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Punishment

The idea that people who do bad things deserve to suffer is deeply embedded in our culture. It has been expressed over the centuries through the doctrine of ‘an eye for an eye’. In practice, religious traditions have gone far beyond the spurious equality this implies. The Bible has often been interpreted as prescribing capital punishment for transgressions such as adultery, sodomy, blasphemy, breaking the Sabbath, worshipping other gods and cursing a parent. The Koran supports capital punishment for, among other things, ‘spreading mischief’, interpretations of which have included treason, apostasy, adultery and homosexual behaviour. The belief in a divine system of retribution and punishment, that unrepentant sinners deserve to suffer for eternity in hell, remains a core tenet for much of humanity.

Echoing religious doctrine, philosophers, judges and political leaders have for millennia claimed that the primary purpose of punishment is retribution, in which the suffering of the perpetrator is an end in itself.¹ This remains a popular view. Opinion polls on the death penalty give a good indication of contemporary attitudes. A YouGov survey in 2014 found more UK citizens in favour of reinstating the death penalty than against, while a 2010 survey showed that 74 per cent would support the death penalty ‘under certain circumstances’, though not for all murders.² In the US, support for the death penalty hovers at around 61 per cent.³

This cultural commitment to retribution may be rooted in human nature. When someone engages in the act of punishing a perceived cheater or exploiter, brain scans have revealed increased activity in the ‘pleasure centres’.⁴ There is even evidence that babies as young as eight months exhibit a desire to punish perceived wrongdoing.⁵ Evolutionary psychologists argue that punishment evolved as a means of preserving mutually advantageous forms of group cooperation. Drawing on the theory of reciprocal altruism, they claim that punishing ‘cheats’ who receive benefits without bearing any of the costs acts as a powerful incentive for cooperative social behaviour.

Whatever the evolutionary reasons for developing an instinct for punishment, it is worth remembering that natural selection is an amoral process. Nature, as Tennyson put it, is ‘red in tooth and claw’. To the extent that they have an evolutionary basis, righteous indignation and the thirst for revenge are part of who we are only because they enhanced the survival of our ancestors long enough for the associated genes to find their way into subsequent generations. Robert Wright, author of The Moral Animal, a book on the evolutionary roots of our moral instincts, remarks that perhaps ‘The intuitively obvious idea of just deserts, the very core of the human sense of justice . . . the fury of our moral indignation, the visceral certainty that . . . the culprit deserves punishment [is no more than] a by-product of evolution, a simple genetic stratagem.’⁶

Viewing our instincts with a degree of scepticism – questioning, analysing and appraising them in light of other ideas, beliefs and values – is essential for social progress and self-knowledge. Moral anger can be a dangerous force. The sense that we have the right to inflict suffering on a perceived wrongdoer has justified some of the most inhumane practices in history, from stoning and impaling to burning at the stake, disembowelling and decapitation. It has also shaped our criminal justice system, moulding it to conform to stubborn intuitions about just deserts, retribution, blame and responsibility.

The most advanced legal systems on the planet are committed to the idea that most people, most of the time, enjoy the kind of freedom that makes them truly responsible for their actions. According to the US Supreme Court, ‘belief in freedom of the human will’ is a ‘universal and persistent’ element of the law, and ‘a deterministic view of human conduct . . . is inconsistent with the underlying precepts of our criminal justice system’.⁷ Explicit commitment to ‘freedom of the will’ can be found in a number of court rulings and in the work of many legal scholars.⁸ It is embedded in the foundations of the criminal justice system, the same foundations that are now cracking under the weight of scientific knowledge.

In response to this pressure, some legal theorists have staked out a fall-back position. In the eyes of the law, we are practical reasoners: through conscious deliberation we decide how to act in order to achieve our goals. According to legal scholar Stephen J. Morse, and many others who share his view, to hold people responsible for their actions we do not have to establish whether they possess sufficient ‘freedom of the will’, only that they have sufficient rationality. As he puts it: ‘rationality is the touchstone of responsibility’.⁹ If a crime reflects clear conscious intentions, this is what counts (never mind the deeper origins of those intentions). Morse acknowledges that free will may be illusory and determinism true, but rejects the idea that this has anything to do with responsibility, arguing that as long as a person’s rational capacities ‘seem unimpaired’ they should ‘be held responsible, whatever the neuroscience might show’. In practice, courts need only presume that with few exceptions ‘adults are capable of minimal rationality and responsibility and that the same rules may be applied to all’.¹⁰

This view of responsibility sheds light on many of the procedures employed in the contemporary courtroom but it is fundamentally confused. It concedes that our behaviour may ultimately be the product of forces beyond our control, yet claims we can still be held responsible for it.¹¹ It smacks of trying to have your cake and eat it. As we have seen, rationality and other forms of competence certainly increase our ability to achieve goals and understand the consequences of our actions, but they do not make us responsible for the goals we choose to pursue – that depends on the way we are, and for that we are not responsible. To repeat an earlier formulation: a rational psychopath may make morally horrendous choices, but they will not include choosing the brain of a psychopath. The implications of neuroscience are clear: biology cannot be separated from behaviour, and we do not choose our biology. In some cases the courts already accept this – as demonstrated by the growing list of ‘syndromes’ and ‘disorders’ being employed as a legal defence – but they remain exceptions. Given the huge variation in genetic potential, life experience and social opportunity that we see in the world, to presume that, with few exceptions, ‘the same rules may be applied to all’ is plainly a recipe for injustice, not a solution to it.

As a society we can agree to define responsibility any way we wish – in terms of rationality, annual income, educational attainment or even height. But changing definitions does not alter the underlying facts. Relaxing the criteria for responsibility may help to conceal the cracks snaking through its foundations, but, for the modern criminal justice system, these problems will only become more apparent with time. Although the best of science and logic have shown it to be a meaningless question, the courts continue to ask whether lawbreakers are deserving of punishment, whether they are blameworthy. As long as this question beats at the heart of criminal justice, its methods will remain irrational and its outcomes unjust.

It does not have to be this way. Instead of submitting to misleading intuitions, our justice system could yield to the findings of science and the demands of reason. This would involve acknowledging that no one is truly blameworthy, rejecting retribution as a legitimate justification for punishment and focusing on improving the future rather than exacting revenge for the past.

Dispensing with blame and responsibility does not necessarily mean dispensing with all punishment. The evidence we have from psychological studies suggests that ‘the motivation to punish in order to benefit society’ remains in place even when ‘the need for blame and desire for retribution are forgone’, so society could keep the ‘social benefits of punishment intact while avoiding the unnecessary human suffering and economic costs of punishment often associated with retributivism’.¹² Once we know someone is guilty of committing a crime, the important question is what the effect of punishment would be on both the guilty lawbreaker and the rest of society. In a rational criminal justice system, the justification for punishment would derive solely from the positive effects it has on society, not from notions of blame or desert.

The benefits of punishment

Once retribution is ruled out, the most influential justification for punishment is to be found in the logic of deterrence. The idea is that criminal punishment not only deters lawbreakers from reoffending but acts as a deterrent to the wider population, a common assumption being that more severe punishments are more effective deterrents. Although in some contexts the logic of deterrence is compelling, it has its own serious flaws and fails as a justification for many of the punishments currently endorsed by governments – democratic or otherwise – around the world.

Deterrence strategies often fail to produce the outcomes we expect. Comparisons are difficult to make, but there appears to be a trend towards lower reoffending rates in less punitive countries. The incidence of recidivism in the US and UK hovers between 60 and 65 per cent. This is roughly 50 per cent higher than rates in less punitive nations such as Sweden, Norway and Japan.¹³ Bringing together the results of fifty different studies involving over 300,000 offenders, Canadian criminologist Paul Gendreau found that not one reported that imprisonment reduced recidivism. In fact, longer sentences were associated with a 3 per cent increase in reoffending rates, supporting the theory that prison can function as a ‘school for crime’.¹⁴

In the US, almost seven out of ten males will find themselves back in jail within three years of release.¹⁵ A 2010 UK government paper showed that 68 per cent of adults who either left prison or started a community sentence in the first three months of 2000 had reoffended within five years.¹⁶ After decades of research, prison psychiatrist James Gilligan concluded that the ‘most effective way to turn a non-violent person into a violent one is to send him to prison’ and that ‘the criminal justice and penal systems have been operating under a huge mistake, namely, the belief that punishment will deter, prevent or inhibit violence, when in fact it is the most powerful stimulant of violence we have yet discovered’.¹⁷

Objects, natural disasters, animals, small children and (sometimes) people with a mental illness are exempted from punishment precisely because they lack the cognitive capacity – the ‘minimal rationality’ – to be deterred by threats of punishment.¹⁸ This seems reasonable enough, but the problem is that anyone who commits a crime belongs, by definition, to the category of people undeterred by the punishments of society. At least when they commit the crime, every lawbreaker clearly possesses a brain that is not put off by the possibility of being arrested, tried, imprisoned or, in some cases, even executed. The high percentage of reoffending former prisoners confirms that those who end up being punished are not the ones the deterrent is primarily acting on.

If punishment often fails to deter lawbreakers from offending and reoffending, what purpose does it serve? The standard answer is that if criminals were not punished for their crimes, those members of the public who were previously deterred would in future have less reason to abide by the law and the crime rate would go up. It is the effect on this second category of people (the deterred public) that is used to justify the punishment on the first (the lawbreakers), that is, the criminal population are being punished to prevent the rest of the population from turning criminal. But if people are not truly responsible, then using the deterrence argument to justify harsh punishment is, as Daniel Dennett points out ‘. . . doomed to hypocrisy. Those whom we end up punishing are really paying a double price, for they are scapegoats, deliberately harmed by society in order to set a vivid example for the more ably self-controlled, but not really responsible for the deeds we piously declare them to have committed of their own free-will.’¹⁹

Disturbing though this reasoning may be, it lies at the heart of the deterrent argument. It was candidly recognised by the influential American jurist Oliver Wendell Holmes, Jr: ‘If I were having a philosophical talk with a man I was going to have hanged (or electrocuted) I should say, “I don’t doubt that your act was inevitable for you, but to make it more avoidable by others we propose to sacrifice you to the common good. You may regard yourself as a soldier dying for your country if you like.”’²⁰ Expressed in this way, the injustice of the deterrent argument is apparent. It advocates punishment, even execution, for people who are not truly responsible for what they do – people who in many cases have suffered excessive hardships and deprivation – in order to prevent the more self-controlled, and often more privileged, from breaking the law.

As well as being morally dubious, the strategy of harming some to deter others can easily backfire. Severe punishments can function as an ‘anti-deterrent’, increasing violent crime rather than diminishing it. For instance, both the US and Nigeria experienced an increase in murder rates after introducing the death penalty, while its abolition in Canada saw a drop in homicides.²¹ And of the countries with the highest homicide rates, the top five that employ the death penalty average 41.6 murders per 100,000 people, whereas the top five with no death penalty average roughly half that number at 21.6 murders per 100,000 people.²² One explanation for these facts is that severe institutional punishment has a brutalising impact on the general culture, exacerbating rather than deterring violence. Regarding the relationship between capital punishment and homicide rates, the United Nations concluded that ‘The evidence as a whole still gives no positive support to the deterrent hypothesis.’²³ According to polls, the vast majority of criminologists and police chiefs do not believe the death penalty deters violent crime more than imprisonment.²⁴

The immorality of the ‘double price’ paid by prisoners is aggravated by the severity of the punishments they receive. As long as deterrence is believed to be our most powerful lever of influence and, to the extent that more brutal punishments are considered more effective deterrents, there will be pressure to increase the suffering of prisoners. This pressure, founded on morally questionable and factually baseless assumptions, is regularly employed around the world to justify punishments that ought to be regarded as a form of torture. According to the United Nations, torture encompasses:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him . . .²⁵

Imagine being taken from your home and locked up for years in a threatening, violent, overcrowded institution – an institution in which people are often beaten, injured, raped or even killed, all the time separated from family and friends, with every aspect of your routine controlled coercively by a group of salaried strangers. The distinction between torture and prevailing forms of criminal punishment breaks down under scrutiny.

Consider the US’s ‘supermax’ prisons in which inmates are kept in solitary confinement for twenty-three hours a day. Prisoners living under such conditions often become mentally ill. They are deprived of any meaningful work, training, exercise or education and are shut off from almost all human contact. Access to a telephone, books, magazines, radio, television – even sunlight and fresh air – are severely restricted or entirely denied. Cells are illuminated at all times.²⁶ The Committee on International Human Rights argues that this form of confinement ‘violates basic human rights’ and in many cases ‘constitutes torture under international law and cruel and unusual punishment under the US Constitution’.²⁷ It is estimated that up to 80,000 prisoners are currently living under these conditions.

Criminologists warn of ‘the serious psychological harm done to prisoners, and [the] difficulties in coping with the world outside when released, across all security levels and types of institutions’.²⁸ Amnesty International, Human Rights Watch and the United Nations Committee Against Torture have all condemned the US prison system for its inhumane practices. These include the incarceration of children in adult prisons, abuse of the mentally ill and disabled, the prevalence of rape culture, the shackling of female inmates during childbirth, and the use of electric shocks as a means of controlling prisoners.²⁹ As Gendreau writes, ‘if prison psychologically destroys the inhabitants, then their adjustment to society upon release can only be negative, with one likely consequence being a return to crime’.³⁰

The deterrent effect of imposing the ‘double price’ on lawbreakers is not only overstated but a significant part of the problem. Arguments in its favour are riddled with holes, providing cover for many inhumane, unjust and unjustifiable practices. This cover is strengthened by our instinctive attachment to individual responsibility and the notion of retribution, which permeate the whole practice of punishment, shaping popular attitudes and making it far easier to ignore the grave deficiencies of outmoded penal systems.

Most of us anticipate the likely consequences of our actions, so in some contexts the threat of punishment may dissuade us from a course of action we might otherwise undertake. However, according to recent research, it is primarily the likelihood of getting caught – not the severity of punishment that awaits us – that deters us from doing what we otherwise would do.³¹ Once we have detained people who pose a serious threat to society, their suffering (beyond that caused by the removal of their liberty) does not serve the cause of justice and rarely increases the safety of society. In fact, it often makes society more dangerous.

If the justice system were rational, the social impact of harming lawbreakers would not be taken for granted; just like the effectiveness of a new drug, it would be something to be established empirically. The burden of proof would always be on those in favour of inflicting harm to demonstrate its value, and, even then, the benefits to society would have to be balanced against the fundamental right of the individual not to be harmed. Given the humane and effective alternatives to wilfully inflicting suffering on lawbreakers, the logic of deterrence is often hard to justify.

Beyond punishment

One of the most humane prisons in the world is situated on the island of Bastøy in Norway.³² Every inmate in this open prison is offered high-quality education and training programmes to develop a variety of skills. Prisoners live communally in comfortable homes, six men to a house. Each man has his own room but shares the kitchen and other facilities with the other inmates. A meal a day is provided for the inmates; any other food must be bought from the local supermarket and prepared by the prisoners themselves who receive an allowance of £70 a month and earn roughly £6 a day on a variety of jobs which include growing food, looking after horses, repairing bicycles, doing woodwork, and engaging in different forms of maintenance on the island.

Dotted around Bastøy is a church, a school and a library. In their free time, inmates have the opportunity to engage in leisure activities such as horse riding, fishing and tennis. All the guards are highly qualified, having received three years’ training for their post (compared to only six weeks in the UK), and function more like social workers than prison officers. Arne Kvernvik Nilsen, who was in charge of the prison for the five years leading up to 2013, describes his philosophy: ‘I give respect to the prisoners who come here and they respond by respecting themselves, each other and this community.’ Nilsen believes that, ‘We have to respect people’s need for revenge, but not use that as a foundation for how we run our prisons. [. . .] Should I be in charge of adding more problems to the prisoner on behalf of the state, making you an even worse threat to larger society because I have treated you badly while you are in my care?’³³ The island houses perpetrators of serious crimes including murder and rape, yet, remarkably, it has the lowest reoffending rates in Europe: 16 per cent compared with a European average of about 70 per cent. And it’s one of the cheapest prisons to run in Norway.

Not all Norwegian prisons are as open and comfortable as Bastøy but they all follow a similar philosophy based on the belief that the only punishment the state should inflict is the loss of liberty. The suffering of prisoners is intentionally minimised. There is no death penalty and no life sentencing. The aim is to heal, not harm. And, whatever critics of this philosophy might say, it produces results. Across Norway, reoffending rates may be higher than for Bastøy, but they are still the lowest in Europe at 30 per cent. Across Scandinavia, penal policy is largely left to the experts. Criminologists design policy based on the evidence, and the public have largely been happy to let them do so. Along with Holland and Japan, Norway is a guiding light in the prison sector but there are campaigns in many countries to make prisons more humane.

One of the most effective strategies to stop criminals reoffending has been to provide inmates with the opportunity to study and earn formal qualifications. Where punishment has failed, education is succeeding. A meta-study by the RAND Corporation (sponsored by the US Bureau of Justice Assistance) found that, on average, inmates who participated in correctional education programmes were 43 per cent less likely to reoffend.³⁴ The former warden of Louisiana’s biggest prison has cited figures showing that education is ‘one of the few things that work’ to keep prisoners from reoffending. At the notorious Folsom State Prison in California, reoffending rates were 55 per cent in the general population but zero for prisoners who had studied for a degree.³⁵ A 2004 study by the University of California, Los Angeles, found that ‘Correctional education is almost twice as cost effective as incarceration’ at reducing crime.³⁶

Another forward-thinking approach to crime and rehabilitation is ‘restorative justice’. It can take various forms, but ideally it brings together victim and perpetrator to engage in a face-to-face, mediated discussion about the crime that took place. Although it can be difficult, many victims of crime have ultimately reported feeling empowered by the process, which is entered into voluntarily. Victims are given the opportunity to explain how the crime has affected their lives, to express their feelings, and ask the questions that haunt them. Offenders have the opportunity to describe the circumstances of the crime and how they have been affected by it. They also have the opportunity to apologise for what they have done and compensate the victim in some way, ranging from community service to financial reparation. Restorative justice has produced astounding results. Numerous studies demonstrate its financial, psychological and crime-reducing value. A seven-year government-funded UK study found that, with serious offences, it reduced reoffending rates by 27 per cent, ‘leading to £9 savings for every £1 spent’.³⁷ It also found that the majority of victims chose to participate in face-to-face meetings when given the opportunity by a trained facilitator, and that 85 per cent reported they were satisfied with the process. In 2007, a meta-study of restorative justice research projects (spanning nineteen years and covering all studies written in English) compiled by criminologists Lawrence W. Sherman and Heather Strang also found clear, positive results.³⁸ These include reduced reoffending rates, a reduction of victims’ post-traumatic stress symptoms, more satisfaction for both victims and offenders than with court justice, a reduced desire for victims to exact violent revenge against their offenders, and significantly reduced costs.

One of the most successful prison projects in the US is the Resolve to Stop the Violence Project (RSVP) introduced in 1997 by the San Francisco County Sheriff’s Department. The programme began in a sixty-two-bed jail unit and involved all prisoners. Within the unit itself there were no locked doors. A large central activity area was surrounded by smaller classrooms and meeting rooms. For twelve hours a day, six days a week, it delivered an intensive schedule of activity including art, creative writing, group discussion, academic classes, theatre, role-playing, counselling, and meetings and talks with survivors of violence. Prisoners took part for as long as their sentences permitted, ranging from a few days to more than a year. The results of this experiment were stunning.³⁹ In-house violence dropped from twenty-four serious incidents a year to zero for the twelve months following the first month of the programme, and reoffending rates for those who spent at least sixteen weeks in the programme were 83 per cent lower than for a comparable group of prisoners outside the programme. And it saved taxpayers about $4 for every $1 spent.

The first form of institutional punishment we encounter is at school. We can be shouted at, detained, suspended and expelled. According to the United States Department of Education, the 2011 to 2012 school year saw 130,000 students expelled from school and 7 million suspensions (one for every seven students).⁴⁰ The traditional paradigm of punishment tells us that students who exhibit disruptive, challenging or violent behaviour must be controlled through reward and punishment. Contemporary research tells a different story: traditional approaches to disruptive behaviour often make things worse. Too often, punishments escalate from verbal warnings to expulsion without any behavioural improvement. The logic of deterrence fails and, once expelled, the likelihood of a child ending up in juvenile detention greatly increases.

American clinical child psychologist Dr Ross Greene has pioneered an approach now known as Collaborative & Proactive Solutions (CPS). It starts with the assumption that kids want to do well. If they’re not doing well, it’s because they lack the necessary skills. Disruptive children are not simply attention-seeking, manipulative or poorly motivated, they are struggling to meet the demands being made of them. CPS takes seriously the fact that the rules and expectations of the classroom and schoolyard do not bear equally on all. For instance, children with learning disabilities and diagnosed behaviour problems are twice as likely to be suspended and three times more likely to be imprisoned than their peers.⁴¹

Instead of blaming young people for their disruptive behaviour, Greene urges teachers to try to understand the source of it and work with them to get beyond it. When a student acts in a disruptive or destructive way, he advises taking the following simple steps: find the time to gather information from the child to understand as clearly as possible his or her perspective, share with them your own concerns, then brainstorm with the child in order to arrive at a workable solution to avoid similar behaviour in future. It’s a strategy that aims to equip students with the tools to solve their own problems. Key to its success are staff willing to develop new skills themselves and to cultivate strong relationships with students, particularly those with challenging behaviour.

Central School in Maine has implemented a number of Greene’s ideas. Before CPS, says Principal Nina D’Aran, ‘we spent a lot of time trying to diagnose children by talking to each other . . . Now we’re talking to the child and really believing the child when they say what the problems are.’⁴² To some, this will sound unrealistic given the demands of modern schooling, but at Central School D’Aran has observed a dramatic change. Disciplinary referrals to her office have dropped by over two-thirds and suspensions have dropped from two a year to zero. She puts it down to ‘meeting the child’s needs and solving problems instead of controlling behavior’.⁴³ It’s hard work, demanding for both kids and adults, but so far the results suggest it is well worth the effort. Since CPS has been applied in a number of other schools, disciplinary referrals and suspensions have dropped by up to 80 per cent.

Greene’s philosophy was developed and tested in psychiatric clinics and state juvenile facilities. In Long Creek Youth Development Center, a correctional facility also in Maine, guards were resistant at first to CPS. ‘Our staff initially thought CPS was just a way to give in to the kids, and a lot of people outside the juvenile system feel they should be punished,’ says Rod Bouffard, former Superintendent at the facility. But once it was implemented, the benefits were clear: levels of violence started to drop, there were fewer staff and resident injuries and, when they were let out, kids were far more likely to stay out. Reoffending rates were reduced from 75 per cent in 1999 to 33 per cent in 2012.⁴⁴ Indeed, for a number of years they have had some of the lowest reoffending rates in the US.

Prisons like Bastøy, projects like Resolve to Stop the Violence, and approaches like Restorative Justice and Collaborative & Proactive Solutions have transcended the simplistic paradigms of retribution and deterrence in favour of rehabilitation – for both perpetrators and victims. Of course, none of them is perfect: all are part of an ongoing process of experimentation from which better ways of doing things will continue to emerge. However, we already know that these alternatives are more ethical than the current predominant strategies and much more effective.

Root causes

Small details can have a significant impact on moral behaviour. The subconscious effect of a pleasant aroma, a modest rise in the volume of background noise, or rushing to an appointment have all been shown to impact our inclination to be kind to strangers in need.⁴⁵ One experiment showed that people who had just found a dime in the coin-return slot of a phone booth were more likely to help when a nearby stranger dropped some papers they were carrying.⁴⁶ Finding the coin increased the proportion of those who helped to pick up the papers from 4 per cent to 86 per cent. When people were asked why they had stopped to help, the discovery of the dime was seldom mentioned.

Another study, more salient to the topic of punishment, observed the behaviour of judges.⁴⁷ Without their knowledge, eight judges were monitored as they reviewed applications for parole. They spent an average of six minutes on each application, and could spend whole days working through them. Only 35 per cent of applications were approved. The observers took note of the exact time of each decision, as well as the exact time of the judges’ three food breaks over the course of the day. What they found was striking: the proportion of approved requests spiked after each food break, with 65 per cent of requests being granted at this time. Over the subsequent two hours, as the judges grew tired and hungry, their rate of approval steadily dropped to roughly zero just before the next meal.

A little science helps to make sense of these results. The nervous system requires more glucose than most other parts of the body. Demanding mental activity uses up a great deal of it, and prolonged mental exertion results in a drop in glucose levels in the blood. This depletion results in a deterioration of performance when carrying out demanding and effortful tasks, as well as a tendency to fall back on automatic behaviour. If an innocuous dime in a phone booth or a mild drop in glucose levels can have such significant, yet unconscious, effects on our behaviour, what influence might the totality of our environment exert over the course of a lifetime?

The most established environmental determinant of violence in a society is income inequality.⁴⁸ Less equal societies are more violent.⁴⁹ The link between inequality and homicide rates, within and between countries, has been revealed in dozens of independent studies – and the differences are not small. According to the Equality Trust in the UK, there are five-fold differences in murder rates related to inequality between different nations. In fact, higher rates of inequality are associated with a host of social problems: mental illness, child bullying, drug use, teenage pregnancy, divorce, illiteracy and distrust.

James Gilligan sheds light on how some of these factors could conspire to produce particularly violent forms of crime. After years of work with aggressive inmates, he has ‘yet to see a serious act of violence that was not provoked by the experience of feeling shamed and humiliated’.⁵⁰ For obvious reasons, shame and humiliation tend to be more prevalent in societies with greater inequality, where the race for status is more intense. In these highly competitive environments, argues Gilligan, those at the bottom of the hierarchy struggle to find ways to secure markers of status. Deprived of the education, wealth, care and opportunities enjoyed by others, it becomes incredibly important to them to defend what little status they do enjoy. With other means out of reach, violence often becomes the only way they feel they can do this. The smallest sign of disrespect can provoke the most violent of acts. (This explains why higher education in prisons is so effective at reducing reoffending rates: a degree is a marker of status that serves as an antidote to feelings of shame and humiliation.)

The most horrific individual acts of violence are almost always symptoms of extreme forms of abuse and neglect. In the US, ten times as many people with serious mental illnesses – such as bipolar disorder and schizophrenia – are in prison than in a state hospital.⁵¹ In effect, illness has been criminalised. Having spent over thirty years at the UK criminal bar, and ‘rather a lot of time in prisons’, Baroness Helena Kennedy QC speaks from experience when she writes:

For most people, prison is the end of a road paved with deprivation, disadvantage, abuse, discrimination and multiple social problems. Empty lives produce crime . . . The same issues arise repeatedly: appalling family circumstances, histories of neglect, abuse and sexual exploitation, poor health, mental disorders, lack of support, inadequate housing or homelessness, poverty and debt, and little expectation of change . . . It is my idea of hell.⁵²

In our society, children subjected to the harshest, most impoverished environments are increasingly being criminalised. Kennedy remarks that ‘Ninety per cent of young people in prison have mental health or substance abuse problems. Nearly a quarter have literacy and numeracy skills below those of an average seven-year-old and a significant number have suffered physical and sexual abuse.’⁵³

Economic, political and cultural arrangements shape identities, opportunities and, ultimately, behaviour. Harsh punishments aimed at those who have already been brutalised and undermined by these forces only pile injustice upon injustice. If society is not doing what it can to address the root causes of crime – at all levels of the system – the supposedly pragmatic justifications for severe punishment lose all credibility. What right do we have to condemn crime if we do not also condemn the conditions that breed it?

Ultimately, all that separates the criminal and non-criminal is luck. The skewed distribution of ‘racial luck’ is particularly disturbing. Although black people make up only 12 per cent of the US population, they account for 40 per cent of its prison population. Across the US today, black people are more than six times as likely to be imprisoned than whites, 31 per cent more likely to be pulled over while driving than white drivers, and twice as likely to be killed by a cop (and more likely to be unarmed when killed).⁵⁴ Racial prejudice permeates almost every area of American society, greatly diminishing the opportunities available to black people and ethnic minorities. Fifty years after Martin Luther King’s ‘I have a dream’ speech, many of the racial divides in American society persist. A white man with a criminal record is still more likely to be considered for a job than a black man without one.⁵⁵ Analysis of US government data by the Pew Research Center shows that ‘When it comes to household income and household wealth, the gaps between blacks and whites have widened. On measures such as high school completion and life expectancy, they have narrowed. On other measures, including poverty and homeownership rates, the gaps are roughly the same as they were 40 years ago.’⁵⁶

A similar pattern is to be found among ethnic minorities in the UK, with black people five times more likely to end up in prison.⁵⁷ The Equality and Human Rights Commission found that, when officers did not need suspicion of involvement in a crime to stop and search (under section 60 of the Criminal Justice and Public Order Act 1994), black people were thirty-seven times more likely to be targeted. In fact, young black men are more likely to end up in prison than at an elite university.⁵⁸ And Inquest, a UK charity that campaigns against deaths in police custody, have found that, since 1990, over 400 people from black communities or ethnic minorities have died while incarcerated or in the custody of the police.⁵⁹

Imprisoning lawbreakers, once the sole responsibility of the state, is now increasingly run for profit by private business – a trend firmly established in the US and garnering support in the UK. In the US, about 10 per cent of prisoners are locked up in privately run institutions. A study from the University of Wisconsin in 2015 found that states with private prisons have higher rates of reoffending and that private prisons are keeping inmates locked up for longer.⁶⁰ Given that more prisoners serving longer sentences means more profit, this is a predictable outcome. Today, this $5 billion industry is doing what all big industries do: using a portion of its earnings to lobby governments to rescind regulations and pass laws that will allow them to generate even greater profits. In the case of the prison industry, this means lobbying the government to put more people behind bars. A report from the US National Institute on Money in State Politics shows that, for the 2002 and 2004 election cycles, prison companies donated $3.3 million to political parties. From 2006 to 2008, the nation’s largest prison corporation spent $2.7 million on lobbying for stricter laws.⁶¹ The profitability of prisoners does not end there. Inmates’ work in private prisons is increasingly contracted out to major corporations for abysmally low wages. In public prisons the wage can be in the region of the minimum wage, but in private prisons it can be as low as 17 cents an hour, or 50 cents in the more generous institutions. Those who refuse to work can be locked up in isolation cells.⁶² These practices are beginning to resemble a form of slave labour.

Although the evidence suggests that you cannot be ‘tough on crime’ without being ‘tough on inequality’, a shift from the welfare state to the security state has taken place over the last half century. In the UK and US, ‘tough on crime, tough on welfare’ rhetoric has long been embraced by the major parties. The result has been rapidly rising prison populations and widening social inequality. In the UK, each place in prison costs £75,000 to build and a further £37,000 a year to run (an expense greater than the annual cost of studying at Eton, the elite British school).⁶³ The annual cost of incarceration in the US is about $63 billion.⁶⁴ Criminal justice expenditure in some US states outstrips funding for public education. Over the past couple of decades, California has built roughly one new prison a year, at a cost of $100 million each.⁶⁵ Over the same period, it has built only one new public college. Across the US, spending on prisons has risen six times faster than on higher education.⁶⁶ Observing the immense costs of an expanding criminal justice system, philosopher Douglas Husak asks: ‘Is there no better use for the enormous resources we expend on criminalization and punishment? Money and manpower are diverted from more urgent needs [to] enforce laws that our best theory of criminalization would not justify.’⁶⁷

The vast resources we expend on locking people up could be used to reduce inequality, thereby improving people’s lives and eliminating many of the conditions that breed crime. Yet, for decades, politicians have rejected this framing of the problem. President Ronald Reagan asserted: ‘we are told that the answer to . . . [crime] is to reduce our poverty. This isn’t the answer . . . Government’s function is to protect society from the criminal, not the other way around.’⁶⁸ Former British Prime Minister John Major warned in 1993 that ‘Society needs to condemn a little more and understand a little less’.⁶⁹

The data show that higher rates of material inequality, within and between nations, strongly correlate with larger prison populations. The more unequal a society is, the higher the percentage of people in jail.⁷⁰ And people lower down the social hierarchy, with less income and less education, are far more likely to end up in prison.⁷¹ The most unequal societies – led by the US and Singapore with the UK and Israel not too far behind – have, by a wide margin, the largest proportion of their populations behind bars. The most equal countries – Japan, Norway, Finland, Sweden and Denmark – imprison a much lower proportion of their populations. The differences are not small. In the US there are 576 people in prison per 100,000, fourteen times higher than Japan, which has a rate of forty prisoners per 100,000.⁷² When US states are compared, the pattern holds, with more unequal states tending to have larger prison populations.

The differences in crime rates can only account for a small part of the variation in the numbers imprisoned across the range of countries. It tends to be ideology that determines how often imprisonment is favoured over non-custodial sentences and how harsh sentencing will be. The UK regularly leads the rest of Western Europe in rates of imprisonment. Since 1990, the number of prisoners in the UK has doubled. But when we compare the UK with a country like the Netherlands, which has a much lower rate of imprisonment, roughly two-thirds of the difference can be traced to the fact that the Dutch favour lighter non-custodial sentencing and shorter sentences.⁷³ In fact, in 2015, the Dutch government announced it was to close eight prisons due to a lack of prisoners.⁷⁴

The dramatic increase in rates of imprisonment in the UK can be traced to Michael Howard’s assertion in 1992, as Conservative Home Secretary, that ‘prison works’. When he made this claim, 45 per cent of adults convicted in the Crown courts were put behind bars; in 2001, the figure had risen to 64 per cent.⁷⁵ In what amounted to a continuation of Conservative policy, New Labour’s Home Secretary Jack Straw stated that ‘Prison doesn’t work but we’ll make it work’. In 2003, in a special edition of the flagship news programme Newsnight, Prime Minister Tony Blair proudly explained that his government had presided over a period in which more people had been sent to prison than ever before.⁷⁶ Perhaps this was due, in part, to the fact that between 1997 and 2009 some 4,289 new criminal offences were created, approximately one for every day New Labour were in power.⁷⁷

In the US, the situation is even more extreme. In 1978, roughly 450,000 people were imprisoned; by 2005, the figure had risen to over 2 million.⁷⁸ As with the UK, this phenomenal rise was largely down to people being sent to prison rather than being given non-custodial sentences. Today, a quarter of the world’s convicts reside in America. In 2004, 360 of these were serving life sentences in California for the heinous crime of shoplifting.⁷⁹ The irony of this was not lost on novelist and activist Arundhati Roy, who made the memorable observation that ‘the world’s “freest” country has the highest number’ in prison.⁸⁰

Focusing on rehabilitation and root causes makes sense once we stop thinking of crime as a product of an individual’s free agency and view it, instead, as a doctor might view the symptoms of a disease. Although potentially dangerous, violent prisoners are not ultimately responsible for the threat they pose – anyone exposed to the conditions that breed violent crime could exhibit similar ‘symptoms’. Removing those ‘infected’ from society, as we would a person with a deadly virus, may be necessary – at least temporarily – but punishing them does nothing to prevent further ‘outbreaks’. Instead, it draws resources and attention away from discovering the deeper causes of the outbreak. A more humane and rational approach to crime would focus on eradicating the conditions that produced it, and instead cultivate the empathy, self-control and self-worth that is so bound up with ethical behaviour. To pretend, as legal systems do, that the buck stops with the individual prevents us from tackling the cultural, economic and political causes of violence and criminality.

Double standards

Richard Nixon’s 1968 presidential campaign warned of ‘the deterioration of respect for the rule of law’ and the danger of ‘the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and when to disobey them’, a principle he blamed on civil rights leaders such as Martin Luther King and Malcolm X.⁸¹ Within a few years Nixon was forced to resign in disgrace, facing impeachment over the Watergate scandal. Discussing the events in a 1977 interview with David Frost, he justified his actions with the words: ‘When the president does it, that means that it is not illegal.’

Shortly after his resignation, Nixon’s successor, Gerald Ford, granted him a presidential pardon. ‘I deeply believe in equal justice for all Americans whatever their station or former station,’ he insisted, adding that ‘a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized . . . And the credibility of our free institutions of government would . . . be challenged at home and abroad.’⁸² Justifying Ford’s actions, Dick Cheney, George W. Bush’s Vice President, said at Ford’s funeral that ‘he was almost alone in understanding that there can be no healing without pardon’⁸³ – a principle denied to the 7.3 million Americans on probation, behind bars, and on parole.

It’s a familiar pattern. The evidence for crimes committed under the recent Bush administration, for instance, is overwhelming, well documented and widely accepted. Few now deny that persistent lawbreaking took place, including the authorisation of torture, imprisonment without trial, the kidnapping and disappearing of detainees, warrantless domestic spying, the destruction of incriminating evidence and an illegal war. In 2014, former top US counter-terrorism official Richard Clarke, who served under the Bush administration before resigning following the 2003 invasion of Iraq, said he believes that Bush and his administration are guilty of war crimes for launching the invasion.⁸⁴ Yet, neither George Bush nor his partner in war, Tony Blair, has faced any criminal charges.

As a presidential candidate, Barack Obama passionately declared his support for the rule of law, claiming he was open to investigating and prosecuting Bush-era crimes, but, once elected, his rhetoric quickly changed to support the view that ‘we need to look forward as opposed to looking backward’ – a principle he has not extended to the 2 million inmates that crowd his nation’s prisons, the illegally held captives of Guantanamo Bay, or the whistleblowers Chelsea Manning and Edward Snowden.⁸⁵ Obama has blocked every attempt to conduct an investigation into his predecessor’s actions.

The 2008 financial crash was caused by fraudulent activity on an incredible scale. This is now widely acknowledged, even by long-time defender of Wall Street, Alan Greenspan, ex-Chairman of the Federal Reserve, who described the financial sector’s behaviour as ‘just plain fraud’.⁸⁶ Their actions have had an unimaginably negative impact on the lives of millions of people but – to date – not a single senior American or British banking executive has been placed behind bars. Instead, those responsible for the crash in the US received over $700 billion of public money with no strings attached; their counterparts in the UK were granted a £1.3 trillion rescue package. Some American states did try to take legal action against the banks, but the Obama administration fought hard against these attempts.⁸⁷ A number of banks were found to have lied in court, not once or twice but hundreds of times, yet no bank officials were sent to prison.⁸⁸

The multinational insurance company AIG is a case in point. The same executives who presided over the fraudulent transactions that led to its demise – one that was only averted with taxpayer’s money – were soon pocketing millions of dollars in bonuses. In the face of public pressure, Obama claimed there was nothing he could do. Defending his boss, Obama’s economic adviser Larry Summers claimed, without a hint of irony, that ‘We are a country of law. There are contracts. The government cannot just abrogate contracts.’⁸⁹ Later, in 2010, commenting on the $17 million bonus given to Jamie Dimon of JP Morgan Chase and the $9 million bonus paid to Lloyd Blankfein of Goldman Sachs – both banks that were recipients of the billion dollar bail-out – Obama declared that ‘I know both those guys; they are very savvy businessmen’ and ‘I, like most of the American people, don’t begrudge people success or wealth. That is part of the free-market system.’⁹⁰ Of course, this had little to do with the ‘free market’. These banks would not have survived but for the government bail-out. As many have observed, the financial sector has managed to privatise profits while socialising risk: the rich take home the winnings while the poor are forced to cover the losses.

In the UK in 2014, two RBS bankers who were found guilty of £3 million worth of property fraud walked free after Judge Rebecca Poulet QC decided they had ‘suffered’ enough already, having ‘expressed shame and embarrassment’ at what they had done.⁹¹ Matt Taibbi, an American journalist who has spent years exposing the crimes of Wall Street, writes that ‘Even in the most abject and horrific cases – such as the scandal surrounding HSBC, which admitted to laundering more than $800m for central and South American drug cartels – no individual ever has to do a day in jail or pay so much as a cent in fines.’ Taibbi often asked officials why there were no criminal cases. ‘Well, they’re not crime crimes,’ was an answer one prosecutor gave him. Taibbi continued, ‘When I asked another why no one went to jail in the HSBC narco-laundering case, given that our prisons were teeming with people who’d sold small quantities of drugs, he answered: “Have you been to a jail? Those places are dangerous!’’’⁹²

The truth is that inequality outside the confines of the courtroom eviscerates the equality within it. Steal a car and you end up in jail. Destroy the global economy and you are rewarded with billions of dollars. ‘Too big to fail’ becomes ‘too big to jail’. The reason is clear: banks, along with most large industries, spend millions of dollars lobbying and funding political parties. Roughly 3,000 lobbyists in Washington work on behalf of the financial sector. Since 1997, the banks have spent more than $3.6 billion lobbying the government. Over this period, bank profits have soared. In effect, the money spent on lobbying and campaign funding bought the deregulation that allowed the crisis to occur and, later, the influence to avoid paying for it. Perhaps even more significant is the revolving door between finance and politics. Executives from the financial sector are routinely granted top governmental roles as advisers, regulators and policy-makers while government officials are regularly given top jobs in the banking sector after leaving public office.

The influence we have over the formation of the law, the burden it places upon us, and our ability to defend ourselves from it, depend on the wealth and power we already possess. Large corporations routinely spend millions of dollars on political lobbying, the creation of think tanks, and the funding of political parties to induce governments to pass laws that protect their interests. In court, wealth continues to bring its advantages. It costs money to defend ourselves, and more money buys a better defence. Legal aid can go some way to levelling the playing field but it is often under-funded (particularly in the US), under attack, and is not available for all cases. Those with plenty of money can endure long and costly legal battles and, in some instances, escape criminal charges altogether by settling out of court. A standard strategy of corporations, when dealing with less wealthy opponents, is to offer a small sum by way of compensation and then threaten to engage in an expensive and drawn-out legal battle with an uncertain outcome if the offer is not accepted. Walmart has been accused of paying most of its staff less than $10 an hour, pressurising employees to work overtime for no extra pay and routinely locking them in warehouses overnight. Such treatment has led to at least sixty-three lawsuits in forty-two states, all of which Walmart chose to settle out of court for a tiny fraction of the wages it has saved.⁹³ Moreover, because the law is complex and difficult to understand, wealth can buy the expert advice necessary to navigate it successfully and, wherever possible, to exploit its loopholes for personal gain – tax-avoidance being an obvious example.

Though laws may apply equally to all in theory, in practice there is little equality. Prohibiting sleeping under public bridges has no impact on the millionaire but to the homeless traveller it could mean hypothermia and death. A law against stealing bread places no burden on the affluent but a heavy one on those struggling to feed their children. Some laws explicitly target the most vulnerable people. In Florida, for instance, citizens have been banned from sharing food with the homeless. Arnold S. Abbott, a ninety-year-old advocate for the homeless, defied the law and was arrested and threatened with a $500 fine and sixty days in jail.⁹⁴

The sea of inequality on which the legal system floats makes a mockery of the principle of equal rights before the law. The notion that the law treats all people the same, regardless of race, gender, status or creed, is a much celebrated ideal but, in a society in which the distribution of wealth, power and opportunity are so profoundly unequal, equality before the law is itself unjust. The assumption made by many legal theorists that, with few exceptions, ‘the same rules may be applied to all’ is a fantasy that becomes less justifiable the more unequal society becomes. This was not lost on the third American president, Thomas Jefferson, who said ‘There is nothing more unequal than the equal treatment of unequal people.’⁹⁵

Private law

Who decides what counts as a crime? Who decides which criminals are held accountable? In 2002, three twelve-year-old British children were playing in the street with plastic toy guns. The game abruptly ended when they were surrounded by police patrol cars: the children were arrested, finger-printed, forced to give DNA samples and reprimanded for possessing realistic fake weapons. While in 2015, £5.2 billion worth of arms export licences were approved by the British government for regimes on its own human rights blacklist.⁹⁶

A legal framework functions primarily to advance the interests of those who shape it. It determines the rules of the game according to which everyone must play. Different rules favour different interests. Slaves do not write the laws that oppress them. Colonies do not pass the laws that exploit them. Trade unions do not formulate the laws that criminalise them. The laws defining marriage for most of Western history, which effectively made a wife the property of her husband, were not drafted by women. Those who fought to end slavery, improve working conditions, resist colonialism, expand voting rights, achieve gender and racial equality, stop wars and protect the environment, repeatedly clashed with the law out of necessity, enduring police violence and imprisonment in the process. In each case, the law defended the privileges and prejudices of those with power against the rights and interests of those without it.

Adam Smith, the father of modern economics, observed in 1776 that ‘Civil government, so far as it is instituted for the security of property, is in reality instituted for the defence of the rich against the poor, or of those who have some property against those who have none at all.’⁹⁷ To the extent that the law is shaped and interpreted by a narrow set of elite interests, it degenerates into a means of defending privilege. In fact, the word ‘privilege’ originally meant ‘private law’. The less accountable a legislative process is, the more law enforcers are reduced to the status of a private army, whose primary role is to serve and protect those already in possession of the privileges that accompany wealth and power. Indeed, many of the police departments in the US originated as patrols to help wealthy landowners capture and punish escaped slaves.

The rights people enjoy today were won by those who were prepared to challenge the ‘private law’ of their time, acting outside it when necessary. It is to them we owe a debt of thanks for the political freedoms we possess – not to those law-abiding citizens who did nothing to challenge the legally sanctioned slavery, patriarchy, racism, apartheid, child exploitation, torture, imperialism, crippling poverty and disenfranchisement of the past, nor to the police and courts who upheld this legally sanctioned oppression.

Punishment is ultimately about power. When the formulation of the law results from great inequalities of power, its implementation becomes not a neutral act, but a highly partisan one, privileging one set of interests over the rest. Martin Luther King captured the essence of the problem when he asked us, in his ‘Letter From Birmingham Jail’, never to ‘forget that everything Hitler did in Germany was legal’. King himself, like Gandhi and Nelson Mandela, was imprisoned for breaking the law. Mandela was branded a terrorist, not just by the South African government but by the political establishments of the US and UK. And, although he was elevated in popular culture to the status of a modern-day saint after his release from prison in 1990, he remained on the terrorist watch list in the US until 2008.

The ‘terrorist’ smear continues to be widely used. Canada categorises eco-activism as a form of terrorism and a ‘threat to national security’. Those profiting from the destruction of the environment remain undisturbed by the law. In the UK, laws that were passed ostensibly to combat terrorism and anti-social behaviour have been routinely applied to people engaged in legitimate and peaceful protest; spaces in which protests are permitted, specifically those around Parliament, have been heavily restricted; ‘stop and search’ powers, created under broader anti-terrorism legislation, have been used to harass peaceful demonstrators; advocacy groups, including environmental campaigners and anti-war protesters, have been classed as ‘domestic extremists’ and infiltrated by undercover policemen who go to extreme lengths (including marrying unsuspecting activists and fathering children with them) to maintain their cover.

In Canada, in 2010, thousands of protesters streamed on to the streets of Toronto as part of a peaceful protest against the G20 summit. Halfway through the summit weekend, a senior police commander gave the order to ‘take back the streets’. The next thirty-six hours saw a thousand people – from peaceful protesters to journalists, human rights observers and Toronto residents – arrested and detained, a stark illustration of police priorities.⁹⁸ Two years later, another instructive example took place in Canada, this time in Quebec. Thousands of students were engaged in protests against the hike in their tuition fees. ‘The Maple Spring’, as it was dubbed, was met by a concerted clampdown by police, legislators and the courts. Law enforcers used pepper spray, stun grenades and rubber bullets. These draconian measures resulted in new anti-protest laws being passed and over 3,000 arrests in the space of seven months. One of these, a student leader named Gabriel Nadeau-Dubois, was convicted and sentenced for the grave crime of declaring, in a media interview, that he believed student picket lines were a legitimate form of protest.⁹⁹

In the US, the Occupy movement, although a peaceful expression of widely held concerns, resulted in numerous instances of police brutality, human rights violations and mass arrests. And in Puerto Rico, peaceful protests over the last few years have been met with, among other things, toxic chemicals, tear gas, pepper spray, swinging batons, rubber bullets, sting-ball grenades and ‘conducted-energy’ weapons.¹⁰⁰ These examples are just the tip of the iceberg. Along with the erosion of personal privacy, the criminalisation of whistleblowers, and the broader clampdown on internet freedoms, they appear to be part of a wider trend that threatens our most treasured democratic institutions.

*

The criminal justice system places the cordon of responsibility tightly around the individual. This is a disingenuous way to absolve political and economic systems and to deny the need for real equality beyond the confines of the courtroom. If we judge a person or group to be truly responsible for some deplorable action, we leave no room for a more searching explanation of the deeper causes of that action – and this myopia increases the likelihood of reproducing the confluence of economic, political and cultural forces that created the conditions for it to occur. (In the same way, if we judge a person to be ultimately responsible for an admirable action, our presumed knowledge can blind us to its deeper causes, making it harder to reproduce the kinds of behaviour we want to see.)

The responsibility myth has a powerful hold over us: even if we reject it intellectually, it can appear inescapable in practice, in our day-to-day lives. Yet, as we have seen, it gives us a distorted picture of reality. If we accept that people are not truly responsible for what they do, then a prisoner is no more deserving of his sentence than the judge who delivers it to him. The unsavoury truth, as jurist Wendell Holmes understood, is that the law ‘bears most hardly on those least prepared for it’.¹⁰¹

Today’s system of criminal punishment is not a solution to injustice but a symptom of it. Its irrational foundations divert attention away from society’s deeper injustices and failings, many of which we will explore in the following chapters. If society was serious about reducing crime it would hold accountable, and attempt to deter, those whose actions and ideologies perpetuate the conditions that breed it: those who fight to preserve and extend enormous inequalities of wealth, power and opportunity. A politician in a suit can do far more harm than any street gang, drug dealer or petty thief.

Crime is a politically determined category that must always be scrutinised. For too long our system of punishment has been the means of reinforcing broader social injustice rather than preventing it. The antidote, at all levels of society, is greater political accountability and equality. Only through the creation of a fairer, more humane society – one that offers dignified opportunities to all – can a criminal justice system ever be truly just.