Abolition and Crime Control - Willem De Haan

Abolition and Crime Control


by Willem De Haan


An abolitionist perspective on crime control might seem like a contradiction in terms not unlike a peace research approach to waging a war. Abolitionism is based on the moral conviction that social life should not and, in tact, cannot he regulated effectively by criminal law and that, therefore, the role of the criminal justice system should be drastically reduced while other ways of dealing with problematic situations, behaviours and events are being developed and put into practice. Abolitionists regard crime primarily as the result of the social order and are convinced that punishment is not the appropriate reaction. Instead a minimum of coercion and interference with the personal lives of those involved and a maximum amount of care and sci vice for all members of society is advocated.

The term 'abolitionism' stands for a social movement, a theoretical perspective and a political strategy. As a social movement committed to the abolition of the prison or even the entire penal system, abolitionism originated in campaigns for prisoners' rights and penal reform. Subsequently, it developed into a critical theory and praxis concerning crime, punishment and penal reform. As a theoretical perspective, abolitionism takes on the two-fold task of providing a radical critique of the criminal justice system while showing that there are other, more rational ways of dealing with crime. As a political strategy, abolitionism is based on an analysis of penal reform and restricted to negative reforms, such as abolishing parts of the prison system, rather than providing concrete alternatives.

The abolitionist perspective will be discussed along the lines of this distinction. 1irt. we will deal with abolitionism as a penal reform movement, then as a theoretical perspective on crime and punishment and, more specifically, the prison. et. a conceptualisation of the notions of crime and punishment will be offered in the form of the concept of redress. At the same time, strategies for penal reform will be examined. Finally, the implications of the abolitionist perspective for crime control will be discussed. In conclusion, it will be argued that what is needed is a wide variety of social responses rather than a uniform state reaction to the problem of crime. In policy terms it is claimed that social policy instead of crime policy is needed in dealing with the social problems and conflicts that are currently singled out as the problem of crime.

ABOLITIONISM AS A SOCIAL MOVEMENT

Abolitionism emerged as an anti-prison movement when, at the end of the 1960s, a destructuring impulse took hold of thinking about the social control of deviance and crime among other areas (Cohen, 1985). In Western Europe, anti-prison groups aiming at prison abolition were founded in Sweden and Denmark (1967) Finland and Norway (I968), (Great Britain (1970), France (1970), and the Netherlands (1971). Their main objective was to soften the suffering which society inflicts on its prisoners. This implied a change in general thinking concerning punishment, humanization of the various forms of imprisonment in the short run and, m the long rim, the replacement of the prison system by more adequate and up-to-date measures of crime control.

It has been suggested that abolitionism typically emerged in small countries or countries with little crime and 'would never have been "invented" in a count r like the United States of America with its enormous crime rate, violence, ami criminal justice apparatus' (Scheerer, 1986: 18). However, in Canada and the United States family members of (ex-)convicts, church groups and individuals were also engaged in prisoners' support work and actively struggling for prison reform. More specifically, these prison abolitionists in the United States considered their struggle for abolition of prisons to be a historical mission, a continuation and fulfilment of the struggle against slavery waged by their forebears. Imprisonment is seen as a form of blasphemy, as morally objectionable and indefensible and, therefore, to be abolished (Morris, 1976: II). To this aim, a long-term strategy in the form of a three-step 'attrition model' is proposed, consisting of a total tree/e on the planning and building of prisons, excarceration of certain categories of lawbreakers by diverting them from the prison system and decarceration, or the release of as many inmates as possible.

Originating in prison reform movements in the 1960s and 1970s in both Western Europe and North America, abolitionism developed as a new paradigm in (critical) criminology and as an alternative approach to crime control. As academic involvement increased and abolitionism became a theoretical perspective, its focus widened from the prison system to the penal system, thereby engaging in critical analyses of penal discourse and, in particular, the concepts of crime and punishment, penal practices, and the penal or criminal justice system.
ABOLITIONISM AS A THEORETICAL PERSPECTIVE

As a theoretical perspective abolitionism has a negative and a positive sale. Negatively, abolitionism is deeply rooted in a criticism of the criminal justice system and its 'prison solution' to the problem of crime. Positively, on the basis of this criticism an alternative approach to crime and punishment is offered both in theory and in practice. Thus, the abolitionist approach is essentially reflexive and (de)constructivist. We will first take a look at the negative side of abolitionism which will be followed by a brief expose of its positive side.

From the abolitionist point of view, the criminal justice system's claim to protect people from being victimized by preventing and controlling crime, seems grossly exaggerated. Moreover, the notion of controlling crime by penal intervention is ethically problematic as people are used for the purpose of 'deterrence', by demonstrating power and domination. Punishment is seen as a self-reproducing form of violence. The penal practice of blaming people for their supposed intentions (for being bad and then punishing and degrading them accordingly) is dangerous because the social conditions for recidivism are thus reproduced. Morally degrading and segregating people is especially risky when the logic of exclusion is reinforced along the lines of differences in sex, race, class, culture or religion.

For the abolitionist, current crime policies are irrational in their assumptions that: crime is caused by individuals who for some reason go wrong; that crime is a problem for the state and its criminal justice system to control; and that criminal law and punishment or treatment of individual wrongdoers are appropriate means of crime control (Steinert, 1986). Crime control is based on the fallacy of taking pars pro toto or, as Wilkins (I984) has put it, crime control policy is typically made by reference to the dramatic incident, thereby assuming that all that is necessary is to get the micro-model right in order for the macro-model to follow without further ado. According to Wilkins, we must consider nor only the specific criminal act but also the environment in which it is embedded. It could be added that the same argument holds for punishment and, more specifically, for imprisonment as an alleged solution to the problem of crime.

ABOLITIONISM ABOUT PRISON

For abolitionists, the United States is a prime example of a country suffering from the consequences of a punitive obsession. In the course of a 'get tough' policy of crime control, increasing numbers of people are being sent to prison for longer periods of time. As a result, the prison population in the United States has increased dramatically from roughly 350,000 in the 1970s to 850,000 at the end of the 1980s. Almost 80 per cent of the recent increase in prison admissions is accounted for by drugs offenders. By September 1988 about 44 per cent of all federal prisoners were incarcerated for drug law violations. According to the 1989 National Council of Crime and Delinquency Prison Population Forecast the impact of the 'war on drugs' will be yet another increase of the prison population 1989-1994 by over 68 per cent to a total of 1,1 53,000 prisoners among whom people of colour will remain strongly over-represented. With an incarceration rate of 440 prisoners per 100,000 population, the United States will more than consolidate its top rank position in the world. Even with its incarceration rate increasing from about 30 in 1980 to about 50 'n the mid-1990s, the Netherlands will remain at the bottom end of the scale. At the same time, the crime problem in the Netherlands can hardly be considered worse than in the United States.

As in the United States, 'street crime' is also considered a major social problem in the Netherlands. In fact, the first International Crime Survey (van Dijk et al., 1990) showed that overall victimization rates 1983-1988 in the United States and the Netherlands were higher than in any other country in the survey. However, there were considerable differences both in the seriousness of the crime problem and the effectiveness of its control. Whereas overall victimisation rates in the Netherlands and the United States were similarly high, in the Dutch case this was strongly influenced by the extraordinarily high prevalence of bicycle theft, whereas victimisation rates for homicide, robbery and (sexual) assault were particularly high in the United States.

If anything, this proves that the relationship between crime and crime control by imprisonment is much more complex than proponents of the prison solution seem to assume. In terms of protection the 'get tough' approach to crime control has little to offer, and the 'war on drugs' can never be won but has serious repercussions.

Taken together, the prison system is counter-productive, difficult to control, and itself a major social problem. Therefore, abolitionists have given up entirely on the idea that the criminal justice system has anything to offer m terms of protection. They are also pessimistic about the criminal law's potential for conflict resolution. It is felt that the present penal system is making things worse, not better.

In the course of the 'war against drugs' which is currently being waged in the United States and many other countries around the world, the use ol ethically problematic techniques for apprehending suspects is being condoned if not required. As a result various forms of organisational complicity undermine the already waning legitimacy of the criminal justice system even further. According to Roshier (1989), the 'war against drugs' must be seen as a forced attempt to reach efficiency in the held of law enforcement or, at least, the appearance of it by using purely technical or even military means of surveillance and policing. It is the criminal justice system that defines, selects, documents and disposes of crime. As a result, legal definitions of suspicion, criminal offence etc., are being stretched. Thus, the criminal justice system itself increasingly specifies both the nature of the crime problem and what is to be done about it (Roshier, I989: I28).

Thus, the criminal justice system is part of the crime problem rather than its solution. Not only does it tail to work in terms of its own stated goals and not only are the negative consequences of the infliction of suffering by the state threatening to get out of hand but, more importantly, it is based on a fundamentally flawed way of understanding. Therefore, there is no point in trying to make the criminal justice system more effective or more just. The abolitionist critique of the criminal justice system and its approach to crime control may be summarised by saying that it this is the solution, what is the problem? Or, put differently, crime as a social problem and object of social analysis needs to be rethought.
 
ABOLITIONISM ABOUT 'CRIME'

The current approach to crime control, the definition of crime and the justification of punishment is 'systemic', that is, based on an instrumentalist point of view and confined within the limits of the criminal justice system. From an abolitionist point of view, these issues require a fundamental reconceptualization in a broader social context. This is where the alternative, positive side of abolitionism starts from. Abolitionists argue that there is no such thing as 'crime'. In fact, 'the very form of criminal law, with its conception of "crime" (not just the contents of what is at a given time and place defined into that category, but the category itself) and the ideas on what is to be done about it, are historical "inventions'" (Steinert, ll'S6: 26).

'Crime' is a social construction, to be analysed as a myth of everyday life (Hess, 1986). As a myth, crime serves to maintain political power relations and lends legitimacy to the expansion of the crime control apparatus and the intensification of surveillance and control. It justifies inequality and relative deprivation. Public attention is distracted from more serious problems and injustices. Thus, the bigger the social problems are, the greater the need for the crime myth (Hess, 1986: 24-5).

However, not only should the concept of crime be discarded (Hulsman, 1986), but we need to get rid of the theories of crime as well. As Quensel (1987) has pointed out, theories about 'crime' acquire their plausibility largely by virtue of their building on and, at the same time, reinforcing an already-present 'deep structure'. One element of this 'deep structure' is the notion that 'crime' is inherently dangerous and wicked; another is that crime control is a 'value-inspired' call for action against that evil (p. 129).

Abolitionists argue that the crucial problem is not explaining but rather understanding crime as a social event. Thus, what we need is not a better theory of crime, hut a more powerful critique of crime. This is not to deny that there are all sorts of unfortunate events, more or less serious troubles or conflicts which can result in suffering, harm, or damage to a greater or lesser degree. These troubles are to he taken seriously, of course, but not as 'crimes' and, in any case, they should not be dealt with by means of criminal law. When we fully appreciate the complexity of a 'crime' as a socially constructed phenomenon any simplified reaction to crime in the form of punishment becomes problematic.

Spector (1981) has argued that when a person offends, disturbs, or injures other people, various forms of social disapproval exist to remedy the situation. The matter may be treated as a disease, a sin, or, indeed, as a crime. However, other responses are also feasible, like considering the case as a private conflict between the offender and the victim or defining the situation in an administrative way and responding, for example by denial of a licence, permit, benefit or compensation. Our images, language, categories, knowledge, beliefs and fears of troublemakers are subject to constant changes. Nevertheless, crime continues to occupy a central place in our thinking about troublesome people ( I ^S I: I S4). Spector suggests that, perhaps, 'we pay too much attention to crime because the disciplines that study trouble and disapprove - sociology and criminology - were born precisely in the era when crime was at its zenith? (Quenscl, 1987; Spector, 1981).

The concept of 'crime' figures prominently in common sense and has definite effects on it. By focusing public attention on a definite class of events, these 'crimes' can then be almost automatically seen as meriting punitive control. 'Punishment' is thereby regarded as the obvious and proper reaction to 'crime'.

ABOLITIONISM ABOUT PUNISHMENT

Abolitionists do not share the current belief in the criminal law's capacity for crime control. They radically deny the utility of punishment and claim that there can be no valid justification for it, particularly since other options are available for law enforcement. They discard criminal justice as an absurd idea. It is ridiculous to claim that one pain can or, indeed, ought to be compensated by another state-inflicted one. According to them, the 'prison solution' affects the moral quality of life in society at large. Therefore, the criminal justice perspective needs to be replaced by an orientation towards all avoidance of harm and pain (Steinert, 1986: 25). Christie (1982), particularly, has attacked the traditional justifications for punishment. He criticizes deterrence theory for its sloppy definitions of concepts, its immunity to challenge, and for the fact that it gives the routine process of punishment a false legitimacy in an epoch where the infliction of pain might otherwise have appeared problematic. The neo-classicism of the justice model is also criticized: punishment is justified and objectified, the criminal is blamed, the victim is ignored, a broad conception of justice is lacking, and a 'hidden message' is transmitted which denies legitimacy to a whole series of alternatives which should, in fact, be taken into consideration. However, Christie not only criticizes the 'supposed justifications' for punishment, but also claims a decidedly moral position with regard to punishment, which is the intentional infliction of pain which he calls 'moral rigorism'. He deliberately co-opts the terms 'moralism' and 'rigorism' associated primarily with protagonists of 'law and order' and more severe penal sanctions. His 'rigorist' position, however, is that there is no reason to believe that the recent level of pain infliction is the right or natural one and that there is no other defensible position than to strive for a reduction of man-inflicted pain on earth. Since punishment is defined as pain, limiting pain means an automatic reduction of punishment.

More recently, Christie and Mathiesen have both suggested that the expansion of the prison system involves general ethical and political questions such as what could be the effects of all the punishments taken together? What would constitute an acceptable level of punishment in society? What would be the right prison population within a country? 1 low should we treat fellow human beings? And. last but not least, how do we want to meet the crime problem (Christie, 1986; Mathiesen, 1986)?

However, in common-sense and legal discourse alike, 'crime' and 'punishment' continue to be seen 'as independent species - without reference to their sameness or how continuity of both depends on the character ot dominating institutions' (Kennedy, 1974: 107). It should be kept in mind, however, that crime comprises but one of several kinds of all norm violations, that punishment is but one of many kinds of reprisals against such violations, that criteria for separating them refer to phenomena external to actual behaviours classed by legal procedure as crime versus punishment, and that even within the criminal law itself, the criteria by which crime is identified procedural!)- apply with equal validity to punishment (Kennedy. I974: 108).

Criminology needs to rid itself of those theories of punishment which assume there are universal qualities in forms of punishment or assume a straightforward connection between crime and punishment. Given the perseverance of this conventional notion of 'punishment' as essentially a 'good' against an 'evil', any effort at changing common-sense notions of 'crime' and 'crime control' requires a reconceptualization of both concepts: 'crime' and 'punishment'.
 
REDRESS

We need to concern ourselves with the interrelationship and combined effects of crime and punishment. Crime and punishment are closely related with 'social negativity' (Baratta, 1986), destructive developments within contemporary society, in particular, as they affect its already most vulnerable members. In order to formulate a convincing politics of penal reform, crime and punishment should not be seen as action and reaction, but as spiralling cycles of harm (Pepinsky, 1986).

Elsewhere, I have introduced the concept of 'redress' as an alternative to both the concepts of 'punishment' and 'crime' (de Haan, 1990). This seemingly 'obsolete' concept carries an elaborate set of different meanings. The Concise Oxford Dictionary offers a wide variety of meanings for 'redress': for instance, to put right or in good order again, to remedy or remove trouble of any kind, to set right, repair, rectify something suffered or complained of like a wrong, to correct, amend, reform or do away with a bad or faulty state of things, to repair an action, to atone a misdeed or offence, to save, deliver from misery, to restore or bring back a person to a proper state, to happiness or prosperity, to the right course, to set a person right by obtaining or (more rarely) giving satisfaction or compensation for the wrong or loss sustained, teaching, instructing and redressing the erroneous by reason (Sixth Edition. 1976: 937).

To claim redress is merely to assert that an undesirable event has taken place and that something needs to be done about it. It carries no implications concerning what sort of reaction would be appropriate; nor does it define reflexively the nature of the initial event. Since claiming redress invites an open discussion about how an unfortunate event should be viewed and what the appropriate response ought to be, it can be viewed as a rational response par excellence. It puts forth the claim for a procedure rather than for a specific result. Punitive claims already implied in defining an event as a 'crime' are opened up to rational debate. Thus, to advocate 'redress' is to call for 'real dialogue' (Christie, 1982). Christie has suggested that social systems be constructed in ways that 'crimes' are more easily seen as expressions of conflicting interests, therein- becoming a starting-point for a 'real dialogue' (1982: 11).

The conceptual innovation suggested here offers a perspective for a politics of redress, aimed at the construction and implementation of procedures along the lines of an ethic of practical discourse. As we have seen, the handling of normative conflicts by rational discourse presupposes other procedures than the present criminal ones. In order to increase chances for participation for those involved, procedures based on the rules and preconditions of rational discourse would, therefore, need to be established outside the realm of criminal law; that is in civil law or even in the life world itself. Instead of the panacea which the criminal justice system pretends to provide for problems of crime control, abolitionism seeks to remedy social problems, conflicts, or troubles within the context of the real world, taking seriously the experiences of those directly involved and taking into account too the diversity which is inherent [in] the social world. The aim of a politics of redress would be to 'arrange it so that the conflict settling mechanisms themselves, through their organization reflect the type of society we should like to see reflected and help this type of society come into being' (Christie, 1982: 1 13). Social problems °r conflicts might be absorbed in order to use them as valuable aids to the social integration of real life and the prevention of social harm.

Abolitionism assumes that social problems or conflicts are unavoidable as they are inherent to social life as such. Therefore, they will have to be dealt with in one way or another. Rather than delegating them to professional specialists, however, they should be dealt with under conditions of mutuality and solidarity. These very conditions will have to be created by social and political action.

The urgent question that remains, of course, is how this might be done. To begin with, no single solution to the problem should be expected. Taking into account the diversity of relevant social phenomena requires the development of a wide variety of forms of social regulation which are not located in or defined by the state but operate (semi-)autonomously as alternative, progressive and emancipatory forms of dispute settlement and conflict resolution.

In reaction to the deeply felt dissatisfaction with the present penal system and, more generally, with the legal system, we see an increasing interest in 'autonomous' forms of conflict resolution and dispute settlement. Other "styles of social control' (Black, 1976: 4-5) are seen as attractive, promising to provide the parties involved with more chances for participation in settling a dispute or problem. The aim is compensation rather than retaliation; reconciliation rather than blame allocation. To this end, the criminal justice system needs to be decentralised and neighbourhood courts established as a complement or substitute.

The development of alternative procedures for conflict resolution and dispute settlement faces some rather ticklish questions which have proved intractable in current debates, questions concerning voluntarism versus determinism, 'accountability', 'responsibility' and 'guilt', that is, the moral evaluation of behaviour, the fair allocation of blame and the proper dissemination ot consequences. Emphasis on participatory processes of definition or the contcxtuality of conflicts may be welcome, but it can also lead to problematic outcomes. Among the wide variety of reactions the notion of redress entails there might be sanctions which need to be subjected to legal principles and restraints. For these reasons, legal form is still required to ensure fairness. Just as we need sociological imagination to ensure an open discussion, we need legal imagination to be able to put an end to potentially endless debates as well as allow (or the possibility of appeal.

However, by allowing for more complexity in the interpretation of social behaviour, social situations and events, the simplistic image' of human beings and their activities currently employed in criminal law and reproduced m criminal justice could be avoided. Through contcxtualisation, the dichotomised character of criminal justice (Christie, 1986: 96) could be replaced with a continuum. Participants would be urged to confront and grapple with complexities around notions of human 'agency', 'intentionahty', 'responsibility' and 'guilt' rather than reducing them to manageable proportions by applying the binary logic of criminal law. By dropping the simplistic dichotomies of the criminal law and allowing for differential meanings, justice might finally be done to the complexity of human actions and social events. Such a discourse would feature a concept of 'social responsibility' allowing for interpretations which primarily blame social systems rather than individuals (Christie, 1986: 97).
 
ABOLITIONISM AS A POLITICAL STRATEGY

Initially, a political strategy had been developed on the bases of the experiences of prison reform groups in their political struggle for penal and social reform. This 'politics of abolition' (Mathiesen, 1974, 1986) consistently refuses to offer 'positive alternatives or solutions. It restricts itself to advancing open-ended, 'unfinished?, 'negative' reforms, such as abolishing parts of the prison system. This requires that the}1 be conceptualized in terms alien to current criminal justice discourse.

More recently, positive alternatives to punishment are also being considered. Various proposals have been made by abolitionists and others to decentralize or even completely dismantle the present penal system in order to create forms of 'informal justice' as an addition to or replacement of the present criminal justice system.

Their implementation also raises many questions, however, concerning allegations about widening the net of social control and, at the same time, thinning the mesh, extending and blurring the boundaries between formal penal intervention and other, informal forms of social control, thereby masking the coercive character of alternative interventions (Abel, 1982: Cohen, 1985).

Fundamental reform of the penal system requires not only imaginative alternatives but, at the same time, a radical change in the power structure. Thus a 'politics of abolition' aims at a negative strategy for changing the politics of punishment by abolishing not only the criminal justice system but also the repressive capitalist system part by part or step by step (Mathiescn, 1986).

A fundamental reform of the penal system presupposes not only a radical change of the existing power structure hut also of the dominant culture. However, currently there is no appropriate social agency for any radical reform of the politics of punishment. There seems no immediate social basis upon which a progressive, let alone an abolitionist, strategy of crime control might be spontaneously constructed (Matthews, 1987: 389). Abolitionists tend to refer to the re-emergence of the subcultures of the new social movements with their own infrastructure of interaction and communication and their new ethics of solidarity, social responsibility, and care (Stcinert, I986: 28-9; see also Christie, 1982: 7.S-80). As Harris argues, the inadequacy of virtually all existing reform proposals lies in the failure to step outside the traditional and dominant ways of framing the issues. To explore alternative visions of justice we need to consider 'philosophies, paradigms, or models that transcend not only conventional criminological and political lines, hut also natural and cultural boundaries and other limiting habits of the mind' (Harris. 1987: 11). According to Harris a wide range of visions ot a better world and a better future offer a rich resource for a fundamental rethinking of our approach to crime and justice. The new social movements, in particular the women's movement, have pointed out fundamental weaknesses or biases in criminology's background assumptions, conceptual frameworks, methodology and tacit morality (Gelsthorpe and Morris, I990). However, the relationship between abolitionism and, for example, feminism is not without stress (van Swaaningen, 1989).

ABOLITIONISM ON CRIME CONTROL

Abolitionism argues for a structural approach to the prevention of 'social negativity', or redressing problematic situations by taking social problems, conflicts and troubles seriously but not as 'crime'. Therefore, abolitionism argues for social policy rather than crime control policy. Examples of this structural approach would be dealing vith drug problems in terms of mental health, with violence in terms of social Pathology, and with property crime in terms of economy.

Abolitionism calls for decriminalization, depcnalization, destigmatization, decentralization and deprofessionalization, as well as the establishment of other, informal, participatory, (semi-)autonomous ways of dealing with social problems.

Problematic events may just as well be defined as social troubles, problems or conflicts due to negligence or caused by 'accident' rather than by purpose or criminal intent. What is needed is a wide variety of possible responses without a priori assuming criminal intent and responsibility.

As we have seen, prison abolition, let alone penal abolition, requires an imaginative rethinking of possible ways of handling problematic situations as social problems, conflicts, troubles, accidents etc., as well as reconceptualizing punishment and developing new ways of managing 'deviance' on the basis of, at least partial, suspension of the logic of guilt and punishment. Without fixation on individual guilt, responsibility and punishment, 'crimes' would appear as 'conflicts', 'accidents' or 'problematic events' to be dealt with in a more reasonable and caring way by using forms of conflict management which are not exclusively geared towards individuals and confined to the limitations of criminal law in the books as well as in action (Steinert, 1986: 30). Therefore, abolitionists focus instead on extra-legal, autonomous ways for dealing with social problems and conflicts involving offences. The abolitionist challenge to abolish the present prison system now is to construct more participatory, popular or socialist forms of penality ((Garland and Young, 1983).

This way of looking at crime and crime control is, of course, controversial. The abolitionist perspective is sometimes critized for being naive and idealistic. In practice, however, the abolitionist approach turns out to be realistic in that social problems and conflicts are seen as inherent to social life. Since it is illusory that the criminal justice system can protect us effectively against such unfortunate events, it seems more reasonable to deal with troubles pragmatically rather than by approaching them in terms of guilt and punishment. Effectively to prevent and control unacceptable situations and behaviours requires a variety of social responses, one and only one of which is the criminal justice system. Its interventions are more of symbolic importance than ot practical value. With some social, technical and organizational imagination 'crime' could be coped with in ways much more caring for those immediately involved. A variety ot procedures could be established and institutionalized where social problems or conflicts, problematic events or behaviours could be dealt with through negotiation, mediation, arbitration, at intermediate levels. For dealing with the most common or garden varieties of crime, which is in any case the vast bulk ot all recorded criminality, criminal prosecutions are simply redundant.

Certainly for those who are most directly concerned there is little or no benefit. Also in such cases as state or corporate crime where a kill abolitionist agenda of dispute settlement - like the criminal justice approach - has profound limitations, it does make sense to look for more workable alternatives to the criminal justice system's mechanisms of apprehension, judgment and punishment. Most of these problems could be dealt with by means of economic, administrative, environmental, health or labour law, rather than by criminal law. Even in cases where a person has become an unacceptable burden to his or her relatives or community, imprisonment could be avoided. Agreements might be reached or orders might be given about temporary or permanent limitations in access to certain people, places or situations. The problems of the really bad and the really mad remain. In these relatively few cases and by way of last resort it might be unavoidable to deprive someone of their liberty, at least for the time being. This exceptional decision should be simply in order to incapacitate and be carried out in a humane way, that is as a morally problematic decision in a dilemma. However, even in these cases it would make sense to look for more just and humane alternatives based on mutual aid, good neighbourliness and real community rather than continue to rely on the solutions of bureaucracies, professionals and the centralized state. Criticism of the inhumanity and irrationality of the prison solution is as valid today as it was twenty or seventy years ago. Therefore, Cohen suggests that three interrelated strategies be followed: first, cultivating an experimental and inductive attitude to the actual historical record of alternatives, innovations and experiments; secondly, being sensitive, not just to failures, co-options and con-tricks, but to success stories - the criterion for success should be, and can be nothing other than, an approximation to preferred values; and thirdly, escaping the clutches of criminology (radical or realistic) by expanding the subject of social control way beyond the scope of the criminal justice system (for example, to systems of informal justice, Utopian communes and experiments in self-help) (Cohen, I 988: 131).

In countries with an elaborate welfare system like the Scandinavian countries or the Netherlands, these strategies may seem more reasonable given that their crime problem is less dramatic and, traditionally, their crime control policy is already more cautions. In the context of a relatively mild penal climate with a pragmatic and reductionist penal policy already being implemented, even penal abolition may seem realistic as a long-term goal. However, in those countries where prison populations are enormous and penal institutions are simply 'warehousing' people in order to incapacitate them from reoffendmg, prison abolition is more acute. When in the early 1970s several commissions and task forces concluded that the American prison system is beyond reform and, therefore, other ways of dealing with criminal offenders need to be developed, the prison population was about one-third of the current one. These criticisms hold true even more under the present conditions of overcrowding in the prisons. Prisons are places where a lot more harm is done than is necessary or legitimate. Moreover, these institutions contribute to a further brutal-ization of social conditions. Hven in the United States where average prison sentences are much longer than tor example in the Netherlands, 99 per cent of the prison population will sooner or later hit the streets again. Therefore, there is a definite need not only tor prison reform but also for penal reform. Current crime control policy boils down to doing more of the same. In the long run, however, the resulting spiral of harm needs to be reversed in a downward direction. This can only be achieved by doing more rather than less, albeit not more of the same but more of what generally might be called care.

Impressive detail but at its heart a failure to understand Prison: A critical review of the Zahid Mabarek Inquiry Report

By: John Moore - (July 2006)


Published on 29th June 2006 the Report of the Zahid Mabarek Inquiry is a weighty document that recounts in detail the prison history of Robert Stewart, Zahid's killer and the management and operation of Britain's Young Offender Institutes. Its 692 pages paint a detailed picture of the day to day reality of imprisonment both in terms of the vulnerable, powerless and damaged people we cage and the violent, lawless, and unproductive regimes they are subjected to. Racism, bullying, endless hours locked up doing nothing, managerial chaos, injustice, endemic self harm, incompetent medical services and much more is carefully documented. But this reality is no great revelation, generations of prisoners have recounted equally horrific accounts of their experiences and even the Governments own inspectorate regularly publish reports detailing one failed prison after another.
 

Over two hundred years ago the prison missionary John Howard visited prisons and was horrified at what he found. Like every subsequent prison reformer he believed that the abuses and failings he had discovered were the result of poor administration, staff deficiencies, inadequate policies and architectural defects. From Howard to today the grim and painful reality of prison life has not been seen as an intrinsic consequence of prison but as a defect susceptible to an easy fix. The Mubarek Report follows in this tradition with a long list of recommendations it confidently believes will resolve or mitigate the problems uncovered. This is a dangerous illusion. Feltham was no aberration - Imprisonment almost inevitably leads to abusive and violent regimes. That is the nature of prison. If we really want to stop further deaths we need to face this reality, stop trying to reform the unreformable and instead close Feltham and other prisons.
 
The violence of prison

Zahid Mubarek life ended violently in prison at the hands of another teenager, Robert Stewart. The report into his death seeks to address the problem of prisoner on prisoner violence. It seeks to do this without addressing wider issues of violence within prison.

Prisons exist to punish - they are meant to hurt. Although this pain is primarily intended to be mental rather than physical the very act of imprisoning someone involves deliberately inflicting violence on him or her. Prison reformers, academics and prison administrators tend to try and avoid this reality but those who have to endure prison understand that they are receiving pain and violence as an intended facet of their punishment. Power within prison, both official and unofficial, is based on the capacity to enforce through violence. For example regular strip searches in prisons humiliate and degrade. If resisted they are violently enforced. Earlier this year the Carlise Report on the treatment of children in prisons gave examples which included a 16 year old girl strip searched during her period who had her stained sanitary pad examined in front of her and then given back to her to reuse and a 15 year old boy having to part his buttocks and roll back his foreskin for inspection by prison officers.

In addition to institutional violence daily acts of individual violence occurs throughout the prison. As well as prisoner on prisoner violence, regular staff on prisoner violence occurs, as well as prisoner on staff violence and staff on staff violence. Much of the staff on prisoner violence and some of the staff on staff violence are legitimised by the system and are carried out quite openly. The Mubarek Inquiry team itself uncovered many examples of violence. They report that:

"three white members of staff handcuffed an ethnic minority prisoner on Raven to the bars of his cell, removed his trousers and smeared his bottom with black shoe polish"

Interestingly they add a footnote advising that despite the considerable embarrassment to the prison service and Home Office caused by this racist assault being discovered by the Inquiry the employees involved were not dismissed.

The Carlise Report identified that staff in Young Offender Institutions, and Secure Training Centres regularly used pain compliant techniques to impose discipline on children. These Home Office approved techniques were described in the report:

"using the thumb - fingers are used to bend the upper joint of the thumb forwards and down towards the palm of the hand;
using the ribs - involves the inward and upward motion of the knuckles into the back of the child exerting pressure on the lower rib: and
using the nose - staff use the outside of their hand in an upward motion on the septum."

Staff on staff violence is far more common in prisons than is generally acknowledged. Bullying of staff by colleagues is endemic and violence and humiliation an established ingredient of the training on new prison officers. Again despite not looking for this the inquiry stumbled across:

"two white trainee prison officers urinating on a black trainee during a training course"

This culture, particular during training, ensures that those who staff our prisons are aware of the centrality of violence in their day-to-day work. The Inquiries attempts to address violence between prisoners without recognising either the violence inherent within prison regimes or the daily acts of violence perpetrated by staff on prisoners are doomed to failure.
 
The Fantasy Prison

Over recent years a massive gap has emerged between the descriptions of prisons by prison reformers, the government, the media, academics and prison administrators and the daily reality of prison as experience by prisoners and front line prison staff. It is important to understand the difference between the "fantasy" prison and the real prison. The fantasy prison is well managed, focused on rehabilitating and educating prisoners, experiences no violence, respects prisoners rights and is characterised by the happy faces of prisoners and staff working together. It has a comprehensive set of policies, actively challenges racist behaviour of staff and prisoners, and produces law abiding ex-prisoners who have seen the error of their past criminality and are committed to living law abiding lives.

Of course no such prison exists except in the minds of civil servants, home office funded academics and prison reform charities. For them reports like those of the Carlise and Mubarek Inquiries by exposing the ordinary reality of prison challenge their imaginary world. The recommendations are important not because they will change the real prison but because by the prison service going through the motions of implementing a number of token 'improvements' it allows prison apologists to maintain their belief in their imaginary best friend - the fantasy prison.

The Mubarek Inquiry report demonstrates the gap between fantasy and reality by its treatment of whistle blowing. This is an important issue. The prison officer culture responsible for so much of the brutality experienced by prisoners (and to lesser extent junior staff) relies on a code of silence. New staff will, early in their career, witness violent assaults on prisoners by their colleagues. Do they ignore them, report them or join in? Reporting will result in the officer being rejected and ostracised by other prison staff. Their allegations may be "disproved" by other staff giving evidence that no assault took place. Their working life will be made hell. Most staff initially try to ignore their colleagues abuses but often this is resented and a situation will be engineered when the new staff member will drawn into an assault and peer pressure exerted. As soon as they succumb they are corrupted by the culture. It only takes a token kick and their colleagues know they are "one of us" and welcomed them into the fold. Those that enjoy the violence become active participants, those who don't try and avoid it but do nothing to stop it. All are contaminated.

The Mubarek Inquiry talks about whistle blowing in the context of policy. It refers to the 1998 Public Interest Disclosure Act and concludes on the basis of paper work:

"The Prison Service has responded to this important statutory initiative in a positive way."

However if the Inquiry had stepped outside the fantasy prison of policy and procedure manuals and had observed the employment Tribunal taking place in Leeds in November 2005 (whilst the Mubarek Inquiry was sitting) they would have found out that whistle blowing in the real prison did not only receive a violent reaction from other prison staff but an equal vicious and nasty response from the Senior Management of the Prison Service. At Wakefield Prison Carol Lingard had reported another Prison Officer for abusing Prisoners. Her complaints were dismissed by management and she was left at the hands of the bullies. The Tribunal was somewhat less impressed than the Murbarek Inquiry in the Prison Service's response to whistle blowing. It awarded Ms Lingard £477,000 damages, a massive award. Ms Lingard left the prison service, a colleague who gave evidence in support of her claim have been transferred to other prison where she faces potential victimisation, whilst the thugs remain, protected by the POA (Prison Officers Association), at Wakefield. The failure to refer to this case or other similar ones is a major and inexcusable deficiency in the Mubarek Report.
 
Reform doesn't work

Both the Mubarek and Carlise Inquiry reports show details of the violent and abusive reality of imprisonment for children and young people. The picture they portray is not new and similar revelations have been made through Inquiries and autobiographical accounts of prison. The response to these revelations is always a combination of horror - how could things be that bad - and urgent prison reforms "surely we can make things better?"

What is missing is a realisation of the obvious. If the deficiencies and abuses so carefully documented by the pious Prison Missionary John Howard are still occurring why do prison reformers still equally piously claim that the very solution "reform" which has a two hundred year history of failure - is the answer? Surely they must know that the reforms will fail and the abuses continue? John Howard could claim that there was insufficient history for him to have known the futility of his ideas. However that excuse is not available to contemporary prison apologists.

The Mubarek Inquiry Report continually touches on prison reform with no apparent awareness of the history of prisons or penal ideas. It suggests investigation the benefits of mixing older and younger prisoners in blissful ignorance that for decades their separation was advocated by reformers and academics not only essential but potentially as a cure for crime! The reports recommendations relating to the treatment of mentally disordered offenders are not dissimilar to the routine practices and policies in operation a hundred years ago. Like so many before them the Inquiry team time and time again ignore the fundamental nature of prison and suggest administrative and procedural solutions. Often their ideas have in fact been tried in the past and failed. Nothing it seems recycles as well as prison reform clichés.

Prison reformers have started to justify their faith by picking up specific examples of prisons that were far less abusive and violent than Feltham or other contemporary British Prisons. They are of course partly right. Prisons do vary and some can claim to have had regimes that were decent. Maconochie transformed Norfolk Island in the middle of the nineteenth century from a punitive hell into a relatively civilised community. The Special Unit at Barlinne Prison was as Jimmy Boyle's account of it illustrates a serious attempt to deliver a just, constructive and non-abusive regime. Moczydlowski certainly transformed Poland's Prisons between 1981 and 1996. Many of the early open borstals provided decent and constructive regimes.

However equally important to the positive aspects of these and similar examples is that they all proved to be unsustainable. All four saw the positive aspects of their regimes eroded over time and ultimately a return to the brutal and abusive normality of prison. Short-term reforms are possible but in the long term reform simply doesn't work. Those who campaign for it can only do so by ignoring history. They are deceiving both themselves and others. Why?
 
Race Culture and Faith

The fact that the criminal justice system and all its institutions are racist to the core should be beyond debate. Black, Asian, Irish and other ethnic minority prisoners have through their direct experience testified to this reality. The Mubarek report, despite providing direct evidence of racism displays little understanding of either the nature of racism or its role within prisons. The report seems to suggest that racism has somehow crept into prisons, that it is an aberration that requires an administrative response, a modicum of management commitment and the prison will return to its natural "equal opportunities" status. The Inquiry team admitting they did not have the resources "to determine whether the scourge of institutional racism has now been eradicated from the Prison Service" sums up this naivety. As if!

Keith particularly struggles when having to evaluate the experience of Muslim prisoners. The response of both the state and society to the events of 9/11 and the subsequent moral panics and war on terror have had dramatic impacts on the lives of Muslims living in Britain. Those caged in our prisons have been the most vulnerable. They are isolated, outside the protection of the law, exposed to violence, and defenceless. The report suggests that the experience of Muslim prisoners may be linked to "Islamaphobia in society" and this requires the extension of the Lawrence Inquiries definition of institutional racisms to be broadened to include religious intolerance. Keith however makes clear that this recommendation should not be taken as "suggesting in any way that the Prison Service should be regarded as institutionally infected with religious intolerance". The Report's failure to cast any light on the daily abuse, violence, victimization and brutality experienced by many Muslim prisoners is deeply worrying.

Racism is ingrained in prisons and the people who work in them. Any meaningful attempt to introduce anti racist practice or policies into prisons would cause a backlash from those who work in prison that would make them unmanageable. A modest observation by the Chief Inspector of Prisons that Prison Officers should not wear St George pins saw a vicious media response against "political correctness" despite the reality that every prisoner knew that those who wear them are not only racists but also normally paid up members of fascist political parties.

Going beyond the Mubarek Report.

Those of us who understand that prisons are fundamentally flawed institutions and beyond reform need to be cautious in our welcoming of reports like the Murbarek Inquiry. Whilst we should welcome any light that is thrown on the abusive and violent reality of prison we need to be clear that these reports are also an attempt to legitimise the very institutions that generate the abuses they investigate. This legitimisation must be exposed and resisted

However sensational the revelation of this reports we must stress that they are in fact boringly normal. The racism, violence and abuse is not some aberration, it is the normal reality of prisons. It is not a malfunction requiring reform it is prison. Reform offers the illusion that the racism, violence, pain and abuse can be removed from the prison. It seeks to legitimise prison by offering the possibility, at some unspecified future point that prison will shed these embarrassing characteristics. These are however intrinsic to prison and as history has repeatedly taught us the reforms will fail.

The Mubarek Report is at its heart an exercise in legitimising the institution of the prison. Yes it does confirm the brutal reality of prison that former prisoners have consistently reported. But it perverts this truth seeking to portray it as evidence of institutional malfunctioning rather than the more damming truth that this is simply prison. This deception is necessary to allow the Report to offer up the possibility that these defects are resolvable by implementation of a list of recommendations. This is also a deception. This second deception ensures that the reality exposed in the report doesn't lead to the questioning of the legitimisation of prison. The problems exposed we are urged to be believed can be resolved without us having to consider the possibility of not caging either Zahid Muberak or Robert Stewart.  That is an agenda that Prison Reformers, Home Office Funded Academics and, Prison Administrators are happy to co-operate with. But it will not fundamentally change the racist, abusive and violent institutions that are British Prisons. To achieve that change requires the closure of Feltham and all other Prisons.