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The punishment of offenders has a long and bloody history in England and Wales, as well as across the world. However in England and Wales; particular attention can be paid to the emergence of the pri…

The punishment of offenders has a long and bloody history in England and Wales, as well as across the world. However in England and Wales; particular attention can be paid to the emergence of the prison system as the most dominant form of punishment. I will explore the history of punishment, in relation to prisons, to try to justify why the prison became and remains so dominant. I will attempt to determine what other forms of punishment could act as a safety valve for our distressed prison system and I will be critical of the existing forms of punishment in England and Wales as to why they are not as well utilised as prisons. While looking at past, present and possible future solutions I will assess the effectiveness of methods and consider how milestones, such; as the ‘Magna Carta’, to the Conservative Governments 180° on their stance as to whether ‘Prison Works’, have affected the dominance of the prison in our current state of ‘late modernity’.

The history of the prison system in England and Wales is relatively transparent in its growth and reform. In my reading, the first emergence of a formal justice or prison ideal and the justification of punishment was the signing of the Magna Carta by King John in 1215. This document states that “no freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we (the king) proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law”, (BBC, 2006). This small piece of written legislation was the foundation for the conditioning of the prison and incapacitation ideal in England. It was the first time that tyrants of kings could be repressed from action against their people without just cause and legal justification. The lawful justification of punishment is all the more important in the 21st century, as well as the notion of human rights of every individual.

From the 1300’s to the 1700’s the prison was used excessively, according to the BBCs study into the history of prisons in 2006, the ‘idle’ poor were locked up for their laziness and inmate numbers soared due to growing resistance from juries to sentence people to the gallows or harsher punishments for lesser crime’, (BBC, 2006). A frequently used solution during this time was to give offenders an opportunity to be given a pardon in exchange for service in the English Navy or Army. Due to the amount of bureaucracy in today’s government and armed forces, this would not be an option for release today, not to mention the mis-trust that would follow from society and the implications to our armed forces reputation. From 1786 the British government took a new direction to dealing with offenders, this new method was transportation. It could be recognised that even then, there was a realisation that the prison is being too heavily relied upon, and according to Lewis, 1988, “the British authorities were averse to building new penitentiaries” and therefore chose to transport them to the colonies, Australia was preferred and chosen to receive the offenders. This begs the question; why did we, (once transportation failed), continue to rely on the prison and not search for other alternatives to the prison?

Tim Newburn, a respected academic in the field of Criminology and Policing, believes that the reasoning and justifications for the punishment of offenders are: “a. Discourage people from offending, b. Make amends for what they have done, c. Protect us from those who are dangerous, d. Reinforce social values and bonds, e. Simply because they deserve to be punished?” (Newburn, T. 2007). Here Newburn has stated those justifications of ‘deterrence’, ‘restoration within retribution’ and ‘protection by incapacitation’. The question we need to ask is, ‘why do we rely so much on prison to fulfil the punishment?’ There are other forms of punishment, other means by which we can incapacitate someone, punishments that are as painful as prison and punishments that are focused on the rehabilitation of the offender. However in 1993 Michael Howard made the ‘Prison Works’ speech; he stated that prison works as the only mean by which we can separate the offenders from the public thereby ensuring public safety for the time being, as well as acting as a form of deterrence to future offenders. I believe this to still be true; however the policies, methods and bureaucracy within the notion of prison that we know today, are failing. And the actual entity of ‘prison’ in itself has untapped potential.

Some forms of punishment that were used in the 16th, 17th and 18th centuries are still used today, albeit more humanely. In the 17th to 18th century a technique similar to our warning, caution or yellow card policies existed in the form of ‘branding’. According to the Old Bailey Online (2010), this was reserved for those convicts who were able to plead ‘the benefit of the clergy’. The branding involved branding a ‘T’ for theft, ‘F’ for felon and an ‘M’ for murder, and if a branded criminal came before the court again, they would be unable to receive this benefit again and were often sentenced to death.

Another similar form of punishment, or in this case; rehabilitation, is shown in that the work that Elizabeth Fry did in the 1800s. In 1871, a Quaker, Elizabeth Fry, became involved in the fight for prison reform along with John Howard. She set up the Association for the Improvement of the Female prisoners in the Newgate prison, London, (BBC, 2006). With her and John Howard (the man to have the ‘Howard League of Penal Reform’ named after him) working to reform and improve the general conditions for prisoners in England and Wales, new ideologies emerged within the prison system. The idea that offenders could be rehabilitated through hard work and strong discipline, while kept under guard, became common practice in many prisons. It is often depicted in artwork of women working; either sewing or weaving under the guard of men. “Hard labour was meant to contribute to the reformation of offenders by teaching them to be industrious, but the punishment was also meant to deter others from committing crime.” (OldBaileyOnline, 2010).

There are numerous justifications for the use of the prison as a dominant form of punishment, as a base for theories of punishment and as a secure capsule for which other methods can be carried out, for example; Restorative Justice. This form of justice connotes how the offender can physically and mentally annul the crime in the eyes of the victim, (Hegel, in Knox, 1952:70-1).This form of justice is normally achieved through community services, paying fines and FPNs (fixed penalty notices) and even through the process of offender and victim mediation. Restorative Justice is a theory that works well with the rehabilitation of offenders, the concept of rehabilitation is, according to Muncie (2009), “the reform of offenders through various treatment methods whereby they can be retrained and re-educated”. In doing so, they may leave prison or end the punishment laid down upon them and re-enter society as a productive and law abiding member of society. Prison can provide these methods as well as acting as an actual form of unpleasant punishment, however recently it has come to light how ineffective the prison actually is with regards to rehabilitation amongst other things. Rehabilitative activities range from; ‘drug rehabilitation’, ‘anger management’, ‘therapy’ and the general conditions they are kept in and the way in which they are treated serve as a method of gentle rehabilitation. Currently prisons are perceived as a hive for criminal education and development and the actual rehabilitation techniques being used being completely in-effective. This is arguably the greatest failure of the prison system and certainly raises questions into why, of all other possibilities, is the prison such a dominant form of punishment.

To begin considering why the ‘prison’ in itself is so dominant, we must consider why it is we punish at all. Beccaria (1767/1995), an Italian philosopher who shares the same idea of what punishment should entail that I believe is still extremely relevant today; he stated that punishment should not just involve the torment of an individual for committing a crime, as the ‘wailings of a wretch’ will not serve as a cure, nor a restorative measure for crime. However it is to prevent the offender from causing ‘fresh’ harm to society and to ‘deter others from doing likewise’.

There are many contributing factors to the lack of faith in the prison systems at present; the one major drawback with the system today is its cost. According to the BBC News 2010, it costs around £41,000 to put an offender through a year of incarceration in prison per year. With a prison population of 85,076 rising by 179 from March to April, the total cost of prison will equal to around £3,485,000,000 (three billion, four hundred and eighty five million pounds) a year for all the prisoners in England and Wales. This is a shocking amount of tax-payers money to designate to the delinquent, the perverse, the fraudulent and the vicious. This is where we must consider what other forms of punishment could be used proportionately and more cost effectively to replace or at least release some of the mounting pressure from our current penal system. One of the most common suggestions to reduce the cost of incarceration is to reduce the cost of living per prisoner, perhaps by removing home comforts from most prisons or simply to make each cell more cost effective in relation to re-offending rates. Marsh (2010), conducted a study into the cost of various rehabilitative forms of punishment and found that programmes such as Residential Drug Treatment can provide a £200,000 benefit over the lifetime of an offender (how-explain?). In this case (what case?) another £125,000 can be saved by using surveillance over cells.

Prison obviously seems to be costing the public a lot more than many believe and it may also be deceiving them in how effective it is with regards to the success of rehabilitation of offenders and the reduction of reoffending rates. Therefore we should now take into account what exactly punishment should entail, and from there suggest alternative forms of punishment, rehabilitative techniques and restorative approaches. So what are the main criteria for defining ‘punishment’? According to Kasachkoff, there are 6 separate criteria to any kind of punishment, in the traditional sense. “(1) It must involve an evil, an unpleasantness to the victim, (2) It must be for an offence (actual or supposed), (3) It must be of an offender (actual or supposed), (4) It must be the work of Personal Agencies (not an actual consequence), (5) It must be imposed by an authority, conferred by a system of rules, (6) The pain must be essential and not accidental to the infliction of punishment.” (Kasachkoff, T. 1973). Using these criteria we can deduce that prison can meet each criteria, however this does not mean that it is the most effective solution. Community service for example can also meet each criteria, it depends on whether or not society believes the extent of ‘unpleasantness’ and the ‘intention’ to be sufficient in order for it to be deemed a proportionate punishment. Using these criteria as a basis of understanding I will consider other possible forms of punishment:

Community Service is a form of punishment that focuses on restoring the wrong that the offender has done to the community/society/state, usually by cleaning graffiti or rectifying damage cause because of anti-social behaviour, (crimes/behaviour usually associated with a community order sentence). Community service can offer a good hardworking form of rehabilitation, especially to young offenders, and it also restores the natural equilibrium of right and wrong in society. The only thing it cannot achieve is protecting the public from further harm from the offender as it is not a secure form of punishment. The main aims of community services not only in part, reform, the offender, it does remove some of the individual’s liberty through constant observation. Haringey Councils youth offending service, 2005, describes the commitment required from the offender to successfully carry out a community service order include; ‘attend appointments’, ‘notification of change of addresses, ‘compliance with any orders given by the court and thereby and instructions given by their community service supervisor’.

Fines and Penalties are a form of on the spot punishment that is commonly used for minor public order offences. They are certainly unpleasant as you are being forced to part with financial assets.

HDCs, (Home Detention Curfews) or Tagging, is a leading contender for the dominant form of punishment in England and Wales. It is a form of incarceration and incapacitation in the form of confinement to a small area for a specific amount of time, “prisoners may spend a proportion of their sentence confined to their home during a specified period of the day, usually for 12 night time hours.” (Prisoners’ Advice Service, no date). This form of punishment is one that is perhaps suitable for first time offenders who have committed offences, serious enough to constitute a jail sentence, however do not pose a significant risk to society. For example, a youth, known for his or her anti-social behaviour committing a street robbery or caught with possession of an illegal substance. In this case I believe that HDC is a viable alternative to prison. Prison is of course a further punishment that one would be imposed if the terms of the HDC are not met.

In July 2010 Kenneth Clarke, the Secretary of State for Justice and Lord Chancellor, made a speech stating that ‘Prison Does Not Work’, coming from a stalwart Conservative this statement is a massive contradiction to Michael Howards speech, ‘Prison Works’. The point that Mr Clarke was making was that ‘prison’ in itself is without a doubt the best form of punishment for moderate to serious offences, however the policies we currently have in place do not allow for the prison to be used to its full effectiveness. Prison can house numerous rehabilitative methods such as; drug and anger treatment as well as therapy of any kind. It serves as a means to protect the public from any present harm from any offenders, it is as a harsh and unpleasant method of punishment that could be seen as a justified form of retributive justice and it also serves as a deterrent against future offenders. All of which can be made more or less effective by the policies in place, for example the conditions of prisoners lives in prison, for the most part, have been made to be more relaxed than people believe . If there was more intense control over their daily routine or removal of a few basic luxuries (cigarettes or television), or control of prisoners interactions with one another, the prospect of prison would be an all the more undesirable concept to any future offender?

Currently in today’s ‘late modern’ society, the prison system is under great stress due to over-crowding, increased financial pressure from a country recovering from a disastrous recession, increasing re-offending rates and a resulting lack of faith and support from the state and the people in England and Wales.

Prison has emerged the dominant form of punishment in England and Wales because of its ability to provide numerous forms of punishment methods such as, rehabilitation, deterrence, retribution and restoration. It has also been influenced by the public’s belief of ‘out of sight, out of mind’ as well as the ability to keep the public physically safe from offenders by keeping them incarcerated. Our current policies for running the prison system are failing, and the rehabilitation area of punishment in prisons is falling to one side due to overcrowding and questionable conditions. I firmly believe in Michael Howard’s speech in that the concept of the ‘prison’ is by far the best form of punishment available to us; however the way in which we use this invaluable method of punishment will determine whether the prison system is going to fail or succeed.

 

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