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Brett Sadler FRSA argues that if we want our justice system to be one that genuinely reduces crime, we need to rethink the fundamental principles that underpin it.

It’s great to see that the RSA and its Fellows are addressing some of the pressing issues around our prison system (see Rachel O’Brien’s blog of 8th August), something I feel very strongly about have been inside myself, although only as a teacher!

This work is a brilliant start in fostering an attitude of reintegrating prisoners into society, which is an essential part of a much bigger process that I believe is needed. 

We need to go back to the drawing board and ask the big question: “WHY?” Why have we devised a justice system that creates such negative outcomes in so many cases?

There are a number of premises that we tend to accept without adequate interrogation or debate about their relevance in the context of 21st century society.  And if we want to create an enlightened society this needs to be addressed. 

Here are some of the underlying assumptions we generally accept to be true:

  1. The rule of law should be upheld
  2. Criminals should be punished for their misdemeanours
  3. Prison – taking away their liberty – is the best way of doing this

Let’s examine each of these in turn.

Firstly, we need to look at the legal framework to inquire whether it is relevant to modern day living.  Our legislature has evolved over many centuries –millennia in fact – so there’s no reason to assume it’s as valid now as it was back then.

An important question to ask is “Who was the system designed for?” We know that laws were instigated by the ruling classes and were therefore by and large designed to protect their interests.  That’s why history tells of people having their hands cut off for stealing bread to feed their starving families.  Should we really uphold the law blindly, regardless of how unjust it may be?

A continuous stream of new laws are passed and over the years they seem to be becoming ever more prescriptive.  For example, creating a new law banning the use of mobile phones whilst driving when it was already illegal under existing legislation: either driving with undue care and attention or dangerous driving.

I would offer this perspective: the law disempowers us.  By telling us in detail what we can and can’t do it takes away any obligation we may have to use our value systems to decide how to behave in a morally correct manner. If there’s not a law against it, it’s OK.

This is the very kind of thinking that leads to unethical and even morally repugnant behaviour by individuals, corporations and governments alike.

What about the rule of law in Nazi Germany or in current day North Korea?

If we want to uphold the law, it needs to be designed to be fair and just for all.  It should not favour rich corporations or the vested interests of select groups at the expense of the many.

Instead of tinkering with the existing legislature, what we need is to replace all laws with a much simpler and binding ‘Code of Conduct’ that reflects the individual’s role and responsibilities within a civilised society.

Secondly, we seem to be obsessed with the need for ‘justice to be done’ in the Old Testament sense, fueled in no small part by a vociferous and mostly reactionary press.  This is one of the biggest contributors to prison overcrowding as average custodial sentences continue to get longer.

There is a big danger here in hardening criminals’ attitudes towards society. The reason for this is that there’s a kind of ‘psychic balance’ where overly harsh punishments can actually make the criminal feel that society ‘owes them.’  With that kind of mentality, the chances of reoffending are likely to be greatly increased.

Some of the clamour for harsh treatment comes from considering the needs of the victims, which have to be recognised.  This is where a change in attitude is needed at a societal level, towards seeing criminals as victims themselves.  What difficult or traumatic life circumstances might have led them to their crimes?  Restorative justice has proved a very effective alternative in many situations and could surely be used much more widely.

In short, we have to become much more humane in our approach to the whole issue of justice.

Thirdly, would anyone seriously have come up with the concept that banging people up with a load of other criminals was a good idea?  Prisons have evolved into breeding grounds for criminality where new offenders can learn all sorts of tricks of the trade.  And people who go in with a small cannabis habit come out as heroin addicts – I’ve seen it happen.

Putting offenders in institutions that destroy their self-esteem and self-worth is almost guaranteed to significantly reduce their employability on release, making it harder to re-assimilate and therefore increasing reoffending rates.

Again, for punishment to work it needs to be more humane. Instead of destroying self-esteem we should put in place personal development programmes so convicts can actually feel better about themselves and develop the resources and resourcefulness to create a better future, free of crime.

Long-term, then, the answer lies not in improving the existing system but in devising fundamentally different concepts of how to collectively ensure people behave in morally acceptable ways. After all, isn’t that what laws should really be about?

To achieve this will require a new approach where we as a society take responsibility for fostering appropriate standards and recognise that the factors leading to anti-social or criminal behaviour are complex. As with all effective change it will only happen if we recognise that we are part of the problem as well as part of the solution.

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