Chapter 2

THE CASE FOR REINTEGRATION

In 1974, Robert Martinson published his well-known article ‘What works?’ based on a survey of 231 studies on offender rehabilitation published in the English language between 1945 and 1967. Although many positive findings were made, the negative aspects were emphasised and when the debate spread, ‘what works’ soon changed to the dictum ‘nothing works’.10 In the ensuing debate, Martinson’s methodology and selective reporting received severe criticism.

Martinson undertook a survey which found that, in 39 of the 82 studies, there were positive to relatively positive results in terms of offender rehabilitation. However, when the findings were published in Public Interest, the conclusion seemed to be that ‘with a few and isolated exceptions nothing works’. Martinson’s report was influential and very damaging to the cause of rehabilitation advocates. However, the debate had positive spinoffs in terms of strengthening methodology and urging analysts to become more careful in their evaluation of rehabilitation programmes. A crucial realisation resulting from the debate was that there is no single method or programme that will work in all instances. Different programmes do work for different people in different settings — people are not all the same, therefore programmes could never be the same.

Imprisonment as such does not rehabilitate people, nor does it facilitate the ultimate goal of reintegration. The deprivation of liberty and time, through the imposition of ‘suspended’ time, punishes the offender because the value of individual freedom has increased significantly in the market of social values.11 It is because freedom and control over time are valued that the belief has developed that taking these valuable assets away, those who are thus deprived will not run the risk of losing such freedom and control again. This is an erroneous line of reasoning. Firstly, it has to be asked whether such individuals ever had control over time and enjoyed freedom to exercise their rights and to develop to their full potential. Did they have the power to make decisions or were decisions made for them, often to the extent of victimisation? Secondly, if prisoners are released after periods of being deprived of liberty, do they have the skills to make the right decisions and can they take responsibility for these decisions? Imprisonment in itself does not address these questions. It only aggravates the problem of being powerless, of having no say, and of not knowing how to make the right decisions. Imprisonment also removes people from the possible support and constructive networks that they may have and places them in an environment where (social) relations are based on survival, violence and hierarchy. It is dubious whether people are better equipped to deal with life after a period of imprisonment.

Karl Menninger is extremely critical of imprisonment. He calls the ‘prison threat theory’ an utter failure, and attempts at reintegration wholly unsuccessful. He criticises the process and purposes of punishment and what happens with released prisoners:

"After a solemn public ceremony we pronounce them enemies of the people, and consign them for arbitrary periods to institutional confinement on the basis of laws written many years ago. Here they languish until time has ground out so many weary months and years. Then with the planlessness and stupidity only surpassed by that of their original incarceration they are dumped back on society, regardless of whether any change has taken place in them for the better and with every assurance that changes have taken place in them for the worse. Once more they enter the unequal tussle with society. Proscribed for employment by most concerns, they are expected to invent a new way to make a living and to survive without any further help from society."12

Menninger paints a grim picture that, for many prisoners released after a term of imprisonment, is the reality — no plans, no direction and no assistance. It is futile for society to continue with this strategy of incarcerating people for periods of time and then expecting them to have transformed themselves.

The question remains why people are punished for their wrongs. The philosopher Hegel concluded that people are punished to acknowledge them as human beings. By punishing people, pain is inflicted for a wrong deed in much the same way that good behaviour is rewarded. If people are not punished, their rights as individuals to be treated like humans are not accepted.13

If this position is taken, it must also be accepted that the ultimate purpose of punishment is to prevent further offending. For 95% of offenders this means that reintegration into society is a prerequisite. The purpose of punishment is significant as it determines further actions. Three existing theories of punishment have illustrated their shortcomings when measured against the yardstick of reintegration. Deterrence, incapacitation and retribution have all failed to make any major impact on crime and have rather served the agendas of those meting out punishment. For those who received punishment, it had little if any, significant positive effects. A short review of these approaches and their shortcomings is appropriate before a fourth alternative is presented.

Deterrence

Deterrence theory asserts that the purpose of punishment is to prevent a repetition of crimes already committed, in other words, to deter the individual or the group from committing this crime by punishing the offender(s). On an individual level, deterrence theory states that a person who has experienced the ‘pains’ of punishment will be mindful of this in future and will therefore avoid the consequences of committing another offence. On a general level, deterrence theory argues that the citizenry will observe what happens to people if they commit an offence and will therefore know what the consequences are of committing a crime and thus refrain from committing such a crime. The theory further states that some people will be deterred from committing a crime by observing what people experience if they are punished, whereas others will only learn through experiencing it personally. In both instances, people will make rational decisions to avoid further punishment as it is unpleasant, and people generally prefer pleasure instead of ‘pain’.

Deterrence theory assumes that people are rational and are in (perfect) control of their lives and emotions. They are therefore able to make utilitarian decisions with a certain degree of clarity. Empirical evidence suggests that prison, or even the death penalty does not deter people from committing crime. Throughout the world, people are imprisoned in vast numbers without it having resulted in any significant reduction in crime. The threat of punishment also does not appear to have any significant impact in terms of preventing people from committing offences. The fact that so many current prisoners are in fact recidivists and have been in prison before, clearly shows that the deterrence approach does not hold much promise as a crime reduction strategy.

Incapacitation

The second theoretical approach to punishment is incapacitation, which contends that people who have offended should be removed from society and placed in an environment where they are incapable of committing any further crimes against society. The ‘three strikes and you’re out’ rule used in the United States is a practical expression of this approach. According to this rule, people who have committed three felonies will remain in prison for the rest of their lives. Minimum prison sentences for certain crimes are also the result of this approach. Of all the incapacitation strategies, the death penalty has no equal, and if permanent incapacitation is to be achieved, the death penalty would be the logical punishment for every offender.14

However, incapacitation is a very expensive option, and in practice is only a limited measure as 95% of all prisoners are eventually released. They return to society still facing the same problems they did at the time when their imprisonment commenced. Apart from the issues of efficacy and cost, the incapacitation approach also gives rise to a number of concerns over human rights that cannot be ignored.

Retribution and restoration

The retributive approach, which to a large extent underpins the two theories described above, states that pain (punishment) is meted out in proportion to the crime that was committed. However, proportion in this sense means that the punishment must be more painful or costly to the recipient than the pleasure or gain derived from the crime. Punishment is directed at individual offenders who must suffer the consequences of their actions. The crime cannot be undone, nor is any restoration sought of the imbalance created by the crime. The punishment is merely society’s revenge on the offender. The purpose of the punishment is to make offenders suffer and if the sentence is imprisonment, offenders sacrifice their freedom, the only acceptable commodity they own which is of value as the payoff.

The restorative justice theory was borne out of the realisation that the retributive approach to punishment is ineffective as it does not compel offenders to take responsibility for their actions and, more importantly, completely ignores the rights of the victim and the interests of society. There is therefore no attempt to restore the breach that was created. Retributive justice defines a crime as the breaching of a law and therefore an offence against the state and its legislation. Restorative justice, on the other hand, defines a crime as an offence against a person and a relationship, and that the main purpose of such justice is to restore the rights of the victim and the relationship.

The retributive approach fails to address a number of key issues that are regarded as important if crime is to be reduced and reintegration facilitated. It firstly assumes that people are rational and that they will analyse the experience of punishment rationally and come to rational conclusions about it, in other words, not to commit any further offences. The error of this line of reasoning has been pointed out above. Secondly, punishment is aimed at offenders for what they have done. There is no attempt to focus any wider on the impact of the crime on society and specifically on the victim. Thirdly, punishment is imposed on offenders who will experience the punishment without ever being challenged to take responsibility for the crime that was committed.

Reintegration

There is a fourth approach, put forward by Reitan, which holds promise as it is rooted in potential benefits for society and not in the moral satisfaction of the judicial system.15

Reintegration theory states that criminal behaviour represents a breach or absence of community. The justifying purpose of punishment is to restore community where the breach occurred or to establish community where it is absent. This approach takes a normative view of community: there must be a unifying bond, with mutual concern and exploitation should be avoided. The ‘unifying bond’ can be defined very loosely and may vary from one situation to another depending on what the common concern is. The normative view of community means that community exists in people’s belief systems and thus on the level of ideas. People believe that they have a common concern, whether that is centred in a family, a neighbourhood, a workplace or any other setting where people interact on a daily basis for their own and others’ benefit. It follows then that community exists, in the normative sense, when each member of the group values the interests of other group members enough to take those interests into consideration when making decisions.

Reitan takes the idea of a normative community a step further and defines what is called ‘the community of good citizens’ or ‘law-abiding citizens’. They are people who do not steal from one another, do not abuse one another and are courteous to one another. They show a modest concern for one another, if not in feelings, at least in actions. Even though the community of good citizens is less close-knit when compared to other types of community where there are a much stronger commitment to fellow members, the community of good citizens is important as members define themselves in opposition to the law breakers who are not part of this community. The reasons why they are excluded may take on many forms such as race, appearance and even factors that have little to do with the unifying characteristics of the community, namely conformity to standards of mutual concern and respect.

When a crime occurs, it is clear that such a sense of community does not exist in a normative way between the victim(s) and offender(s) as these acts do not exhibit mutual concern and respect, and are exploitive:

"It is probably the case that the majority of criminal acts are perpetrated against victims with who the perpetrator has no sense of being in community: one does not ordinarily violate the needs and interests of those with whom one is linked by the mutual feelings and commitments of community. Rather, one ordinarily violates the needs and interests only of those with whom one has no such connections: strangers, enemies, outsiders. Occasionally, however, the criminal act may itself create the breach in community, as when someone is violated by a loved one. In such cases, the sense of betrayal and outrage is particularly acute."16

Where offender and victim know each other, especially in a domestic situation, the effects of the crime are much more severe and traumatic as the crime contradicts assumptions about safety, security, trust and values associated with the context in which it occurred. The effects of sexual abuse and domestic violence are traumatic for this reason: someone who is assumed to be a protector of the ‘community’ becomes the violator of the same community.

A criminal act does not only create a breach of community, it also confirms the breach where it has already been in existence and reinforces the exclusion of the offender from the community of good citizens. For the perpetrator to (re-)enter the community of good citizens, if and when he or she chooses to do so, becomes an increasingly difficult task. Community can only exist if both parties — out of free will and without coercion — participate in actions that show mutual respect and are not exploitive.

The reintegrative theory of punishment rests on two moral premises: firstly that it is better for people to be in community with one another than not, and secondly, that community should be pursued wherever it is absent. Punishment should therefore aim to promote community, to bring the offender back into the network or community of good citizens. Punishment, as it is known now, promotes the opposite — the offender is removed from society, the victim is given very little, if any, say in proceedings and, in fact, has no power over the decisions made, while the community of good citizens is represented by officials and statutes that represent the interests of the state.

The breach created by the crime, or the pre-existing breach confirmed by the crime, thus needs to be restored through punishment if the offender is to be part of the ‘community of good citizens’. For this to happen, punishment has to achieve two goals: firstly, it must cleanse away the stigma attached to the crime so that both the offender and society can put it behind them in a way that does not affect their further interaction, and secondly, it must compel a higher commitment from the offender to be part of the community of good citizens and to act according to the principles of mutual respect and non-exploitation.

What should the nature of punishment be if it is to achieve these goals? Firstly, punishment should be seen as just. Punishment is about inflicting pain and hardship. Whether it is believed that this hardship should be proportionate to that suffered by the victim and/or that it should illustrate that there is no ‘profit’ in crime to others, the person who is being punished has to perceive this punishment as just and it has to awaken a sense of justice in the offender. The offender will only realise this if he or she admits that what was done was indeed wrong and that he or she was responsible. Punishment that is not perceived to be just will not have the desired effect.

Secondly, there should be a clear connection between the crime and the punishment. Offenders should understand that punishment is a reaction to the crime that they have committed and that it is not meant, for example, to deter other people from committing the same offence or for reasons of public security.

Thirdly, even though this may sound strange, punishment should be inflicted with the utmost respect for the offender. Regarding the offender as a fellow human being and expressing the court’s desire that the offender should be enabled to make a positive contribution to society, are seen as showing respect. Judging people based on their perceived worthlessness or depravity does not show respect, but in fact dehumanises them and places the court (and society) on a very slippery slope. According to Reitan, punishment must serve as an invitation to community:

"By accepting this punishment, internalising it, and making it your penance, you will be (re) integrated into the community of good citizens and your life will be richer and more satisfying as a result. It is in the hope of this that we administer punishment."17

The community of good citizens cannot realistically expect offenders to show respect to people if they have not been treated with respect. Punishment that belittles, degrades, tortures and violates people will not contribute to reintegration and a sense of community. Offenders who receive such punishment will either lapse into a state of despair and hopelessness, or become resentful and angry. Prisons are indeed full of the hopeless and the angry. A punishment that is too severe has a double effect: firstly, the offender suffers the consequences as noted above, and secondly, the community perceives it as a confirmation of the subhuman nature of the offender.

In summary, punishment and its outcomes should:

be based on respect for the human and the humane;

make a clear connection between the crime and the punishment;

be an invitation back into the community of good citizens and not a banishment order;

be just and perceived as such by the offender; and

restore the breach in the community.