I came across this essay I wrote in 2007 for my MA, but which has never been published. Not sure I agree with everything in it a decade and half later, but it does represent the point that my thinking escaped the paradigm of reform and began to tentatively embrace abolitionism.
Punishment must be extracted even if it does not fall upon the guilty
(Freud 1923)
Charles Murray (1997), in an Institute of Economic Affairs book ‘Does Prison Work?’ argued strongly for a radical increase in the number of people imprisoned in Britain. An aversion to the prison and its under-use was, according to Murray, responsible for the dramatic increase of crime in the second half of the twentieth century. Prison worked, both as a general deterrent and by incapacitating criminals. The policy implication was simple. Any Government wanting to significantly reduce crime must build many more prisons. To do any less was to fail in their duty to protect the public.
This essay shows that by testing Murray’s statistical and ethical justifications for prison it is easy to demonstrate that his thesis is false and that there is no significant link between imprisonment and crime rates. This essay also critically evaluates Murray’s contribution to the legitimisation of prison and his understanding of crime and its link with punishment. I conclude that Murray’s prime objective, legitimising and expanding imprisonment, is ideological and that as prisons neither reform nor reduce crime there is a stronger case for abolishing prisons than building more.
Ideology not arithmetic
Murray (1997:3) is clear that the relationship between the risk of imprisonment and the level of crime is ‘a matter of arithmetic, not ideology.’ He illustrates this relationship with graphs mapping their relationship in the USA and England and Wales from 1950 to 1995. In England he claims increases in crime since 1955 are the direct result of a reduced risk of imprisonment caused by a change ‘in the elite wisdom about how to deal with crime’ that concluded, ‘prison was retrogressive’. (ibid:3) This is history rewritten to fit his thesis. In fact in the mid 1950’s the ideas Murray refers to were increasingly being rejected in favour of a more punitive approach. (See for example Hood’s (1965) description of the background to the 1958 White Paper ‘Penal Practice in a Changing Society and 1961 Criminal Justice Act and the then Home Secretary, R. A. Butler’s speeches which clearly demonstrate both an increasingly punitive approach and a rejection of the reformative ideas that had dominated the first half of the 20th century.) The elite wisdom Murray claims developed in the mid 1950’s had in fact first emerged over half a century previously (Gladstone 1895, Rutherford 1986, Garland 1985) and was put into practice early in the twentieth century with the development of Probation, reformative Borstals and the requirement of magistrates to give offenders time to pay fines (Thomas 1972) all of which were intended to reduce imprisonment. Indeed in response to this deliberate policy England and Wales’ average daily prison population was reduced by over half from 22,029 to 9,196 between 1908 and 1918 (Rutherford 1986) and maintained at this new low level for a quarter of a century (Fox 1952).
Murray’s ignorance of this period of history is also convenient. Citing official criminal statistics Calvert and Calvert (1933) show that reported crime remained relatively stable in the period 1900 to 1930. Murray’s ideologically prejudices would lead him to believe that formal government policy which questioned the effectiveness of prison, promoted alternatives and vigorously pursued decarceration would result in a dramatic increase in crime. However the historic evidence is clear. From 1900 to 1930 a policy of determinedly reducing the use of imprisonment did not result in a significant increase in crime. This provides clear evidence contradicting Murray’s thesis.
Young (1997) in one of the commentaries published in Murray’s booklet tests his claimed statistical relationship by looking at some international comparisons. He points out that in the period 1987 to 1995 Denmark’s prison population increased by 7% and their crime rate increased 3% whilst the USA increased its prison population by 124% and saw a near identical 2% increase in crime (Ibid:35). Young then selects seven Western European Countries and compares the change in the risk of imprisonment and levels of recorded crime in each of them during the period 1987 and 1995. These figures do appear to show some possible correlation, although as Young points out the causality is in reality the direct reverse of Murray’s. In countries where there is no prison-building programme and little spare prison capacity significant increases in crime will inevitably result in a statistical reduction in the risk of going to prison.
Young’s explanation of the direction of the causality is confirmed by the data relating to the Netherlands. During this period they experienced a dramatic (91%), but planned, increase in their prison population. If Murray’s thesis is correct the one European Country adopting his prescription would have reaped the crime control benefits. Unfortunately for Murray recorded crime increased by 8%, a greater increase than Denmark and Scotland, both of whom had relatively unchanged imprisonment rates.
By testing Murray’s thesis against historical data (England & Wales 1900 – 1930) and contemporary comparative European data (particularly the Netherlands) it is clear that the algebraic relationship claimed by Murray is false. There is no correlation between the risk of prison and crime rates. His case for increased imprisonment is fatally flawed.
Prohibition and the War on Drugs – How to drive up crime and fill prisons
Murray (1997) also looks at the relationship between crime rates and imprisonment in America and concludes that the apparent stabilisation in the crime rate in the 1990’s is a direct result of a significant increase in the risk of prison from around 1980. Murray makes no attempt to differentiate between different categories or types of crimes, and this simplistic view hides a more complex reality. In particular he fails to identify the central role of the war on drugs which provides interesting evidence of the relationship between the construction of crime and the impact of prohibition on wider criminality and imprisonment rates.
Before exploring the impact of the war on drugs it is worth noting the impact of prohibition in an earlier period of American history. In 1907 when Georgia and Oklahoma became the first states to prohibit alcohol the USA had a murder rate of 1 person per 100,000. (Cundiff 1994) In 1904 the rate of imprisonment was 69 persons per 100,000, (Austin and Irwin 2001) and by 1919 when the Eighteenth Amendment made prohibition national the murder rate had grown to 8 per 100,000. (Cundiff 1994) In 1933 when the error of prohibition was conceded and the Eighteenth Amendment repealed the murder rate had grown to 10 per 100,000. (ibid) In 1935 had rate of imprisonment had increased to 113 per 100,000 population (Austin and Irwin 2001). By 1943, ten years after the end of prohibition the murder rate had halved to around 5 per 100,000 (Cundiff 1994) and by 1945 the imprisonment rate had declined to 98 per 100,000 (Austin and Irwin 2001) The war on drugs had a similar impact on the homicide rate which by 1970 had doubled and was again at 10 per 100,000 (Cundiff 1994). Its impact on imprisonment was far more dramatic and sustained. By 1980 the prison population had risen to 138 per 100,000 and by 1990 it had reached 297 per 100,000 (Austin and Irwin 2001). This rise has continued to date with the USA now locking up over 2 million people, at rate of 701 per 100,000, by the 31st December 2002 (Home Office 2003)
The rise in the prison population that Murray (1997) has identified as a form of crime control is in reality a consequence of a specific form of crime control – attempted drug prohibition. As the end of prohibition showed an end to the war on drugs would be a far more effective crime reduction strategy. Combined with a general amnesty on incarcerated drug offenders the USA could benefit simultaneously from a reduction in both crime and the numbers incarcerated.
The underclass, the poor and Charles Murray’s Ideology
Murray (1997) presents his arguments as being generated by a concern about crime. Reduction in crime he claims is his end, increased imprisonment the necessary means. When we get beyond his misrepresentation of both history and statistics there is no evidence to sustain his claims. If, alternatively, Murray is read as if increased imprisonment was his aim and the (false) claims about crime reduction benefits were his means then Murray’s agenda becomes clearer. Prisons have wider purposes than responding to crime; they also have social control and disciplinary roles (Ignatieff 1978, Foucault 1991). Murray’s other works includes ‘The Emerging British Underclass’ (1990) and ‘The Bell Curve’ (1994). In the first he focuses on a generation of young people whom he claims are doomed to fail as a result of the break up of the traditional family and the consequent lack of discipline received by them. In the second he sets out to prove that the inequalities in American society are a result of the lower intelligence of working class and Black communities rather than a lack of opportunities. By advocating prison and failing to consider other crime control options Murray provides further evidence that his agenda is the promotion of mass incarceration rather than any real concern about crime rates.
The social consequences of following Murray’s prescription are dramatic. The British Government’s Social Exclusion Unit (SEU 2002) reviewed the characteristics of the prison population as compared to the general population. Prisoners are 14 times more likely to have been in care as a child, 20 times more likely to have attended a special school, 13 times more likely to be unemployed, 50 times more likely to be suffering from 3 or more mental disorders, 12 times more likely to have a personality disorder, and 4,700 times more likely to be sleeping rough. (ibid:18-21). It is the weak, vulnerable and powerless that we incarcerated.
Although there is clear evidence that the powerful also commit crimes, (Box 1983, Sutherland 1983, Slapper and Tombs 1999) these crimes are far less likely to provoke responses from the criminal justice system. Most rapists know they will never be arrested let alone imprisoned, breaches in Health and Safety Law resulting in death are still regarded as accidents. Politicians may claim, as former Home Secretary David Blunkett did, that their agenda is about ‘tougher sentences for violent, dangerous sex crimes’ (quoted in Pollard 2005:285) but the reality of his administration was that imprisonment was primarily targeted at socially excluded groups. (SEU 2002)
In America the massive increases in imprisonment has involved the disproportionate targeting of Black people. Melossi and Lettiere (1998:52) have warned for urban African Americans the use of imprisonment ‘is approximating social if not biological genocide’. Murray’s (1997) prescription may have had made no significant difference to levels of crime but it has had a dramatic impact on the socially excluded. In both the UK and US the homeless, women, Black people and the mentally ill are all being disproportionately sucked into the ever expanding penal estate, receiving pain that Murray seeks to justify on the basis of a mathematical fallacy. It is an error with substantial human costs.
What is crime?
Murray (1997) does not explore how crime is constructed. Although he depends heavily on historical comparisons of official ‘crime rates’ he makes no allowance for how crime’s construction and recording can change over time (Ditton 1979). As Christie (2004) has observed crime is not an objective phenomenon. An act can be criminal in one jurisdiction and not in another. Likewise what is legal today could have been illegal 50 years ago. Dendrickson and Thomas (1954:89) writing of their experiences in Dartmoor prison in the middle of the twentieth century reported that ‘something like half the total prison population’ were serving sentences for homosexual acts. In other areas social changes have created more possibility of crime and a reduction in social toleration of other behaviours. The invention and subsequent wide availability of the motorcar inevitably caused increased levels of crime (Corbett 2003) both through those committed with the vehicle itself and the greater mobility it facilitated. The Police currently receive a report of Domestic Violence on average every minute of every day (Womens Aid 2005) In Murray’s idealised 1950’s Domestic Violence, was a largely hidden phenomenon. Additionally new legislation is creating more and more crimes and methods of recording crime are regularly changed. Crime covers a range of activities, it is neither homogeneous nor objective. Writing in 1926, Brockway observed that responding to all crimes with a single treatment, prison, was like responding to every illness by ‘operating on the appendix’ (quoted in Priestley 1989:175). For Murray’s case to be valid we must accept that shop lifting by a homeless drug addict is essential the same phenomenon as a business owner, seeking to maximise profit, breaching health and safety legislation.
Crime and Punishment – exploring the link
Murray (1997) presents punishment and crime as inextricably linked. Punishment exists as a response to crime. Rusche and Kirchheimer (1968:5) challenged this view:
Punishment must be understood as a social phenomenon freed from both its juristic concept and its social ends.
The work of Applebaum (2004) exploring the history of the Gulags, Brown’s (2005) description of the nineteenth century criminalisation of tribes operating on the margins of north Indian society and Davis’s (2003) account of the use of the ‘Black Laws’ to return emancipated American slaves to the plantations all provide examples of punishment functioning in a way that allows the powerful to exert control rather than as an objective response to harmful or anti social behaviour. Christie (2004) has argued that decisions about the number of citizens to be incarcerated are not determined by crime levels. There is nothing natural about prisons or about particular prison population levels. The decision about how many people we subject to the pains of imprisonment should be seen and evaluated as political and moral choices.
The risk of imprisonment – can it deter crime?
Murray (1997) justifies imprisonment in two ways. The first is general deterrence, (Honderich 1969) which was used to justify the ‘Bloody Code’, the routine use of the death penalty prior to the mid-nineteenth centre (Hibbert 1963) and the development of transportation (Shaw 1998) and imprisonment (Ignatieff 1978) as punishments. The theory of general deterrence is based on a number of assumptions. In particular it requires a belief that criminal acts are carried out by people acting rationally and possessing the necessary information to make calculated assessments of the risk/benefit ratio of acts. In reality people refrain from crime for many reasons including their own moral values, a fear of getting caught, concerns about others perceptions of them and the risk of punishment. Likewise people commit crime for a similarly wide range of motivations including gain, desperation, perceptions of the likelihood of being caught, rejection of the values underpinning a particular law, loss of temper or being drunk. Whilst the threat of prison is likely, in some circumstances, to deter some prospective lawbreakers the likely deterrence benefit will be minimal and disproportionate to the financial and human cost of significantly increased levels of incarceration.
Those who advocate general deterrence have traditionally responded to critical assessments by blaming evidence of its ineffectiveness on a lack of harshness. Murray‘s (1997:14) claim that deterrence fails ‘because the sentence is not harsh enough’ follows a tradition that includes the 1701 pamphlet ‘Hanging not Punishment Enough’ (McConville 1981:60). The dramatic 1757 execution of the regicide Damien (Foucualt 1978) was clearly designed as the ultimate deterrent. The execution of Louis XVI and Marie Antoinette 36 years later demonstrates its failure.
Does prison reduce crime by incapacitating criminals?
The second and primary justification for increased imprisonment put forward by Murray (1997) is that it removes criminals from the community thus protecting society from crimes that they would otherwise commit. Like the theory of general deterrence it advocates penal sanctions that have a wider purpose than punishing the specific crime. Prison sentences not only punish the past misdeed but also stops the lawbreaker from committing further potential offences. Murray in particular calls for child lawbreakers to be dealt with ‘early and sternly’ perceiving them as particularly dangerous and worthy of incapacitation.(Ibid 26)
Incapacitation does not require prison to work in a rehabilitative manner, indeed Murray is careful to concede its limitations as a reformative or rehabilitative force. However he ignores the extent to which prison is criminogenic. Tonry (2004:91) has highlighted this duel impact pointing out that prison ‘simultaneously through incapacitation reduces and through prisonisation and stigmatisation causes crime.’ First hand accounts of the prison (see for example Red Collar Man 1937, Henry 1954, Fletcher 1972, Padel and Stevenson 1988, Dendrickson and Thomas 1954, Turner 1961) provide considerable evidence of its capacity to make those incarcerated potentially more likely to commit future crimes. As Macartney (1936:152) observed:
to keep a man in prison for many years at considerable expense, and then to free him charged to the eyes with an uncontrollable venom and hatred generated by the treatment he has experienced in gaol, does not appear to be sensible
Reconviction rates for both adults (Home Office 2005) and children (Home Office 2006) provide evidence of contemporary prisons contribution to future crime.
Cavadino and Dignan (1997:38) cite research by Tarling published in 1993 that estimated ‘a change in the use of custody of the order of 25 per cent would be needed to produce a 1% per cent change in the level of crime’. If this calculation is correct then it suggests that the use of incapacitation as a crime reduction strategy would require massive increases in the prison population. Given that crime rates regularly move both up and down by considerably more than 1% other factors are of far greater significant than rates of imprisonment.
The theory of incapacitation has two significant weakness that Murray (1997) fails to recognise and respond to. Firstly he fails to recognise that crimes like the tragic murder of Zahid Mubarek (Keith 2006) are committed inside prisons. Secondly he makes no allowance for the positive contributions those incarcerated would make to society if they were free. By ignoring these issues those advocating incapacitation leave themselves open to accusations of indifference to victims of crime within prison and the loss of economic activity, parenting and community contributions resulting from mass incarceration.
Are Prisons justified?
Prisons emerged during the nineteenth century as the normal penal sanction for most crimes replacing the widespread use of capital punishment and deportation. (McConville 1981) Unlike death or deportation, which removed the lawbreaker from society, the use of imprisonment always implied their future return. This inevitably led the penal system to adopt reformative aspirations. (Ignatieff 1978) The justifications for punishment; deterrent and just deserts had to be extended to reformation.
By the end of the nineteenth century the Gladstone Committee’s Report (1895) had formally introduced reformation into the explicit aims of imprisonment. The introduction of the borstal system (Hood 1965), open prisons (Fox 1952) and reformative philosophies (Ruck 1951 Ruggle-Brise 1921) were all attempts to develop prisons as reformative institutions. However by middle of the twentieth century it was becoming increasingly clear that prison were not reformative. Martinson’s (1974, 1999) review of research on correctional programmes concluded that there was no evidence of any of them working. Autobiographical accounts of Boyle (1977) and others (see for example Norman 1958, Fletcher 1972, Carlen et al 1985, Laing 1992, Leech 1993) testified to the abusive, lawless and violent reality of prison.
The collapse of the rehabilative ideal (Bottoms 1980), a growing acceptance of the negative and damaging experience of imprisonment (Cohen and Taylor 1972, Fitzgerald 1977), mutinies and riots (Jameson and Allison 1995, Thomas and Pooley 1980), and escapes (Thomas 1972) contributed to a growing crisis of legitimacy within the prison. If prison could not reform, what was its purpose? Incapacitation, adopted by the Conservative Government in the early 1990’s and retained by the incoming Labour Government from 1997 (Wilson & Ashton 2001), provided a justification not requiring an explanation for prisons reformative failure and legitimising the prioritisation of prison’s custodial role following Learmont (1995). Unlike the reformative justification (Rutherford 1986) that required restraint in the use of Prison (Woolf 1991) incapacitation was also entirely consistent with an ever-growing prison population. Incapacitation means prisons are increasingly being focused on the removal or disposal of the criminal. The convict is again, as in the days of Hanging and Transportation, suitable for disposal rather than recycling. (Bauman 2004)
Whilst it is important to recognise the importance of incapacitation in contemporary justifications of incarceration it must also be recognised that it does not alter the reality of imprisonment. As Christie (2000) and others have stressed whatever the justifications for imprisonment given in official discourses the fundamental function of prison is always to punish by the infliction of pain. Whatever the justification, Prison continues to be used to incarcerate the most excluded and powerless (SEU 2002), the regimes remain oppressive, unjust and abusive (Wyner 2003), those released continue to be re-convicted more often than not (Home Office 2005 & 2006) and it is clear that prisoners are badly damaged by their experiences in prison. (Neustatter 2002, Hodgkin 2002, Scraton and Moore, 2005,) Prison numbers continue to grow with underlying legislative changes ensuring the continuation and acceleration of this trend. (Cullen and Newell 1999)
Conclusion
Murray (1990 and 1994) has a clear interest in both the underclass and the poor. His writings are polemic and highly ideological. ‘Does Prison Work’ (Murray 1997) is an attempt to justify increased imprisonment in the interests of the powerful. It is ideological and partisan, distorting history and manipulating statistics to achieve its aims.
Fitzgerald (1977:14) has observed:
critics generally pose the question ‘Do prisons work?, answer ‘No’ and proceed to look for ways of making them work…..we should move on to pose the additional question ‘are prisons useful?’, that is, to whom and in what ways……. are prisons useful?
By utilising this important insight, I have sought to demonstrate that prisons are institutions with broader functions than the punishment of crime and whose populations consist primarily of the most social excluded and powerless in society. The underlying trend in official crime rates will over time tend to increase. This is the inevitable consequence of the scope of the law being continuously extended, progress in exposing hidden crime (e.g. intra family crime) and new opportunities for crime (e.g. motor cars) emerging. Often as in the case of domestic violence and health and safety crime this growth will primarily be about visibility and should therefore be welcomed.
The use of imprisonment is a separate issue and involves moral choices. Are we happy with incarcerating many of the most powerless and excluded members of our community in abusive unjust institutions that deliver pain? Why, despite overwhelming evidence to the contrary, do some people still claim these damaging institutions can reform those caged in them? Why incapacitate people in institutions that we know increases their dangerousness? When we know the pain involved in imprisonment why do we consider it a legitimate method of crime control despite knowing it doesn’t work? Why do we seek a 1% reduction in crime by caging an additional 15,000 citizens without investigating if such a massive investment of funds could achieve a much greater reduction in crime if used more creatively? Why do we continue to focus on the powerless and largely ignore the crimes of the powerful? Why do we repeat the criminogenic experience of prohibition through the war on drugs when we know the harm it does?
How we answer these questions is an indication of whose interests we seek to promote. Murray’s answer of building more Prisons is an ideological response in the interests of the powerful. Building more prisons, as the Netherlands found out in the 1980’s and 1990’s doesn’t reduce crime. Indeed as the English experiment of the first quarter of the twentieth century suggests rates of imprisonment can be dramatically decreased without crime increasing. The use of incapacitation as a justification for imprisonment is as flawed as the justification of reformation. With prison serving no socially useful purpose it is time we closed them down rather than built more.
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Trincomalee walks 