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| "We have structured an attrition model as one example of a long range process for abolition.'Attrition', which means the rubbing away or wearing down by friction, reflects the persistent and continuing strategy necessary to diminish the function and power of prisons in our society.To clarify our terms, the reforms we recommend are "abolishing-type" reforms: those that do not add improvement to or legitimize the prevailing system. We also call for partial abolitions of the system: abolishing certain criminal laws, abolishing bail and pretrial detention and abolishing indeterminate sentences and parole" (Morris 1976, ch.3). | | "We have structured an attrition model as one example of a long range process for abolition.'Attrition', which means the rubbing away or wearing down by friction, reflects the persistent and continuing strategy necessary to diminish the function and power of prisons in our society.To clarify our terms, the reforms we recommend are "abolishing-type" reforms: those that do not add improvement to or legitimize the prevailing system. We also call for partial abolitions of the system: abolishing certain criminal laws, abolishing bail and pretrial detention and abolishing indeterminate sentences and parole" (Morris 1976, ch.3). |
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| ==Summary and Outlook== | | == Summing it up == |
| | Prison-as-punishment - just like corporal punishment in earlier times - is still being considered as indispensable for the maintenance of public order. But that is an illusion. It is time to think about prisons in a principled, more realistic, and less apologetic way. It is time, in short, to say no to prisons, tear down the walls and close this chapter in the history of punishments once and for all. Just as our generation is thankful for the earlier ones to have left us a world free of inhuman institutions as the burning of witches and the whipping of slaves, future ones will feel pride in living in a societies that have moved beyond the pains of imprisonment to a much better way of reacting to crime and criminals. We can do without prison, and to make this step will be difficult at first, but rewarding at last, and it will be enjoyed as a major improvement of the quality of life for the good of all of us. |
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| | | This would not be the end of abolitionism though. Because it would leave us with at least two questions, which go beyond the scope of the present paper. Do we need prison-like places for preventive purposes and |
| When thinking about and planning to abolish prisons-as-punishment, at least two questions remain. Do we need prison-like places for other purposes? How do we deal with the need for a sufficient reaction to crime?
| | do we need punishment for a sufficient reaction to crime? |
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| === Security without Prisons ===
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| To many reformers it is a comforting thought that alternatives to imprisonment are on the rise, and that the prison sentence itself might eventually be eclipsed by the massive increase of non-custodial sanctions. This trend, though, will not automatically bring the age of prison-as-punishment to an end. There would still remain a qualitative question pertaining to the - maybe few - very dangerous criminals. Even if one raised the minimum age of criminal responsibility, found alternatives to prison for women offenders, and de-criminalized large parts of non-violent property offenses there would still be a number of crimes and criminals that would challenge any abolitionist imagination. Supposing the availability of non-custodial alternatives for most or all non-violent delinquents, there would still remain the question of how to deal with cases of extreme horror and/or dangerousness. Similarly to the well-known shanty song with its insistent repetition of the question "What shall we do with the drunken sailor", any abolitionist proposal will invariably be confronted with the same question pertaining to the dangerous few, and that would raise questions like these: What shall we do with the serial killer? What shall we do with the child molester? What shall we do with the roaming rapist? What shall we do wit the genocidical general? What shall we do with the ex-dictators? The question that is puzzling all participants in criminal justice reform discussions is therefore completely legitimate: Would societies be less safe without prisons?
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| The answer is: Not necessarily - and there is a real chance that they would become even safer, if they learn to distinguish between punishment and security and if they act accordingly. Today, punishment by imprisonment is by and large expected to take care of both the retributive aspect (looking back at the offender's crime in the past) and the preventive one (which envisages risks from the offender's future behavior). For all practical purposes, "punishment by imprisonment" is thought to automatically include the answer to the community's security needs as far as risks from the (now imprisoned) delinquents are concerned. Once the serving prisons are not around any more, the security question has to be treated independently of punishment, as a matter in its own right. For some of the most definitely dangerous individuals - the archetype of whom is the serial killer - the absence of the prison-as-punishment option will invariably revive calls for capital punishment (or extrajudicial elimination). Alternatively it is conceivable (and from our point of view also preferable) to resort to decreeing the arrest and involuntary confinement of such individuals on the grounds of preventive detention, regardless of criminal liability and the question of punishment. Whereas this aspect can hide behind the question of punishment as long as there is the prison-as-punishment, the removal of this specific sanction forces the highly delicate matter of preventive detention out in the open.
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| If the abolition of the prison-as-punishment is not to fail miserably because of public fears of unsolved safety issues, the ethical, legal, and practical questions involving preventive detention will have to be dealt with in a most serious and exhaustive manner. Questions that will have to be answered will include the following: how many of the present-day prison inmates would need continued confinement because of their dangerousness - and for how long? And how can solid criteria of dangerousness be established in the first place? What about the concept of dangerousness when the behavior in question is not the violation of rights of others, but only an abstract concept (as in the case of drug dealing between consenting adults)? How can the rights of dangerous individuals be protected? In the worst case, all those of today's prison inmates that have been defined by the criminal justice system as dangerous and who are serving prison sentences would continue in confinement even after the abolition of the prison-as-punishment. "Remain" is not quite the right term, though, because the cell prisons would be torn down as inhumane and ineffective, so they would move to other locations not built upon the model of the Quakers' penitentiaries, but on the model of residential living.
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| How much preventive detention? ====
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| Scholars and practicioners agree that only a minority of the present prison population would need to continue to be locked up for security purposes once prison-as-punishment were to be abolished, with estimates ranging roughly between 30 and 5 or less per cent. A realistic scenario of prison abolition would therefore have to count with a substitution of the prison sentence by a kind of preventive security confinement concerning up to a third of the present-day prison population. Hopefully, of course, a reliable assessment of dangerousness would be able to reduce that percentage, and however large or small the resulting group may be in the end - one thing is certain: that the living conditions of those affected by preventive security confinement would have to be significantly superior to those in today's cell prisons.
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| To reduce and to improve the quality of sites of confinement would also significantly reduce - if no eliminate - the much lamented function of imprisonment as an involuntary college of crime where both techniques and attitudes are being passed on from generation to generation, and where latent state of war among and between the groups that make up the specific prison constellation results in hardening pathologies and character deficiencies that are heightening the risk of crime in the communities after the prisoners' release. Therefore, the abolition of the prison-as-punishment will most likely result in a safety gain in communities. Life will be better and safer for all.
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| ==== Excursus on Priciples for Preventive Detention ====
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| Shifting from prison-as-punishment to preventive detention of the dangerous may be dangerous too. It may open a Pandora's box of hitherto unknown reasons for confining people, who have not broken any laws. While criminal law provides some safeguards and guarantees against arbitrary imprisonment, this is not necessarily the case in the field of civil and administrative detentions. It is therefore mandatory to develop a body of restraining principles applicable to coercive preventive endeavour by the state. Here is a good start:
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| *"1. In principle, every citizen has the right to be presumed harmless, and this presumption of harmlessness can be rebutted only in exceptional circumstances"....
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| * 2. the state's duty to protect people from serious harm may justify depriving a person of liberty if that person has lost the presumption of harmlessness by virtue of committing a serious violent offence and is classified as dangerous.
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| * 3. deprivation of liberty should not be considered unless it is the least restrictice appropriate alternative.
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| * 4. Any judgement of dangerousness in this context must be approched with strong caution. It should be a judgement of this person as an individual. not simply as a member of a group with certain characteristics and with an overall probability rating. The state should bear the burden of proving that the person presents a significant risk of serious harm to others and the required level of risk should vary according to the seriousness of the predicted harm. Decision-makers should bear in mind the contestability of judgements of dangerousness and the scope for interpretation that they leave and individuals should have rights of challenge and appeal....
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| * 9. Any preventive detention going beyond the proportionate sentence should be served in non-punitive conditions with restraints no greater than those required by the imperatives of security. Where possible, detention that is purely preventive and not punitive should take place in a separate facility, not part of the prison system" (Ashworth/Zedner (2014, 167/168).
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| The authors add an important caveat:
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| "The question remains, however, whether it is possible to articulate principles taht cover all cases of preventive detention in such a way as to mitigate possible abuses of power on ground of public protection. It imposes deprivation of liberty ahead of wrongdoings; grants considerable discretion to criminal justice professionals and to the courts; it is based upon predictions of dubious reliability; and it risks creating arbitrariness in its varied forms and practices (Ibid, 170). Some day, we may have to abolish preventive detention as well.
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| === Punishment without prisons ===
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| Even with the safety of the population guaranteed through a responsible system of preventive detention - both drastically smaller and better than present-day prisons-as-punishment - there might remain a need to see a criminal suffer. An example might help. Imagine a young man of 29 years, diagnosed as physically and mentally healthy, an educator in a kindergarten, who is found to have abused and brutally killed three children over the time of five years. Or a cold-blooded professional killer hired by the mafia or a drug cartel for the necessary eliminations of traitors, enemies, and unfair competitors, who, after a number of years on the job, is finally being arrested. In both cases, public security can be regained by ordering the dangerous individuals to be locked up in preventive detention. For questions of safety, that could be it. Even if we know that such a purely instrumental reaction will be seen as unsatisfactory by victims' families and beyond. In the case of a successful insanity defense such an exemption from criminal responsibilization is a long-standing tradition and the victims' discontent is seen as a sad, but unavoidable fact which the criminal justice system, in those cases, cannot do anything about.
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| In the case of mentally sane offenders, though, not only victims' families feel a strong need for something more than just instrumental reactions to happen. It is one thing to forego punishment in the case of mentally ill offenders. It is another to do so with the sane and cold-blooded authors of heinous crimes. This becomes clearer when we imagine the case that either the child killer or the mafia killer could be set free after experts confirm a successful psychological treatment and come to the conclusion that the person in question does not pose a risk of continued offending anymore.
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| Most people would probably not consider it just if the offenders were to walk out of their preventive confinement without having had to "pay" for what they had done. There is a strong and very widespread emotion that those who committed heinous acts should be responded to by the intentional infliction of retributive harm upon them. One might even say that common sense and jurisprudence both believe in a kind of natural law logic that crimes must be responded to with punishment: crime requires punishment. Not only the reduction of risks.
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| But what exactly is punishment and what are the needs it responds to? First of all, punishment is "the intentional delivery of pain" (Nils Christie), it is a strong affirmation of a negative value judgement concerning the punished person's past violation of an important norm. For the punished person, punishment is - in the words of South African judge Thokozile Masipa uttered at the occasion of the sentencing of Oscar Pistorius in 2016 - "unpleasant, it is inconvenient, it is painful, it is certainly not what you would chose to do.” And that is the very sense of it.
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| By its emphatic negation of the offender's deed and by making the offender suffer for what he did, the court declares in the name of state and society that this kind of behavior will not be tolerated, and that offenders will have to live with the consequences. Punishment sends a strong symbolic message to the offender and to the public, but also to the victims of crime. It is a symbolic response to an event in the past, and a response of sorts to affirm the continuing validity of the broken norm.
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| Punishment is a specific reaction because of its expressive symbolism. Its fourfold meaning lies - at last according to Joel Feinberg (1970/1994) - in manifesting an authoritative disavowal of the act in question, a symbolic nonacquiescence to what happened, but it also emphatically reaffirms the law, and last not least it relieves others of suspicion and blame by way of concentrating guilt on those who are found to deserve the punishment. The expressive symbolism of punishment aspires to reach three target groups (Günther 2002: 218): (1) the victims of crime (who are reassured that the community does not regard the event as simply bad luck or fate, but as the result of unjustified and intolerable actions), (2) the offenders (who are told that their actions are seen as responsible for that what happened and that their behaviour is seen as strongly reprehensible), and (3) the general public (who is being told that the negative consequences are being defined not as accidental, but as an injustice that cannot be tolerated and that this injustice is neither to be blamed on the victim nor on the public).
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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.
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| === Beyond 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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| == Bibliography == | | == Bibliography == |