There are around 82,000 people in prison in Britain. Is that a lot or a little? How can we tell? Compared to the 2.2m people languishing in US jails it doesn't sound all that many. Britain's prisoners could fit into the new Wembley stadium with room to spare, although on the government's own projections, all 90,000 Wembley seats will be taken sometime around 2010. Over the last five years, the prison population has grown by 20 per cent. Lord Carter, in a report for the government published last December, accepts that this trend will continue, and recommends a new prison-building programme so that supply can meet demand, which may reach 100,000 by 2014. (The government says it wants to stabilise the prison population at about 95,000. The Tories, by contrast, say they are happy to sail on through 100,000.)
Carter notes that the prison population in Britain has risen by 60 per cent since 1995. In Germany it has been more or less stable during this period, while in Canada it has fallen by 11 per cent. New Zealand just outstrips Britain, with 68 per cent growth since 1995, while even the US lags behind with 42 per cent. But it will be a long time before Britain catches up with the US in terms of the imprisonment rate: the US imprisons 750 people per 100,000, as against 149 in England and Wales and 136 in Scotland. Still, within Europe, our imprisonment rate is behind only former eastern bloc countries and, curiously, Luxembourg. The only west European country that comes close is Spain, which imprisons 146 per 100,000. By comparison, Germany imprisons 93 per 100,000, Turkey 91, France 85 and Italy 67.
Prison: what a strange thing it is. I can remember my shock as a child being told that some adults had done things so bad they had to be locked away, for years, until they knew better. I could hardly imagine anything worse. Prisons seem to belong to the age of the horse-drawn cart and the workhouse, not Eurostar and the internet. If anything, we should be phasing them out—converting old prisons into luxury flats as we do with unused warehouses and deconsecrated churches. Instead, we are building more and more—although apparently not enough to cope with the doubling of the prison population over the last 30 years.
Speaking as a philosopher, rather than a criminologist, I find just about everything to do with the criminal justice system a puzzle. But the central question, it seems to me, is this: are we imprisoning more people because we have to, or because we choose to? And in either case, why?
Yet crime is not rising; it is falling. And falling fairly dramatically, as we will see. Experts who agree about nothing else agree that figures of crime reported to the police are a poor indicator of underlying crime, and so Blair's "justice gap" may not tell us much about overall crime rates. We know that many crimes go unreported—often because people think that there is nothing to be gained by calling the police—and that reporting varies for arbitrary reasons. For example, when I lived in a high crime area, my neighbours and I were encouraged to report all crimes for a few months, however minor, so that more resources would be diverted to the local beat. The resulting "crime wave" was an artefact of the tedious business of calling in every vandalised wing mirror and snatched pot plant. Moreover, methodologies for recording crime regularly change, and apparent trends may reflect nothing more than a new method.
Given the difficulty of establishing crime rates from recorded crime, in 1981 the British crime survey (BCS) was devised to provide a more accurate picture. It is a fascinating document, even for those of us who do not, one way or the other, earn our livings from crime. The survey asks a cross-section of the public whether they have been victims of particular crimes in a given year. The 2006-07 report estimates that crimes in Britain have fallen from about 20m in 1995 to about 12m in 2006. Even violent crime has fallen at a similar rate—though police records report a rising trend, which, the BCS editors claim, is down to changing reporting conventions. Unpack the reduction in violent crime and you find a steep decline in "acquaintance" and domestic violence; muggings and "stranger" violence have remained fairly constant. (There were 757 murders in Britain in 2006-07, roughly double the 1950s figure.)
But if crime is falling, why is the prison population rising? Is it a policy choice—a determined effort by the government to make the country safer? If so, the rising prison numbers should count as a mark of success, not failure, indicating not only that an increasing number of hardened criminals are being taken off the streets, but that the less hardened are being deterred by the prospect of a period behind bars.
To understand why the prison population is rising, we need first to appreciate that it is determined by many variables, and then to establish which contributes most to the increase. The crime rate matters, of course (and remember that it is affected not only by people's behaviour, but also by the forms of behaviour that are classed as criminal). But other things affect the prison population too: the detection rate; the conviction rate of those tried; and sentencing policy (both sentence lengths and the proportion of convicts who receive custodial sentences rather than community or home curfew orders). Adjustments to any one of these can significantly affect the number of people in prison at any one time.
To get a flavour of variations of sentencing policy, in the 1960s those convicted of causing death by dangerous driving would receive a fine of £250 and a couple of years' disqualification; now the maximum sentence is 14 years. Or consider the introduction, in 2003, of "indeterminate sentences for public protection," designed for violent or sexual offenders who are thought likely to reoffend. One such sentence was given to an 18 year old who was convicted of setting fire to two wheelie bins, and who told social workers he would do more of the same when released. Such sentences are now restricted to more serious crimes, but the aim is clear: to keep the most dangerous criminals in prison until they are no longer a threat. The numbers of those serving indeterminate sentences have grown rapidly; there are now around 3,000. A further 6,000 prisoners are serving life sentences, as against 3,000 in 1992.
In a 2006 consultation document entitled "Making Sentencing Clearer," the home office described recent government policy as an attempt "to rebalance the criminal justice system in favour of the law-abiding majority." A series of government decisions has led to longer sentences and a greater chance of a custodial sentence for the most serious crimes. The government's ability to determine sentencing is supposed to be limited: it is judges who hand down sentences in individual cases. But the judiciary works within strict sentencing guidelines, which the government is proving increasingly willing to set.
"Sentencing," the home office report says, "has become tougher, with offenders more likely to get a prison sentence for almost any offence and that sentence is likely to be longer. In the last ten years, the custody rate for indictable offences in the magistrates court has more than doubled, increasing from 7 per cent to around 15 per cent, while the average sentence has remained around three months. In the crown court, the custody rate has increased from 53 per cent to 61 per cent and sentence lengths have increased by some 6.6 months to reach an average of 27 months." Consequently, the government's own estimate is that 70 per cent of the increase in the prison population since 1995 has been the result of changes in the custody rate and sentence length. It seems that while in the 1960s to 1980s the rising prison population was caused by rising crime, another mechanism has now taken over. Most of the recent rise in the prison population is a direct consequence of a government policy to improve public protection by putting a higher proportion of offenders in prison, and for longer.
Lord Carter sets out a number of drivers of change of sentencing policy. Underlying them is the idea that there has been a change in public attitudes and in the general political climate. Carter draws on the British crime survey, which assesses attitudes as well as the experience of crime. Since 1995, alongside the fall in crime, there has been a fall in worry about crime, even violent crime. Yet despite this, a significant number of people believe that crime is rising, with a third thinking that "there is a lot more crime than two years ago" (although, interestingly, only half that number think that crime has risen significantly in the area in which they live).
So we find ourselves in a position well described in a recent report from Ipsos Mori entitled "Closing the Gaps: Crime and Public Perceptions." Sentencing is being "rebalanced" to address the false belief of a big minority that crime is rising. It may, of course, be hard to communicate to the public that crime is falling, especially in a climate of intense media interest in a small number of high-profile cases, which creates the impression that serious crime is all around. So the government is in a difficult position. Knowing that attempts to improve public perceptions are unlikely to succeed, should it nevertheless restrict itself to action based on evidence and risk being voted out of office, or should it pander to the public's false perceptions by bringing in ever more draconian sentencing guidelines? Here we run up against one of the most stubborn problems of democracy: how should a government respond if the people's judgements are based on false beliefs that cannot be corrected? (One response, which the government is considering, is to establish a sentencing commission—by handing more power to independent experts, governments might feel better protected from the pressure of public opinion.)
Still, if the rising prison population seems to be mainly the product of sentencing policy and practice, what about falling crime? Is it possible that the two are connected—in other words, that crime is falling because sentencing is more severe and an increasing number of repeat offenders are being locked away for longer? This conclusion is anathema to liberals, and they can certainly point to a lack of any conclusive evidence for the connection. And there are plenty of other explanations for falling crime: technology has made car crime and burglary harder; an ageing population can be expected to commit fewer crimes; the economy has been in a healthy state. Which of the factors best explains the trend? In particular, how can we assess the thesis that making punishment more severe has reduced crime?
When we political philosophers teach our students about the justification of punishment, we tell them that there are four main theories: deterrence, rehabilitation, retribution and public protection. Society sends people to prison to deter others from the same act; to turn criminals into better citizens; as an act of pure punishment; or to take criminals off the street. If imprisoning individuals is to affect the future crime rate, then at least one of the deterrence, rehabilitation and "off the street" arguments would have to be effective, since the retribution argument is entirely backward-looking. Rehabilitation is also a poor candidate, because only a few of those who break the law find themselves in prison, and so rehabilitation, even if effective, could only have a marginal effect on future crime rates.
Public protection, by taking criminals off the streets, is, as we noted, likely to have some effect on crime, unless all it does is create new openings for opportunistic criminal entrepreneurs, as some models predict. Yet while extra prisoners are going to jail in their thousands, criminal offences seem to be falling in their millions. Keeping the criminals we catch off the streets might lead to a dent in crime figures—perhaps a large dent if a few exceptionally prolific criminals are caught—but is unlikely to explain the very significant decreases we have seen.
More promising is the argument from deterrence, which suggests that a society should set its sentencing policy so that breaking the law just isn't worth the risk of detection and punishment. Could it be that the harsher regime has had a significant deterrent effect? On the face of it, this seems a plausible hypothesis. But we need to keep in mind that if a sentencing policy is put in place to modify future behaviour, then it assumes an understanding of the springs and wheels of human motivation. Roughly, deterrence theory presupposes a rational choice model of behaviour, and in particular that if an action brings with it some probability of cost, then the higher the cost and the greater its probability, the less attractive that action will be. If I am thinking of stealing your car, my likelihood of doing so will correlate negatively with what I think are my chances of being detected, and the sentence I will receive on conviction. The fundamental assumption of deterrence theory—and only deterrence theory can provide a robust link between sentencing policy and crime rates in Britain—is that would-be criminals consciously or unconsciously carry out a cost benefit-analysis of their intended criminal action, and refrain from action if the potential costs or risks are too high. It is a simple, even obvious theory. But is it true? It is, after all, both a philosophical theory of motivation and an empirical claim that can be tested.
To start at the theoretical end, it may help to remind ourselves of a distinction made by the legal philosopher HLA Hart in his masterpiece The Concept of Law. Hart argued that we need to distinguish two different attitudes people can have to the law: "internal" and "external." The internal attitude is held by those who identify with the laws of the land, and think of them as "my own." To have the internal attitude is to see the law as an absolute constraint on one's actions. Those who have it do not weigh up whether or not to obey the law, and decide that the benefits of obedience outweigh the benefits of breaking it. They simply do not contemplate courses of action that involve a breach of the law. By contrast, to have the external attitude is to see the law as attaching costs, or at least risks, to desired actions, and the higher the risks the more likely one is to obey the law. This is, it seems, the economic cost-benefit analysis. Perhaps part of our nostalgia for the past is based on the thought that in the good old days, many more people would have had the internal attitude, but that the cynicism of the current age has caused a significant proportion of the population to lose their implicit reverence for the law and to start playing the odds of not being found out.
We need, though, to add some further categories to Hart's pair. A third attitude is neither internal or external but chaotic—what we might call "disconnected." Disconnected crimes are crimes of passion; they are prompted by impulse, or anger, or pride, without much, if any, thought to the consequences. Many murders and other serious assaults are of this nature. The final criminal attitude is that of the "anti-authoritarian," who takes positive pleasure or satisfaction in breaking the law.
It may be that no individual fits purely into one of these categories. A successful middle-aged businessman might take the internal attitude to private property law: it just never crosses his mind to shoplift. At the same time, he might take the external attitude to various aspects of tax and business law, and will cheat if the chance of detection is very low. No doubt his attitudes to some laws have changed. Perhaps he once took the external attitude to drinking and driving, but now, as a result of government campaigns, wouldn't dream of driving under the influence. Yet perhaps he also loses control from time to time at home, and has been known to threaten his wife. Finally, maybe he smokes the odd joint, taking pleasure in reminding himself of his more bohemian youth and partly in protest at what he thinks are overly intrusive drug laws.
I won't speculate about how many people will recognise something of this in themselves, but we do need to consider one objection to the idea of the internal attitude: that it is really the external attitude in disguise. Consider a pillar of the community who is caught shoplifting. The scandal and the reputational damage would be immense. In the most extreme cases, it could lead to bankruptcy and divorce. The cost, therefore, is not simply the cost of a fine or prison sentence, multiplied by its probability, but the cost of a criminal record, reported in the local newspaper and made known to family, friends and acquaintances. For those who consider themselves respectable, the cost of a criminal record is so overwhelming that no benefit to be obtained by shoplifting could possibly outweigh it. Therefore, the reason why the cost-benefit analysis is not carried out—that theft is not considered—need not be that the person strongly identifies with the law, but that he or she knows in advance how the calculation will turn out, so it is not even worth bothering with.
Let us, then, distinguish the "pure internal attitude" from the "impure internal attitude." We are now in a position to consider the circumstances under which increasing sentencing and improving detection rates will deter crime. People with the pure internal attitude—if there are any—are not going to break the law in any case, so we can leave them to one side. Equally, a minor change to sentencing policy is not going to much affect those with the impure internal attitude, because reputational damage is done as soon as an alleged crime becomes public knowledge.
Next, consider those with the "disconnected attitude." As it is more or less axiomatic that changing sentencing policy will not affect the incidence of crimes of passion, we can move on to the "counter-authoritarian" attitude, where matters are complex. If some people break the law because they enjoy doing so, what effect would an increase in the sentence have? Possibly it could increase the thrill; or it could make it too risky. Cases differ and it is hard to generalise.
This leaves us just with those who have the external attitude, who could indeed be deterred by changing sentencing policy: the assumption, after all, of deterrence theory is that we all have the external attitude. Yet even here matters are complex. If theft is punished more severely, perhaps now is the time to change to fraud. Policymakers always have to consider that attempts to modify people's behaviour may do so in unexpected ways.
But the general lesson is that if the government wants to reduce crime by increasing sentences and the chances of conviction, it had better make sure that a significant number of potential criminals conform to the rational choice model of human action, modifying their behaviour in the light of incentives and disincentives. This may be true of career criminals, white-collar fraudsters and the like. But how often is it true of drug-addled burglars, teenage vandals and Friday night drunks? Indeed, it is worth reflecting on one of the most robust crime statistics: there are far more offenders among men in their teens and early twenties than in any other group. In other words, people grow out of crime. Why should that be? In the context of this discussion, we can make a plausible conjecture: as one gets older, one is more likely to adopt the internal attitude, if not in its pure form then in its impure form, where the costs of a criminal record are too high to risk. There comes a time when many people have too much to lose, and no longer have to do an individual calculation of each crime to know that it does not pay.
These speculations can be partially confirmed and partially corrected by a study carried out for the home office by the University of Cambridge in 1999. The researchers surveyed a large range of international research on "marginal deterrence": whether changes in detection and sentencing have an effect on crime. In its summary, the report declares that there is convincing evidence that, in some circumstances, deterrence works. However, the more detailed picture is a complex one. Three findings stand out. First, it appears that if potential offenders believe that they are more likely to be detected on committing a crime, then they are less likely to do so. This result applies across the board, including, surprisingly enough, to crimes of passion. Perhaps those who know that they cannot control their passions can, at least, engage in a bit of personal cognitive behavioural therapy, and avoid situations where their passions might become inflamed. The second finding is more surprising: the researchers were not convinced that any of the studies they surveyed show that lengthening sentences had any significant marginal deterrent effects. Presumably, few would-be criminals mug up on the latest sentencing guidelines before picking up their swag bags and setting off. Finally, the survey indicates that the more extensive a person's social network—job, family, friends—the less likely he or she is to commit a crime.
These are important findings for policy. Increasing the possibility of detection seems much more important for deterrence than the length of sentence. More police on the streets and CCTV, therefore, could matter much more than anything handed down by the judges. This supports the view that one of the key causes of the falling crime rate is very obvious: with increasingly sophisticated security and surveillance technologies, crimes are not only getting harder to commit, but are becoming harder to get away with.
But just as importantly, the study reinforces the point that what matters to individuals most is the impact a criminal record will have on other aspects of their lives. Small changes to punishment will barely make a difference. Consequently, there is support for something the bishops have been saying for years: the best way to reduce crime is to "give everyone a stake in society." Those with a decent job, a supportive family and a flourishing social life are less likely to risk it all. And to add another banality: the justice gap is better closed by reducing the motivation to offend, rather than by putting more offenders in jail for longer. But if we can't do that, then second best, at least from the point of view of reducing crime, is to put our efforts and resources into surveillance and detection, rather than building the prisons to keep up with longer sentences.
Discuss this article at First Drafts, Prospect's blog
