Panu Minkkinen, Professor of Legal Theory, University of Leicester:
Penology is the study of the criminal sanction, and in countries that have abolished capital punishment, it usually centres on imprisonment as the most harsh punishment that can follow if a crime is committed. The discussion is usually about justification: How can we justify imprisonment that, after all, intervenes in a violent way in the life of an individual? So imprisonment must have a justifiable purpose. It must be able to deliver benefits to a society that go beyond the mere ‘sense of justice’ that is demanded by the victim or the outraged community. Hence the political rhetoric that ‘prison works’.
What is the deterrent effect of imprisonment? Does it truly rehabilitate offenders, and does the fear of punishment prevent others from committing crimes? Research suggests that all claims concerning the social benefits of imprisonment are exaggerated.
In terms of rehabilitation, prison seems to function more like the ‘academy of crooks’ where a petty criminal, once subjected to the violence of the prison environment, ‘graduates’ as something much more dangerous. In prison, the thief is transformed into the robber who is much more prone to use force in stealing someone else’s property. This is why the criminal justice system attempts to delay a prison sentence for as long as the law will allow using it only as the last resort. Once imprisoned, the prognosis is generally dire: things can only get worse.
Some claim that imprisonment is a form of ‘selective incapacitation’, that ‘locking ‘em up’ takes dangerous individuals out of social circulation and thus protects the public. But this could apply only to the most serious offences, and in order to be effective, prison sentences would have to be unacceptably long. Most inmates in British prisons have not committed the most serious offences but are recidivists, and when multiple-offending thieves are eventually released as robbers, the public’s sense of security is ill founded.
Neither is there any evidence that using imprisonment would prevent the rest of us from committing crimes. We refrain from crimes because we know it’s ‘right’ to do so, and our morality has more to do with the values that we cherish than our fear of punishment. For those who are tempted, research indicates that the probability of being caught is a much better deterrent regardless of what the following sanction is, and in terms of many premeditated crimes, fines are more effective than imprisonment.
So why punish? The conclusion seems to be that because nothing else works, we are only left with retribution. The only remaining justification for the use of imprisonment is captured in the news image of a victim standing at the entrance of the courthouse demanding that justice be done. Every crime is a violent imposition on its victim. We encourage the victim to publicise her suffering so that we can take part in it. But we don’t do this in order to alleviate her pain. Our initial gestures of empathy are quickly reinstated as an anger that we share with other outsiders. What unites us, the outsiders, is our shared and vengeful resentment of a crime that was never committed against us. And every official demand for ‘toughness’ or ‘law and order’ is an estranged political culture’s desperate attempt to tap into this vengeful sense of community.
The victim and her suffering long forgotten, we participate in the spectacle of punishment in much a similar way as the crowds that witnessed the public executions of criminals in former days. We may not see how the sentence itself is carried out, but we invest ourselves as interested parties in simplified narratives of good and evil, of crime and punishment, told by media and politicians alike. We reduce the complexities and contradictions of human life into a crude and emotive tale that amplifies what we think to be most human about us: fear, hatred, and our naturally endowed right to remain ignorant.
Panu Minkkinen is Professor of Legal Theory and Head of School of Law at the University of Leicester. His research interests include legal theory and jurisprudence, critical criminal law, and critical and cultural criminology and he has published a number of publications in this field.
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