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| In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of social reaction to harmful behavior will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. | | In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of social reaction to harmful behavior will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. |
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| === Beyond Punishment ===
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| In other words: while one way of getting rid of prisons is to ("simply") replace one punishment by another - this is what the discourse about "alternatives" is mostly about - a more ambitious (but also more promising) one is that of moving beyond punishment altogether, and to renounce to punishment, but not to its three-dimensional restorative functions. If we want our societies not only to survive, but improve the living conditions for each and all of their members, then one of our central concerns should be to get rid of punishment without renouncing to its positive and necessary functions. To put it more clearly: how can we - after a serious offense has harmed the victims, affected the offender, and disturbed public peace - manage to fulfill the functions of punishment (i.e. to send a message that empowers the victims, teaches the offender, and restores community spirit) without resorting to punishment? Can we activate the healing elements of punishment without resorting to punishment?
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| To cut out corporal punishment and to question the necessity and legitimacy of the prison is a risky thing to do. It touches the archtypes of punishment and invariably puts into question the soundness of underlying concepts. Will a criminal justice system without the prison still be a real criminal justice system? Can, what is left over as sanctions, justly be called a punishment? If we can do without prisons - can't we just renounce punishment in general? Is punishment really a social and ethical necessity? Once there, our conventional notions of "crime and punishment" might begin to crumble, leading us to question the very concepts of crime, guilt, and - not to forget - free will and individual responsibility.
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| As Willem de Haan (2010) suggests, these questions should be taken seriously by everybody who cares about the quality of life in contemporary societies, including academic criminologists. In his words:
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| :"Criminology needs to rid itself of those theories of punishment which assume there are universal qualities in forms of punishment or assume a straightforward connection between crime and punishment. Given the perseverance of this conventional notion of 'punishment' as essentially a 'good' against an 'evil', any effort at changing common-sense notions of 'crime' and 'crime control' requires a reconceptualization of both concepts: 'crime' and 'punishment'."
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| To discuss prison abolition, one does not have to answer all the fundamental questions, but it cannot hurt to think about a world without punishment for a minute. Evidently, society would not be able to survive for any relevant length of time if reouncing punishment were to imply that rape and murder would henceforth not elicit any collective response anymore. To renounce ''any actus contrarius'' to any future crime would give carte blanche to those who delight in domination and exploitation of the less powerful, and it would probably lead to the most gruesome excesses of private vengeance and retaliation. In other words, societies would not stand a laissez-faire attitude towards murder, rape, or theft. They would disintegrate.
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| This is the expressive symbolism of restorative justice as a means to repair the harm caused by crime to victims, the community, the offender, and the normative order. Restorative justice takes into consideration all three dimensions of harm, but it does so with a different procedure and emphasis. The procedure is not top-down like in a criminal court, and the basic questions are not "which law has been violated, who is the offender, and what punishment does he deserve?", but rather "what harm has been done, what has to be done about this harm, whose responsibility is it to do something about it, and do we go on from here?". The emphasis is on a collective effort to assess the damage and to repair it as good as one can with a view to the peculiarities of the case and the people involved. Whereas the criminal law dramatizes the violation of the state's norm and authority, restorative justice processes dramatize the harm and the need to make amends and restore peace and confidence. Where the criminal court individualizes, putting all the blame and the court-inflicted pain upon the culprit, restorative justice collectivizes in that it focuses on the situation and its resolution, not on one individual.
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| This is not to say that the offender plays no role. He or she is being called upon, and taken very seriously, but not with the sole aim of accusation and condemnation, but with the aim of creating awareness of the harm done, and of the responsibility that he or she might be able to acknowledge and the tasks he or she might be able to shoulder in the process of healing. The culprit is also seen as a person with virtues and failings, with guilt, responsiblity, but also with a need for healing.
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| If that sounds like social romanticism, then it be. As a matter of fact, social romanticism has always played an important role in the attempts of mankind to progress on the way of civilization (remember the role of Harriet Beecher-Stowe's rather schmaltzy novel about Uncle Tom's Cabin in the fight against slavery?). But this does not mean that restorative justice is just an idea with no practical value. In some corners of the world (that might seem remote from a Eurocentrist perspective) restorative justice is a consolidated practice with impressive outcomes. In England, an empirical test of restorative procedures as compared to classical criminal procedures has produced astonishing results in favour of the new approach.
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| From the perspective of restorative justice, criminal cases can be seen as conflicts that have been stolen by professionals from those immediately concerned (Christie). But when victims, offenders, and community members meet under the guidance of an experienced facilitator - not a judge - to decide how to deal with a "problematic situation" (Hulsman) the results can be healing for victims (and offenders), restoring in not only material terms, and even "transformational" in the sense of creating a better situation than that out of which the crime originated (Morris).
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| In today's world, restorative justice is not being implemented as a wholesale replacement for prisons. In most settings, it is offered - as a healing device - alongside or even after a criminal trial and prison sentence (for an example of post-sentencing restorative justice see the documentary "Beyond Punishment" by Hubertus Siegert (2015). This reminds of the additional, rather than substitutional role of the penitentiary in the age of capital punishment. But just as the prison was increasingly instrumental in abolishing capital punishment in large parts of the world, restorative justice has all the potential of doing likewise with the prison. If and how this could work for the good of the societies that adopt restorative justice depends on the force-field of social interests and influences. No reform is without risk of being kidnapped, transformed, or betrayed (cf. Christie). But to see a door in the prison wall and not go through it because of fear of freedom - who would knowingly advocate that?
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| For most of human history societies did not know prisons - nor did they know punishment as a standard reaction to crime by the state and its legal authorities - and still they succeeded in the task of re-affirming the validity of the norm broken by the perpetrator. What today is called crime was seen as a rupture of the natural order and/or as a wrong done to another person, but not as a crimen laesae maiestatis, an insubordination to the will of the ruler. This is why the dominant mode of "criminal justice" in earlier ages was one that could do without punishment. Justice was procedural and restorative instead of punitive-retributive. To react to crimes was an art that required communicative skills and a profound knowledge of both the respective customs as well as the concerned individuals and families. Conflict regulation needed patience, and the continuous mobilization of good will on the part of all those who were somehow affected by the event. In the end - if everything went well - peace and security were restored, the boundaries of acceptable behaviour were re-affirmed (or slightly re-drawn), and all expressive functions normally attributed to punishment were fulfilled, but without resort to punishment. It is time to remember this almost forgotten fact and to move on to a form of society that is free at least from both capital and prison punishments, and - hopefully - at last also from punishment as such.
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| === Security without Prisons === | | === Security without Prisons === |