Paul John Griffiths
SHOULD WE TREAT OR PUNISH?
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This essay was originally submitted to the University of Birmingham for the Master of Science in Criminological Psychology. Longer sentences, corporal punishment or even restoration of the death penalty are some of the propositions made in the media to deal with the increasing level of criminal behavior. Finding adequate solutions to crime and the appropriate punishment isn’t unique: the problem goes back to Exodus (Ch. 21 v 23), where Mosaic Law suggests an exact equality of punishment for an offence "An eye for an eye…etc.". Vengeance was an element of criminal justice, even as far back as the eighteenth century but Jeremy Bentham (1789) suggested that crime itself was an injustice, " All punishment is mischief; all punishment in itself is evil". The eighteenth century Criminologist Cesare Beccaria (1764) commented on a savage, stupid and corrupt legal system; he suggested that punishment should be prompt, public and the least amount proportionate to the crime. This view was still evident in W. S. Gilbert’s lyrics to the Mikado (1885) "The problem all sublime…. to let the punishment fit the crime".
So an essay has necessarily to deal with firstly, society’s views and interpretation of offending behavior to see which model, retribution or treatment is appropriate. If treatment is thought valuable, then both definition and treatment models need to be discussed; secondly, a definition of punishment and an understanding of theories of punishment; thirdly, non-custodial methods of punishment, as not all crime is custodially punished; fourthly, alternatives to punishment, a definition for treatment and various models are discussed.
Society’s views of offending behavior Back to top
An early social theory was the Consensus View. This held that society functioned as an integrated system, where rules and values were commonly accepted and behavior that was against this view was dealt with via criminal proceedings. A crime is therefore a violation of the criminal law, an act that meets with the disapproval of the majority (Shepherd 1981).
Classical and Positivist Theories emerged from the Consensus View. The Classical Theory was popular during the eighteenth and nineteenth centuries, in both Europe and America. This believed in individual Free Will and held that if the rewards from crime are greater than the punishment, then crime will increase. Therefore, severe punishment will reduce crime. Towards the latter part of the twentieth century Positivist Theory emerged. This suggested external influences, for example biological factors like genetic transmission, psychological constraints such as personality; moral and learning development were more significant. Positivist Theory was considered more liberal, than the classical theory and promoted treatment and rehabilitation as opposed to punishment. However, due to the inability of the Positivist Theory to define the actual cause of crime and the inability of practitioners to acquire suitable effective control strategies, the demand for larger prison sentences was made (Hollin 1989). Thus during the 1970’s and 1980’s, a renewed interest, known as the neo-classical or Conservative Theory (Bayer 1981) emerged.
In opposition to the Consensus View is the Conflict View. This was popular in the late 1960’s and held that society is a collection of diverse groups: in conflict with each other over such issues as wealth and power. Some groups are poor and dissatisfied, whilst others are wealthy and powerful (Hollin 1986). Each group commits the type of crime dictated by the system. Poor people commit burglaries and petty theft; middle class people commit "white collar" crimes, such as embezzlement and tax evasion etc. (Gilcrest 1997). It is this conflict between groups that promotes crime.
If we define the two views mentioned so far as being at opposite ends of the spectrum, in the middle ground, we find Interactionist Theory: Becker (1963) called the followers "Moral Entrepreneurs". Here the definition of crime depends on preferences of those who hold social power, as opposed to the consensual view of the majority. However, contrary to the conflict views, Interactionists do not accept, that economic or political considerations are the active motivations, for those in power. Hollin (1986) suggests that this theory can be broken into three areas: individuals interpretation of reality, reality learnt through other peoples positive or negative reactions and individual behavior that is made according to the meanings learned and acquired from other people. The Interactionist Theory is linked to the Labeling Theory, whereby an individual becomes a criminal when somebody in power places a "criminal" label on them. Therefore, behavior is not right or wrong but how a judgement has been made.
A definition & model of Punishment Back to top
Punishment is "that which is inflicted as a penalty and enforcement of a law (SOED 1959). Recent theorists, McGuire (1996) and Widdecome (1995) have looked at the use of imprisonment as a form of punishment. They suggests that its aims should include: retribution, the infliction of discomfort on the offender in order to demonstrate society’s displeasure, by deprivation of liberty, correction and deterrence from recommitting the offending behavior and being prepared for release into the community. The threat of punishment may be a general deterrent for others from committing similar offences. Incapacitation, the act of removing offenders from circulation, obviously prevents them at least temporarily from committing further crimes and thus protects the public from the most dangerous offenders.
Observer’s opinions vary as to the effectiveness of prison as a form of punishment. Some offenders may be deterred from re-offending; others may be more likely to re-offend following punishment (Feldman 1993). For some people, those who have experienced a severe deprived upbringing "Prison may not be such an aversive event"; others may find Prison rewarding, providing a break from an aversive world. Research into the recidivism rates following custodial sentences, indicates that imprisonment had little effect on reducing rates of future offending (Hollin 1989). Hood & Sparks (1970) claim that longer sentences do not reduce reconviction rates compared with shorter ones.
Garland (1995) is under the impression that punishment is a tragic, destructive undertaking, necessary to a degree as a response to serious crimes but that it should be to the smallest extent and that it is a moral undertaking rather than an instrument for producing useful effect. Priestley (1995) suggests that imprisonment in its present form do more harm, than good in societies battle against crime, because it is non-productive.
The effectiveness of punishment is sometimes lost within our own criminal justice system, due to the length of time from criminal act to sentence. Several researchers Axelrod and Apsche (1983), Sundel and Sundel (1993), suggest that in order for punishment to be an effective measure, it should immediately follow the offending behavior, be inevitable and inescapable. Punishment needs to have the maximum severity or at least be of high intensity and the individual must have had alternate means of achieving the goal available at the time, in order to facilitate appropriate choice. Finally the reason and understanding for the use of punishment needs to be acknowledged by the offending individual.
Why then is there still a need to punish if it clearly does not work? If we look at the sociological explanations for crime we may find some answers. Garland (1995) suggest that penal policies may be selected for political reasons rather than, for their positive effectiveness and Hollin (1989) raises the issue that a political and ideological struggle exists, in order to find a dominant model or theory of crime and associated social policies.
Non-custodial methods of punishment Back to top
Society’s response to crime is not couched in terms of rehabilitation but rather in terms of tougher punishments (Cullen, F., Clark, G. and Wozniak, J. (1985). Rutherford (1996) informs us that the incarceration rate of around 170 per 100,000 of the population for the first seventy years of this century, the rate today is over 555 per 100,000. He suggests that prison works, in the sense that most people feel very happy with it. A study by the Patterson Group (Feldman 1993) found that reliance on punitive modes of control promotes coercive behavior in their children, which then evolved into physically aggressive behavior. This conduct alienates the aggressive from most of their peers so they move towards an antisocial peer group. Punishment may even lead to an increase in subsequent aggression. However, Glaser (1983), suggests that for some habitual offenders, they could benefit from an appreciable period of confinement in order to prevent recidivism.
Lipsey & colleagues (McGuire 1995) studied programs based on the use of punitive measures and found that they actually increase recidivism by an average 25%. They identified that age also played an important factor. The older the offenders during follow up, the lower the re-conviction rate. Feldman (1993) suggests that this may support the notion that imprisonment succeeds however, it may reveal that as people grow older they stop offending or change the pattern of the offence, or have learnt how not to get caught.
Punishment does not necessarily mean custody, for a period of probation is likely to be as effective in preventing re-offending as an institutional sentence (Hood & Sparks 1970). Glaser (1983) suggests that probation for a new offender decreases the chances of criminalization and Klein (1974) found less recidivism where police departments operated a High Diversion Policy. Examples of research into such policies were conducted by Klein, Teichmann, Lincoln and Labin (1977), who found that the further a juvenile had been processed within the Criminal Justice System, the greater the chance of re-arrest. Their study revealed that juveniles who had been counseled and released were re-convicted 25% less than those cautioned. This is contrasted with a study conducted by McCord (1980), who found that for those individuals released without official processing, were more likely to commit index crimes and to commit crimes against the person. Hood and Sparks (1970) suggest that fines are more effective than either probation or imprisonment for first time offenders and even for all age recidivists. However, non-custodial sentences, may in-fact, increase the crime rate.
Garland (1995) states, that we should concentrate not on punishing offenders but on more mainstream social activities, such as moralizing markets, promoting solidarity and enlightening young people as citizens. Garland prefers social justice and moral education rather than penal policy. The apparent lack of demonstrable and success of any conventional penal method, has led to a search for other methods, some of these derived from clinical psychology
Alternatives to punishment-treatment model Back to top
The belief that imprisonment is an effective form of punishment or that other sanctions without any form of rehabilitation, are somehow going to reduce offending behavior, is not a justifiable position. Hough, Clark and Mayhew (1980), maintain that in terms of prevention too much effort has been expanded on unproductive attempts to change the criminal disposition of offenders. Focusing the intervention on the offender, Hollin (1989) believes that treatment is localizing the cause of offending within the individual. This is clearly a Classical or Positivistic viewpoint and suggests that clinical intervention can overcome the individual’s unacceptable offending behavior. Blackman (1995) is in favor of a more constructive approach to the person’s lack of ability in changing criminal behavior and suggests an intervention that understands the systematic understanding of the dynamics of interaction between behavior and the social environment.
Cornish and Clark (1975) compared two regimes in Approved Schools: One a traditional training based on control regimes and the other a therapeutic community. After a two-year follow up of recidivism rates, they found a result of 70% for therapeutic communities and 69% for traditional training. Jesness (1975) sampled one thousand convicted delinquents, they were either from Transactional Analysis or behavioral Modification based programs. After a two-year follow-up, he found 77% of the sample were re-arrested, no difference being found between the groups. For juvenile first time offenders. Walker, Farrington, Tucker (1981) found that the fewer previous convictions, the lower the reconviction rate.
Hollin (1989) suggests that clinical intervention works some of the time with some offenders and raises the conceptual and research difficulties within experimental clinical literature. This is illustrated by the research of Martinson (1974), who reviewed several outcome studies and found that only a small proportion indicated efficacy of clinical intervention. However, Thornton (1987) re-examined the data that was used by Martinson (1974), found that psychological therapies can have positive effects on recidivism, or can be read as indicating that no conclusion can safely be drawn. Thornton, states that the one interpretation that is not acceptable are that "Nothing works". Andrews, Zinger, Hodge, Bonta, Gendreau and Cullen. (1990a). Showed appropriately designed forms of intervention with offenders, was capable of cutting re-offending rates by 53%.
The American "Stay ‘n Out" prison project was initial designed for substance misuse convicted offenders (Wexler1997). It is ran as a Therapeutic Community (TC) approach program and was originally set up in 1977 in New York. This was a joint sponsorship effort, between non-profit making organizations and State Agencies. In 1990 research was conducted into a three-year follow up of male inmates from another New York State Prison, that had participated in a "Stay ‘n Out" program (Wexler 1990). The results illustrated that inmates who went through the program had an arrest rate of 26.9% vs. 40.9% for the non-treatment control group.
An eighteen month follow study conducted by Inciardi & Lockwood (1995), compared several Californian correctional interventions: The control prison offered no treatment, A prison that operated a TC called "The Key" and a work release TC called "CREST", this was designed for inmates who are permitted to work in the community while living in a prison TC. The results found that 70% of the control group was arrested compared with 52% of the "Key" inmates who did not attend "CREST", 35% who attended "CREST" only and 29% who attended both the "Key" and "CREST" projects.
There are several problems associated with the measurement and effectiveness of Punishment or Treatment as methods of correction. Considerable dissatisfaction with the use of official figures as an outcome measure exists. Braukmann & Fixsen (1975), state that official figures provide a better picture of the courts behavior than of the offender’s. Gun & Robertson (1987) who compared reconviction rates from HMP Grendon, suggest that official records are "crude" and a "dubious measure" of offending behavior, not least because of the distinction between committing offences and being caught and convicted of them. Hollin (1989) states his dissatisfaction lies with the use of official figures as outcome measures. This relates to the outcome measure used, is it re-offending, job performance or moral attitudes?
Davies and Leitenberg (1987), in their study, raise the issue that a once convicted offender may repeat an offence many times with many victims without getting convicted again. They suggest that studies should include controls for Sex, Age, and Previous criminal career, Type of offence and Length/occasions in prison. Hollin (1989) sees problems in using the criterion of subsequent convictions, "Should we confine our research to offences for which the offence was received or should we include all types of further offences?"
As to the length of follow up, Walker (1971), believes that for first time offender, there should be a longer period for follow up and for recidivists this should be a shorter. Also there should be consideration for spontaneous recovery (Rachman & Wilson 1980). Hollin and Henderson (1984) reviewed the variety of methods used to look at recidivism: Arrest Rate, Reconviction Rate, Re-institutionalization Rate, Offence Type and Self-Report Measures. They suggest that there are advantages and disadvantages to all of those measures and that considerable difference in outcome is found, depending on what type of measure is used. Comparison of international intervention methods raise similar arguments, control groups and collected data, may be hard to analyze. Losel & Egg (1997) in their comment on German Institutions states a problem occurs when evaluating treatment in complex institutional settings and comparison groups. "If one compares social-therapeutic prisons with normal prisons, this is not an evaluation of treatment verses nothing or placebo", for German prisons main aim is rehabilitation.
Wexler (1997) states that today in America, that criminal justice professionals and correctional administrators are only too aware of the efficacy of the Therapeutic Community model in both the community and prison. The United Kingdom is also aware of the benefit that Therapeutic Prisons can provide inmate populations. My own almamata, HMP Grendon, which was established in 1962 as an Experimental Therapeutic Prison, is now to have its philosophy replicated by building a similar establishment in the North Midlands, in order to cater for the north of England (GNL 1997).
There are several common features that distinguish an effective from a no-effective method of treatment for dealing with offenders: (Lipton 1983, McGuire 1995, and Wexler 1997)
My own personal experience of having undergone a therapeutic treatment program within a prison environment and having visited correctional facilities in this country and throughout the United States, supports the research findings that a treatment method is more productive as opposed to a punishment method of dealing with offending individuals. This does not necessarily mean that the two are exclusive to each other, in fact we as a society should demand that an element of treatment exist within all forms of punishment.
Andrews, D., Zinger, I., Hodge, R., Bonta, J., Gendreau, P. and Cullen, F. (1990a). Does correctional treatment work? Criminology. 28: 369-404.
Axelrod & Apsche. (1983). In McGuire, J. The Death of Deterrence. Institute for the Study & Treatment of Delinquency, London.
Bayer, R. (1981). Crime, Punishment and the decline of liberal optimism. In C. Hollin. Psychology & Crime. Routledge, London.
Beccaria, C. (1764). On crimes & punishments. In P. Feldman. The Psychology of Crime. Cambridge University Press, Cambridge.
Becker, H. (1963) Outsiders: studies in the Sociology of Deviance. In C. Hollin. Criminal Behavior. The Falmer Press, London.
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Cornish, D. & Clark, R. (1975). Residential Treatment and its Effects on Delinquency. HMSO, London.
Cullen, F., Clark, G. and Wozniak, J. (1985). Explaining the get-tough movement: can the public be blamed? In C, Hollin. (1989). Psychology and Crime. Routledge, London.
Davies, G. & Leitenberg, H. (1987). Adolescent Sex Offenders. Psychological Bulletin. 101: 417-27
Feldman, P. (1993). The Psychology of Crime. Cambridge University Press, Cambridge.
Garland, D. (1995). ISTD Conference Paper". In J. McGuire & B. Rowser (Eds.) Does Punishment Work? Institute for the Study & Treatment of Delinquency, London.
Gilbert, W.S. (1885). The Mikado. In The Oxford Dictionary of Quotations. Revised 4th edition. Oxford University Press, Oxford.
Gilcrest, E. (1997). Psychology & Crime (Lecture unpublished). Birmingham University Clinical Criminology Course, Birmingham.
Glaser, D. (1983). Supervising offenders outside of prison. In P. Feldman. The Psychology of Crime. Cambridge University Press, Cambridge.
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Gun, J. & Robertson, G. (1987). A Ten Year follow-up of Men Discharged from Grendon Prison. In E. Genders & E. Player. Grendon: A Study of a Therapeutic Prison. Clarendon Press, Oxford.
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Inciardi, J. & Lockwood, D. (1995). When worlds collide: Establishing CREST Outreach Centre. In E. Cullen, L. Jones and R. Woodward (Eds.). Therapeutic Communities for Offenders: Chapter Seven. John Wiley & Sons, Chichester.
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Walker, N. Farrington, D. & Tucker, G. (1981). Reconviction rates of adult males after different sentences. British Journal of Criminology. 21: 357-60.
Wexler, H. (1997). Therapeutic Communities in American Prisons. In E. Cullen, L. Jones and R. Woodward (Eds.). Therapeutic Communities for Offenders. John Wiley & Sons, Chichester.
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