Posts Tagged ‘sentencing’

In the wake of the Breivik sentencing in Norway this past summer, some have raised concerns about the statutory limitations on sentence length there, especially for such a horrific offense. Questions about this also gets at some themes I’ve discussed recently on Quora on similar topics (Prisons: Why is it a good idea to put criminals together in a prison? What are some alternatives?).

Essentially, the use of prisons emerges in part from societal consensus about the goals of sentencing, and the answer to the question about the Norwegian sentencing system likely lies somewhere in there as well.

There are essentially five goals of sentencing, retribution, incapacitation, deterrence, restoration, and rehabilitation. The last of these, rehabilitation is probably one of the most controversial. In the U.S., for example, rehabilitation is considered a secondary goal, after retribution. Americans want their prisoners punished first and rehabilitated second.

This appeals to a societal sense of justice and fair play that has considerable cultural inertia in our country. Any talk of prioritizing rehabilitation ahead of retribution very typically generates complaints about how doing so will endanger public safety, ignore the needs of crime victims, and – most damning of all – coddle criminals.

Never mind that certain forms of rehabilitation have been shown through research to reduce the risk of future offending, we want our pound of flesh first and foremost

The same is not true the world over, though. Norway, by contrast, has a very progressive approach to sentencing that prioritizes rehabilitation as a primary strategy for reducing future criminal behavior. That doesn’t mean they don’t use prisons, it just means that the conditions of confinement are geared toward reducing the risk that an offender will return to a life of crime after release.


Bastoy Prison, Norway

Unlike many U.S. jurisdictions that use determinate sentencing (the sentence stated by the court is the actual sentence that will be served), Norway uses an indeterminate system that relies on an assessment of whether or not the offender is rehabilitated as a basis for release from prison.

As you noted, the stated maximum prison sentence in Norway is 21 years, but that can also be extended in five-year increments if the prison system determines that an offender is not rehabilitated by the end of his or her initial term. They can be extended in this way, every five years, indefinitely. So, essentially, there is an ability for an individual to serve life in prison, it’s just decided on an installment basis.

The outcomes of this approach seem to be positive in terms of reducing the risk of reoffense. I couldn’t find a more authoritative source, but this Guardian article about the Norwegian prison system claims that the recidivism rate of Bastoy Prison is about 16%, the lowest in Europe, versus about 40% in the U.S. 

Sentencing practices and the conditions of confinement in Norway aren’t without controversy of their own, however. There’s been heated debate across Europe about the perceived injustice of Norwegian inmates living in relative “luxury” while the living conditions of law-abiding, but impoverished or elderly people, aren’t nearly so comfortable.

The question of whether prisoners should enjoy better living conditions than law-abiding people, even if those conditions are part of what leads to more positive rehabilitative outcomes, is a legitimate one. At this point, at least, Norway has chosen an approach that it generally believes will have the greatest positive impact on crime.

Limits to the length of prison sentences are simply one component of that approach.

At the end of 2011, there were 1,598,780 people incarcerated in American prisons (Bureau of Justice Statistics), a total that does not include individuals detained in jails or other facilities awaiting trial or disposition of their case.

By the strictest definitions of guilt and innocence, 100% of these incarcerated offenders were adjudicated and are considered guilty in the eyes of the system. So, none of them are technically innocent.

However, there are a number of cases in which individuals sentenced to prison have later been shown not to have committed the offense for which they were convicted. According to the Innocence Project, 302 people have been exonerated by DNA evidence since 1989.

Here is a racial breakdown of those 302 exonerees:

188 African Americans
86 Caucasians
21 Latinos
2 Asian American
5 whose race is unknown

The causes of these wrongful convictions ranged from faulty eyewitness accounts to poor legal representation, and each one represents not only a tragedy for the individual, but also a huge failing of the justice system overall.

The Innocence Project also cites estimates that between 2.3 and 5% of incarcerated individuals are innocent. Based on the numbers of offenders incarcerated at the end of 2011, that would equate to between 36,000 and 80,000 innocents in prison.

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In modern society, our options for punishment are fairly limited. Actually, prisons are an improvement over early punishments that involved primarily putting people to death for anything and everything (see the Code of Hammurabi for some fun details about that).

The use of prisons has changed considerably over the years, but they are essentially the same as they’ve always been in terms of being graduate schools of crime. Placing criminally-minded folks with others who share the same worldview can be very counterproductive. But, there are important reasons that we continue to use prisons, and there are some emerging ways to reduce the risk of recidivism among incarcerated offenders.
Barb wire
First, it’s important to understand that prison is not really about changing people’s behavior, contrary to popular belief. There are actually five generally accepted goals of sentencing (retribution, deterrence, incapacitation, restoration, and rehabilitation) the first three of which are accomplished primarily through incarceration. When an individual commits a crime, they create what’s known as a social debt, which is a price that the offender should pay for harming the victim and society. The way we extract that debt used to be through torture or putting the person to death, but now we primarily extract it through imprisonment.

So, incarceration is not really about “fixing” people, rehabilitating them, or even about “teaching them a lesson,” it’s about extracting a cost for harming society. That’s an important point to keep in mind.

There’s no credible research showing that punishment in general is an effective way to reduce an individual’s risk of repeat criminal behavior in the future, contrary again to popular belief. Actually, the opposite has been shown to be true. When a low-risk individual is placed in contact with higher-risk individuals, the low-risk person’s risk of committing future crime actually increases.

The reason we continue using incarceration as much as we do is because our elected representatives do not want to be viewed as soft on crime. Supporting rehabilitative approaches smacks of a liberal ideology that rankles certain factions of the electorate, so legislators choose instead to pass laws that increase the use of prisons and make sentences even longer. Many voters like that.

So, prisons are an important part of our response to crime, but not for the reasons that many people believe. They provide a reasonable way to punish offenders, but that should not be confused with strategies that actually reduce the risk of reoffense. That’s important point number two.

Some argue that long prison sentences are warranted from a punishment perspective, especially if the crime is very serious, and they may be correct. Most crimes are not heinous, though. Others argue that all a long sentence does in most cases is defer the next crime. We send about 600,000 people to prison every year, and we release slightly less than that each year. That means we have a constant influx of released offenders who are really no better off in terms of their risk of reoffense when released than when they were initially sent to prison.

So, prison likely only pushes the crime problem downstream by the length of time the person is incarcerated. We haven’t really accomplished anything other than getting society’s pound of flesh from the offender.

What are some alternatives, then? One is to rely less on incarceration and more on research-based methods proven to reduce the risk of reoffense. The National Institute of Corrections has put together a great deal of information about Evidence-Based Practices shown to reduce the risk of recidivism.

The essential point here is that simply incarcerating someone does little to actually change behavior, it simply drives it underground and makes people more diligent about hiding their crimes from others. What we need to do instead is change an offender’s thoughts, feelings, and beliefs that contribute to criminal behavior.

One very promising way to do that is through use of Cognitive-Behavioral Treatment (CBT), which essentially helps offenders change their thinking. That, in turn, leads to positive changes in behavior. When they see the value in prosocial behaviors, they are more likely to engage in those behaviors.

That’s what society wants: Everyone to be a productive, contributing, and law abiding member of the social fabric. Incarceration does not create that outcome, but interventions such as CBT can.

Why don’t we use these types of interventions more often then? Refer to my earlier point about legislators fearing the electorate will view them as soft on crime. Understanding how CBT and other similar interventions work is much more complicated than just coming out and saying we should lock more people up for longer periods.

Until the public demands that we use effective strategies proven to reduce the risk of future crime, as opposed to just locking people away for as long as possible, we’ll continue using methods that are ineffective in that regard but that also appeal to society’s misguided notions that locking people up will change them for the better.