Fergus McNeill: Punishment – the rights and wrongs

For that reason, many commentators have been intrigued by the emergence in the USA of a “Right on Crime” movement within the Republican Party, championed by hardliners such as Newt Gingrich (one of the candidates in the 2012 presidential primaries).

The surprise is that these right wingers are now advocating the shrinking of the prison population. Odd as this Damascene conversion to penal reform may seem, it has an obvious logic.

These are conservatives who favour small-state, low-tax policies and who have awoken to the fact that penal expansionism (even where it creates private-sector growth) violates both values.

Influenced by these ideas – and their financial crises – several US states not known for progressive penal approaches (such as Georgia and Texas) have recently seen unprecedented declines in their prison populations.

Informed by these developments, the Howard League for Penal Reform (in England and Wales) has begun asking UK Conservatives to take note.

Last week, it published a pamphlet, Intelligent Justice, that I co-authored with two English criminologists – Professors Mike Hough and Steve Farrall.

Intelligent Justice tries to advance us beyond the perennial debate about the relative merits of custodial and community-based sentences.

It responds in part to an earlier paper by Professor Ken Pease, published by Civitas, which argued in favour of custodial sentencing as an effective means of reducing reoffending through incapacitating people who are offenders.

Being much more sceptical about such prison effects, we argue that at least some of the crimes notionally prevented by incapacitating prisoners may in fact simply be deferred or committed by others who fill the “vacancy” their absence creates.

More to the point, the total volume of offending by those incarcerated may be amplified in the longer run; prison has many perverse, unintended and adverse effects.

When, as Ken Pease did, we try to put a monetary value on incapacitation’s crime-reducing effects, these and other complexities need to be take into account.

But leaving aside the technicalities, Intelligent Justice raises more fundamental questions about punishment: questions of purpose.

Crime reduction, we argue, is not the only (and not even the first) purpose of criminal justice.

Punishment imposes harms on citizens, so it must always be carefully bounded and governed by law.

We may take different views about the merits of imposing pain on people for reasons of retribution, but most of us can probably agree that merely imposing pains without also restoring people to good citizenship is both morally wrong and counterproductive, since it leaves the whole policy weakened.

For these reasons, we argue that the merits of sanctions should be judged on at least three criteria: their parsimony, their support for positive change and their effects on reintegration.

Justice is not just about righting wrongs, it is about restoring relationships,  about renewing reciprocal obligations, about reinforcing social solidarity.

If our means of punishing do not correspond to those ends, then our system of justice is in trouble – and so, ultimately, is our society.

Decent societies need people to comply with the law for normative reasons (and eventually out of habit) more than because of fear or threat. Indeed, that is arguably one of their defining characteristics.

As it happens, and as the “Right on Crime” Republicans may have guessed, it is also a lot less expensive than financing a custodial apparatus that seeks to compel compliance but (if reoffending rates are any measure) is woefully incapable of doing so.

The full report can be accessed at: http://bit.ly/YK4kBD

• Fergus McNeill is Professor of Criminology & Social Work, Scottish Centre for Crime and Justice Research at the University of Glasgow