Law Insider’s Criminal Law Chief Editor, Min Rebecca Yoo, received a Commendation in the prestigious John Locke Institute Global Essay Competition for her submission under the Law category. Competing with 816 submissions, Rebecca placed among the top students to be invited to the University of Oxford for an award ceremony, gala dinner, and academic conference. Her article answering ‘Does Prison Work?’ can be found below.
Crime and punishment. We often see the two as consequential: commit a crime, and face punishment. The belief that wrongdoers need to be imprisoned is universal, since there is no country without prisons (Deutinger, 2018). Given the resilience and universality of the prison as an institution over the last two centuries, in tandem with the 24% increase in the global incarcerated population since 2000 (Penal Reform International, 2022), the assumption is that it must be of use to someone and therefore, at least from their perspective, seem to be working. But is this really the case?
Photo credits: https://www.urban.org/urban-wire/prisons-are-traumatizing-it-possible-reduce-some-their-harm
Incarceration is a form of punishment for a transgression of the nation’s law which manifests the restraint of one’s liberties through confinement. I identify the goals of imprisonment, in order of importance, as:
rehabilitating offenders to assist social reintegration;
incapacitating offenders to protect society through the removal of dangerous individuals from societal involvement;
deterring crime; and
punishing offenders.
With this in mind, I argue that the success of prisons should be assessed by how well it rehabilitates incarcerated people. Three criteria will be used to define whether prison works: lower incarceration, crime, and recidivism rates in the future. I argue that the majority of contemporary prisons are highly unsuccessful at meeting these criteria, and penal reforms such as the move towards community orders in lieu of imprisonment coupled with the radical reduction of the incarcerated population are necessary for prisons to work sustainably and effectively.
Arguing that prisons work, Saunders and Billante present that countries that ‘increased their use of imprisonment have seen their … rise in crime rates stopped, and then reversed’ (Saunders and Billante, 2002). They explain that an increased rate of imprisonment reduces crime through ‘general deterrence’, whereby the threat of imprisonment should deter crime before it occurs, and ‘specific deterrence’, whereby the unpleasant prison experience in itself should deter future criminal behaviour (Incarceration Nations Network, 2022). Thus, both the existence and experience of prison serve an essential purpose in crime prevention.
However, there is a clear ‘correlation does not imply causation’ flaw inherent in the deterrence argument. Empirically, the influence of imprisonment rates on subsequent crime rates is limited (Young and Brown, 1993). Regardless of how harshly offenders are dealt with after the crime occurs, crime will persist if the root causes are not attended to. Addressing the circumstances that push individuals towards crime should be assessed as a whole. Therefore, other factors must be considered to test the effectiveness of prison systems, namely recidivism rates.
A further argument in favour of prisons is that individuals who commit violent high-level crimes must be taken out of circulation to prevent them from causing further harm to society. Allowing mass murderers, paedophiles, and sex offenders to roam free in our neighbourhoods indubitably wreaks a range of potential societal dangers. Once offenders are apprehended and given a prison sentence by justices or magistrates in a court of law, prison serves as a vital institution that incapacitates dangerous offenders and protects society from their threat.
Photo credits: https://guardian.ng/news/ncws-decries-alleged-gender-inequality-in-prison-decongestion/
While it can be argued that prisons meet the subsidiary aims of deterrence and incapacitation, they fail to achieve the main aim of social integration. Contemporary prisons are ineffective at equipping prisoners with the necessary education and employable skills through vocational training. Without such assistance, barriers that prevent ex-prisoners from becoming law-abiding and self-sustaining citizens upon release, such as the lack of employment prospects, are bolstered.
Using employment as a marker of reintegration, Couloute and Kopf found that the unemployment rate of formerly incarcerated American people is 27.3% — nearly five times higher than that of the general American population (5.8%) (Couloute and Kopf, 2018).
A key reason for this failure is the perpetuation of employment discrimination and the stigmatisation of criminality, which create a perpetual labour market punishment, resulting in a counterproductive cycle of ‘poverty, marginalisation, criminality and imprisonment’ (UNODC). Thus, prison ultimately fails to help prisoners secure employment through rehabilitation and education, thereby making reoffenses more likely and putting public safety at risk.
As Angela Davis observed:
‘the prison becomes a way of disappearing people in the false hope of disappearing the underlying social problems they represent’ (Davis, 2005).
Prison works for governments as a way for them to evade responsibility for redressing social inequalities by resorting to mass incarceration. However, for the marginalised groups overrepresented in prison populations — people who are mentally ill, poor, homeless, uneducated, or addicted to substances — prison merely acts as a mechanism to cage them to perpetuate systemic inequalities, rather than a mechanism to aid their rehabilitation.
In a similar vein, concentrated incarceration in certain communities can erode protective factors that deter people from crime, such as strong familial relationships and parental presence; counterproductively, this can lead to increased crime in neighbourhoods (Moran, 2013), thereby contributing to an increased incarceration rate. Thus, prison is largely ineffective in achieving the goal of reducing crime, as mass imprisonment impedes governmental accountability in resolving systemic issues, reduces employment prospects for offenders upon release, and prevents the bolstering of social bonds.
Moreover, the under-resourcing of prisons coupled with overstretched staff and overcrowded facilities lends itself to rehabilitation programmes remaining extremely limited or non-existent in some prisons, especially those in low-income countries (Penal Reform International, 2022).
While prisons around the world have increasingly aligned the roles of prison officers with rehabilitative principles and designated roles such as rehabilitation officers (as seen in Singapore), the role of prison staff in rehabilitation is not matched by corresponding levels of support to meet the increased demand of staff time, skills, and competencies (Penal Reform International, 2022). For example, a study on the employment quality of prison staff in four European countries found that prison staff are now expected to combine surveillance and rehabilitative functions. It found that structural understaffing, overcrowding, and lack of training made it impossible for them to fulfil both functions effectively. The resultant work-related stress was met with a corresponding deterioration in the quality of services they delivered (Vereycken and Ramioul, 2019).
Despite the outward declaration of governments to shift towards a rehabilitative rather than punitive orientation in the area of imprisonment, the low amount of funding allocated to the transition undermines their principled commitment. The resultant struggle of prisons to effectively implement these reforms due to overburdening and financial constraints presents a continued barrier to their ability to work harmoniously.
While there is truth in the importance of prisons to incapacitate high-level violent offenders, this is less relevant for low-level non-violent offenders, who make up the majority of prison populations and are made to coexist with those violent criminals. UK prisoner Ben in 2015 wrote: “The day I was sent to prison, I learned how to steal cars” (BBC, 2015). Ben characterised prison as “Britain’s academy of crime” which locked up criminals with little else to do but share their methods of crime and “practice theft and violence on one another, ready to resume for real when release day comes”. The prison experience manages to at best, incapacitate the offender and at worst, encourage further crime through learning new ways of breaking the law and developing criminal networks while incarcerated.
Especially for juvenile low-level offenders, placing them in a deeply crime-entrenched environment through imprisonment fails to address the juvenile’s developmental and criminogenic needs (Lambie and Randell, 2013). Exposing impressionable juveniles to further crime, trauma, and violence cannot possibly ameliorate their situation. A criminal record at an early stage in life can lead to low employment prospects, disruption of family ties, and marginalisation from society, all of which can increase recidivism (Clear et al., 2003). In recognising the prison’s failure to help juveniles, juvenile imprisonment should be limited and alternatives should be considered, namely community orders.
Photo credits: https://www.latimes.com/california/story/2021-02-15/california-youth-prisons-closing-criminal-justice-reform
Short prison sentences have also been proven to be less effective yet more costly than community orders at reducing recidivism rates in the UK (Ministry of Justice, 2013). While 44.4% of offenders given immediate custody (less than 12 months) had a proven re-offending rate within a year, only 33.3% of offenders that were given a community order re-offended in that time (Ministry of Justice, 2013). Considering that of the 40,000 British people sentenced to prison in 2020, 63% committed a non-violent offence (20% for drug offences and 13% for theft offences) (Ministry of Justice, 2021), it serves to show that the incarcerated population can be dramatically reduced with more community orders, which would not only lower recidivism rates by addressing and uprooting the offender’s motivations for crime through rehabilitation but also alleviate the burden on understaffed and underfunded prisons. Community orders could be unpaid work, supervision (appointments with probation to correct the behaviour of offenders), curfews, drug rehabilitation, and alcohol treatment, among others. Since community orders are proved to be more cost-effective, less psychologically traumatising, and contributory to social cohesion than imprisonment, an opportunity for reform arises that can circumvent the current problems rampant in prisons.
A contemporary analysis of prison systems in Norway compared to those in the UK elucidates how disparate administration of prisons and their policies (such as varying levels of funding, prison population capacity, living standards, and access to rehabilitation facilities) directly affect whether those prisons work to achieve reduced rates of recidivism and incarceration, both of which contribute to long-term cost-effectiveness.
Halden Prison Cell in Norway
UK Prison Cell
Photo credits: www.devonlive.com/news/devon-news/what-really-like-inside-uk-257165
A place at Halden Prison in Norway costs roughly £98,000 per year (BBC, 2019) whereas in the UK it costs £43,000 (Griffiths, 2019). The extra costs of Norwegian prisons are invested to maintain their quality — including opportunities for academia and rehabilitation — that facilitate the ability of ex-prisoners to overcome the economic exclusion they would otherwise face; the boosted employability through vocational skills and academic qualifications aid their reintegration. This is shown in how previously unemployed prisoners in Norway experienced a 40% increase in employment rates within five years of release (Bhuller et al., 2019), which is starkly contrasted to the two-thirds of British ex-prisoners who “failed to find work” and re-offended within a year (Allison, 2019). Similarly, 59% of released prisoners in the UK re-offend within 2 years compared to only 20% in Norway (Fazel and Wolf, 2015).
The Norwegian comparison is highly illustrative of how long-term approaches to prison spending can make prisons work. Investment in meaningful education and vocational training within prison with an emphasis on re-employment prospects is fundamental to achieving a reduction in recidivism rates, as Norway has demonstrated. Prison is not inherently ineffective; it can work with transformative reforms.
When considering whether current prisons work, it is telling that the most effective prisons are the ones that least resemble prisons. Prisons that prioritise rehabilitation and reintegration that follow a ‘principle of normality’, whereby prison life mirrors life in the outside world, are the ones best suited to reducing recidivism. Prisons that prioritise a punitive and retributive ideology that revolves around the deprivation of individual liberties, the dehumanisation of the offenders, and a lack of regard for prisoners’ employment prospects, are the ones that fail to work.
Though Norway’s prisons have been met with criticism for resembling ‘holiday camps’ for criminals, the former Norwegian prison governor, Arne Nilsen, replied:
“If we have created a holiday camp here for criminals, so what? We should reduce the risk of reoffending because if we don’t, what is the purpose of punishment, except for leaning toward the primitive side of humanity?” (Sutter, 2012).
Despite criticisms about being too ‘soft on crime’, the Norwegian prison system has developed into one of the best in the world. It is a triumphant testimony to how prisons can work. The challenge lies in instituting these changes worldwide through reforms in prison and the criminal justice system as a whole.
In conclusion, if legislators wish to alleviate the growing prison problem and ameliorate the ineffective outcomes of imprisonment, they must enact sentencing reforms that will channel more low-level non-violent offenders into community correction settings, promote rehabilitation through programs such as earned credit, and place an emphasis on social reintegration over punishment.
Thus, while prisons work to incapacitate and deter (albeit to a limited extent), the majority of prisons fail to reduce recidivism rates by not equipping prisoners with employable skills or allowing the maintenance of familial relationships; fail to provide appropriately funded rehabilitation services to address motivations for crime; fail to protect juvenile offenders from a life of crime through traumatisation and early exposure to violence; and fail to reduce the incarcerated population due to high recidivism rates and lack of sentencing reform.
It is time to redress injustice in our criminal justice systems, starting with prisons, where reform is long overdue.
Bibliography
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Author's Note: Photos and illustrations were not included in the original essay submission, but added afterwards for its publication on Law Insider.