Prison Doesn't Work.

An essay on just how we got here.

Jul 14, 2024

In the realm of political discourse there are seldom any topics of discussion that appear to have schools of thought as thoroughly divorced from each other as those that appear surrounding crime, specifically as it pertains to beliefs on the nature of punishment in relation to its purpose for wider society. On one hand, there is a large portion of society that is of the belief that the criminal justice system is functioning in exactly the way that it’s meant to in that those that inhabit the walls of a prison are deviants that are “deficient - mentally, morally or physically” and need to be brought back to “normality” so that they may be functioning and accepted members of society once again (Garland, 1985: 248).

However, closer inspection at statistics to do with imprisonment, reoffending and correlations between material deprivation and the likelihood of committing crimes poke holes in many of the arguments put forth by this side. On the other side of the spectrum there are abolitionists. They consist of those who believe that the ideology of imprisonment as we know it being a necessity is fundamentally flawed and is reflected in the state of the prison-industrial complex and wider society as a whole, and because of that it should be done away with. Even though decades of academic work and research exists that heavily suggests that abolition is the only way to address the persisting problem of criminality, naturally, this is a train of thought that has been heavily criticised. This is on the basis of it being perceived as something impractical and impossible to realise by its detractors throughout history. But as far as Western solutions and responses for and to crime have gone, there isn’t a point throughout history that has had a conception of it even mildly as effective or comprehensive as abolition.

The Fabrication of Crime.

Crime is a concept that has no universally set definition and has been that way for as long as it’s existed. As McLaughlin and Muncie (2001) defined it:

“Crime is not a self-evident and unitary concept. Its constitution is diverse, historically relative and continually contested. As a result, an answer to the question ‘what is crime?’ depends upon which of its multiple constitutive elements is emphasised. This in turn depends upon the theoretical position taken by those defining crime”.

From this definition, what can then be understood is that crime and therefore the perception of who is criminal is something that is socially constructed. This, in turn, has gone on to affect what is deemed as an acceptable response to crime, which brings us to justice, or more aptly, punishment. In the same way that what constitutes a crime has historically shifted with cultural, economic and political shifts, justice has also shifted accordingly throughout time.

During the pre-Enlightenment period, a combination of strictly adhering to both tradition and religion created the early foundation for retributivist approaches in feudal societies. European societies at this time were led by royalty and the church, the latter of which characterised crime as a sin that needed severe correcting. This ideology resulted in corporal punishment such as flogging, branding, and the death penalty in extreme cases, which was used as a tool of deterrence and social control since these punishments occurred in public. However, it is to be noted that the reception of this punishment was not always based on actual guilt of crime so much as it was the background of the offender. Those of higher class would rarely if ever receive the same response as those of lower classes which is something to make note of when examining the state of punishment in modern times.

This would begin to shift as the Enlightenment began, and with it brought a reimagined view of crime and punishment. Firstly, as the American and French revolutions took place, previous ideologies that revolved around the monarchy being chief decision makers were increasingly pushed aside by the public over time, and in its wake were ideologies based in rationalism. That is to say, the function of punishment shifted away from being hinged on selective retribution based on the identity of the offender and public exercises of the power that royalty wields that acted as rituals of shaming and deterrence.

The beginning of the end.

The first iterations of the modern prison system came into being during the 19th century, as most offences were met with imprisonment as the sentence instead of corporal punishment outside of murder. This was a change made not only to reflect the outcry of the various groups in society that advocated for penal reform, but also to match the growing number of people committing crimes due to the emergence of the free trade market leading to higher unemployment levels and a harsher material reality for the working class.

From this point onwards, the purpose behind punishment shifted from retribution to penal welfarism. As Garland (1985) put it, “the deviant was no longer represented as wicked…..the function of penalty [in that period] is to restore him to an elusive normality by means of training and treatment”’. This change was reflected in reforms and changes being introduced such as the distinction between juveniles and adults in sentencing with the Children Act 1908. However, this would not last as the view of crime and therefore the punishment needed would take arguably, the most detrimental turn for the general populace and in turn the most influential as it pertains to the validity of prison abolition as an ideal outcome for the criminal justice system.

During the 1970s, a schism manifested between those that advocated for penal welfarism and those that took a more critical stance towards the ideology. In the case of America, the root of this schism was a wave of scathing critique towards penal welfarism, aimed at the state’s unmitigated power to punish, poor prison conditions and individualised sentencing based on the notion that crime is something intrinsic behaviour for those that commit it. Garland (2001) writes that In Judge Marvin Frankel’s 1972 book Criminal Sentences: Law Without Order, he advocated for legal control on sentencing discretion, and this would be expanded upon in Doing Justice: The Choice of Punishments - The Report of the committee for the Study of Incarceration by Andrew von Hirsch (1976) and the report published by the Twentieth Century Task Force in the same year.

These reports argued for the removal of indeterminate sentencing laws and fixed term sanctions in order to reduce sentencing disparity. In von Hirsch’s work, the case is made from a pro-retributivist approach. This argument would be co-opted by James Q. Wilson in his 1975 work Thinking About Crime, but not for the same aim of reducing sentencing disparity. He would argue that American crime rates were so high because the perceived cost of being apprehended was low, and to remedy that, penalties had to become much harsher to act as a deterrent. This line of thinking centred around deterrence and a growing moral panic around crime went on to become widespread, and eventually began to seep into policy.

But as Garland (2001) continues, it wasn’t just the changes in criminological frames of analysis, but indeed socio-economic changes during this same period that contributed to the state of the prisons and therefore the increased vitality of prison abolition as an ideology. Economic downturn and the collapse of the industrial production that held up the American and British economies for decades before lead to their being fewer jobs and a demand for skilled workers as opposed to labourers. This, combined with a seemingly full 180 from policymakers on the welfare state, led to large sections of the population falling under the poverty line.

These conditions went on to contribute to a profound increase in the amount of crime committed. At the peak of this rise, the elections of Thatcher and Reagan as head of Conservative and Republican governments respectively served to be the final straws on the proverbial camel’s back. In the wake of their elections, the criminal justice system took on drastic changes such as steeper sentencing as well as mandatory sentencing which contributed to the existence of statistics such as the average prison population in the UK doubling from approximately 40,000 in 1970 to 80,000 in 2023 (Sturge, 2023).

The Crisis of Incarceration.

At the present moment in time, the prison system, as a result of the aforementioned period and the long term effects it has had, is facing what can only be described as a full blown crisis from the top to bottom of the system. The first and most glaring front would be the case of the purpose of prisons as it pertains to tackling crime. As stated earlier, rhetoric and ideology as it pertains to the nature of crime and therefore of the type of punishment shifted from the 70s onwards to a more reactionary and provocative brand of criminology.

Criminals have been consistently typified by politicians as a plague of opportunists with no regard for the wellbeing of their fellow citizens, and therefore can only be dealt with harsh punishment, in order to be ‘tough on crime’. Even the most left leaning and liberal politicians since this point have been proponents of punitive policy such as Tony Blair and his ‘tough on crime, tough on the causes of crime’ approach. However, what’s apparent once looking at some statistics is that this rhetoric is categorically false. The first being the reoffending rates. In the UK, 1 in 3 adult offenders reoffend after a custodial sentence, and 3 in 5 juvenile offenders reoffend after a custodial sentencing (Ministry of Justice, 2022). As far as the US, they boast reoffending rates of 50% within 3 years of release from custodial sentencing (Benecchi, 2021).

If the purpose of the modern prison is to punish those that inhabit its walls so as to make them fully functioning members of society, then the recidivism rates of the UK and the US respectively are testament to the fact that the modern prison is not achieving what it is meant to do. Granted, one could argue that decreased crime rates in the US and UK in comparison to before the 70s are linked to the current nature of prisons, but linking crime rates to only one factor is a shallow analysis as it does not account for the cultural and socioeconomic changes that have historically influenced crime rates as explored earlier in this essay.

The second point for the case would be the profound effect that prison has on the prisoners themselves. That is to say, how the material conditions of prison and the cultures that are produced and perpetuated go on to affect prisoners and therefore wider society as a whole. Sim (2009) noted that between 1990 and 2007, 115 women died in English prisons and 88 of these deaths were suicides (Sandler & Coles, 2008).

He goes on to say that the frequent amount of violence that inhabits prisons, specifically suicide, is indicative of the fact that the human rights of those imprisoned is not a priority for the current system, and even for the minority of staff for whom it is one, the lack of resources dedicated to the wellbeing of prisoners. The constant threat of violence is intrinsic to the prisons that prioritise punitive measures and is part of a wider deprivation of rights of even the most basic kind, which ultimately, has not led to any tangible effect on the state of crime. The other faucets of deprivation include the loss of liberty, autonomy and the overcrowding that has remained prevalent for decades, breeding an environment that fosters violence and squalor.

These factors have led to there being an exceeding number of inmates with mental health issues due to not only the conditions of prisons, but also due to the fact most prisons are also incredibly ill-equipped to deal with the scale of mental health issues that they are faced with (Ellis & Hewson, 2024). There is exceeding evidence that suggests, on all fronts, the modern prison does not work in any sense, and something needs to change. Many policymakers and social researchers offer up alternatives to prison as the most viable solution to this problem. But in truth, this does not reflect the reality of the situation at hand.

“But why not reform them?”

Those that subscribe to reform being the best solution acknowledge all the ills that come with custodial sentences and offer up alternatives such as economic sanctions, probation, house arrest and community service to name a few of the most commonly used ones. As a matter of fact, evidence suggests that alternatives are more effective than custodial sentences. In 2016, the Ministry of Justice found that prisoners serving a sentence of 12 months or less had a reoffending rate of 64% while offenders over the same period given community service had a rate of 34%.

However, what is actually taking place is something Foucault warned against nearly 5 decades ago. Foucault (2009) made the point that the alternatives to custodial sentences are, in practice, not used as substitutes to prison but alongside it. He noted that many alternative strategies operate in similarly punitive manners to the prison, and therefore reinforces the ideology that the individual is solely to blame for committing a crime, and therefore is to be punished. And to further the point being made, Mills (2011) found that the increased use of community service over time has not correlated to a decreased use of prison sentences.

Thus, because of the inadequacies of the prison system that traditional alternatives do not offer a direct solution for, prison abolition is the ideology left in the wake of this. Those that subscribe to prison abolition as an ideology agree with reformists in that they see the prison system as a deeply flawed apparatus but take their analysis a step further than reformists do. They aim their focus at not only at the criminal justice system, but all the institutions part of wider society that interact and create the material conditions that lead to criminals, and see prisons as another tool of oppression on the basis of class, race and gender. Abolitionists stay away from explanations of crime that puts the onus on the individual or populist rhetoric of criminals being immoral or ill adjusted and instead base their conclusion on the statistical signifiers of crime, such as poverty, deprivation and racism. As Angela Davis (2000) put it in a discussion with Dylan Rodriguez regarding abolition: “If prison was the state-sanction destination for activists such as myself, it was also used as a surrogate solution to social problems with poverty and racism”.

When one analyses data amassed over the years, what becomes apparent is that there are many statistics that support the argument for abolition. For example, in 2022, the Ministry of Justice found that 57% of prisoners in the UK have literacy lower than an 11-year old. This statistic, coupled with the numbers regarding reoffending and imprisonment rates, gives credence to the theory that crime has nothing to do with character and everything to do with material conditions. Moreover, it highlights that prisons are not an adequate solution for crime. As Ruth Wilson Gilmore and James Kilgore (2019) argued in their case for abolition, ‘Locking people up does not provide adequate housing, proper mental health treatment or living wage jobs.’

Things are never simple.

With that being said, there are many critiques instantly levelled against prison abolition by its detractors that lead some to say that it cannot be achieved. The most immediate response is that prison abolition can never happen because closing down prison means releasing dangerous criminals back into the public population with no solution. The reality is that this is a critique based on a misrepresentation of abolitionists’ main argument and therefore lacks the nuance that is actually put forth by them. For example, Sim (2009) writes that although a halting of the continued advancement of mass incarceration is paramount to abolitionists, it is not where their aims stop. Ultimately, their aim is to also redirect the resources and money that the state has funnelled into punishing those convicted of crimes into initiatives, programs, and changing institutions that would actively change the conditions which create crime in the first place.

This questioning of abolition’s validity as a solution is emblematic of a bigger problem that does present itself to scholars and activists as it pertains to the feasibility of prison abolition. Abolition is inherently a political movement, and being that this is the case, it must receive mainstream political support before it can be implemented in any meaningful way. However, because of the changes in mainstream criminology and populist rhetoric, the perception that prisons are absolutely necessary is deeply ingrained in society. This therefore means the question of challenging the ideological hegemony of punitive measures has no obvious answers, seeing as it is a rationale of the majority as opposed to just extremist rhetoric.

In conclusion, there is much more evidence that substantiates the abolition of prison than there is evidence that justifies a need for the continued proliferation of mass incarceration or prisons at all. Being that this is the case, it would be ill-advised to argue in good faith that prison abolition is an impractical dream that should be left behind by academics and activists alike. With that being said, prison abolition is a radical belief in itself and the question still remains of how exactly will activists and academics should go about gaining political support for such a fringe belief. It is to be said however, that prison abolition is not the first radical movement to become accepted in the mainstream. Many realities taken for granted by the general population now, such as slavery being abolished or equal rights for all sexual orientations, were indeed once considered fringe ideologies, so the possibility of prison abolition and therefore our hope for a better material reality, cannot be snuffed out.

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