Justice and the Modern Penal System

It is common to hear criticisms concerning the manner in which the criminal justice system
functions in our present society. Our permissive and hedonistic society, it is said, has led us to become
“soft” on crime. We are told that the police are often powerless to act and that the courts are little more
than a charade of actors playing out their legal games. Civil and human rights abound to provide
excessive protections to the guilty and blatant disregard for the victims of crime. We mollycoddle
prisoners who enjoy the comforts of graduate schools of crime. These and other indictments are
common-place and, indeed, often popular. At the same time, we are told that our system of justice
excels any other developed in modern history. We are governed by law, which is enforced with equity
regardless of race, color or creed. Law enforcement and the judiciary are free of corruption or favoritism
and the correctional system is more enlightened and humane than any preceding it.

MAJOR MODELS OF CORRECTIONS

In order to examine intelligently the major philosophical orientations that have guided the
modern penal system, it is important to acknowledge that the use of prisons as a place of confinement,
as the penalty for wrongdoing, is of relatively recent origin. Historically, the two major purposes served
by prisons were, firstly, to hold the accused person until the trial proceedings were completed (the
function we today call “remand custody”), and secondly, to hold the convicted person until the
punishments were meted out. In the latter case, the punishments were swift and often final. They
included execution, dismemberment, public floggings, branding, the stocks and the pillory and other
similar sanctions that today we would generally classify as “cruel and unusual punishment.” It was
primarily in the late 18th and early 19th century that confinement in prisons came to be used as the
punishment. Ironically, the use of confinement or incarceration in its modern evolution was viewed
essentially as a progressive reform based on a desire to enhance and promote humanitarian ideals in
contrast to the use of more barbaric forms of punishment of earlier times. Today, the use of long-term
confinement in prison has itself become known as one of the most severe and debilitating forms of
punishment used by society. Although very general and certainly simplified, I will describe the evolution
of modern correctional thought and practice by the use of four concepts that represent the major
philosophical orientations of the past two centuries.

Penitence

The origin of modern-day penitentiaries was one of those progressive reforms which, in its day,
was essentially humanitarian in nature and intended to replace the excessive forms of punishments
already referred to. Penitentiaries were first established in the United States in the late 1700’s when
reform-minded Quakers introduced the notion of penitence as a means by which offenders could be
reformed. The ideas of solitude, of contemplating the evils perpetrated and of making confession were
prevalent. This activity was accompanied by isolation and by hard labor, which similarly was thought to
have redeeming qualities. During this period, much of the hard labor was performed in public view (as in
chain gangs), which was intended to act as a deterrent to the offender and others by instilling humility, a
quality appropriate to penitence. Though one might be pleased that the believing church was very much
in the forefront of this development, we have to recognize that the place of penitence in our prisons
today is minor indeed, though not absent altogether. The essential elements of this philosophy guided
penal thought, however, for a good many years.

Punishment

With the modernization of the penitentiary system, the religious {35} influences diminished. We
could describe this process as the secularization of prisons much as we talk of the secularization of
society generally. At the same time the activities of hard labor were moved from public view to the
confines of the prison buildings or grounds. Partly, this was due to objections from the community
claiming that prisoner labor was unfair competition in the market place. Prison labor then became a way
to try to make prisons economically self-sufficient. It is during this period (late 18th to early 19th
century) that the prison system became increasingly closed to public view. In some respects (although
no doubt an overstatement), this period can be described as the “dark ages” of the modern penal
system. Out of public view and with a diminished religious influence, excesses grew in the arbitrary and
raw exercise of power and authority by prison administrators. This development resulted in a counter-
development known as the “prison sub-culture” developed by the prisoners themselves. While the sub-
culture was similarly characterized by excesses, it was essentially motivated as a survival strategy. This
dichotomy of interests between the keeper and the kept has plagued modern corrections for decades
and to this day is a predominantly destructive force in our institutions. To use a turn of phrase, it was
during this period that we refer to the use of imprisonment not “as punishment” but rather “for
punishment.”

Rehabilitation

The post war era brought new hope in many areas of life, including the penal system. Economic
growth was accompanied by an optimistic view of life and, at the same time, major advances were made
by the social sciences in understanding human behavior and social interaction. These influences reached
into the closed prison system described earlier but were also the predominant force behind the
development of alternative methods of dealing with offenders. It was in this context that the use of
probation and parole came into their own as viable alternatives to incarceration. As mentioned,
however, the major change that occurred was again in the prison setting where the social science
influence resulted in the development of treatment programs in support of “rehabilitative ideals.” These
efforts were extensive and buoyed up by the optimism that human behavior and attitudes could be
changed, if only enough of the right treatment was provided. While such treatment activities continue
to some degree at present and are useful in many respects, they can no longer be held up as the means
by which offenders will be rehabilitated and returned “whole” to society upon release from custody. The
rehabilitative notion as the major focus of prison programs has therefore been largely abandoned and in
an age of fiscal restraint is unlikely to be resurrected. In any case, practitioners agree that the best
prospects for rehabilitation will occur in the context of community-based programs.
Reintegration

If there is a coherent concept that can describe the present-day philosophy of corrections, it is
the reintegration of the offender into society. While this often refers to the process of the offender’s
return to the community from incarceration, it can also include any attempt to facilitate the resolution
of conflict, provide opportunity for reparation or amends to the victim, instill a sense of responsibility
through community service or, indeed, provide treatment aimed at removing or alleviating the causes of
crime. The mandate of correctional administrators, then, focuses more specifically on the provision of
opportunities in which reintegrative efforts can be carried out and on motivating offenders to utilize
those opportunities. Admittedly, the most effective use of such opportunities are limited in prison,
though temporary absences are often used with good effect for motivated inmates to take advantage of
such programs in the community. Involvement in such activities are intended to instill and enhance a
sense of responsibility on the part of the offender both toward himself and others. The penalty of the
court is represented essentially in the loss of freedom implicit in the prison term or the obligations or
conditions placed on the offender. The objective is to provide opportunities in which the offender can
exercise a reasonable degree of decision making, thereby enhancing personal responsibility and
accountability. “Responsibility cannot be acquired intellectually, but only through experience.” 1 {37}

Parole

The major focus of the public debate on corrections at present is centered on parole. While this
debate is raging in Canada, it seems now to be almost spent in the United States, where parole is
experiencing a comeback in substance and function, if not also in name. Parole, as a concept of early
release from prison, commenced during the “punishment” era identified earlier. In that context, it was
seen essentially as humanitarian in nature and was used predominantly as an exercise of executive
clemency. It was intended to ameliorate the excessive hardships of imprisonment, especially to
deserving inmates who would be unreasonably debilitated by prolonged incarceration.

References:

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