Credo of a penal reformer

PERSONAL COLUMN GILES PLAYFAIR

I believe that a solution to the problem of .erious crime must ultimately be sought in treat- ment, not punishment. Have I, without realising ,t, swallowed part of a 'left package deal'? I ,hould be forced to think so, if I accepted Mr. John Braine's conclusions in his article in the sPEcrama on 19 July. Mercifully, however, my position seems remote from that of his former triends on the left.

Their approach to penology, if Mr Braine represents it correctly, is 'ideological'; mine is pragmatic. When he remarks, in his converted state, that the function of the criminal law is not to make people behave well, but to prevent them from behaving badly in certain specific ways, I find the difference in the distinction somewhat elusive, but I readily accept the ,econd part of the statement as a working pre- mise. In fact, I know of nobody it's likely to offend outside of a few last-ditch retributionists.

Still, two questions then arise. What specific methods of prevention are the most effective? What methods, regardless of their possible effectiveness, are morally permissible in a civil- ised society?

I hold that the second of these two questions must be answered before the first can be pro- perly considered. Mr Braine is manifestly of the same opinion, for he condemns as inhuman the use (or conceivable use) of such violent psychiatric techniques as lobotomy, electric therapy and castration to 'reform' prisoners. But if, as I have no doubt, reform has precisely he same objective as deterrence, namely the prevention of crime, it is hard to detect the logic in Mr Braine's approval of violent punishments like flogging and hanging.

For my part, I reject the idea of inflicting any form of violence on a criminal against his will. But I also consider lifelong entombment in a prison as intolerable cruelty. Since we have yet to devise a more civilised way of isolating a number of dangerously deranged (but legally sane) people from society, it would seem to me that we are on dubious moral grounds in denying a sex murderer, say, the right to any sort of psychiatric assault, if through granting it there is a reasonable chance of his being safely released. And I include castration, which is at present outlawed.

I should certainly think it impossible to main- tain that castration is in itself less humane than hanging. The word is peculiarly emotive, and is probably as repellent to most psychiatrists as it is to anyone else. Nevertheless, in countries where the operation is permitted, with the con- sent or at the request of the offender, castration has proved an extraordinarily successful alter- native to permanent incarceration.

In Denmark, for example, only three per cent of those who have been asexualised during the last thirty years are known to have offended again, and cases of gross- physical change Or severe psychic upset have been extremely rare. This is not to suggest that castration is. medically speaking, a desirable or even a respectable form of treatment. It is to ask which of the following three courses is morally the least objectionable in dealing with any given offender: To kill him? To lock him up in punitive captivity until he dies? Or to allow him to live as a half-man in freedom?

But the question of what exactly are or are not morally permissible methods of crime pre- vention is not easily argued. One can only say that the limits have progressively narrowed under humanitarian influences during the past hundred years, and that the pro-floggers and pro-hangers seem to be battling against the tide of history. Little more than a century ago— and this may come as a surprise to Mr Braine —a Royal Commission was informed by the Governor of Millbank Prison that corporal punishment had ceased to have the slightest deterrent value, because it was being much too lightly employed: the minimum requirement, he said, speaking from his long experience, was fifty lashes with a knotted cat.

That, one may assume, would be going a bit too far even for the most convinced among today's advocates of flogging. But even if such moral considerations counted for nothing, there could still be no consistency in holding that the function of the criminal law is to 'prevent people from behaving badly' and at the same time clinging (or reverting) to the concept of punishment to fit the crime.

Now, unlike Mr Braine's non-thinking friends on the left, I do not say that all crime is a 'disease to be treated' and that a system of punishments is wholly ineffective or unneces- sary. Other considerations apart, the great majority of punishable offences are not com- monly regarded as crimes at all. One is unlikely to find oneself in a frenzy of indignation with an 'occupier who fails after notice to mark his house with the approved number,' even though a recent increase from a fine of £2 to £20 (or thirty days in default) for this offence may have been long overdue.

But to assume that serious crime can be adequately controlled through an equation be- tween deterrence and severity of punishment is simply to ignore history. After twenty years of unremitting harshness in prison administra- tion, the Gladstone Committee of 1898 recom- mended a shift of emphasis from deterrence to reform. They were not sentimentalists or subscribers to some left package deal. They faced the reality of that 'great stage army of offenders in all categories' which 'continued its unbroken array, with a monotonous regularity.'

If these recidivists are still with us—and they are—that, in my view, is because a re- formative as opposed to a provenly abortive deterrent penal policy continues to exist in the promise rather than the performance. It is fact, not opinion, that a considerable number of criminals are mentally abnormal and that only a tiny percentage of them receive psychiatric attention of any kind. In a recent study of the habitual offender for the Cambridge Institute of Criminology, Dr D. J. West found that 'at

a conservative estimate' at least a third of the 100 prisoners whom he examined 'were suffer- ing from . . . mental illnesses of considerable severity' and that eight of them were 'actively psychotic.' If his sampling was representative. then the number of psychotics among habitual offenders in prison must alone run into hun- dreds. The number of psychotics. psychopaths and mental defectives in the total prison popu- lation probably runs into thousands.

But the problem does not begin and end with the mentally abnormal: and it is a com- mon fallacy, which Mr Braine shares, to sup- pose that if one places one's faith in treatment one is wedded to psychiatry alone. There are, broadly, two other groups of criminal who are not, and in effect cannot be deterred by punish- ment: the weak or inadequate and the dedi- cated.

In the case of the former group, the root trouble is that a prison sentence is precisely not what Mr Braine would like to think it— finite. It is, on the contrary, as Shaw pointed out, fraudulent; for when a man has paid his debt to society, society rarely keeps its part of the bargain by helping him, or even permit- ting him a reasonable opportunity, to lead an honest life. An ex-prisoner is not a citizen reborn. He is an ex-prisoner.

A prison sentence is truly finite only for the dedicated criminal, and then for the wrong reasons. In his case, there is not a debt to be paid, but an interruption of his career to be endured—one which he accepts more or less ungrudgingly according to how far it exceeds or falls short of his worst expectations. I should hazard the guess that the apparently growing habit among professional criminals of carry- ing firearms has much more to do with the gargantuan sentences passed on the train rob bers and others than with the abolition of the death penalty. For the direr the consequences they face if they get caught, the higher the insurance they feel entitled to take out against their occupational hazard.

In brief, then, the case for treatment as a means of crime prevention is that punishment has demonstrably failed. Yet the honest answer to the question of how the professional criminal can be weaned from his dedication to crime, or the inadequate type of offender be given the social support he needs, is that we have no idea. Nor, for that matter, do we have more than a glimmer of understanding of how to treat the mentally abnormal states that lead to crime.

But it is equally true that we haven't made anything approaching a sufficient attempt to acquire the necessary knowledge. Our resources, human and financial, invested in research and experimentation are miserably small. Nor is this situation likely to be remedied unless and until we are prepared to commit ourselves to a reformative penal policy. It is the emotional commitment that must precede all.

I do not, for a moment, agree that whoever wished to see Brady and Hindley hanged was as guilty as they were. (Another of Mr Braine's quoted extracts from the left package deal.) I do, however, think it much less constructive to 'detest' their crimes than to wonder what tempted them to commit them. It is not, I should suppose, a common, but a grossly abnormal, human failing to want to torture and murder children. If we spend our time 'detesting' a person who yields to such a tempta- tion, instead of bothering to investigate the psychology behind it, we miss the opportunity to prevent a repetition of the sort of atrocities Brady and Hindley perpetrated.