Prisons and Community Corrections

Critical Issues and Emerging Controversies

Philip Birch, Louise Sicard

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000168402
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This edited collection brings together leading international academics and researchers to provide a comprehensive body of literature that informs the future of prison and wider corrective services training, education, research, policy and practice.
This volume addresses a range of 21st century issues faced by modern corrective services including, prison overcrowding, young and ageing offenders, mental health, sexual assault in corrective facilities, trans communities in corrective services and radicalisation of offenders within corrective services. Taking a multi-disciplinary approach and drawing together theoretical and practice debates, the book comprehensively considers current challenges and future trajectories for corrective systems, the people within them and service delivery.
This volume will also be a welcomed resource for academics and researchers who have an interest in prisons, corrective services practice and broader criminal justice issues. It will also be of interest to those who want to join corrective services, those who are currently training to become personnel in corrective services and related allied professions, and those who are currently working in the field.

Part 1

Systems

1Frameworks for punishment

Implications for 21st-century corrective services

Piero Moraro

“Mistrust all in whom the impulse to punish is powerful.”

F. Nietzsche, The Genealogy of Morals

Introduction

Despite the ongoing debate surrounding ‘the goal of the criminal justice system’, it might well be that there is no such thing as the goal. Punishment, it is said, does not have a purpose over and beyond those that people set for it (Canton, 2017); a politician will interpret the goal of punishment differently from a lawyer, a social worker, and so on. And yet there is also a sense in which our penal policies are meant to achieve a certain goal, an elusive ‘ideal’ of justice which grounds the institution of punishment. What is that ideal, and how can we assess whether our penal policies conform to it?

A popular answer to the question ‘What is justice?’ refers to the notion of giving offenders their due. We think that ‘justice is done’ when the murderer is sent to jail for his horrible crime; on the other hand, we lament the injustice of a person punished for a crime she has not committed, of a guilty offender who goes unpunished or, on the other hand, who is punished disproportionately (either too little or too much). However, as I discuss in more detail below, this general belief is often coupled with the view that the goal of punishment is crime reduction; deterrence plays a major role in the philosophy of punishment, but if we were to strictly adhere to it, then punishing innocent people, or punishing disproportionately, may be acceptable, should they be effective strategies to reduce future offending. Thus, our understanding of justice should keep its focus on a retributive standard, whereby the offender is made to suffer (through the legal punishment) not in virtue of what will occur (crime reduction) but of what did occur: the guilty is to be punished, in proportion to his crime, for he deserves it.

The view that the guilty deserves to suffer (henceforth, ‘retributive emotion’) is not a mere slogan: it is a constitutive element of the way humans relate to each other in most parts of the world. It gives substance to the idea of reciprocity expressed by the “Golden Rule” (“Do as you would be done by”) – a rule shared by Christianity, Confucianism and “almost every ethical tradition” (Blackburn, 2003, p. 101). We employ this rule when we explain to children why they are being punished; it is this idea of reciprocity that grounds our relief when, at the end of a movie or play, the ‘evil’ character is banished, while the ‘good’ ones live happily ever after. Some argue that the retributive emotion is a product of evolution, a necessary attitude for individual survival and social cooperation (Mackie, 1982).

The role played by populism and the media in exploiting and exacerbating people’s punitive attitudes has been widely researched since Stan Cohen’s seminal work on the topic (Cohen, 2002). In what follows, I focus on the tension between an unrestrained retributive emotion, on the one hand, and a commitment to the principles grounding the criminal justice system, on the other. I begin by identifying these principles, chief among which is the focus on treating the offender as an autonomous agent. I then consider one influential account of punishment ‒ namely, Antony Duff’s communicative theory, which contends the offender is to be addressed as a subject, who plays an active role in his own punishment. Then I analyse the retributive emotion in contemporary capitalist societies, highlighting its tendency to treat offenders as mere objects. In the concluding section, I sketch some policy changes deemed necessary to realign our penal practices to the principles of a just society.

The offender as subject

Behind the stereotypical portrait of Lady Justice, blind to any difference between those brought to her judgment, lies the belief that citizens are, in some morally relevant sense, equal. Matters of race, religion, gender and so on are not to affect Justice’s decisions concerning what an offender deserves. But in what sense are citizens ‘equal’, and why does Justice so scrupulously respect it? Article 1 of the Universal Declaration of Human rights states that humans are equal “in dignity and rights”, in virtue of their being “endowed with reason and conscience”.¹ These concepts, albeit still vague, are often grouped under the label of autonomy, a (still vague) label loosely referring to a person’s capacity for self-determination. Autonomous agents are capable of giving directions to their lives, of “taking up commitments from a wide range of eligible alternatives, and making something out of their lives according to their own understanding of what is valuable and worth doing” (Wall, 1998, p. 128). Through the act of choosing, autonomous agents reveal the “capacity to create value” (Raz, 2001), by adopting certain commitments over others, and this capacity is intrinsically valuable (Moraro, 2014). It is some form of this (admittedly contested) notion of dignity that grounds the conception of justice mentioned at the start: a just society formally treats its members as autonomous agents. This means, furthermore, that citizens ought to be treated also as responsible agents‒ that is, as individuals who can be held accountable for their own conduct. While, as I show below, there are various conceptions of responsibility, here I focus on ‘response-ability’, the capacity to respond for one’s own conduct ‒ for example, by addressing the accusations raised by others, either offering a justificatory explanation or admitting one’s own wrongdoing (Bacon, 1990). A responsible agent is the legitimate target of “reactive attitudes”, such as resentment or gratitude, which are appropriate only when the agent acted in a fully responsible way (Strawson, 1962). Thus, if an ‘excuse’ (e.g. insanity) may be appropriate to the case of an insane actor, a guilty sentence may be appropriate to that of a fully autonomous agent; that is to say, the imposition of punishment, while aiming to curtail the offender’s freedom, may nonetheless be constitutive of an approach that treats the offender as equal to the other human beings ‒ that is, with respect for his status as an autonomous (hence responsible) agent.²

There is something inherently odd in claiming that a person is being ‘respected’ by being locked up in prison; more specifically, how are we to make sense of the obscure notion of a ‘right to be punished’ (Deigh, 1984)? If rights ground claims to certain goods, may an offender have a claim to be imprisoned? Should he, or society at large, complain that his rights are being violated if he is left unpunished despite his wrongdoing? In the next section, I address these questions by reference to Antony Duff’s communicative theory of punishment.

Punishment as communication

The so-called communicative theory of punishment, championed, among others, by Antony Duff, sets out to highlight the dangers of adopting a purely deterrence-based account of punishment (Duff, 2001). Duff stresses that positing deterrence as the goal of punishment fails to treat offenders with due respect; for if the law is to treat citizens as responsible agents, as members of a community founded on the liberal value of individual autonomy, its aim cannot be to simply force them to comply with its directives. The latter would amount to treating offenders merely as means towards the end of crime reduction, which is why, in principle, deterrence theory may allow for disproportionate sentences, or even for punishing the innocent. Similar concerns are faced by ‘expressive’ views à la Durkheim, according to which punishment constitutes a form of ritual through which the community cleanses itself from the stains of the offender’s conduct; once again, the offender’s own suffering through punishment is just the means to achieve that result. Talking of the offender as ‘a mere means’ in the criminalisation process implies that he is treated as an ‘object’ that others can use to foster other goals. The offender is dehumanised, his dignity (as an autonomous agent) sacrificed for the interests of other agents.

Hence, Duff distinguishes ‘communication’ from ‘expression’: only the former requires an ‘audience’ who can acknowledge the speaker’s message. I may express my anger at social injustice by screaming in my car, with no one hearing me, but I could not communicate that feeling without a hearer. In a communicative process, the speaker seeks to engage the hearer “as an active participant”, as one who is able to understand and who “will receive and respond to the communication”. A communicative process requires “a reciprocal and rational engagement” between the speaker and the hearer, who approach each other as agents able to be persuaded through rational argument (2001, pp. 79–80). As already mentioned, the concept of retributive justice hinges on the idea of giving offenders their due: the latter deserve to be blamed, hence punished, because of what they did. Yet ‘blaming’ is an inherently interactive process. ‘Blaming’, for Duff, is not something that we do to an individual (e.g. to force him to change his behaviour); blaming someone is something that we do with the blamed person, with the aim to engage him in a moral argument. It requires articulating to that person why we deem his conduct blameworthy, but in doing this, we also call him to respond to our charges. Such a response could involve an admission of guilt and acceptance of our criticism, or it may imply a denial of the charge and a defence of his own conduct:

I may try to show him that his conduct was at odds with moral values which he himself accepts; or to persuade him of the significance and relevance of values by which he was previously unmoved. If he comes to accept my judgment on his past conduct, he must also agree that he should act differently in the future, if the occasion arises. Thus, in persuading him to accept my criticism of his past conduct I also persuade him to modify his future conduct.

(Duff, 1986, p. 48)

In blaming others, we treat them as individuals who can be persuaded, through rational argument, of the reason why they are being blamed. It is part and parcel of the exchange between the one who blames and the one who is blamed; the former seeks to bring the latter to acknowledge his wrongdoing, to accept the blame and to change his conduct. If the blamed person changed his conduct merely out of prudential considerations ‒ that is, to avoid the punishment ‒ our blaming him would have failed. On the other hand, if we did not manage to persuade him to change his conduct, while making him respond seriously to our blaming, we would have reached significant success:

Suppose […] that I fail to change his beliefs, attitudes or conduct: he listens and responds to my criticisms, but remains unpersuaded. […] My criticism has now failed to achieve its proper aim of persuading him to accept it, as well as the pragmatic aim of modifying his conduct. But if he responds to it seriously, it...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• List of tables
• List of contributors
• Foreword
• Acknowledgements
• SECTION 1 Systems
• SECTION 2 People
• SECTION 3 Service
• Index