. This is not a criticism of the SPS’s bold transformation of the experience of imprisonment: the Service can only do its best with the people it receives – and, in a civilised society, it must do so. Neither is it a criticism of the judiciary, social workers, lawyers and other practitioners involved in the sentencing process.

All of us aim to recognise that personal and social problems lie behind offending. We are frustrated by the revolving door of the justice system and want to do something constructive. At the same time, we need to acknowledge that no matter how constructive a prison regime may be, if we really want address the needs of low level offenders struggling to cope with life in the community then community-based support is the far better way to help. Moreover, because it necessitates social exclusion, exacerbates a sense of social dislocation and stigmatises for life[2], imprisonment makes the subsequent attempts to move away from offending all the more difficult.

In a context in which non-custodial sentences still struggle to gain credibility in the eyes of legal professionals, politicians and the public, and in which social services are being stretched, and in which third sector funding is precarious, there is always prison to fall back on. When other options don’t seem to work, there is prison. When convicted individuals seem unable or unwilling to comply with community-based sentences, there is always prison ‘as a last resort’. The language of ‘last resort’ in effect renders prison as the default. In our current discourse it is the central sentence and all other sentences are cast as marginal ‘alternatives’, which have to prove themselves. But prison is a given. While non-custodial sentences and social services are so stretched, imprisonment, on the other hand, appears as the dependable, credible and well-resourced default.

The result is likely to be self-perpetuating: resources are sucked into the credible, robust and reliable option of imprisonment at the expense of community-based programmes which appear as weak, unreliable and poorly explained.

Unlike community justice, the prison sector is far better organised, better funded and more effective in communicating its message publicly. Its message now is about the transformation of the prison from de-humanising squalor to opportunity and self-improvement. Employment opportunities, it is pointed out, are increasing and prisoners can learn new skills: pointless mail-bag sewing is long gone, and increasingly prisoners can avail themselves of an array of courses and qualifications. Visitor centres in prison are becoming less cheerless soul-destroying places for prisoners and their families. Prison officers are morphing from mere guards to facilitators of personal change. Prisons in Scotland are beginning to be re-born as places of personal improvement: positive, constructive, enterprising places to retrain wayward citizens. In the context of the massive transformation of the face and character of imprisonment, one could not entirely blame the politician (or anyone else) who takes a tour of one of Scotland’s new-style prisons and comes away thinking: ‘prison life in Scotland is not bad at all these days and people are really being helped and rehabilitated there, quite unlike the shoe-string community-based options’.

So, you may ask, what is the problem? If prisons are now becoming places of rehabilitation isn’t that good? The problem is that for all the good work which may be done in prison and the aspiration of the Prison Service to do more to facilitate a reduction in reoffending, a prison is still a prison. A prison is not, in essence, a hospital, school, college, employment centre, friendship network, nor, a family. It is, by definition, first and foremost, a place of secure confinement. Even if the deprivation of liberty is the sum total of the punishment, that is an imposed pain which diminishes the people who feel it. Prison is a means of excluding people from mainstream society. For those people whose offending requires them to be there, prison can and should try to help them. But imprisonment can never really replicate the complexities and uncertainties of outside society.

So, to take a crude example, the seriousness of offending by those convicted of armed robbery may mean that they should be imprisoned and while they are there the prison service should do its best to help them change. Those convicted of much more minor offences should not be imprisoned, no matter how needy they may appear.

We should remember that, no matter how impressive the regime, the loss of liberty, and so the reduction of personal autonomy, is the essence of imprisonment. This is why talk of ‘desistance prisons’ is as fanciful as it is alarming. By its very nature, imprisonment delays the maturation, disrupts the social bonds and frustrates the transformations in self-identity that desistance research suggests are key elements of the process.[3] Most centrally, the value and exercise of personal autonomy are central to the desistance approach and to understanding the journey away from crime. This emphasis on personal autonomy distinguishes it from earlier ideas of rehabilitation and treatment.

Put simply, you can never really prepare someone for the outside by keeping them inside – that is why community-based sentences, (and diversion from prosecution), have always been associated with lower levels of reoffending than custody. Indeed, when all else is controlled for, imprisonment appears to have a criminogenic effect.[4]

 

So what should be done?

None of this is intended an argument for the abolition of imprisonment. Nor is it an argument for the mere warehousing, or humane containment, of prisoners. I hope the Scottish Prison Service will continue to seek to improve the experience of imprisonment and try to rehabilitate those it receives, while also acknowledging publicly the limits of what imprisonment can achieve.

Rather it is an argument for confining the use of imprisonment in our society. We should start by enunciating two fundamental principles:

1. Imprisonment should be used sparingly and specifically only where warranted by the seriousness of offending; and
2. Rehabilitation, self-improvement and other forms of personal help intended to address an individual’s personal and social needs should be expressly excluded as grounds for recommending, suggesting and passing a custodial sentence, even if they are a part of progressive prison regimes.

Clearly circumscribing the use of prison sentencing may also help to reduce understandable anxieties among some sectors of the justice system perceiving a prison service with imperial ambitions colonising the rehabilitation agenda. Whether or not this perception is accurate is beside the point: perceptions count and trust between the community justice and prison sectors depends on government (and perhaps parliament) setting out an explicit statement limiting the use of custodial sentencing.

How exactly these two principles should be enacted is a matter beyond the scope of this short paper. If seriousness of offending is the test in the decision whether or not to imprison, it means that where offending is not sufficiently serious to warrant imprisonment no one can be sent to prison because of their personal needs. Rather, sentencing decision-making should assess the culpability of the person and the harm caused. What exactly culpability and harm mean in specific kinds of cases is something which needs to be developed through open discussion (perhaps led by the new Sentencing Council).

All of this is, of course, only a start and third sector and community-based funding and visibility have to be addressed.

Yet, if, as a society, we do not explicitly rule out the rehabilitation of the individual as a specific ground for a sentence of imprisonment, we will see growth in the use of custody – not because of a desire to denounce and exclude, but as the unintended consequence of a desire to help.

I would like to express my gratitude to the following people for their comments on an earlier draft of this paper: Andrew Coyle, Dan Gunn, Fiona Jamieson, Fergus McNeill, Maggie Mellon, Mary Munro, and Tom O’Malley.

[1] Michael Matheson (2015) ‘My vision of how Scotland can change the way the world treats female offenders’ Sunday Herald 24 May 2015

[2] See e.g. T Chiciros K Barrick W Balles and S Bontrager ‘The Labeling of Convicted Felons and its Consequences for Recidivism’ Criminology 45(3): 547-581

[3] For a simple introduction to desistance, see for example, themed issue of Scottish Justice Matters 1(2) Dec 2013; and some of the policy implications are raised in a short paper by B Weaver and F McNeill (2007) Giving up Crime: Directions for Policy (SCCJR). None of this is to say that the experience from desistance research is irrelevant to prisons: the quality of the regimes really matters. But it does mean that imprisonment, no matter how progressive, by its nature diminishes autonomy.

[4] See, for instance, the recent large controlled study which found: “…prison was associated with a small but significant increase in the proportion of people reoffending (7%-8%), the number of reoffences committed (16%- 20%), and a substantial increase in the proportion of individuals being incarcerated (36%-40%).” D. Joliffe and C. Hedderman (2015) ‘Investigating the Impact of Custody on Reoffending Using Propensity Score Matching’ Crime & Delinquency 61(8) 1051-1077 at 1070