Incapacitation vs Rehabilitation in Penal Policy Essay Example
Incapacitation vs Rehabilitation in Penal Policy Essay Example

Incapacitation vs Rehabilitation in Penal Policy Essay Example

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  • Pages: 15 (3852 words)
  • Published: April 8, 2017
  • Type: Case Study
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Crime remains a burning issue in our society, it is increasingly at the top of the agenda for large sections of the public, especially those living in metropolitan areas. We should be seeking out possible ways for the cure and prevention of crime by strongly addressing the underlying causes of criminal and anti-social behaviour, but at the same time we have to find more effective strategies to deal with the criminals and minimise crime rates (Lord Falconer 2004).

In the long term, we need drastic changes in our society at a fundamental level in order to uproot crime, however, in the mean time, we have make our methods of apprehending the criminals and sentencing them more effective, in order to punish crime, in as justifiable manner as possible. Reducing the incidence of criminal behaviour through deterrence, incapacitation and rehabilitation ar

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e the general utilitarian justifications of punishment through imprisonment (Morision 2006).

The prison works, or is generally assumed to work, through 1) incapacitation — by taking anti-social people out of society and thereby giving the communities a relief from those who have broken the law and who are prone to do so again; 2) through individual and general deterrence — by making those who have committed the crime as well as those who might be thinking about committing a crime fear the consequences; 3) and, finally, through rehabilitating — by helping the criminals to mend their ways and if possible develop new skills in order to survive and make a honest living on release from custody (Wilson 2006).

Deterrence has long been recognised as one the main purposes of punishment of crime, and both incapacitation and rehabilitation can b

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seen sub-goals of deterrence. Rehabilitation works in a positive way by seeking to reform offenders by bringing about change in their future behaviour, both in the interests of society and of the offenders themselves.

Incapacitation, on the other hand, works in a negative way by rendering a criminal incapable of committing further crimes, thus protecting the community from criminals who are likely to re-engage in various kinds of criminal conduct (New South Wales Law Reform Commission 2003). Imprisonment is generally considered to be the way to realise the aims of deterrence, both in the sense of incapacitation and rehabilitation. However, deterrence is only one side of looking at punishment and imprisonment, the other side being retribution.

Therefore, broadly speaking, the justifications for criminal punishment fall into these two groups: a) retribution, where the aim is to satisfy society and the victims of the crime that justice has been done, which, put in common parlance, is a tit for tat measure, and b) deterrence or social defence, where the aim is to protect society from crime by incapacitation or changing the behaviour of the offender and potential offenders (Mathieson 2000).

The concept of retribution as an aim of punishment is based on our society’s deeply ingrained notions of justice, fairness and desert. The justification for retribution centers around the two key issues of proportionality, matching of the punishment to crime, and culpability, the assessment of moral guilt. The discussion on retribution is mainly carried around the notions of justice, ‘just deserts’, and the best ways to assess proportionality.

In other words, it involves the question of the moral evaluation of different kinds of crimes and how to arrive at appropriate

punishment scales (Tombs, 2005). When the members of the legal system make assessments of proportionality, either in terms of the length of prison sentences, or the number of hours of community service and the amount of fines and compensation orders, they also take their decisions while striving to reach a morally justifiable assessment of culpability.

The purpose of social defence closely follows that of retribution, and is achieved through imposing punishment with a view to institute better public protection. At an individual level, prevention of further crime is supposed to be obtained through rehabilitation, deterrence or incapacitation of the individual offender. At a general social level, this punitive action on the individual is presumed to have a deterrent and educative effect on other members of the society as well.

However, attempting to achieve the aim of rehabilitation in prison, where offenders are exposed to bad company, isolation, rejection, deprivation and meaninglessness, is a complex proposition and is becoming increasingly difficult as the prison populations grow. When it comes to practice, efforts to carry out educative and therapeutic work with offenders are often severely hindered by a range of problems associated with overcrowding – excessive burdens made on prison staff, lack of oversight and lack of purposeful activity, in addition to the widespread availability and use of narcotic drugs.

However, such a state of affairs does not mean that rehabilitative efforts should be abandoned for those offenders who have to be isolated in prison in order to protect the public, but only that conditions inside the prison system should be made be more conducive to accomplish rehabilitation, at least to a modest degree. It is definitely an enormous challenge

and has always been so more or less, but is worth tackling both on humanitarian and practical grounds. As the human civilisation progresses, our society is assuming a more humane and compassionate countenance in almost every way.

Today, there is a stronger and deeper feeling in everyone of us that humanity is one, the habit of a nation warring against other nations for whatever reasons has almost become anachronistic, we have evolved a welfare society in most of the developed countries, and are valiantly fighting against poverty in many of the less developed nations, there are today much higher levels of prosperity, education and health in most parts of the world as compared to fifty or hundred years ago.

However, there seems to be two very conspicuous exceptions to this general trend of progress towards human and humanitarian ideals: the ever-increasing rates of crime and the inhuman way our society is dealing with its criminals. There has occurred a drastic paradigm shift in our philosophy of punishment in the past couple of decades. The central object of penal policy has become the ‘victim’, and not the perpetrator. In this mode of thinking, being ‘for’ the victim means being ‘against’ the offender.

There is thus an increasing preoccupation with retribution and the incapacitation aspects of deterrence over and above any concerns for the eventual rehabilitation of the perpetrator of the crime. Prison has became merely a means of incapacitation and inflicting pain on the criminal, and has less and less to do with any concern of possible rehabilitation. In fact, far from being conducive to the moral reform of the prisoners, our prisons have in effect become “an expensive

way of making bad people worse” (Wilson 2006).

Even community supervision has become simply a way of risk management, above everything else. The stress on incapacitation in modern penal policy is perhaps most typified by the Three Strikes law of California which provides for permanent incapacitation, if those that are subject to this sanction have already victimised at least three people. (Greenwood 1997). The “Three strikes and you’re out” legislation has been called “the largest penal experiment in American history” (Zimring, Hawkins and Kamin 2001).

It took effect in March of 1994. Under this policy, a criminal with one strike who is convicted of any subsequent felony (not necessarily a qualifying felony) faces an automatic doubling of the sentence length on that conviction and cannot be released prior to serving at least 80% of the sentence length. A criminal with two strikes who is convicted of any subsequent felony faces a prison sentence of 25 years to life and cannot be released prior to serving at least 80% of the 25-year term. Helland, Tabarrok 2003).

The three strikes law obviously leads to disproportionate punishments. However, it has been argued that the imposition of harsh penalties will reduce the crime rate by confining likely offenders who have already offended and will dissuade would be offenders from offending in the first place (Bagaric 2000). Thus, a basic principle of retribution, namely proportionality, has been sacrificed in order to enforce a severe regime of incapacitation and deterrence.

But, in the end, after several years of experimentation, most people feel and many studies have proven that the three-strikes laws are not effective crime prevention measures, and that they are unnecessarily harsh sentencing guidelines

that punish harmless petty criminals and overcrowd prisons (Murphy 2000). In sharp contrast to our current emphasis on incapacitation, for the better part of the twentieth century, the concept of rehabilitation dominated penal policy and practice. There was little or no dissent to such a policy and it was accepted by general acclamation.

Rehabilitation was the law’s explicitly avowed objective in matters of criminal sentencing and remained the prevailing ideology in the approach of the penal code reforms of the 1960s. Even people who clamoured for reforms in the penal system, and who were keenly engaged in the task of criticizing and pointing out the faults of the prison establishment in our Western democratic society, disagreed and debated for the most part about the means rather than the ends of the prevalent prison and correctional programs (Zimring, Hawkins, 1995).

However, in mid-1970’s, there took place a dramatic shift in correctional philosophy which led to a series of changes in our penal system. Almost overnight, the concept that had remained the intellectual cornerstone of corrections policy for nearly a century – rehabilitation – was publicly abandoned. The United States led other countries in Europe to transform into a society that used imprisonment merely to disable criminal offenders ("incapacitation") or to keep them far away from the rest of society ("containment").

The policy and philosophy that justified putting people in prison to facilitate their reentry into the free world as productive and morally developed citizens was forsaken without much ado. The rationale of “just desserts” – locking people up for no other reason than they deserved it and for no other purpose than to punish them – became the underpinning

of penal policy. The prison punishment is now its own reward, mainly serving the purpose of inflicting pain (Haney, Zimbardo 1998). This vengeful approach to crime and violence is by no means a new development, in fact it is the recrudescence of the age-old “an-eye-for-an-eye” concept:

If anyone injures his neighbour, whatever he has done must be done to him: fracture for fracture, eye for eye, tooth for tooth. As he has injured the other, so he is to be injured. (Leviticus 24:19-20) The inherently Christian ideal of exhibiting forgiveness, and try to help the transgressor realise his transgression, and thereby allow him to strive to become a better person, was discredited outright in favor of a crude and, in many ways, barbarian attitude of tying up the criminals and do nothing more than wreak vengeance upon them, pure and simple.

Many would not find anything wrong with such a system, especially they have been victims of crime in some form or other. However let us consider this scenario: How would it be if we were to treat our mental patients by tying them up in straitjackets, inflicting all kinds of torture and exorcism upon them, and make them ingest mercury, even as we used to do less than a century ago?

It would be shocking, of course; it would be considered as an instance of regression and atavism, yet this is exactly what has happened in our approach of treatment of prisoners. Retribution is a ‘reaction’, and rehabilitation is a ‘response’ to crime; instead of evolving better and mature ways of responding to crime, we have regressed to a mode of reacting to crime from a more

primitive and instinctive mechanism inside our minds.

The “neo-cortex” part of our brain, situated at the front end it, represents our humanity, rationality, wisdom and forethought; the cerebellum situated in the most anterior region of the brain, represents our reptilian, aggressive and vengeful tendencies (Kazlev, 2003). During the course of our evolution as a species and as a society, we have struggled to bring more focus on the uniquely human neo-cortical frontal brain, which is furthest away from the agglomeration of animalistic and instinctive tendencies originating from deeper and much more older regions of our evolving brains (Dubuc 2006).

Most often, crime itself a tendency that marks a relapse to the modes of thinking that lack foresight or concern for our fellow human beings, and our response to crime instead of typifying the more evolved rational aspects of our thought and mind, has been relapsing to the primitive and instinctive mechanisms of action and reaction.

Just as mental patients too are human beings, and what they need is care and treatment more than stigma and ostracizing, criminals too are human beings capable of learning and developing themselves to some extent or other, and who need treatment, rehabilitation and moral support, even while it may be true that they justly deserve the punishment they get. To see that the criminals and prisoners have a chance to grow and reform themselves while serving their prison sentences is the duty of the state and the society, which it can abandon only at the risk of committing gross disservice to the cause of progress and civilization.

Yet, most regrettably, for one reason or other, or more probably for no valid reason at all,

this is exactly what has happened. Even a preliminary analysis of penal policies of the United States, the United Kingdom and other free democratic countries of the past three decades clearly indicates a volte-face from the rehabilitation ideology that had been prevalent for decades before towards a blatant policy of punishment and incapacitation.

Some scholars opine that the reasons behind such drastic policy changes are strongly rooted in the culture of modern capitalist societies which believes in individual responsibility and efficiency (Shichor 2000). Yet this cultural attitude carried to the extreme is essentially a disguise for the jungle law of the survival of the fittest. While it is true that individual responsibility and efficiency are paramount for a progressive society, and even that the principle of the survival of the fittest should play a crucial role in developing our cultural ethos, they should not be everything.

There are higher values like love, compassion, charity and forgiveness. For instance, simply because poor people have proven incapable to earn a decent living, we do not look down upon them and callously let them suffer their lot. We try to help them out and devise ways to ameliorate the conditions associated with poverty. Moreover, the structure and dynamics of our society play a significant part in creating and nurturing poverty, therefore it forms the responsibility of the society and all the capable people constituting it to address the issue of poverty and restitute the poor people to a higher economic status.

Similarly, the society obviously plays a great role in making the criminals the way they are, and therefore it forms the responsibility of the society to do everything it can

do to undo its wrong. While it is debatable in each instance of a crime or violation of law as to how much of the culpability is attributable directly to the individual, and how much of it goes indirectly to the society, the environment and the people around the perpetrator of the crime, it is at the same time true that even in the absence of any manifest extenuating circumstances, a good portion of the blame and responsibility fall on the shoulders of the society.

Had our society been different, more capable of understanding human nature, more efficient in dealing with the root causes of criminal behavior, the criminal would not have existed in the first place. Even if a significant proportion of crime is prompted by the criminal nature of a person originating in mental imbalances caused either by genetic defects or extreme stresses in the childhood of this person, or a combination of them eventually leading to lack of self-control and discrimination, it is the responsibility of society to help the individual rethink his behavior and reconsider his actions.

And notably except in the case of hardened psychopaths, who are generally destined to the electric chair, there is hope for betterment and moral upliftment for many of the hundreds and thousands of individual human beings currently incarcerated in our jails on a long-term basis. However, when the state and the jurisprudence explicitly embrace a policy of incarceration that is only justified on the grounds of incapacitation and has no role to play in the rehabilitation process of individuals who have fallen foul of our system of law and order, such hope is largely quelled.

Everyone needs

to be given a second chance, by and large, unless the risk of doing so is unacceptably high. In our own lives, though we may not have committed any crime ourselves, we must have been involved in taking several decisions and doing many actions that would seem to us utterly foolish and stupid today, in retrospect. In fact, there would be many normal individuals, very much on the right side of the law, who may consider their entire past lives to be nothing more than a big blunder.

Human beings are not infallible, and on the contrary highly prone to inexplicable vicissitudes of the mind, some of us more so than others. All of us live and learn, growing through experience. Those among us who have become labeled “criminals” – while they need to be punished swiftly for their shameful and egregious actions, or crimes of more serious nature – deserve to get a second chance at life instead of being cast away in dungeons and left to rot for years and decades.

It is true that forgiveness is easier to preach about than practice, it is also true that real-life situations are often too complex and embroiled to take compassion and charity as guidelines for policy and action, yet the society cannot give up on all efforts to reform criminals and treat them merely as slaves or chattel that are driven to menial labour and maintained under lock and key like droves of sheep.

Whatever obnoxious crimes a person may have committed in the past, he or she should be accorded a minimum degree of human dignity even inside a prison; a chance to learn and grow

and reform oneself is part of such basic individual human dignity. Some people may fear that showing compassion and consideration in any form may weaken the deterrent effect of punishment on the general society. In such a case, punishment may be intensified, but still the person serving the sentence should not be altogether deprived of the scope for rehabilitation.

Personal responsibility and efficiency are certainly very important and valuable characteristics of an individual in our society, but the society has a higher responsibility too not only to apprehend and incapacitate criminals, but to provide them with an opportunity to educate and reform themselves, while at the same time striving to prevent criminal and antisocial behavior arising in individuals to begin with.

The rehabilitative ideal should be kept alive and active, implemented to whatever extent possible, in different ways according to different situations and the differing potentials for goodness and reform in various individuals — but it cannot be slickly abandoned as if it is none of the state’s business to consider the learning and growth possibilities of individuals branded as criminals, whether justly, or as it often happens, unjustly.

In the late 1960s in the USA a large number of rehabilitation evaluations were reviewed by the New York sociologist Robert Martinson in the company of two research colleagues (Sarre 1999). Concluding his observations in a paper entitled “What Works”, Martinson wrote: “... with few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism”. (1974) He went on to say that “our present strategies … cannot overcome, or even appreciably reduce, the powerful tendencies of offenders to continue in

criminal behavior”.

Martinson’s paper proved a deep challenge, perhaps a fatal one, to the philosophy of rehabilitation (Clear 1997). He drew a straightforward and unequivocal conclusion that “nothing works,” as far as rehabilitation in prisons is concerned. The result caused much consternation through the prison reform communities across the United States and Europe. If nothing works, what then shall the prison agenda be? Martinson’s report was taken to be debunking the idea that it is possible to rehabilitate prison inmates, indeed, to reform any criminals at all.

This paper was very influential in instigating drastic and widespread changes in penal policy that consequently shifted its focus from rehabilitation to punishment and incapacitation. However such a move was uncalled for. If the reform system in place proved to be ineffective, then the situation could be construed as a call to reform the reform system, not to abandon the concept of reform altogether. Martinson’s paper may have passed an indictment on the existing rehabilitation methodologies, at the most, but not on the possibilities an potentialities of human nature.

Over 30 years on, we are in a better position to understand the psychology of criminals and as a result are better equipped to institute a more empirically valid reform system. Even if not out of humanitarian motives, but purely out of practical considerations the state is necessitated to rethink its policies and position on rehabilitation. Currently the U. S. has a prison inmate rate of 724 for every 100,000 people of general population — up from 505 in 1992 (Walmsley 2005).

The U. S. risons are already overcrowded, there would be no place left to bind and incapacitate criminals if the present

trend of surge in prison population continues unabated. Further, lack of any provision for effective rehabilitation is an important cause for creating the overcrowding conditions inside the prison, and this overcrowding is in turn making it very difficult to effect rehabilitation schemes. Thus the situation is developing into a vicious circle, which is only likely to worsen in the future. While regarding the situation in Britain, Baroness Blackstone has poignantly remarked over a decade ago:

Britain has a disastrously expensive and inhumane penal system, which is compounded by a huge injection of resources into building more prisons… A little more imagination, rather more attention to the evidence in front of them, and greater political courage would have led ministers down a quite different path. It would have led them to a sustained effort to reduce substantially the prison population (1990). Many years before the negative shift of policy from rehabilitation to incapacitation, the President’s Commission On Law Enforcement and Administration of Justice Report concluded the following about the state of prisons in America (1967):

In sum, America's system of criminal justice is overcrowded and overworked, undermanned, underfinanced, and very often misunderstood. It needs more information and more knowledge. it needs more technical resources. It needs more coordination among its many parts. It needs more public support. It needs the help of community programs and institutions in dealing with offenders and potential offenders. It needs, above all, the willingness to reexamine old ways of doing things, to reform itself, to experiment, to run risks, to date. It needs vision. This recommendation is perhaps more valid today than at any other time in the past.

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