Prisons like Bastøy, projects like Resolve to Stop the Violence, and approaches like Restorative Justice and Collaborative & Proactive Solutions have transcended the simplistic paradigms of retribution and deterrence in favour of rehabilitation – for both perpetrators and victims. Of course, none of them is perfect: all are part of an ongoing process of experimentation from which better ways of doing things will continue to emerge. However, we already know that these alternatives are more ethical than the current predominant strategies and much more effective.
Root causes
Small details can have a significant impact on moral behaviour. The subconscious effect of a pleasant aroma, a modest rise in the volume of background noise, or rushing to an appointment have all been shown to impact our inclination to be kind to strangers in need.45 One experiment showed that people who had just found a dime in the coin-return slot of a phone booth were more likely to help when a nearby stranger dropped some papers they were carrying.46 Finding the coin increased the proportion of those who helped to pick up the papers from 4 per cent to 86 per cent. When people were asked why they had stopped to help, the discovery of the dime was seldom mentioned.
Another study, more salient to the topic of punishment, observed the behaviour of judges.47 Without their knowledge, eight judges were monitored as they reviewed applications for parole. They spent an average of six minutes on each application, and could spend whole days working through them. Only 35 per cent of applications were approved. The observers took note of the exact time of each decision, as well as the exact time of the judges’ three food breaks over the course of the day. What they found was striking: the proportion of approved requests spiked after each food break, with 65 per cent of requests being granted at this time. Over the subsequent two hours, as the judges grew tired and hungry, their rate of approval steadily dropped to roughly zero just before the next meal.
A little science helps to make sense of these results. The nervous system requires more glucose than most other parts of the body. Demanding mental activity uses up a great deal of it, and prolonged mental exertion results in a drop in glucose levels in the blood. This depletion results in a deterioration of performance when carrying out demanding and effortful tasks, as well as a tendency to fall back on automatic behaviour. If an innocuous dime in a phone booth or a mild drop in glucose levels can have such significant, yet unconscious, effects on our behaviour, what influence might the totality of our environment exert over the course of a lifetime?
The most established environmental determinant of violence in a society is income inequality.48 Less equal societies are more violent.49 The link between inequality and homicide rates, within and between countries, has been revealed in dozens of independent studies – and the differences are not small. According to the Equality Trust in the UK, there are five-fold differences in murder rates related to inequality between different nations. In fact, higher rates of inequality are associated with a host of social problems: mental illness, child bullying, drug use, teenage pregnancy, divorce, illiteracy and distrust.
James Gilligan sheds light on how some of these factors could conspire to produce particularly violent forms of crime. After years of work with aggressive inmates, he has ‘yet to see a serious act of violence that was not provoked by the experience of feeling shamed and humiliated’.50 For obvious reasons, shame and humiliation tend to be more prevalent in societies with greater inequality, where the race for status is more intense. In these highly competitive environments, argues Gilligan, those at the bottom of the hierarchy struggle to find ways to secure markers of status. Deprived of the education, wealth, care and opportunities enjoyed by others, it becomes incredibly important to them to defend what little status they do enjoy. With other means out of reach, violence often becomes the only way they feel they can do this. The smallest sign of disrespect can provoke the most violent of acts. (This explains why higher education in prisons is so effective at reducing reoffending rates: a degree is a marker of status that serves as an antidote to feelings of shame and humiliation.)
The most horrific individual acts of violence are almost always symptoms of extreme forms of abuse and neglect. In the US, ten times as many people with serious mental illnesses – such as bipolar disorder and schizophrenia – are in prison than in a state hospital.51 In effect, illness has been criminalised. Having spent over thirty years at the UK criminal bar, and ‘rather a lot of time in prisons’, Baroness Helena Kennedy QC speaks from experience when she writes:
For most people, prison is the end of a road paved with deprivation, disadvantage, abuse, discrimination and multiple social problems. Empty lives produce crime . . . The same issues arise repeatedly: appalling family circumstances, histories of neglect, abuse and sexual exploitation, poor health, mental disorders, lack of support, inadequate housing or homelessness, poverty and debt, and little expectation of change . . . It is my idea of hell.52
In our society, children subjected to the harshest, most impoverished environments are increasingly being criminalised. Kennedy remarks that ‘Ninety per cent of young people in prison have mental health or substance abuse problems. Nearly a quarter have literacy and numeracy skills below those of an average seven-year-old and a significant number have suffered physical and sexual abuse.’53
Economic, political and cultural arrangements shape identities, opportunities and, ultimately, behaviour. Harsh punishments aimed at those who have already been brutalised and undermined by these forces only pile injustice upon injustice. If society is not doing what it can to address the root causes of crime – at all levels of the system – the supposedly pragmatic justifications for severe punishment lose all credibility. What right do we have to condemn crime if we do not also condemn the conditions that breed it?
Ultimately, all that separates the criminal and non-criminal is luck. The skewed distribution of ‘racial luck’ is particularly disturbing. Although black people make up only 12 per cent of the US population, they account for 40 per cent of its prison population. Across the US today, black people are more than six times as likely to be imprisoned than whites, 31 per cent more likely to be pulled over while driving than white drivers, and twice as likely to be killed by a cop (and more likely to be unarmed when killed).54 Racial prejudice permeates almost every area of American society, greatly diminishing the opportunities available to black people and ethnic minorities. Fifty years after Martin Luther King’s ‘I have a dream’ speech, many of the racial divides in American society persist. A white man with a criminal record is still more likely to be considered for a job than a black man without one.55 Analysis of US government data by the Pew Research Center shows that ‘When it comes to household income and household wealth, the gaps between blacks and whites have widened. On measures such as high school completion and life expectancy, they have narrowed. On other measures, including poverty and homeownership rates, the gaps are roughly the same as they were 40 years ago.’56
A similar pattern is to be found among ethnic minorities in the UK, with black people five times more likely to end up in prison.57 The Equality and Human Rights Commission found that, when officers did not need suspicion of involvement in a crime to stop and search (under section 60 of the Criminal Justice and Public Order Act 1994), black people were thirty-seven times more likely to be targeted. In fact, young black men are more likely to end up in prison than at an elite university.58 And Inquest, a UK charity that campaigns against deaths in police custody, have found that, since 1990, over 400 people from black communities or ethnic minorities have died while incarcerated or in the custody of the police.59