Increased Punitiveness of the Criminal Justice System 1

 

 

 

Critically evaluate the statement that ‘the increased punitiveness of the Criminal Justice System, particularly the expanding use of imprisonment over the past 30 years cannot be accounted for simply by increased crime rates’.

 

  

Introduction

Past studies (for example Garland 2001a; Farrall & Hay 2011) point towards a clear relationships between fear of crime, crime rates, and policies exercised by the UK criminal justice system. The issue of fear of crime in the UK happened owing to the growing moral panic regarding black crime in early 1970s and developed in what became known as 'the radicalized 'Other' (Hay & Farrall). Nonetheless, crime as a political and public concern in the UK along with its related concern, gained momentum in late 1970s owing to politicisation (Irwin  & Owen 2005). Politics played a hand in popularising crime by way of blowing it out of proportion, thus making it a policy concern and an electrol issue. Nonetheless, Garland (2001a) reports that this had a base in “the actuality of rising crime rates alongside increasing disaffection with welfarism and the rehabilitative ideal” (cited by Kury & Winterdyk 2013, p. 43). Moreover, in addition to ensuring that crime became visible from a political context, the Conservative party after assuming power in 1979, assumed a tough stand on crime and offending, and emphasised on crime deterrence, individual responsibility, and increased punitiveness. According to Hay and Farrall (2011), the Conservative government sought to enforce its position by initiating a prison building programme, incarcerating a higher number of juvenile offenders, a 'political' reference for protracted jail sentences, increase police powers, championing the prison system as the main form of punishment, a decline in rehabilitation as the main means of reforming offenders, and a preference for situational crime prevention. The increased punitiveness with which the criminal justice system has been shown to approach crime and its prevention, especially by increasing the use of imprisonment over the past three decades, is not just as a result of increased crime rates but other factors as well.   

Increased punitiveness in the UK criminal Justice System

A number of authors (for example, Garland 2001b; Pratt 2008) observe that in recent decades, the UK has been seen to “move “towards a progressively more punitive criminal justice system” (Kury & Winterdyk … 213, p. 45). Jennings et al. (2015) report that fear of crime and crime rates in the UK started declining from mid-1990s onwards. Nonetheless, this did not elicit a similar response from the criminal justice policy (Kury & Winterdy 2013). Consequently, the existing dialogue on law and order went on, thereby ensuring the perpetuation of crime, with politicians and the media playing a key role in this (Garland 2001). When the Labour Party ascended into power in 1997 under Prime Minister David Cameron, it continued with the tough stance on crime. The Labour party did not want to appear as if it was 'soft' on the issue of crime and as such, endevoured to take a together stance on crime compared to that of the Tories , a move that formed part of its electoral strategy (House of Commons Library 2011). The Labour government underscored the importance of dealing with the underlying socio-economic issues of offending, in addition to ensuring that offenders remaining answerable for their actions. This led to the popularity of the slogan, 'tough on crime, tough on the causes of crime (Enns 2014). Nonetheless, Irwin and Owen (2005) report that this was not reflected on thin the criminal justice policy with the focus being on causes of crime punishing offenders while causes of crime were clearly overlooked.

A clear indication of this new development was that although crime rates were falling, there was an exponential rise in prison population. For example, Gottschalk (2008) reports that in 1997 when the Labour government came to power, the prison population stood at 62,000 but by 2010, in had increased to 85,000. Elsewhere, King’s College London Website (2010a) reports that the female prison population also increased significantly, even though there was no apparent change in female offending rates. During this period, the Labour government also introduced new legislation involving such new measures as parenting orders, anti-social behaviours orders, and youth justice system reformulation (Kury & Winterdyk 2013).

A timeline on crime and punitive sentiments in the UK

From 1980 to 2010, there was reported double increase in the UK prison population from nearly 40,000 to over 80,000 individuals. According to Garland (2001), an outpouring of 'penal populism' became evident for the first item in the 1990s, cocooned in a rise in the number of incarcerations, harsher sentencing, social control order, as well as other experimental and innovative types of crime control, such as the use of anti-social behaviour orders.   In the wake of the 2011 riots witnessed across the UK, the punitive approach with which the UK criminal justice system responded to this development is perhaps best exemplified by the high number of rioters who were put in custody in comparison with individuals placed in custody for related offences in 2010 (House of Commons Library2011). Consequently, there was a resultant rise in prison population in the UK, reaching record levels. This heralded the latest pinnacle of the criminal justice policy in the UK that has now taken a 'punitive turn', replicating in many ways the rise in punitiveness in the US criminal justice system (Gottschalk 2006; Enns 2014).

Sparks (2003) reports that the grasp of this particular penal punitiveness regarding electrol politics and mass opinion is viewed as “a stance that no serious politician can safely disavow.” (p. 170). In the two decades between 1980 and late 1990s, politicians from the two key political parties presented a tough stance on crime (Newburn 2007). Thus, ideas regarding penal populism underscore the relationships of the perceived demand (or demand) of the citizens regarding punitive policy and the political elite. Notwithstanding the extensive unanimity over the increase in penal populism, Enns (2014) reports that there has been a growing scepticism regarding the role and nature of mass opinions on these directions (Gottschalk 2008). In the case of the UK, Jennings et al. (2015) report that this is best exemplified in the disengagement between increases in fear of crime on the one hand, and actual decline in crime rates, on the other hand. 

UK's Penological developments

Garland (2001a) traces the origin of the penological development in the UK and the US in the 1970s, following the collapse of 'penal welfarism' or the welfare approach to penality. Ever since, there has been a resultant change in penal policy, in addition to considerable shifts in parole, prison practices, sentencing laws, probation, and crime discourses (Garland 2001b). Penal welfarism entailed the use of unspecified sentencing, individualised solutions, and championed for community-based solutions.  Even though most critics opposed to correctionalism intended to uphold prisoners' rights, minimise the need for imprisonment, and reduce state powers, Garland (2001a) reports that this movement this ‘ultimately ushered in policies that did quite the opposite’ (p. 53). During this time also, an approach based on welfare and rehabilitation was asserting its influence as a key concept in the criminal justice system (Garland 2001b). This prompted the development of an argument to the effect that a new philosophy, one with similar basic principles to correctionalism, was needed as a means of reducing the use of imprisonment, in addition to ensuring that penal welfarism became a key component of the criminal justice system once more.  Garland (2001b) has delineated several aspects as having played a key role in the demise of penal welfarism, including politicisation of crime policy, critical literature, and such cultural factors as a new approach to social order, control, the victim, and security. 

Bennett (2008) spells out the political basis of escalating rates of incarceration in the UK. Bennett further  points towards a growing concern in terms of the level of 'dangerousness' with respect to criminal justice, as well as the prominent role played by politicians and the media in the development of a 'culture of fear'. While the criminal justice system may have once purposed to focus more on the rehabilitation of offenders and turn to imprisonment only as a last resort, Bennett reports of a growing emphasis on reducing risk via 'an expansion of the apparatus of control’ (p. 2). As a result, the growing concern about dangerousness among politicians and the public as fuelled by the media seems to have escalated fear of crime, in addition to also sanctioning punitive criminal justice responses. For instance, there appears to be a general assumption amongst the public that prisons are filled with dangerous lawbreakers. Nevertheless, there is no tangible evidence of such a claim since ‘the majority of those imprisoned do not present a high risk to the public’ (Bennett 2008, p. 6). Besides, professionals and researchers are no longer key influencers on policy decision as it now primarily depends on political advisors and public opinion (Garland 2001b).

In a country such as the UK where the political system is dominated by two parties, there is the risk that they could be locked in a 'political arms race'. As a result, the dominant parties feel the need to act tough on matter crime (UK Parliament 2008).  A good example to illustrate the replacement of penal welfarism by 'punitive populism' is the fact that the criminal justice system in the UK has resorted to an increased use of imprisonment. For instance, a report by The Scottish Government (2008a) shows that between 1998/99 and 2007/08, Scotland witnessed a 22% rise in the average daily prison population. A report by BBC News (2010) shows that recorded crime rates in the UK have hit an all time low in three decades but should policies remain unchanged, the average daily prison population could be 9,600 by 2018/19. This would obviously be a considerable rise from the 7.600 reported in 2010 (King's College London 2010b). While making this statement, Kenny MacAskill, the Justice Secretary, indicated that there was a dire need to hand more offenders community penalties, as opposed top short term jail sentences, arguing that by depending on imprisonment, this would imply that ‘the Scottish Prison Service is diverted from working with the more serious offenders to reduce the risk they pose to the public’ (The Scottish Government, 2010).

At the same time, both England and Wales have witnessed a significant rise in prison population rates. For example, in 1992, the prison population rate stood as 88 persons for every 100,000 people in the population. As of 2010, this figure stood at 153 persons per 100, 000 (Kings College London 2010a). Even though such figure are quite shocking, they are nowhere near those of the United States which relies more on incarceration that the United States. Consequently, the US also has the highest rates of imprisonment globally, with 753 persons out of 100,000 being incarcerated (King’s College London 2010c). According to The Scottish Prisons Commission (2008), the practical problem that come about due to this overreliance on incarceration in the UK-like huge financial costs and overcrowding have, curiously, failed to trigger real effort to identify plausible solutions intended to minimise the use of incarceration. For instance, in December 2007, the UK government announced that plans were underway to construct three “Titan Prison” and that this would cost the taxpayer £2.3 billion.

 In trying to justify the need to building additional prison spaces, the government indicated that the new prisons would ‘combine the best aspects of smaller prisons with the efficiency savings of centralised support services’ and that there will be a focus on individual needs and strong interactions between prisoners and officers (Ministry of Justice 2008, p. 5). While the government may have abandoned plans to construct these three “Titan” prison, plans are still underway to significantly increase the capacity of our prisons. This is another indication yet of the government’s attempts to find a solution out of this problem (The Commission on English Prisons Today 2009). By building more prison places, we are likely to witness a reduced focus on the individual. There is also likely to be weaker interactions between prisoners and officers because these are quite large institutions and cannot therefore effectively deliver individual services (Toch, 2005).

According to Foucault (1977), being incarcerated could actually promote future delinquency owing to such factors as corruption, abuse of power, lack of meaningful work, as well as the 'arbitrary power of administration' (p. 266). Foucault further observes that such factors could instil in many of the prisoners high level of anger and injustice. As a result, such prisoners are likely to start viewing the criminal justice system as the 'guilty party', thus promoting their likelihood of committing more crimes in future. Furthermore, having to endure institutionalised control could imply that the prisoners shall become accustomed to the routine of being incarcerated, and this could in turn reduce the likelihood that prisoners shall live a law-abiding life upon their release (Irwin & Owen 2005).

The Social Exclusion Unit, in its 2002 statement, supports these theories by noting that the taxpayers incur nearly £11 billion annually in re-offending costs by ex-prisoners. Between 1997 and 2007, the UK has reported a 32% reduction in overall crime; there has been a 34% reduction in violent crime while burglary and vehicle thefts have reduced by more than 50% over the same period (The Report of the Commission on English Prisons Today, 2009). During the same period, the UK has built 20,000 new places for prisoners (Ministry of Justice 2009).

It is important however to note that the high rates of imprisonment as recorded in England and Wales does not depend on crime rates and as Coyle (2005) notes,  ‘there are other influences at work in respect to the use of imprisonment’ (p. 11).  Elsewhere, Crewe (2007) has identified imprisonment as ' the ultimate sanction of most Western societies' (p. 20), and further notes that prisons act as a 'potent symbol of the states power to punish and its failure to integrate all its citizens into its system of norms’ (p. 20). Consequently, a rise in the number of people incarcerated acts as an indication that the society in question has high levels of 'social exclusion'.  According to Coyle (2005), individuals who are usually incarcerated are often the most marginalised members of the society.   A high percentage of the prison population in England and Wales consists of the disadvantaged and poor members of society, those addicted to alcohol and drugs, as well as individuals with mental health needs (The Report of the Commission on English Prisons Today, 2009).

Foucault (1971) views prison as a kind of political and social control on a wider societal scale, as opposed to just viewing it as an institution charged with the responsibility or controlling criminal behaviour and crime. Foucault identifies the eighteenth century as ‘‘The Great Confinement' period, as evidenced by an increase in incarcerations. Foucalut views prison as merely an institution of regulation and power bestowed on a population. Foucault further contends that prisons altered their target of punishment form the body to the mind with the goal of changing the behaviour of offenders, as opposed to avenging on criminal acts. Foucault opines that prison started showing an interest in the offender's personality in an attempt to come to terms with the reasons that informs criminal behaviour in a bid to make interventions and rescind any further disobedience. As a result, there was a mushrooming of experts, including criminologists, social workers, and psychiatrists into the legal system (Foucault 1977).

The motive for reforms then, according to Foucault, was down to a variation in criminal behaviour, as opposed to a rebellion against brutality. Foucault further argues that the motive for reform has become more professionalised a d property oriented in part because the growth of factories, workshops and warehouses led to a rise in risk of theft. Reformers thus championed for a less brutal measures in dealing with offenders and and advocated that the punishment meted out to criminals should measure up to the offence. As such, the sentence would depict the law, as opposed to political power. Foucault (1971) further reports that reformers desired that the punishment be publicly manifested. This would effectively act as a perfect example for all to see. This called for the enactment of various suitable public punishments. Nonetheless, this never happened, and consequently, there was a rise in the use of imprisonment as penalty to most offences.

Putting the increasing prison rates into perspective

Over the past several years, many countries across the globe have witnessed a significant rise in imprison rates and changes in crime levels has failed to explain this. For example, in Scotland, there has been a decline in crime levels for a good number of years now. The rise in prison population in Scotland and the rest of the UK has thus been attributed to a rise on the sentence length and number of convictions (The House of Commons Justice Committee 2010), thus leading to a rise in the number of prisoners incarcerated serving long-term prison sentences; a rise in the number of offenders incarcerated for less serious crimes; a rise in the number of offends in remand; and a rise in recalls form licence and supervision.

Nonetheless, there is need to appreciate the fact that for any country, changes in the rates of imprisonment do not happen by chance. These rates are largely determined by penal policy, which in turn depends on the social and political climate that prevails in a given society at any one given time. This could then explain the significant differences between various parts of the world and various countries in terms of imprisonment rates. For instance, The U.S has witnessed a vast and rapid expansion of its imprisonment rate over the past three decades, prompting Garland (2001) to describe this phenomenon as “mass incarceration”. While nearly 5% of the global population lives in the U.S, a startling statistic is that 25% of the world prison population is to be found here. This effectively makes the U.S. The largest jailer in the world (American Civil Liberties Union 2016). Between 1978 and 2014, the U.S witnessed a 408% increase in its prison population (American Civil Liberties Union 2016). This has prompted President Obama to call for an end to mass incarceration, in a July 2015 speech in which he also made comments on the scale of this problem, the sub-standard conditions to which prisoners were subjected to while in prison, and the unequal effect of imprisonment on 'people of colour '.

In contrast, Scandinavian countries have amongst the lowest rates of imprisonment globally. This has prompted academics to describe this phenomenon as 'Nordic exceptionalism'. According to Lappi-Seppälä (2007), the subject of low-imprisonment societies has not received considerable attention as it should. Pratt (2008) undertook a study to explore the subject of exceptionalism as it relates to three Scandinavian countries namely, Norway, Sweden, and Finland. In this case the author endevoured to identify levels of imprisonment in each of these three countries. Pratt (2008) reports that as of 2006, Norway had an imprisonment rate of 66 persons per 100,000, while Finland had a rate of 68 per 100,000, and 82 per 100,000 in Sweden. Another Scandinavian country (Denmark) also compared favourably, at 67 persons per 100,000. According to Whitman (2003), the egalitarian tradition of the U.S has played a key role in the rising tolerance of more inhumane and degrading punishments in comparison with other related societies. This, according to Pratt (2008) is the hallmark of exceptionalism in the U.S. Nonetheless, Pratt (2008) argues that egalitarianism led to the development of quite the opposite effect in Scandinavian countries. This is because these societies are characterised by highly egalitarian social structures and cultural values, which in turn influences their state of exceptionalism. 

The creation of the Scandinavial welfare state then helped to institutionalise and embed this egalitarianism into their social fabrics. Adoption of this framework in turn yielded prison and penal policies that differed significantly from those produced by the Anglo-American societies, and this has remained to-date. It is important to note that in the case of Finland, the country did not share in this 'Nordic exceptionalism'. Up to the 1970s, the country was characterised by one of the highest rates of incarceration across Western Europe. This was obviously out of harmony with the other Nordic countries. Nonetheless, the Finnish government made a collaborative attempt to minimise its prison population by among others, embracing social development as a key policy to fight crime, instead of focusing on prison sentences (Lappi-Seppälä 2008). Today, the rate of imprisonment in Finland compares favourably to the other Scandinavian countries and the Scottish Prison Commission, in its 2008 report, referred to Finland as a case study (Scottish Prison Commission Report 2008).

Factors impacting the use of imprisonment in the UK

Section 142(1) of the 2003 Criminal Justice Act has delineated several purposes of sentencing: (i) to punish the offender; (ii) to reduce crime rates; (iii) to ensure offender reform and rehabilitation; (iv) to protect the public; and (v) Ensuring that offenders atone for make restitution to individuals impacted by their crimes. Nonetheless, the law does not require that judges, while passing out sentences to offenders, to point out the specific reasons why an individual has been sent to prison, be it for reformation, as a form of punishment, to ensure public protection, or for purposes of deterrence (Coyle 2005).

While making a ruling on an offender, the judge takes into account various factors that are hard to evaluate objectively. This is an indication that the courts are influenced greatly by various external factors while making sentences. The Home Office notes that falls and increases in rates of imprisonment may be associated with traumatic events that touches on the national consciousness, , including statements made by Home Secretaries at various conferences organised by political parties, or the murder of the brutal murder of a child, as happened in 1993, when Jamie Bulger was murdered (Home Office 2003). The prison system in the UK “holds a symbolic place in modern English public life.” (Coyle 2005, p. 20). This symbolic meaning is shaped by the Christian theology of guilt, sin, redemption, punishment, and expiation. This informs the concepts of imprisonment namely, that individuals in prison have done wrong, and hence require being punishment in order to be 'reformed'.

In addition, social and political factors, as opposed to the criminal justice system, also influence the use of imprisonment in the UK by determining the extent to which offenders ought to be punished for their wrongdoing. This factor to a great extent could help to explain the disparities witnessed in terms of imprisonment rates across various countries and regions even as there is no apparent variations in crime rates among such countries or regions. The Council of Europe has also acknowledged this fact, by noting that the management of prisons in individual countries is largely associated with the social structure that exists in such a state. According to the Europe Committee for Crime Problem (2001) prison as an institution mirrors the societal values of an individual country and this could further explain the rates of imprisonment. In this case, the political decision of an individual country, rather than the detection of crime or levels of crime, largely determines levels of imprisonment (Coyle 2005). This usually occurs through the after politicians introduce exceedingly punitive punishments, while the media encourages “judicial authorities to send more people to prison for longer periods of time” (Coyle 2005, p. 20).

Conclusion

It is quite evident that in the past 30 years, the UK has been shown to embrace an increasingly punitive criminal justice system. This is largely based on the fact that social and political factors influence imprisonments in the UK. Successive political parties in the UK have endeavoured to be seen as acting tough on crime. One way of doing this is by ensuring that offenders atone for their crimes through service time in prison. The penal policy adopted by a country has a huge influence on rates of imprisonment in such a country. These are in turn reliant on the social and political climate that prevails in the country. For example, the U.S. criminal justice system is characterised by mass incarcerations even though there is has been no comparable increase in crime rates. On the other hand, the Scandinavian countries have the lowest imprisonment rates on account of their highly egalitarian social structures. This is a clear indication that the increased punitiveness of the Criminal Justice System cannot be simply explained by rising crime rates.

 

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