The Purpose of Penalty

The purpose of penalty is as varied as are the reasons why people commit crimes.  If I oversimplify, which is what just about all of us do when we attempt to discuss a complex subject, I would use the standard four justifications for punishment: retribution, deterrence, rehabilitation, and incapacitation.  Retribution – the so-called, “eye for an eye” punishment, has probably been around since the beginning of civilization. A goal of retribution is to retaliate for the wrong done in such a way that the nature of the punishment reflects the nature of the offense.  For example, the Germanic tribes in northern Europe of the Middle Ages were very protective of their forests.  The penalty for illegally cutting down trees was execution.  In an effort to have the “punishment fit the crime,” the offender was executed in a manner that would reflect the crime itself.  So persons taking the life of a tree by cutting off its top were buried in the ground from the shoulders down.  A plow was then taken across the offender’s head and his life was lost by topping, just as the tree had been topped.[1]

Deterrence is easier to understand.  Punish the individual perpetrator of a crime appropriately and he or she will sin no more.  Punishment, if made public enough, can also serve as a graphic warning to help others decide not to commit acts for which they might receive the same fate as the punished offender.

Rehabilitation is a relatively new idea, coming into popularity in the mid-Eighteenth Century.  The purpose is to provide the offender with the tools necessary so he or she will live a crime-free life.  It has evolved into a system where prisoners are classified and treatment plans established.  Such treatment plans may include drug counseling, anger management classes, job training, and basic education.

Incapacitation is used to restrict the movement of the offender in order to protect society – keeping him or her away from potential victims or by allowing law enforcement personnel to reduce the person’s opportunity to commit a crime.  Prison always comes to mind when talking of incapacitation, but it also can be accomplished through electronic monitoring or other schemes.

Why People Commit Crimes

Again, I will oversimplify and use four reasons:  because the person could not get a job; because the person could not hold a job; because the person did not want a job; and, for a “cause.”

A person might commit a robbery because he could not get a job and it was the only way he could think of to feed his family.  In this case, getting the person a job would take care of those who are concerned with deterrence (individual deterrence, not general deterrence for other potential offenders) and rehabilitation.  Incapacitation would not be an issue of concern, so only those wanting retribution would not be satisfied.

A person might commit a robbery because she could not hold a job – the person has the ability and opportunity to work, but because she drinks or sticks a needle in her arm, she is not able to hold the job.  In this example, the person needs a treatment program, and if she finishes it and remains drug- or alcohol-free, she will meet the goals of rehabilitation and deterrence and not need incapacitation.  Again, those wanting retribution would be left unsatisfied.

A person might commit a robbery because he did not want a job – the person is too lazy to work or feels entitled to take what others have worked for – a person with no conscience who preys off of others.  In this case we are probably talking about a case for the punishment of retribution and/or incapacitation with the thought that it also will serve as deterrence for both the individual and society.  Rehabilitation would come from having the person feel it is easier to work for a living than to endure the punishment.

A person might commit a robbery in order to acquire money, quickly, to support a revolution or social cause or to terrorize people into following his or her philosophy.  This is another case for the punishment of retribution and/or incapacitation with the thought that it also will serve as deterrence for both the individual and society.  Rehabilitation would come from having the person feel it is easier to work for a living than to endure the punishment.

The Expectations of Offenders and Victims

Just about all offenders expect to be punished, in one way or another, for what they did.  They generally do not expect to be treated or forced into programs having nothing to do with their crime.  In New Zealand, Phil McCarthy, the general manager of the Public Prisons Service, Department of Corrections, found that treatment is most effective when directed at those at highest risk of re-offending.  Directing intensive treatment resources at those of lower risk is likely to be ineffective at best, or even increase the probability of further recidivism.  He referred to over thirty meta-analytic reviews of treatment evaluations encompassing over two and a half thousand individual treatment outcome studies which consistently support that, under certain conditions, rehabilitation can be effective.

For purposes of what follows, the term “victims” includes not only the immediate targets of crime, but also their families and members of the groups or communities to which they belong.  According to a study published in May 2000 by the International Association of the Chiefs of Police, victims want:

Safety:  Protection from the perpetrators and revictimization; crime prevention through collaborative problem solving; and a restored sense of individual and community safety.

Access:  Ability to participate in the justice system process and obtain information and services, regardless of individual or family circumstances.

Information:  Verbal and written information about justice system processes and victim services that is clear, concise, and user-friendly.

Support:  Services and assistance to enable participation in justice processes, recovery from trauma, and repair of harm caused by crime.

Continuity:  Consistency in approaches and methods across agencies; continuity of support through all stages of the justice process; and trauma recovery.

Voice:  Empowerment to speak out about processing of individual cases; opportunities to influence agency and system-wide policies and practices.

Justice is achieved when all stakeholders are satisfied with the process and the outcome is fair to all participants.

Protecting the Public – Do Alternatives to Prison Help or Hurt?

The use of prisons before the Eighteenth Century was only one part, and not a very significant part, of the system of punishments used in society.  Over the last two hundred years, the prison has evolved to become the main player in the punishment game.  In western societies we know that that the use of flogging, public humiliation, corporal punishment and capital punishment has diminished. 

A survey was conducted in 1994 by Mohamed Zeid of the Global Security Foundation with 60 respondents from Saudi Arabia, Egypt, Jordan, Syria, Sudan, Tunisia, North Yemen, Libya and Iraq.  The survey was in the form of hypothetical situations (e.g., a person breaks and enters into an apartment and steals 40 Saudi Riyals [standard currency units] worth of property; a parent beats his son pretending that he educates him, but the child is hurt and spends a few days in the hospital; two workers kidnap a young virginal girl and commit sexual assault in an abandoned location, etc.). The survey asked what would be suitable to serve as sanctions or measures or both for convicted offenders in each of the cases given.  Those completing the survey were highly qualified experts (i.e., professors of Sharia, criminal law, criminology, penology, or police, judges, and district attorneys). The results, which of course varied with specific questions, tended towards Taazir penalties (imprisonment) as opposed to Hedud penalties (amputation for example) due to the difficulty in obtaining the evidence required to prove a Hedud offense.  The use of prisons in Islamic societies, like in the western world, seems to have become the punishment of choice.

So if prisons are the general punishment of choice in much of the world today, what is the impact of attempting to reduce prison populations by using alternative punishments?  Because the world community, mainly through the United Nations, has established standards and norms mandating the humane treatment of offenders, many of the punishments of previous times are no longer acceptable.  The alternatives to imprisonment include probation, parole, fines and day fines, community service, day reporting centers, public service work crews, and sentencing drug and alcohol abusers to treatment programs. 

Is the push to reduce the use of prisons a movement that is likely to increase crime?  Is the public as safe?  What are the economic and societal tradeoffs?

In the Untied States in the 1990s, “get-tough-on-crime” measures dramatically increased the nation’s prison population.  Beginning in 1993, in the state of Washington, and over the next decade, more than half of all states and the federal government enacted laws that doubled or tripled the sentences for individuals convicted of second and third offenses.  During that same period of time crime rates declined nationwide prompting many to claim that the tough new sentencing laws were responsible for the decline.

California alone boasted a 27 percent drop in all crime and a 31 percent drop in violent crimes.  However, empirical research showed a different picture.  Crime was declining at about the same rate before the passage of the new laws.  New York, without such laws, had an even higher crime reduction during that same period.  Counties in California that enforced the new laws strictly did not have any more of a reduction in crime as the counties that did not enforce the new, stricter sentences.  In fact, empirical studies suggest that California would have had the same decline in crime without enacting the new laws which greatly increased its prison population.

Another way to attempt to judge the impact of prison on crime is to look at the incarceration rate (per 100,000) and the crime rate[2] (per 100,000) of various jurisdictions.  In the following, I am using statistics for `1992[3] for the United States and 1991[4] for other nations.

Florida had the highest crime rate in the U.S. with 8,358 per 100,000 population.  West Virginia had the lowest at 2,610.  The Florida incarceration rate was 369 while West Virginia was 102.  Texas had 7,058 crimes per 100,000 and an incarceration rate of 381.  North Dakota had a crime rate of 2,903 and an incarceration rate of 69.  Even when you factor in the poverty rate[5] and high school dropout rate for the above jurisdictions the fact remains that a higher prison rate does not mean a lower crime rate.

The United States’ rate of incarceration is several times that of European nations, yet its crime rate is also much higher in a number of categories.  The United States, in the year used for comparison, ranked above European nations in the murder rate and rape.  It was only behind Spain in terms of armed robbery.  Four European nations ranked above the U.S. in auto theft and five in breaking and entering.  However, none were sufficiently higher in those crimes to indicate that the vast difference in the incarceration rate was a factor.

Researchers, in more recent times, have found that increasing the incarceration rate has a relatively low impact on reducing the crime rate.[6]   Unfortunately, there have not been studies to show the impact of fines, community service, probation or other sanctions in terms of their impact on crime.  There have been studies which indicate that participation in treatment programs do have a direct impact on reducing recidivism.  Studies also have indicated that there is a direct link between employment and crime and education and crime.  So it is logical to assume that alternatives to incarceration do not hurt the public in terms of increasing the crime rate.  Though I have not gone into it in detail, the economic difference between prison and alternatives is great so the public is helped, financially, when alternatives are used.

Summary

The recent report of the Vera Institute[7] best expresses my views:

Public  safety  cannot  be  achieved  only  by  responding  to  crime  after  it occurs; research shows that it may also depend on protecting people against those  factors  that  have  been  shown  to  be  associated  with  high  crime  rates, such as unemployment, poverty, and illiteracy. By pursuing crime reduction chiefly through incarceration, states are forgoing the opportunity to invest in these other important areas. As state policymakers continue to feel pressure to introduce measures to keep crime rates low, they would do well to look beyond incarceration for alternative policies which not only may be able to accomplish the important task of protecting public safety, but may do so more efficiently and more effectively.

                                                   Gary Hill