If someone commits a crime, how should society best respond?

The first priority is to protect the public. We apprehend and take the offender into custody and we should keep them out of circulation until they are no longer a threat.

Next is to dissuade them from offending again. Our earliest response was punishment; just as we punish a child for bad behaviour, so we believe that punishing a criminal may dissuade them from reoffending, and sometimes it does.

Apprehension and punishment also have a deterrent affect on people who have not committed a crime, but might if they thought they could get away with it. An expectation of being caught and jailed deters them from offending.

When we look at our prison populations, we find mental disability and illness, abused or neglected childhoods, a lack of life and employment skills and substance abuse.

These factors are strongly associated with crime. So we have introduced rehabilitation. We treat, we teach, we help with the transition back to normal life.

Arrest. Punishment. Rehabilitation. Our justice system has always included a fourth, very virulent pillar: retribution. We dress retribution up to be Justice itself; its essence is revenge. Making the offender suffer proportionate loss.

Some philosophers have observed that revenge can damage the seeker as much as the target, still it has a strong primal appeal.

A more practical observation is that retribution is largely the opposite of rehabilitation.

Is it working?

Arrest. Punishment. Rehabilitation. Retribution. How is this four pillar system working for us?

Are we achieving a low crime rate? Good quality lives for as many people as possible? Is it a cost-effective system?

Actually, no on all counts.

Too many people are suffering the results of criminality, as victims and as the families of offenders. Too many lives are being wasted in a criminal lifecycle. So it’s in our own interests to pause and evaluate the system.

For a start, we do not treat these four pillars of our criminal justice system equally, or even rationally.

Apprehension

The arrest rate for murder and serious crime is actually high. Arrest rates for household burglary are low.

Then there are crimes for which we don’t even have good statistics, because of low reporting. How many assaults take place every year, including within families? How often is there sex without consent? And the lowest arrest rate of all; how many drug sales and drug uses are there each year?

The facts are that most often, when one person hits another, it is not reported. Families close ranks in self protection, even the victims. And illegal drugs are used by maybe one in five and at least tolerated by the majority. No police force can achieve a high arrest rate in the face of such community resistance to being policed.

Effective policing is only possible via consent to being policed.

Sometimes police affect arrest rates. Most police avoid arresting juveniles, because they know a charge and court appearance will eat up so much of their time, for no outcome: the kid can be back on the streets before they are.

Arrest, then, is working fine for non-familial crimes with clear victims; not so well for what we might call social crimes, where there is lower community consent to being policed.

If we consider the longer term protection of society, even this record is not so good. Are offenders detained until they are no longer a risk to society? Certainly not. Their release depends on the gamble of a trial, the quality of their lawyer (and of the police prosecutor) and the crowding of jails; danger to society is only properly considered if they get convicted and apply for early release via parole.

A convicted offender has the right to be released at the end of their sentence, their penalty paid – even if it is clear they will probably offend again.

Punishment

Punishment to teach the offender a lesson is a crude, sometimes effective measure. If it is delivered.

Certainty of being punished is critical to its deterrent value of punishment. Basically, “certainty of being caught” x “punishment” = “deterrence”. If there is a perceived low chance of being caught and sentenced, there is low deterrence even when public outcry gets the punishment jacked up.

Low conviction rates for many categories of crime and the wide range of sentences handed down for similar crimes also reduce certainty and thus the deterrence value of punishment.

There is a bigger problem. To learn from punishment, the offender must accept the legitimacy of the punishment. If they think the punishment is unjust, capricious, simply subjugation or even outright cruelty, then they will ‘learn’ only resentment and hatred. They will see society as a me-them war in which they are the victim.

Those administering punishment must hold the moral high ground. Punishment must have moral integrity in order to work.

In our society, it does not.

Prison inmates are often treated with unnecessary roughness. A level of violence is allowed. There’s more “play by the rules or else” than there is “a fair go”. There’s humiliation and subjugation, a breaking down of individual humanity. There are 23 hour lock downs and restriction of access to family (an emotional violence that undermines rehabilitation).

Statistics on violence perpetrated by or condoned by the prison system are rare, so let me use an attitudinal example. I’ll say, The majority of rape victims are men. You’ll say, How can that be? I’ll explain, The greatest number of rapes happen in prisons.

Well, most people will say, They deserve it. Prison management reflects that community attitude. And that is how we surrender the moral high ground.

We say to an offender, it’s morally wrong for you to break into a house, hit someone you’re having an argument with. However, we are going to allow you to be beaten and raped because when we do it, it’s OK.

Even a convicted rapist, your average dumb criminal, is going to see through that. It’s not OK for him, it is OK for us? So the only difference between him and us, that he can see, is that we are in power. He is not in the wrong morally, he’s just been unlucky and ended up on the wrong side. There is no moral lesson to learn, only a firming of his war with society.

There will be no rehabilitation.

The culture of criminality

And there is a final, big problem. Our most common form of punishment, imprisonment, is a criminal induction system. We take a new offender who is now rejected by society, employers, friends, maybe even family, we break them down emotionally and toss them in with hardened criminals.

Do they seek some kind of acceptance and support from the only society available to them? Of course. And along the way they make criminal contacts and are inducted into the criminal world.

At least the criminal world accepts them.

This is why judges are so reluctant to sentence children and first offenders; they know that a prison sentence is often the final confirmation of a life lost. While the child is in the revolving door, there is still hope.

We profess not to understand terrorists. The suicide bomber who kills innocents must surely be pure evil, devoid of any moral or human concern at all.

Not true. The courage and belief to give your own life comes only from a strong, well developed morality. That is why there are terrorist training camps and Jihadist schools: to give people the moral certainty necessary to the ultimate self-sacrifice. Anyone can kill others; only someone with moral certainty will use their own life as a weapon.

Imagine a time in which crime is rare and when it happens, society embraces the misguided offender in wrap around support; keeps it up until their belief in moral society is restored and then welcomes them back into it.

Now look at what we have. A level of criminality that is easily big enough to support its own culture and its own codes of belief. A criminal society where newcomers are inducted, given social support, taught how to justify their actions and to feel right about what they do.

This criminal culture is spread through tax-payer funded training camps called prisons. It relies on a tax-payer funded recruitment program called the police and courts.

Rehabilitation

Rehabilitation, returning the offender to a productive place in society, is the only way we can permanently reduce the crime rate.

Rehabilitation reduces the number of criminals available to commit crimes today.

Rehabilitation reduces the society of criminals available to recruit and train the next generation of criminals.

Yet rehabilitation is under-funded, puny compared to the task. Mostly, non existent.

Rehabilitation means escape from the criminal culture. It depends on being able to hold a job, having a secure place to stay and being able to build a measure of social acceptance, usually including family. It means, starting again.

Rehabilitation is expensive. By the time a person gets to prison, they can be a long way behind in skills and opportunities to build a good life, their attitude may be poor and their belief in their own value low, so the cost of catch-up is high. They most likely have mental health, substance abuse and relationship issues, making it harder. And they are not on average very bright, so learning may not come readily to them.

Rehabilitation may require removing the person from an existing social structure and planting them in another. Certainly it will involve job skills and actually getting a job. Rehabilitation may be a life-long project, with a permanent mentor or case manager.

We say the cost of rehabilitation is prohibitive. A repeat criminal is far more expensive, over the term of their life, including the costs of justice, social security, damage caused to other people and failure to contribute to the economy and society.

Making cost comparisons is difficult. While the costs of rehabilitation are gathered in and around the justice system and are easy to measure, the cost of crime is spread over many agencies, it’s shared by victims and their families, it accumulates over a long time, some of it is economic benefit forgone that can only be estimated and it includes human costs that are difficult to express in dollars.

The research that has been done – and common sense – say that over a generation, effective rehabilitation will cost far less than the total cost of crime.

Yet we choose not to make that once-off investment. We occasionally start a rehabilitation program, then the next round of budget cuts brings it to a halt. Criminal society flourishes. Sometimes our media even glorifies it.

Retribution

An eye for an eye. The sole purpose of retribution is revenge. It makes victims and their families feel better. Which is a good thing, but at what cost?

Most religions teach that is better to forgive then to avenge, but the instinct to revenge is primal, it reaches much deeper than our thin veneer of Christianity or humanism.

Retribution works against rehabilitation, because it makes it harder for the offender to make a new start.

In truth, retribution does not want the offender to be rehabilitated, because that means they will have some pleasure in life. Revenge is never satisfied; if we take an eye and then find the offender enjoying monocular vision, revenge wants their other eye. The edict “an eye for an eye” was not given to condone revenge; its function is to set limits.
Retribution leads to some strange attitudes.

If, in a barroom fight, someone strikes their head and dies, or if a drunken driver kills someone, relatives may demand justice, by which they mean a severe prison term at least. When the offender is released, they want more. They went them to suffer forever, because their loved one is gone forever.

Yes to revenge is no to rehabilitation.

The offender may not have intended to kill, only to deliver a punch to the face – or just to get home.

Certainly they committed an offence – an offence committed by hundreds, thousands of others who escaped scot-free. To be consistent and thus to make the punishment an effective protection and deterrent, everyone who drives drunk or punches someone, just once, regardless of the result, should be jailed for 5 years or more. Retribution turns justice into a dice game, not related to the offender’s intent.

By making the punishment capricious, revenge diminishes its deterrent effect.

Paying a debt

We punish crimes. We hand down a punitive sentence. When the punishment is served, the debt is paid. We must release the offender. Are they still a threat to society, or does their release violate the first goal, to protect?

In our system, it doesn’t matter. Once parole is finished or if it is not taken, the offender re-enters society with their rights restored.

We release dangerous offenders back into the community and at the same time we keep in jail people who are of no further threat. We do it to satisfy the needs of revenge, or because that is the system and it’s not fine tuned to individual differences.

Wouldn’t it be far better if the sentence was to enter rehabilitation until rehabilitated? Not a punishment, a treatment. That continues – and continues protecting – for as long a necessary.

Wouldn’t this, over a generation, whittle the pool of criminals down to a point where it could no longer create its own culture and recruit new members?

Other options

Wouldn’t it be better if we had an option to release offenders, subject to the surrender of some rights? For example, agreement to wear a permanent anklet and have all movements monitored. Compulsory treatment attendance. Compulsory counselling. Not just during parole, continuing after the sentence is served? If needed, for life.

Could an habitual drunk driver be rendered safe via a breath test device on their car and a body monitor that reported their blood alcohol level and their travelling speed, identifying car travel and triggering an immediate check? A smart phone could just about do this, cheap technology, a way of stopping drunk driving and keeping alcohol abusers out of the criminal system.

Could habitual criminals have devices that transmitted all their movements and conversations? Remove the device, immediate action and back to jail. Other criminals would avoid them, a major rehabilitation step.

Could we have detention centres that are not a punishment, that have entertainment and activities and freedom within the grounds, where we put people who we cannot make safe? Put them for the rest of their lives, not as a punishment available to us only after they kill someone, but as a safety measure applied as soon as their risk is known. More part of the mental health system than the criminal justice system.

It’s time to re-examine our thinking about crime and punishment, to reject retribution as a useful tool, to invest in rehabilitation and to develop new policies that focus first on practical outcomes that improve lives.