Reconceptualizing Punishment: Understanding the Limitations on the Use of Intermediate Punishments

The failure of intermediate punishments to replace imprisonment as a sanction for many criminal offenders in the United States may not surprise many people. The failure of policymakers to adopt -- or at least to explore -- the concept of "interchangeability" of punishments, advocated by Norval Morris and Michael Tonry in 1990, may reflect the view that punishments must be more severe than any form of "interchangeability" will allow. If people mistakenly believe that harsh punishment corrects or that imprisoning large numbers of criminals will make the rest of the population safer as a whole, then it is likely that intermediate punishments will be seen as sensible replacements for imprisonment.

But the severity problem is only part of the issue, an examination of the failure of intermediate punishments to reduce the use of imprisonment in Canada is useful beyond Canada’s borders in large part because there may be lessons that other jurisdictions with different criminal justice traditions can learn. Canada has a different crime problem and a different criminal justice climate from that found in the United States. Over the past twenty-five years, the two federal political parties that have been in power have endorsed the view that Canada imprisons too many people. Furthermore, there have been a succession of national reports critical of Canada’s high imprisonment rate. Nevertheless, imprisonment rates in Canada have risen slowly but consistently during this same period of time. Criminal justice budgets have increased in Canada at a rather high rate, particularly in the area of adult and youth corrections.

There is another reason why Canada should be an ideal jurisdiction to make use of intermediate punishments and to substitute community punishments for imprisonment: our prison sentences appear to be relatively short in comparison to those in the United States. Thus, in theory, it should not be difficult to find appropriate substitute punishments for imprisonment.

We suggest that an examination of the reasons why Canada has been remarkably successful in substituting intermediate punishments for imprisonment may be instructive not only for understanding why Canada wastes human and economic resources by imprisoning large numbers of people, but also for providing some lessons that can be applied elsewhere. The failure of intermediate punishments, we suggest, related to the nature of the punishments themselves, not solely to their severity.

Those advocating the increased use of intermediate punishments have assumed that punishments can be placed along a single continuum, and therefore, at least in theory, a certain amount of punishment should, within limits, substitute for another. Such an approach, though rational, fails to take into account the fact that punishments serve a variety of functions. In particular, we suggest that imprisonment may be seen as accomplishing the traditional sentencing goal of denunciation more effectively than intermediate sanctions can, independent of questions of severity. Thus, some offenses may be seen -- by judges and by members of the general public -- as "requiring" imprisonment. In other words, punishments may differ qualitatively as well as quantitatively. Certain intermediate sanctions, though punitive, do not appear to be capable of serving certain purposes. Hence, it should not be surprising that judges do not impose them and that the public does not advocate their use. Therefore, in order to understand which punishments are appropriate, one has to examine them within the particular social context in which they are imposed.

A "Machiavellian" Perspective on the Development of Boot Camp Prisons: A Debate

The two perspectives presented in this Article make different assertions about the punitiveness of the public, the impact of the military component of boot camp programs, and the potential of boot camp programs to reduce prison crowding and change offenders. The Machiavellian perspective argues that these programs may be reasonable means of addressing prison crowding and providing treatment to offenders. From this perspective, there is nothing wrong with the military model, particularly if it provides other benefits. For generations, the United States has sent wealthy and middle class youth to military academies and into the military. Why then protect offenders from the very methods that have been used with other youth? The military helps to prepare these individuals for leadership positions. Although certainly some people have been injured during the rigorous basic training, boot camps for these noncriminal individuals have not been considered abusive. In fact, there may be components that are beneficial if combined with treatment and aftercare that address the criminogenic needs of the offenders.

The alternative view is that the Machiavellian perspective does not really take into account the fact that the public is not as punitive as policy-makers think. By choosing to endorse the development of boot camp prisons, the Machiavellian perspective dismisses as idealistic the possibility of more constructive dialogue between policy-makers and the public and, as a result, diminishes the prospect of developing more effective correctional programs. Doubt has additionally been cast on the ability of boot camp programs to reduce either recidivism or prison crowding.

Many questions have been raised about boot camp programs. There is research to support each perspective. What is clear is that these are experimental correctional programs. We need more information about the impact of specific components of the boot camps and the expectations of the public and policy-makers. Social science is capable of scrutinizing the impact on inmates and staff and examining public attitudes towards these programs, thereby providing empirical data to address the unanswered questions underlying some of the controversy surrounding boot camp prisons. Other fields of science would require such study before introducing a speculative innovation. Yet, these correctional programs are rapidly expanding without the necessary corresponding study of their objectives and their impact.

Evaluating the Impact of Community Penalties

For much of the twentieth century, many criminal justice policymakers and criminologists have been obsessed with the search for viable alternatives to custodial sentences. In England and Wales, finding alternatives to custody has arguably been the single most important penal policy issue since the end of the Second World War. Since Parliament passed the 1948 Criminal Justice Act, penal policy has been driven by the need to respond to increases in the prison population that have led to serious problems of overcrowding and control. Policymakers and criminologists have labored to discover an alternative to custody that actually works. But this search is fundamentally misconceived -- a point that is only rarely noted and even then, often ignored.

This is not to deny that the key question is whether community penalties or intermediate punishments actually "work." Despite (or perhaps because of) the many years of frenetic research during the 1970s and 1980s, there are no easy answers to this question. This Article revisits the issue of community penalties and focuses on how best to evaluate them. It seems to me that this is a question central to the Symposium.

This Article is organized into five parts. Section I discusses the work of Robert Martinson, whose legacy, "nothing works," unfortunately still dominates much of the debate on the effectiveness of community services. Section II examines the relatively recent interest in meta-interest and the "nothing works" debate. Section III makes some general points relating to evaluation. Section IV describes a recent major evaluative study of an Intensive Probation (IP) initiative in England and Wales. Section V sets out general lessons from the IP evaluation for the evaluation of community penalties in general.

It may be helpful to make three preliminary points. These points are only loosely connected to the topic of this Article, but they constitute much of the necessary background, and, to a considerable degree, they frame what follows.

First, my views are colored by my position as principal research officer of the Home Office Research and Planning Unit. The Unit conducts research for the government and is indeed part of the state apparatus. My approach to evaluation therefore focuses on the needs and priorities of policymakers. Second, the idea of alternatives to prison is now officially dead in England and Wales. There was always uneasiness about an idea implying prison was the only appropriate sentence for a criminal to receive. The 1991 Criminal Justice Act eradicated the idea of alternatives to custody by introducing a "just desserts" approach to sentencing. Although this approach was somewhat diluted by section 66 of the 1993 Criminal Justice Act, it remains official policy. Third, since 1984 when the Statement of National Objectives and Priorities was introduced, the probation service in England and Wales has been in a state of almost constant flux. A service that must react to new -- and what tend to be seen as threatening -- policy developments is unlikely to be at its best. Indeed, change continues: new proposals were published in a Green Paper in March 1995, and they are likely to create further uneasiness about the role of probation.

Making Sense of English Law Enforcement in the Eighteenth Century

The criminal justice system of England in the eighteenth century presents a curious spectacle to an observer more familiar with modern institutions. The two most striking anomalies are the institutions for prosecuting offenders and the range of punishments. Prosecution of almost all criminal offenses was private, usually by the victim. Intermediate punishments for serious offenses were strikingly absent. It is only a slight exaggeration to say that, in the early years of the century, English courts imposed only two sentences on convicted felons; either they turned them loose or they hanged them.

In Sections I and II of this Article, I describe the institutions for prosecution and the forms of punishment. In Sections III, IV, and V, I argue that, contrary to the view of almost all modern commentators and many contemporary ones, these institutions may have made considerable sense. The shift in the early nineteenth century toward punishment by imprisonment and law enforcement by paid police, and later the shift public prosecution, were driven by discontent with the performance of the existing institutions. But it is far from clear whether that discontent was justified. I will argue that both contemporary critics and modern historians have missed important elements in the logic of the system of private prosecution -- elements that help explain why it lasted as long as it did and worked as well as it did.

Making Sense of English Law Enforcement in the Eighteenth Century: A Response

David Friedman’s title makes an arresting promise: He will undertake to make sense of English law enforcement in the eighteenth century. At first one guesses he merely means to organize the tangled mass of procedures and punishments. Slowly one suspects he means to do more. He means to show that the institutions of eighteenth century criminal justice were sensible. The task would be plausible if, by sensible, Friedman meant that the institutions of law enforcement advanced one of the system’s articulated goals in an articulable way or that authorities defended existing institutions by reference to those goals. But Friedman means more. He means that the institutions of punishment in eighteenth-century England were a cost-effective means of fighting crime in a world of rational economic actors. His often ingenious paper belongs alongside other volumes that promise to uncover economic rationality beneath a skein of unreason: Making Sense of Sex; Making Sense of War; Making Sense of the Eighteenth Century.

Putting aside my admiration for the boldness of the undertaking and for Friendman’s success in synthesizing so much material so neatly, I argue here that his major arguments lack support in the historical record. As theory -- or "conjecture" as he often calls them -- his ideas could be valuable tools for analysis, but only to highlight the divergence between theory and reality and thereby to spur deeper investigation. My argument tracks Friedman’s two major points. Section I addresses his claim that the system of private prosecution was "reasonably successful" because it exploited the economic interests of crime victims. I consider the lack of evidence of "success," the lack of evidence of an economic motive, and the lack of evidence that any such motive can explain the system as it stood. Section II looks at Friedman’s discussion of the forms of punishment. Here he makes fewer broad claims, the most identifiable (and vulnerable) being that imprisonment gained favor at the end of the century because only then could the country afford it. Based on evidence that prisons became more popular as they became more expensive, I argue that cost does little to explain their earlier unpopularity and that the nation’s late-century affluence does little to explain the form the new prisons took or the ideology of their builders.