Docent of Criminology, University of Tartu
Custodial Punishment: An Effective Tool for Crime Prevention?
Criminologists have been wondering about the effects of making sentencing policies stricter or more lenient, of using custodial punishments more or less often for decades and decades. Traditionally, the rationales for sentencing an offender to imprisonment include retribution, rehabilitation, deterrence, and incapacitation. Retribution refers to the use of imprisonment as a form of punishment of the offender, a way of 'doing justice'. It is, strictly speaking, not a crime control strategy. Rehabilitation, on the other hand, aims at controlling crime through the treatment of offenders, while deterrence uses sanctions as a way of inhibiting the criminal activities of the offender ('special deterrence') or other potential offenders ('general deterrence'). Finally, incapacitation uses imprisonment as a way of isolating offenders from the rest of society so that they are unable to commit offences during their confinement1.
The effects of custodial punishments have been examined in a substantial body of empirical research, the best known examples of which are: Clarke (1974)2, Greenberg (1975)3, Shinnar and Shinnar (1975)4, Cohen (1982, 1983)5, Bernard and Ritti (1991)6, and Marvell and Moody, Jr. (1994)7. But the research evidence suggests that estimates of the impact of collective incapacitation vary considerably from one study to another and depending on the severity of the policy. However, even a modest reduction in crime involves paying a heavy price in terms of increases in the prison population: a ten per cent decrease in crime typically requires a doubling of the prison population. Selective incapacitation promises a better tradeoff by targeting offenders who have high rates of offending. Such policies, however, punish offenders on the basis of prediction, an exercise heavily criticised on both technical and ethical grounds. The attractions of such policies are considerably diluted in light of the fact that the crime reduction benefits have been found to be much more modest than initially claimed and the rate of 'false positives' unacceptably high8.
Despite the already ample research on the topic, the ever-broadening use of imprisonment in the United States (see Chart 1) brings the issue to the forefront again and again. In Estonia, the issue has become especially attractive because of discussions about a trend in sentencing policies toward harsher punishments9.
Chart 1. Number of persons in custody in the USA10.
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Concurrently with the increase in the number of persons in custody, the rate of property crime victimisation has been decreasing, and since the early 1990s, the rate of violent crime victimisation and the number of recorded violent and property crimes have been decreasing as well11. Of course, the correlation between the increasing imprisonment and decreasing crime rate in the USA has been used to advance the idea that increasing the severity of custodial punishment can be an effective crime prevention measure.
As we can see from Table 1, a decrease in crime rate is not as rare a phenomenon as could be expected from the daily news, which is more and more often full of reports about crimes. Table 1 shows that crime victimisation surveys have revealed that at the end of the 1990s, decreasing criminal victimisation rates were characteristic not only in the USA but for many other countries as well, among them Australia, Canada, Finland, France, the Netherlands, and Switzerland. The list of countries includes several countries with a prison population that is not increasing or is even decreasing (see Table 2).
In spite of the fact that there have been several arguments put forth to demonstrate that this concurrence of trends does not prove any causal relation between them, the idea that increasing the severity of custodial punishment can be an effective means of crime prevention has found new adherents in many countries, including Estonia.
Now let us take a look at the situation in Estonia to find out whether we can find in Estonia peculiarities that could suggest that increasing the severity of custodial punishment in Estonia could be more effective in crime prevention than the experience of other countries has been suggesting. We should try to analyse how repressive today's Estonian sentencing policy and practice are, and to figure out whether a further increase in repressiveness could have a great enough positive effect to overcome the negative consequences of the increase.
As of the end of 2003, there were 4352 persons in custody in Estonia, among them 219 women and 146 younger than 18 years old. Of these, 70.5% were serving their sentences and 29.5% were in pre-trial custody12. There are 340 prisoners per 100,000 inhabitants - the figure is six times higher than the corresponding figure for the Nordic countries.
Table 1. Trends in crime according to the data from four international criminal victimisation surveys: number of crimes experienced per 100 people in the sample13.
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Table 2. Total number incarcerated, rates per 100,000 population14.
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The dominant public opinion in Estonia is that sentencing has become too lenient to criminals over the course of the 90s. This opinion goes along with the belief that by making the sentencing policy harsher it is possible to achieve a significant decrease in criminal behaviour. As an example of these attitudes, the latest indicators of public opinion demonstrate that up to 85 per cent of the Estonian population support the idea that Estonia should reintroduce the death penalty15. These results cannot be taken as statistically relevant, because the sample was not random (it consisted of those who called in to a television discussion programme), but it still indicates that hope in harsher sentences as an effective tool for crime prevention is very high.
Becoming tougher on criminals is part of Estonia's official government policy today; the coalition agreement between the parties who support the incumbent government has a separate chapter on '[e]fficient penal policy corresponding to the public perception of justice', the main ideas are:
- stricter punishments for drug crimes (drug dealing), as well as for grave offences against the person: up to life imprisonment;
- stricter punishments for organised crime and imposition of criminal liability on the organiser of crime for the activities of the entire criminal organisation;
- inclusion of an attack against persons performing legal protection duties (policemen, investigators, judges, and prosecutors) among aggravated forms of crime;
- stricter punishments for offences that substantially disturb public (illegal forest-cutting, desecration of objects of heritage conservation, sale of alcohol to minors, grave offences against public order, graffiti,etc.);
- a stricter penal policy that corresponds to public expectations in respect of drug dealing, crimes against the person, and recurrent grave offences;
- introduction of a penal practice according to which a short but effective punishment - i.e., short-term imprisonment, detention, or community service - is imposed on first-time offenders; etc.16
The high attractiveness of stricter punishments among different segments of the Estonian population seems to indicate a...