The current pandemic and overcrowded jails form a dangerous cocktail. In addition to insalubrious detention conditions, they present a real challenge in terms of sanitary risks. The first responses aimed to ensure better social distancing to limit the spread of the disease. However, they posed certain issues in regards to human rights protection. [1]

Therefore, several countries opted for a drastic reduction of the number of inmates, which could not have occurred without loud reactions from civil society, shouting claims of justice and safety. In France, for instance, where occupation rates in jail can reach 200%, the liberation all at once of 8,000 inmates who had almost completed their sentence was not sufficient to ensure optimal health and safety conditions. The prospect of also releasing defendants who were awaiting trial launched a heated nation-wide discussion on who deserves liberty. [2]

In Italy, prisons are equally overpopulated. The ban on family visits and the poor handling in front of the high contagion risk led to prison riots that resulted in the death of 14 detainees and 72 escapes. Despite a huge and successful manhunt, the simple fact that dangerous mafiosi had escaped, already inflamed public debate. Adding fuel to the fire, the question of the intentional release of mafia bosses based on the need for medical care provoked a national scandal. [3]

These dilemmas raise a fundamental question: why do we feel the need to lock up criminals in detention facilities in the first place?

By Fabiana Natale

Those two cases reflect a certain understanding of safety and justice in our societies, which irremediably pairs with incarceration. But where does this conception come from and why do we feel the need to put criminals in jail? Usually, four factors are to be taken into consideration by the judge: retribution for wrongdoing, rehabilitation, community safety, and deterrence. [4]

However, crime punishment would be less necessary if crime itself could be prevented.

CRIME PREVENTION AS A KEY STARTER

Indeed, much can be done in order to prevent, or at least reduce, crime.

First, one should consider the huge expenditure represented by detention facilities. Even just economic considerations would be a strong argument for more prevention activities. Indeed cost-benefit calculations of criminal justice policies show that investments for education or police are incredibly more effective than those for incarceration: as such, the return on investment for education reaches 100% and 83% for the police, against only 29% for detention facilities. [5]

Nevertheless, public safety should remain the first concern. In that regard, adopting a public health approach to violence could contribute to significant reductions in crime. Some key elements would be more investments in education, increased access to healthcare, improved neighbourhood infrastructures, and reinforced local communities. Finally, developing drug rehabilitation centres instead of ignoring drug addiction and sanctioning it, has also proven particularly valuable. [6]

Needless to say, it would be impossible to rely exclusively on prevention. Responses to crime are still needed, which brings us back to the question of incarceration.

A FEW REFLEXIONS ON INCARCERATION

Traditionally, incarceration has not always been the answer to deter crime. Before, exile and physical punishment were. Just as jails today, they carried a retribution dimension, met the need for community safety, and fulfilled the requirement of the wrongdoers’ exclusion. Now, in the light of human rights (the respect of which is questionable in today’s jails though) imprisonment seems to be a meaningful solution. Nevertheless, is it the only viable option?

When it comes to short term sentences, for minor offenses and crimes, could curfews, house arrests, and probation not be a better solution? Could community service not serve the same purpose and be even more useful? Why put in jail a cannabis user instead of fining them? And do problem-solving courts and community-based programmes not provide a fairer and more successful response towards public interest? [7]

On the other hand, long-term incarcerations are also questionable. Aside from being costly to taxpayers, they prevent a portion of the population from contributing to their society. So why do we apply them? [8]

One argument is that they represent retribution for the victims. But studies show that a majority of victims of violence would prefer a reduced prison sentence and more efforts for the rehabilitation of abusers and the prevention of new crimes. Another common argument relies on public safety: if they are locked up, they cannot use violence against other citizens. However, it has been proven that, on average, violence drastically decreases as a person matures. Also, the psychological and ethical advancement of a detainee is brought to the fore as a justification for the prison system, as if jails would just help them become more “moral”. But experience also shows that long imprisonments deeply change personalities, in a way that can often be traumatizing for the inmate, especially in terms of trust. [9]

Finally, a key motivation for long incarcerations is to avoid recidivism; however, reoffending is still common.

THE QUESTION OF RECIDIVISM

Incarceration could actually serve this purpose, if it somehow helped rehabilitating offenders, incapacitating the most dangerous ones, or if its experience alone would deter crime. Yet, it can also bring opposite results by preventing proper post-release employment opportunities or provoking a feeling of resentment in the inmates, who further identify as delinquents, while reinforced social stigmas worsen their feeling of alienation. [10]

The concomitance of such conditions explains why recidivism is still so common, at least for small crimes such as robberies. Indeed, violent crimes are usually either the result of a complex and very specific context (and often perpetrated by a former victim), which explains why they would not reoccur, or might be committed due to mental illnesses and need, therefore, to be treated differently. Certainly, one should avoid the pitfall of stigmatization of mentally-ill criminals, especially as they are not a majority. However, when talking about recidivism, their handling cannot be ignored as they are four times more likely to reoffend. For them, jails are an expensive and ineffective response, and proper mental care is needed. In that regard, the Netherlands constitute a valid and valuable example, as they provide their mentally-ill prisoners with the necessary care. [11]

DEVELOPING ALTERNATIVES

This being said, our argument is that crime should be responded to through a combination of solutions. This involves the alternatives we mentioned earlier, but also jail, to some extent. Indeed, this piece does not aim to oppose incarceration, but simply raise questions on its efficiency, fairness and lastly, the meaningfulness of its use today, which we know, could be improved. As a matter of fact, more efforts could be made on in-jail education, rehabilitation (through virtual role-play treatment programmes for instance), or post-release reintegration. [12]

We can conclude with the case of Norway, which the author deems to be an example to follow, as its alternative system has shown promising results. Its new prisons, even when described as maximum-security facilities, apply a certain laissez-faire approach, with no barred windows or security cameras. The guards are unarmed and develop actual relationships with the inmates. These “open prisons” have proven very effective: they are cheaper, with sentences of only eight months in average, built on prisoner trust and personal responsibility, and with positive results in terms of rehabilitation and recidivism (with one of the lowest rates in the world: 20%). [13]

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