5. Why Prisons Fail to Achieve Most Sentencing Goals

black Image of scales on white background with the words, "calibrate the scales" overlaid. As with any set of scales, the scales of justice must, from time to time, be recalibrated. Total balance is never achieved, but all in the criminal justice and legal systems must strive for it as much as possible.

As discussed in Chapter 4, personal values play a vital role when a person acts. Personal values explain why a choice is made. Understanding the motive behind an action can reveal much about values. However, values are learned.

Throughout our lives we receive information related to values/beliefs. For instance, many grow up hearing statements such as…

  • It’s a dog eat dog world
  • You must fend for yourself
  • Life is cheap
  • You must follow your heart
  • Live life to the fullest
  • Never surrender
  • Fear nothing
  • Distrust authority
  • Shit happens
  • Life sucks and then you die
  • Turn the other cheek
  • Fight, fight, fight
  • Never, never, never give up

These are all values statements and all reflect the beliefs of some. Most people reading this will agree with at least a couple, others with many. Some of these values can easily land a person in trouble with the law. And as Shakespeare put it, “Therein lies the rub.”

When a person lands in trouble with the law, although a crime has been committed, something more is at play.

The crime occurred because that person held a value or values which society, as reflected in its laws, disagrees. However, most prison systems are not designed to get to the underlying value which caused the behavior, but rather seek to punish someone to the point they will figure it out themselves.

Imagine a child getting punished for doing something the parent views as wrong, but the parent never takes the time to explain why the punishment is being meted out. The child will learn nothing and will likely repeat the behavior at another time, though this time will also take steps to avoid detection. It is the same with those who commit crimes.

 

However, prisons usually fail to achieve the sentencing goals for several reasons, the largest of which is a failure to account for how humans learn. We change our behavior as new facts are acquired. Psychological research indicates there are only four tools available to modify behavior. These are the elements known as Operant Conditioning:

  1. Positive Reinforcement
  2. Negative Reinforcement
  3. Positive Punishment
  4. Negative Punishment
Chart showing Positive and negative reinforcements and punishers. caption reads, Operant Conditioning is the means by which any creature learns. When a behavior is desired, something may be added or taken away in order to alter the behavior. In the case of prison, liberty is taken away and multiples of unintended punitive measures are added within the system. Because the conditioning is not carefully guided, any outcome is possible. The most common outcome is that those who leave prison become better criminals.
Operant Conditioning is the means by which any creature learns. When a behavior is desired, something may be added or taken away in order to alter the behavior. In the case of prison, liberty is taken away and multiples of unintended punitive measures are added within the system. Because the conditioning is not carefully guided, any outcome is possible. The most common outcome is that those who leave prison become better criminals.

To alter behavior, one must become convinced that the behavior is either wrong or harmful to self and others, including society-at-large. This is where the psychology of learning is vital.

Operant conditioning is a means by which creatures are trained (or taught) to change behaviors. Operant Conditioning has been repeatedly demonstrated to consistently alter behavior patterns when applied correctly. There are two basic elements to operant conditioning, applied either positively or negatively, depending on the situation. These two elements are combined as shown in the graphic to the right.

Reinforcements Are Needed

If a certain behavior is desired, reinforcements are used. Reinforcements are simply whatever is used to encourage certain behaviors. Reinforcements can be given or taken away. If something is given, it is referred to as positive and if something is taken away to encourage the behavior, it is considered negative (Prince, 2013). Simple.

For instance, if you want your child to make his bed every morning, you may give praise each time the task is accomplished. You are thus adding praise to the desired behavior. The praise is known as a positive stimulus and the entire action is a positive reinforcement. This will encourage your child to continue making the bed each morning and eventually, it will become a learned behavior.

On the flip side, the negative reinforcement takes something out of the equation to encourage positive behavior. If you have a child who refuses to eat veggies, you can tell them they are remaining at the dinner table until he/she eats two bites of say, squash. When your child eats the two bites (the desired behavior), he/she can remove self from the table (negative stimulus).

Another example is the man who comes home from work to a nagging wife. She wants him to clean out the garage and he does so to “shut her up.” In other words, the man completes the desired action to avoid hearing the nagging. (Note: This example is not placed here to encourage nagging, but rather to demonstrate that we daily use negative reinforcement whether we intend to or not. There is ample evidence that nagging damages relationships, so take this as it is, an example only.)

Punishments…Not what are Generally Imagined

Punishers are simply whatever is used to discourage a behavior. These are not punishments in the traditional sense, that is, these are not harmful, not aversive measures. These are consequences presented immediately after a behavior which is used to encourage a reduction in that behavior (Prince, 2013).

As with reinforcements, we use punishments daily, often without even knowing it. Likewise, there are both positive and negative punishments.

For instance, many children reach school age and continue to suck their thumb. This is a common behavior which is generally gone well before reaching adulthood. This is largely because of the impact of positive punishments. On reaching school, the child who sucks his/her thumb (the behavior) will usually be teased by classmates (a positive punishment).

As another example, a child may suddenly grab something from another child. If seen, the teacher or parent may send the child to time out (a positive punishment). Or, the other child may sock him in the nose (still a positive punishment). The point is, by adding something not desired to the undesired behavior, the behavior is modified.

Bentham was ahead of his time
Jeremy Bentham clearly understood the relationship punishments have on altering behavior, even if the term did not exist in his day. As one of the fathers of modern criminal justice theory, Bentham claimed that if punishment were “swift and certain,” criminal behavior would be eliminated. He was correct in his assertion; the problem is that although punishments DO often come in criminal justice, it is never swift and seldom certain.

In the case of negative punishments, something desired is removed when an undesirable behavior is displayed. For instance, in a school setting, a teen may be restricted from an elective event (ie. Music performance, dance recital, field trip) upon displaying a negative behavior (talking in class, acting up, being late).

In the case of criminal justice, someone breaking the law (the behavior) is sent to prison (the negative punishment). Note too that prison could be both positive and negative in the sense that something is added (the prison) while something is also removed (personal liberty). Thus, prison acts as something of a double punishment—this is important to remember.

To better understand these points, it is strongly recommended you stop here and read the following two essays found on this website…

A House Divided, with Screws and Croakers

Rehabilitation IS Behavior Modification

The Cost of Tough on Crime

It has been said that crime does not pay.  This is not entirely true. From the perspective of monetary gain versus risk, some have found that crime does indeed pay.  Likewise, from the perspective of cost versus benefit, some question the get-tough approach of the last few decades in America (Fass & Pi, 2002).  Indeed, in a consideration of the tough approach, it stands to reason that society should consider carefully whether the price paid is a Pyrrhic victory or if there is a better approach.

To gain a full understanding of this issue, it is necessary to take a cross-disciplinary approach. To be sure, before any approach can be effective, an understanding of the motives behind the criminal activity is necessary.

The Fundamental Cause of Crime

Cesare Beccaria and Jeremy Bentham developed the first theories to explain crime and punishment.  Hundreds of theories have been proposed since and each contain sound reasoning.  However, the key element that is missing in these theories is that they fail to account for every criminal activity.  In the case of the Classical theorists, the theories were too broad in scope, but as theorists began to look closer, most looked too close.

For instance, Bentham argued logically that free will was involved in crime whereas in modern theories, some have pointed to biological and even astronomical influences (Schmalleger, 2009).  These latter seem to contradict Bentham but in reality, do not. A new theory looks at the issue from both a broad and close perspective, focusing on motivation and human need.  Considering the effect that need plays on motives, this theory explains not only the causes of crime but also ties all previous theories into a single, comprehensive framework (Oakes, 2011).

A new theory looks at the issue from both a broad and close perspective, focusing on motivation and human need.  Considering the effect that needs play on motives, this theory explains not only the causes of crime but also ties all previous theories into a single, comprehensive framework. Read more here.

One of the fundamental concepts in this new theory by Oakes proposes that all behavior is driven by need, of which humans have 12 identified as motivators.  These motivators take on four forms and three facets that function in harmony so that humans can have their fundamental needs met.  This theory relies on psychological research and theory developed over the course of the last hundred years, again, tying a framework of evidence into a single, comprehensive concept (Oakes, 2011).

One concept that explains criminal behavior has to do with the fundamental human need for control over one’s own life, better known as independence and identified as a need for personal power. When this need is restricted, a human reads this as a wrong, or an injustice, and reacts so as to have the need met.  In other words, just as any caged animal will seek escape, the human who believes he or she is caged by circumstances will seek escape, often through criminal means.  Of course, this only explains a portion of criminal activity, but the theory proposed by Oakes explains all other criminal behaviors as well.  For the sake of this paper, the focus is only on the causation of this one aspect of such behavior.

The State as Parent

The concept of Parens Patriae dates to the middle of the 19th Century when America began to develop the juvenile justice system.  The idea was that the state would act as a surrogate parent when children ran afoul with the law and would seek to restore the child to an orderly lifestyle (Meyer & Grant, 2003). In many ways, this attitude is reflected in much of the law experienced today for many laws seek more to control society than to control crime. If the theory by Oakes is correct, then there should be an increase in crime when laws are increased to control public behavior in areas whereby the public would not approve.

This is important to consider for a couple of reasons.

First, if the state acts as parent to society, then the state should apply what is known regarding parenting styles to enforcement designs. To ignore known science in this respect is to beg disaster.

Second, if the state is seeking to act as a parent to society, then the state should refrain from laws that offend personal power, which, according to the theory by Oakes is an attack on personal identity (Oakes, 2011).  Any parent of a teen who has attempted to control the identity of his or her child will affirm that attempting to control this is folly.

Further, the state needs to appreciate the limitations of controlling behavior for recent research indicates that there is a correlation between increased controls and increased criminal behavior, as would be expected if one considers the example of a rebellious teen (Fass & Pi, 2002).

Parenting Styles Applied to Criminal Justice and Corrections

Shepherd (2006) noted that the growth of prisons correlated with crime growth in a peculiar manner.  In a carefully constructed study, she found that in areas where the incarcerated population was low, tougher measures resulted in reduced crime, but in areas where the incarcerated population was high, crime increased.  Examining this further, she found that there was a peak incarceration level at which society shifted from law-abiding to law-breaking.  In other words, there was a breaking point at which society turned against law.  This is in harmony with the principles espoused by Sir Robert Peel when establishing the London Metropolitan Police in 1829.  Peel stated that the police, to be successful in their mission to control crime must have the approval of the public (Lee, 1901).

In line with this, Oakes suggests that when society perceives an injustice as occurring, society will rebel against those identified as culpable in the injustice.  Thus, as law increasingly seeks to control society, society will resist increasingly (Oakes, 2011).

Bradley (2007) provides insight to parents seeking to raise well-adjusted, balanced children.  In an article for Scholastic magazine, he indicates the need for parents to build, yet allow their children to develop their own values and identity; to carefully guide their values but not control them.  This is in harmony with research indicating that an authoritative (not authoritarian) parenting style works best.  By contrast, child psychology today affirms that an authoritarian parenting style results in teen rebellion.  Further, psychology today understands that the most important element in parenting is consistency (Landry, Smith, Swank, Assel, & Vellet, 2001).

Thus, if one considers first that the get tough approach is out of harmony with this parenting style, the state has failed as a parent and should have anticipated the growth in crime currently noted.  The only reason the state is today turning away from this approach is that the fiscal costs are unsustainable.  This reflects inconsistent behavior, which will likely result in further criminal behavior (Fass & Pi, 2002).  However, this situation can be abated if the state moves to a position of authority parenting, which reflects knowledge, rather than so-called common sense and authoritarian measures.

Current Trends in Justice, Sentencing, and Corrections

In 2005, the Federal government of the United States relaxed former requirements on sentencing guidelines.  These sentencing reforms were intended to narrow the incarceration gap between the races.  Recent research indicates that rather than reduce the disparities, the move only increased disparity among the races. The result is that among certain races, crime continues to increase (Harmon, 2011).

In another trend, some states in America have implemented tougher immigration laws. The results are anything but desirable.  Returning to the principle by Sir Robert Peel that the police are dependent on public support, police are finding that certain communities, wherein immigrants comprise a substantial portion of the population, their job is more difficult and crime is on the rise (Kirk, Papachristos, Fagan, & Tyler, 2012).  This is a normal backlash against the stronger control measures for injustice, perceived or real, is always met with resistance (Oakes, 2011).

Costs of Current Trends

Considering the costs of a tough approach to crime, there is a tendency to consider only the cost in terms of finance, but to do this is folly.

In recent years, many have begun to consider the costs of this tougher approach in terms of individual development, social destruction, and the erosion of family values.  Indeed, the costs cannot be restricted to dollars, for when society erodes, eventually, the economic development of an area erodes as well.  Many inner city regions in America today resemble war-torn cities in the Middle East, only because of the decay brought on as a result of the Drug War (Becker & Murphy, 2013).

The Wall Street Journal noted that America has gone from leading the world to verging on third-world status in many areas as a result of the Drug War.  Literacy rates have declined, poverty increased, wage disparities have increased, rates of incarceration are the highest in the world, police corruption has increased, and the flow of drugs remains unabated.  In fact, it noted that the only benefactors of this Drug War are the cartels.  These simply raise prices to compensate for any losses which results in more money to them for fighting against official efforts.  Not surprisingly, the current estimate of the costs to the United States taxpayers is now $40 billion annually and growing (Becker & Murphy, 2013).

Conclusion

As any parent will admit, getting tough with children is the wrong approach.  The State as parent needs to consider this when developing laws, for evidence indicates that although this approach may work for a time, the long term costs are much higher than the battle is worth.  Sir Robert Peel was right when he advised gaining the cooperation of the public in policing (Oakes, 2010).  This requires that the state consider carefully whether a law is just in the eyes of the public or an overreach into the realm of personal control and the restraint of liberty.  A fundamental human need is a sense of control over one’s destiny, the ability to choose one’s own values, and way of life.  This is even dictated by both the Declaration of Independence and the United States Constitution.  If the state continues to seek a tough approach to crime, it will find eventually that the cost to wage such a war is much too high.

In the next part, we will look at how the Perfect Prison/Correctional system can be designed. What will it look like?

References

  • Foster, B. (2006). Corrections: The Fundamentals. Upper Saddle River, NJ: Prentis-Hall.
  • Meyer, J., & Grant, D. (2003). The Courts in Our Criminal Justice System. Upper Saddle River, NJ: Prentis-Hall.
  • Unintended consequences: experimental evidence for the criminogenic effect or prison security level placement on post-release recidivism. (2009, February 18). Journal of Experimental Criminology, 5(), 139-162.
  • Lewis, H. (2003). A Question of Values: Six Ways We Make the Personal Choices That Shape Our Lives (3rd ed.). Mount Jackson, VA: Axios Press.
  • Becker, G.S.; Murphy, K.M. (4Jan2013). Have We Lost the War on Drugs? Wall Street Journal Online.             Retrieved from:             http://online.wsj.com/article/SB10001424127887324374004578217682305605070.html
  • Bradley, M.J. (Feb/Mar2007). The Priorities of Parenting. Scholastic Parent & Child. 14(5) 43-44.
  • Fass, S. M.; Pi, C.R. (Nov2002). Getting Tough on Juvenile Crime: An Analysis of Costs and Benefits.  Journal of Research in Crime and Delinquency.  39(4) 363-399.
  • Harmon, M.G. (Apr-Jun2011). The Imprisonment Race: Unintended Consequences of ‘Fixed’       Sentencing on People of Color Over Time. Journal of Ethnicity in Criminal Justice. 9(2) 79-109.
  • Kirk, D.S; Papachristos, A.V.; Fagan, J.; Tyler, T.R.. (May 2012). The Paradox of Law Enforcement in Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety? The ANNALS of the American Academy of Political and Social Science. 641(1) 79-98.
  • Landry, S.H.; Smith, K.E.; Swank, P.R.; Assel, M.A.; Vellet, S. (May2001). Does Early Responsive  Parenting Have a Special Importance for Children’s Development or Is Consistency Across Early Childhood Necessary? Developmental Psychology. 37(3) 387.
  • Lee, W. (1901). A History of Police in England.
  • Meyer, J.; Grant, D. (2003) The Courts in Our Criminal Justice System. Upper Saddle River, NJ. Prentis-Hall.
  • Oakes, C.J. (2011). Why We Do What We Do. Criminal Justice Law: Philosophy. Retrieved from: http://criminaljusticelaw.us/philosophy/why-we-do-what-we-do/ (no longer published; now published as Human Behavior on this website.)
  • Oakes, C.J. (2010). How Sir Robert Peel Influences Modern Policing. (This site)
  • Prince, K. (Feb 5, 2013). The Difference between Positive/Negative Reinforcement and
  • Positive/Negative Reinforcement. Boctb.com. Retrieved from http://bcotb.com/the-difference-between-positivenegative-reinforcement-and-positivenegative-punishment/
  • Schmalleger, F. (2009). Criminology Today: An Integrative Approach. (5th ed.). Upper Saddle River, NJ. Prentis-Hall.
  • Shepherd, J. (May2006). The Imprisonment Puzzle: Understanding How Prison Growth Affects Crime. Criminology & Public Policy. 5(2) 285-298.