Morgan states that prisons have three main functions

Morgan (1994) states that prisons have three main functions. The first is when an individual is taken into custody. A person is held until they have been granted bail or is held awaiting deportation. Another aspect is the state removes an individual’s freedom in order to coerce an individual to pay fines or restitution awarded against them (Morgan (1994). The coercive use of imprisonment is not applied directly to fine default anymore as the fines enforcement registry handles the problem by suspending an individual’s driver’s license etc or the sheriff office will collect an individual’s property. Imprisonment is predominantly utilized as a form of penalty for criminal behavior (Morgan, 1994). Sentencing practice in Australia attempts to adhere to the concept of imprisonment as a sanction of last resort.

The popular debate however centers on the idea of were the line is drawn on what can be called the last resort. Zimring and Hawkins (1995) have thus alluded that Incapacitation is the centre of criminal punishment. The incapacitation view has two main arenas. These are the specific incapacitation view and the general incapacitation view (Zimring and Hawkins, 1995). Other theoretical approaches attempt to explain or justify imprisonment. These theories are Retribution theory and Utilitarian theory (Edwards, Harding and Campbell, 1992) each of which can combine or utilize a number of sub theories.

Johnson (1988) states that imprisonment holds two broad functions and these can be viewed as oppositional to one another. Imprisonment has a punitive function as a consequence of harmful behavior. Johnson’s (1988) maxim is that ‘easy’ as opposed to ‘hard’ time would detract from the deterrent value of punishment. For example hard labor as done by road gangs would be preferred as opposed to education programs for prison inmates. The opposing argument would say Johnson (1988) is that the loss of ones freedom alone is the punishment that is associated to imprisonment. The fact that most prisoners will be released at some point in the future however denotes the need to nurture the prisoner for a successful integration into social life upon release. Whatmore (cited in Nicholson, p. 45, 1988) has stated that “the time alone may expiate a crime but will not reform the offender, and to be effective the treatment program of any prison must constantly lead to the day of ultimate release, and be closely and effectively coordinated with the difficult period immediately following such release”. The problem of doing hard time is that it can’t be seen to prepare a prisoner for integration back into society. The theoretical debate thus follows the juxtaposition of Retributive justice versus Utilitarian justice and the balancing act that needs to be performed by the executive arms of the courts and prison systems to reach a fair all-round solution.

Retribution looks back at the crime committed and imposes punishment. Pincoff states that punishment is the payment for offending and it should equal the offence committed (Wright, 1992). Edwards, Harding and Campbell (1992) state that Retribution involves a number of theoretical fundamentals. Expiation (Edwards,etal 1992) is when a person in the legal sense commits an offence against the State whom in theory must protect the citizens of that state. The debt to society which must be atoned for the crime committed on a citizen or citizens. Vengeance (Edwards,etal 1992) is another fundamental of Retribution theory. The state will administer punishment to the offender as opposed to a mob of angry citizens. This can serve the function of avoiding an individual receiving an unfair punishment and can keep the hands of its citizens clean. Finally is the fundamental of Moral equilibrium (Edwards,etal 1992). The collective morality of the people is upset when an individual’s right is violated by another and punishment is the violators ‘just deserts’. The traditional focus of retribution theory is that the punishment should fit the crime. Walker (1994) has stated that there are problems with the traditional retributive approach to imprisonment. Imprisonment may harm those who are dependant on the convict (Walker, 1994).

Utilitarian Justice has four major fundamentals. These are the general and specific deterrence elements, the incapacitation element and the rehabilitation element (Wright 1992). Wright (1992) states that punishment needs to be designed in terms of how valuable it would be to the people of society. The utilitarian view is that individuals decide that criminal activity has higher value than non offensive behavior. Utilitarian ideology has commonly been explained through the Rational Choice theory which implies that offenders like all people make rational choices (Wright, 1992). People make a rational decision that is believed to favor not offending. The offender is seen as to deviate from the norm of law adherence. The punishment is said to be justified if the purpose is achieved. If crime rates are reduced and the majority is satisfied then the purpose would be served. Penalties are set at levels sufficient to outweigh the likely benefit of offending and this is believed to be fair. The purpose of punishment thus causes anticipation of the outcomes of actions as individuals should know to expect punishment, however there is little empirical evidence for the deterrent elements of offending and subsequently there is evidence to suggest that utilitarian theory of specific incapacitation may prove the most valuable of all the utilitarian theories (Wright 1992).

There is a need to address the motives of offenders in order to establish some validity for the specific incapacitation theory. Turvey would say that “the specific motivation for a crime may only be known to the offender” (Turvey p. 230, 1999). The motive of the offender is usually for the purpose of unfair gain. Motive may be psychological which may indicate mental disturbance and would mean that there may be a need to be some form of incapacitation applied as many disturbed individuals do not show signs of deterrence. Motive may be physical as the purpose of offending including attainment of physical satisfaction or attainment of financial gain all of which may indicate an underlying cause such as substance abuse that has led to a loss of control or greed as a result of social inequality and as such the deterrent effect of punishment is outweighed. Psychological factors associated to fraud is associated to “entirely legitimate forms of human endeavor” (Grabosky and Duffield 2001) there by indicating that many financially motivated offenders may be simply ignorant of the law, and thus may be part of the 40 % of individuals who may benefit from the deterrence aspects of imprisonment

Chart 1

(Prisoners in Australia 001).

(Prisoners in Australia, p, 31, 2001)

Note

From 1991 to 2001 the prison population for Australia grew from 15021 to 22458. The rate of prior imprisonment however has a steady average of 58.5%. this can be interpreted by alluding that imprisonment is only effective with the 40 % or they were not re imprisoned upon re offending.

Rehabilitation is used to as a means of reforming or treating the causes of an individual’s offensive behavior. A comprehensive overview of Rehabilitation in prisons from Day & Howells (2002) outlines the key factors and principles in rehabilitation.

Table 1. Treatment characteristics of Rehabilitation

Treatment characteristic	Details
Risk	Assessment risk Criminogenic factors
Risk assessment	Clinical: professional judgment of the re-offending capacity of an individual Actuarial/Statistical: correlation of factors Individual: examples include psychopathic or sociopath scales as strong predictors of recidivism.
Needs	Rehabilitation programs must match the individuals needs Contextual and cultural issues are imperative to the identification of offenders needs.
Responsivity	Maximization of Responsivity to the needs of the individual For example there is a recognized need to identify insight and motivation variables for the purpose of facilitating the application of specific treatment stages. Socio cultural variable such as gender, age and race must also be considered when approaching the Responsivity issues.
Professional discretion	Allows for decisions outside the given guidelines and circumstances to be made.
Program integrity	The extent to which a program is delivered in practice is intended in theory and practice. Therapist adherence to treatment: impacts on the outcomes of treatment when it occurs. Therapist competence: It is suggested that at leas a 3-4 year undergraduate degree in psychology of social work be a minimum competency before undertaking a 3-4 months of training under a supervised correctional environment.

Day and Howell, 2002

There is always an increasing rate of criminal activity. Possibly this may be confounded by an ever increasing population size, an expansion of high density housing, ineffective lack of concern to the individual offenders circumstances and needs, and the inability of the prison guard who may be seen as acting in the traditional manner of retribution or deterrence based punishment regimes. The rehabilitation lobbyist would be inclined to back up any research which suggests that recidivism can be reduced by treatment, however it is also possible that offenders may be offending to malinger in offender programs that are better that the community possibilities. The use of treatment in prison should incorporate those most at risk of re-offending (Day and Howells, 2002). Risk assessment needs to identify the possible 60% (see chart 1) who are currently re imprisoned after already serving a sentence and getting released. This may involve overcoming ethical issues such as false negative and false positives.

table. 2 False and Negative positives of selective incapacitation.

Risk

Actual outcome

Problem

False positive

High

No recidivism

Individual offenders may be subjected to an over restricted security level

False negative

Low

High recidivism

Security levels are low and harm may be caused that could other wise be avoided.

Cited in Day and Howells, 2002

Bartol (1999) notes that unsuccessful psychopaths may be cunning enough to attend rehabilitation programs to get released early It is believed that psychopaths are not suitable for treatment, however some studies have shown that a context specific view of the psychopaths needs can reduce the need of extended prison sentences. This has previously involved an authoritarian regime that kept the psychopath highly aroused which meets the specific neurological needs of the psychopath (Hare, 1997).

The program for the psychopath was community based. Community based treatment will be at least twice as effective as prison based treatment (Andrews, Zinger, Hoge, Bonta, Gendreau and Cullen cited in Day & Howells 2002). It is believed that facilitating the needs of the offender involves accepting the offender’s needs to be part of a living community. Further more Day & Howells (2002) have identified that offenders often Lack social and problem solving skills. In the community environment these skills can be learned but even better yet they can be practiced. The use of professional discretion is believed to be a strategy that can enhance the facilitation of the best practice. For example Day & Howells (2002) state that a “low risk, low needs, and low responsibility” child sex offender entering into the community would involve the interaction or monitoring function of the offender’s case workers. Morgan (1998) has shown that the longer an individual has not offended after release from prison the less likely that the offender will re offend. The parolees in Morgan’s (1998) study who offended in the first 12 months from their release are believed to benefit from community supervision which helps to integrate the offender back into society.

Zimring and Hawking (1995) have preferred to view the utilitarian area of incapacitation as the ultimate element of punishment theory. There are two views to incapacitation and each reflects a political standpoint. These views are the Liberal view and the Conservative view. The conservative view of incapacitation theory places the moral appropriateness stance on imprisonment as criminals are deemed to be unable to offend as they are behind bars. The ideology incorporates the notion of expanding the use of imprisonment to as much criminal behavior as possible as this will serve the purpose of crime prevention. Wright would say that this is negative support for imprisonment: “alternatives to prison are less workable, humane, and feasible to current prison strategies” (Wright, p 108, 1991). Zimring and Hawkings (1995) make note of the fact that when public opinion is becoming oppositional towards rehabilitation and leniency for offenders then expansionist can capitalize. They capitalize on the morality of the majority stating that Justice has a heavy price to pay however the cost of imprisoning offenders will serve the purpose of protecting the moral moors of social life. If the law is not upheld then lawlessness can flourish. Subsequently the in-proportionate level of offenders to non offenders allows the expansionist to survive. As does the ever growing population and the widening gap between the rich and the poor allows the expansionist to continue to promote the wider application of general incapacitation of offenders.

The prison expansionist view does not take into account the motivations that lead individuals to offend as it is more concerned with the criminal responsibility principles that state that motive is irrelevant. Subsequently the view is that a crime is a crime once criminal responsibility is established and all that needs to be done is to punish the offender. Further more it does not account for the sentencing principle that states that imprisonment is the means of last resort. The reliance on deterrent arguments to justify the general/expansionist view is difficult as it does not prefer the application of rehabilitation for offenders. Deterrence does not create crime prevention as it only acts on crime once it has occurred. Thus habitual offenders of a less serious nature will not have any rehabilitation or treatment and will inevitably go back out into society and find that they have not experienced any insight into there actions and will re-offend. This can be reflected in the statistics that show a high level of recidivism (Prisoners in Australia, 2001 (see chart 1)). Further more the level of those who do not find themselves re-offending gives the indication that some individuals will benefit form incapacitation solely on an individual deterrence level however there is also evidence that these individuals would benefit just as substantially form other forms of punishment including community based supervision orders. (Walker, 1994)

Specific incapacitation is a Liberal ideal that contests the notion that certain offenders are responsible for an in-proportionate level and frequency of offending (Zimring and Hawkins, 1995). It is these offenders who are most dangerous and who cause the most harm both physically, psychologically and financially (Hare, R.D., Hart, S.D., & Harpur, T.J., 1991). These offenders can be described as habitual offenders. The habitual offender is classed as suffering form a psychologically disordered mind that causes the offender to offend. There are various different kinds of habitual offender. For example a substance dependant offender is characterized by a loss of control that can only be fixed by the use of an illegal substance (Krivanek, 1982). Further more the stronger psychoactive illicit drugs such as heroin are expensive. Seventy percent of all property crime in Australia is committed by individuals who claimed they were motivated by there uncontrollable desire for drugs (Makkai, 2001a: Makkai 2001b). Imprisonment does not address the underlying causes of offending in may cases. The most serious offenders are usually classified as sociopaths and psychopaths. The dilemma is that psychopaths have reported that they are responsible for 90% of all crime committed yet they make up only 1-2 % of the total inmate population (Hare, R.D., Hart, S.D., & Harpur, T.J., 1991). It is therefore probable that specific incapacitation would most suit those small minority individuals who are the cause of the greatest levels of harm.

It can be seen in the statistics that the incapacitation of offenders in Australia is clearly ineffective. The best option would be the utilization of utilitarian theory for rehabilitation however more emphasis should be put on the community based programs for the majority of offenders. For the individual whom serves a long sentence above 10 years for serious crimes the use of both rehabilitation while serving a sentence as well as a strict community base supervision and treatment regime upon release is highly warranted and justified. Selective incapacitation should be practiced more frequently on the most serious of offenders while as mush as 90% of currently imprisoned individuals would benefit from more alternative forms of punishment.

References

Morgan, R (1994) Imprisonment. IN Maguire, M., Morgan, R., & Reiner, R., (Eds) The oxford handbook of criminology. Oxford: Oxford Press.

Zimring & Hawkings (1995) Incapacitation: Penal Confinement and Restraint of crime New York: Oxford University Press.

Edwards, E.J., Harding, R.W. & Campbell, I.G., (1992) The criminal codes: commentary and materials (4the ed). The law book company: Sydney

Johnson, C/L., (1988) in Biles, D.,(Ed) Current Australian trends in corrections Australia: Federation press.

Nicholson, A., ., (1988) in Biles, D.,(Ed) Current Australian trends in corrections Australia: Federation press.

Duff, A., & Garland, D., (1994) A reader on punishment Oxford: Oxford university press

Walker, N., (1994) in Duff, A., & Garland, D.(Eds), A reader on punishment Oxford: Oxford university press

The criminal code of Western Australia (1913)

Wright, R.A. (1992). In support of prisons, in Travis, L.F. the 3^rd , Schwartz, M. D., & Clear, T. R., (Eds) Corrections an issue approach, Cincinnati: Anderson publishing company.

Turvey, B. (1999) Criminal profiling: An introduction to behavioral evidence analysis. New York: Academic Press.

Day, A., & Howells, K., (2002) Psychological Treatments for Rehabilitating Offenders: Evidence based Practice comes of age. Australian Psychologists 37, 39-49.

Prisoners in Australia (2001) 4517 Canbera: Australian Beaurau of statistics

Hare (1970) Psychopathy: theory and research, New York: Wiley.

Grabosky, P., & Duffield, G., (2001) Red flags of Fraud. Australian institute of Criminology: trends & issues in criminal justice, 200 Canberra Australia.

Hare, R.D., Hart, S. D., & Harpur, T. J (1991) Psychopathy and the DSM 4 criteria for Antisocial personality disorder. Journal of Abnormal Psychology, v 100, n 3, 391-398.

Makkai, T. (2001a) Linking Drugs & Criminal Activity Developing integration monitoring system: Australian institute of criminology Canbera: Australia

Makkai, T. (2001b) Drug users amongst police detainees: some comparative data

Krivanek, J. (1982) Drug Problems, people problems: Bases of Addiction Sycney: Allen & Unwin

Morgan, F (1988) in Biles, D. 9ed) Current Australian Trends in Corrections Federation Press Australia.

Bartol, C., R.(1999) Criminal Behavior: A psychosocial approach 5^th ed New Jersey : Prentice Hall.