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Thursday, November 27, 2014

Power and the Penal System: A transnational comparison of penal strategies and the application of power

By Chasity West

The United States imprisons more individuals per capita than any other country. With a ratio of 751 imprisoned per l00,000, our fervor to incarcerate is only second to Russia. This figure becomes even more notable when one considers that the U.S. only makes up five percent of the world`s population (123 help me.com). When examining transnational incarceration trends and approaches to crime and punishment it becomes evident that penal excess is not an inevitable characteristic of all justice systems; it is a choice.

Although it is a common belief among the American people that harsh penalties and lengthy prison sentences deter crime, there is much to be learned from countries that employ kinder and gentler approaches in rendering criminal justice. Hard power and soft power application in the criminal justice system yield shockingly different results. The current policies in the United States are ineffective and counterintuitive and create more casualties than corrections. Additionally, by using the models presented by more benevolent societies, particularly those that also uphold democratic ideals, the U.S. can employ more effective uses of power in creating a more efficient and just justice system.

By taking a comparative look at international prison systems and the evolution of these systems - uses of power and the results - what becomes clearer is that historic factors and flexible attitudes toward justice best determine fixture results of a system`s failure or success.

Power, as defined in World Politics: The Menu for Choice, is "the ability to overcome obstacles and influence outcomes... [it] is the ability to get what one wants, to achieve a desired outcome through control of one`s social or physical environment. Forms of power include compellence - influencing another [actor] to halt a course of action it is already pursuing or to commence a course of action it is not pursuing" (2013, pg. 7l). In contrast to compellence, deterrence aims to influence another actor not to do something it would otherwise do. These forms of` power are employed in justice systems in different forms and degrees. David Kinsella. Bruce Russert and Harvey Starr identify a system as “a set of elements, or units, interacting with each other. It is more than a collection of entities; in a system, the elements, produce changes elsewhere in the system" (Kinsella et. al. 2013. pg. 61).

Understanding a system involves an understanding of its culture, hierarchical organizations of power and control, rules of behavior and societal influences by which it is supported. Countries that use power techniques more effectively regarding their justice system and prison management have lower recidivism rates and imprison fewer people.

In the political world, hard and soft power are tactics used to achieve certain goals. Kinsella, Russett and Star describe soft power as "a subtler form of structural power” (Kinsella et. al. 2012, pg. 72). Soft power is often a method used in influencing another actor to adopt the same values and goals that another actor possesses. Influencing another by attraction. In other words, “get[tingl others to want what you want (Kinsella, et al. pg. 72), Kinsella. Russett and Starr suggest that soft power is more efficacious and cost-efficient than its antithesis, hard power. Hard power is a more aggressive form of influence. It relies on coercion and force to influence the behavior of another actor in order to get him or her to do something that he or she would otherwise not do. Game theory (a mathematic approach to analyzing strategic interactions between two or more players) also plays a major role in the way hard and soft power tactics are used in the criminal justice system (Kinsella, et. al 2013. pg. 130, 132). These theories, though usually particular to government, can also apply to crime management and penal strategy.

Soft Power vs. Hard Power
Scandinavia and the United States

Norway implemented the prison system that exists today in Denmark, Finland and Sweden. In 1950, after these countries revamped their penal practices, the prison population dropped from 200,000 to 100,000 seemingly overnight. (The 8th U.N. Survey on Crime Trends, 2002.) This drastic decline in Scandinavia`s prison population was because of the introduction of soft power. 

Norway employs so it power techniques in its justice system and penal institutions. These tactics include providing prisoners with meaningful work and educational opportunities and elaborate post-release preparation and support services, Norwegians emphasize that education is the key to power-and empowerment. Therefore. Norway credits its low recidivism rates not just to the means it uses to achieve the end, but the objective of the end: the goal of its penal system is rehabilitation, not punishment. This differs from the United States’ "lock ‘em up and throw away the key” penal philosophy. If a system’s aim is to punish offenders, then that is what that system will produce: punished (but not necessarily rehabilitated) people.

With an incarceration rate of 66 per 100,000 and only a 20% average recidivism rate, (in the United States. this figure nearly triples) (Pratt, 2007, pg 19), Norway makes a strong ease for soft power. A shift in attitude, behavior and values in an actor (i.e. the 80% of the offenders who do not return to the prison population) is, after all, the name of the game.

It was not so long ago that Finland’s criminal justice system had much in common with that of the United States. By the mid-1960’s, in dealing with social ills, Finland deferred to similar hard power tactics that remain staples in justice administration in the United States: stiff penal policies and heavy incarceration, However, thirty-years later, the two countries reached a crossroad. Finland diverged at the intersection. Veering off the path of hard power, Finland rethought its criminal justice strategies. It was then that Finland decided to employ different tactics - soft power tactics - in dealing with crime. Some of these methods included more humanistic policies such as alternatives to incarceration, victim restitution, intensive rehabilitation, treatment for the mentally ill, reducing lengthy prison sentences and transforming its prisons into places that resembled and functioned more like outside society than institutions. During Finland’s more punitive days, violent crime, like in the U.S., continued to rise. But this shift to soft power led to a more than fifty-percent cut in Finnish incarceration and a decrease in crime, Finland’s current per capita rate of incarceration is at 68 per 100, 000, among one of the lowest in the world (Pratt 2007, 19).

In previous decades, the U.S. used softer forms of power and yielded similar results. From 1925 to 1975, incarceration rates remained stable at around 110 per 100.000 (Liptak 2008). But in the late 70’s this number shot up with the movement to "get tough on crime.” With the introduction of hard power and more prisons came people to fill them. Few people would question whether Finland`s shift to soft power and Americas reliance on hard power produced this dichotomy in results. Other low-imprisonment societies of the other main European countries that are on par with Norway and Finland are Sweden (82 per 100,000). Switzerland (79 per 100,000), Denmark (67 per 100,000) and Italy (66 per 100,000). It should come as no surprise that these countries all approach justice not with an iron fist, but with a soft (power) touch (The 8th U.N. Survey on Crime Trends 2002).

Hard Power vs. Soft Power
Poland, Singapore, China and the United States

It would seem as though these countries of different governments, geographies and legal systems would have little in common with the United States. But the thread that ties all of these nations together is their use of hard power in criminal justice.

Poland, with a population of 38.5 million, once had an imprisonment rate of 340 per 100, 000 (The 8th U.N. Survey on Crime Trends, 2002). Excluding the Soviet Union, China and the U.S., Poland had one of the highest imprisonment rates in the world (Cook & Davies 1999, 162). But from a communist standpoint, the high rate of incarceration was a boon to the economy, as prison labor was cheap but lucrative.

In l985, in response to an economic crisis, "new crimes were established, heavier punishments were introduced and speedier trials were ensured" (Cook & Davies pg. 162, 199). Harder forms of power were introduced into an already unraveling system. This left Poland's penitentiaries bursting at the seams. Thus, a new humanitarian policy was implemented (for women only) with respect to the administration of penal law and penitentiary practice. Though women only constituted 5.7 percent of Poland`s total prison population, this change (which included an abrupt reduction in the imposition of long-term sentences and more frequent use of conditional release) more than halved the total number of imprisoned women. Although this provision only benefited women, one might infer that the statistics would be similar if these same terms were applied to the male population of prisoners. In 1989, this inference was tested. As a result of the success of Poland’s selective application of soft power to the female prisoners and with the advent of a new political regime, Poland’s prison population (with the inclusion of men) dropped from 100,000 to 40,000 in a single year (Cook & Davies 199, pg. 67). Today. Poland has approximately 80,467 people in its prisons (The 8th U.N. Survey on Crime Trends, 2002). Traveling to the continent of Asia, hard power takes on a more literal form. Singapore's criminal laws are some of the most "extreme and consistent laws found in the world”(123.HelpMe.com). Its government still employs the use of both corporal and capital punishment (even in this day and age, there are states in the U.S. that still practice the latter). However, many Singapore citizens believe that these hard power tactics deter crime and improve the quality and value of life in Singapore."

Curiously, places like Scandinavia (Norway and Finland) and Singapore have low crime rates but very contrasting criminal laws and of course, utilize opposite forms of power. But considering that Singapore is roughly only 3.5 times the size of Washington D.C., one could argue that the reason its crime rates are so low has little to do with its deterrence practices and more to do with its size ( l23.HelpMe.com).

With a population of l,360,700,000, China, (which is far more populous than both Singapore and the United States), has l.6 million prisoners. The only other major industrialized nation that even comes close to China or America`s incarceration rate is Russia – another proponent of hard power criminal justice methods. Russia incarcerates 627 per 100,000 people (Liptak 2008). Like Singapore, China has created a justice system that aims to deliver hard blows and swift results. Considering its size, its per capita rate of incarceration is relatively low at l20 per 100,000.

Though some might believe that rigid forms of penal justice and harsh prison conditions serve as a crime deterrent, others would object to a system that uses extreme or brutal forms of coercion in penal law and prison reform. Thus, questions can be raised about hard-hitters like China; namely, do penal philosophies that embrace the ideology that prisons are for punishment care more about correction - or control and conformity?

In this respect, the U.S. has little room to criticize. That we should have anything in common with countries that "we have long derided for governance and punishment practices" that we consider cruel and unusual is proof enough that our current penal policies warrant scrutiny (Talvi 2007, 219). Even though the application of power and deterrent tactics are different in type in countries such as Poland, Singapore and China than that of the U.S., they are similar in degree.

Another similarity between the U.S., and these other countries is their recidivism rates: two out of three released prisoners returns to the prison population within three years (The 8th U.N. Survey on Crime Trends 2002). Still, some would look at these numbers and insist that hard power penal practices work.

Deterrence

Though few studies have been able to show a direct correlation between stiff penalties and crime deterrence, some commentators believe that long sentences are effective means of deterrence. Michael Rushford of the Criminal Justice Legal Foundation in The Stanford Law and Policy Review wrote, "The simple truth is that imprisonment works."

A study was conducted in Italy after it passed a Collective Clemency Bill that set free all prison inmates who had less than three years left on their sentence. To test the general theory of deterrence, the conditions of their release stipulated that if the former inmates were convicted of any crime within the next five years that they would have to serve the maximum of whatever sentence they received for their future crimes. The findings of the study concluded that even a small increase in the expected sentence was enough to reduce recidivism.

These results might seem to have corroborated that longer sentences or the mere threat of them serve as a deterrent. However, one would need to consider both individual and societal factors unique to that particular person that led to his or her relative success. No data was provided detailing crucial information about the offenders such as incarceration history, lifestyle changes, treatment received while incarcerated or post-release, education level or what kind of support system the offender had upon release.

Even in light of this study, many social scientists would still contend that it is impossible to apply game theory or rational actor theory to crime management, incarceration and recidivism. The system is so broken; therefore, it becomes increasingly difficult to predict realistic outcomes. Moreover, one might wonder whether harsh deterrence policies have much, if anything to do with one`s decision to act or not to act. Kinsella, Russett and Starr validate this point: "an action that apparently was deterred might not have happened anyway in which case a policy of deterrence is not really responsible for the outcome. Analyzing actions that did not occur, whether as courses or effects of other actions, is a difficult task for the social scientist because it involves counterfactual reasoning" (Kinsella et. al 2013. 71).

When applying this theory to crime management in the U.S, "deterrence" policies contribute to the number of people being put into correctional institutions and the amount of time they spend there. Even "ultimate" penalties like death and lifelong incarceration do little but contribute to the overcapacity of our prisons.

Game theory and rational actor theory (decision-making theory) when applied to implementing new crime laws and deterrence policies aim to make predictions about what voters will do and voters try to predict what released prisoners will do. Still, empirical date (past and present practices and the results rendered) as well as current recidivism rates are the best indicators. These facts and figures are largely determined by the type of power influencing our criminal justice system and where our focus lies (rehabilitation or retribution).

Soft to Hard Power Pass-off
From the media to the courtroom

The media is a subtle but potent form of power. It has the ability to inform and to incite. Much of the public’s perception on crime is directly shaped by media exposure.

Misconceptions about crime have led many people to believe that the proliferation of our nation`s prison population during the past decade and a half reflects changes in crime rate. Few people would guess that laws and policies, not increased crime, have been responsible for this imprisonment epidemic. Changes in law and increases in the length of prison sentences account for a prison population’s growth from approximately 350,000 to over two million in just twenty-five years (Alexander 2012, pg. 93). Michelle Alexander in "The New Jim Crow," illuminates one of the reasons behind the spike in numbers. She writes:

….most people assume that War on Drugs was launched in response to the crisis caused by crack cocaine in inner-city neighborhoods. This view holds that the rapid explosion of the prison population reflects nothing more than the government`s zealous - but benign - efforts to address rampant drug crime in poor, minority neighborhoods. This view, while understandable given the sensational media coverage of crack...is flawed. A few years after the drug war had been declared, crack began to spread rapidly in cities across the country. The Reagan administration hired staff to publicize the emergence of crack cocaine in 1985 as part of a strategic effort to build public support for the war. The media bonanza…helped to catapult this War on Drugs from ambitious federal policy to an actual war."

This indicates that there was no war or combat-worthy crisis until the United States started one. Incidentally, when the war was declared, drug crimes were declining. This would suggest that some politicians take advantage of the media and the deep and protracted effects of its power. Though the media is a form of soft power because it affects the opinions of the public with such severity that it incites drastic action, it actually translates into hard power. Although the highest media focus is on the lowest frequency crimes, highest frequency crimes get almost none and if it is talked about it is more of a broad brush. This eliminates key facts and puts false ones into the analysis and thus, contributes to our social hysteria. Oftentimes in response to this, rash and irrational changes in law emerge-a hard power response that might temporarily restore public confidence but perpetually fills prisons. In "The Origins and Development of Scandinavian Prison Systems,” John Pratt and Anna Erikson said it best, "Policies pandering to the immediate demands of perceived public opinion rather than long-term planning that are emblems of weak rather than strong states" (Pratt and Erikson 201 l, pg. l8). The government’s use (and misuse) of the media reveals the strength of soft power.

The Courtroom

Other than media influences, propagandized images of crime, "the criminal" and politics, victim’s rights is another factor in the equation of justice, In Scandinavian countries, victim’s rights are associated with recovering losses, restoration and compensation, not with the right to exercise a personal vendetta in court. Instead, carefully prepared reports offering relevant details about the offender and the offense are presented before the judge, including the offender’s prognosis for success. In the United States, victim’s rights are not contained to restorative justice. Since retribution is often the main agenda of the aggrieved, this often transforms a courtroom into a forum for the very human desire to seek punishment for one who has inflicted harm upon another.

In most state and federal courtrooms, victims are encouraged to make a statement before the Court. These statements are a form of soft power as they are designed to influence the sentencing judge toward either leniency or in most cases, severity. However, this practice prevents sentencing from being administered on the basis of objective rationality. Instead it degrades the administering of justice to mere subjective emotion (Pratt 2001 l34). Victim impact statements shift some of the sentencing power to the victim, This soft to hard power pass-off victim to sentencing judge, contributes to more people being incarcerated and longer prison terms being handed down. This practice, however, is not universal. In most Scandinavian countries, victim impact statements are unheard of. This model provides a more appropriate function and framework than what is found in common sentencing practices in the United States and also raises questions about whether some of the people who are sent to prison could have been dealt with in other ways.

Since the U.S. has a highly politicized criminal justice system, the strategy in solving the problem of high crime rates lie in redressing current policies, recognizing societal influences that play a role in how citizens view crime and punishment and rethinking the role government plays in exacerbating the existing problem. This can be accomplished if government leaders “[adjust] their preferences and strategies" (Kinsella, Russett and Star). When considering the role in which public support plays in what laws are created people must consider that:

"[p]eople in government have their own personal interests: to keep or increase their political power, their wealth, and their status within society, or to promote their values and beliefs. These and other interest lead political leaders to seek societal support in order to gain control of government, remain in office, and implement their policies. To do this, public officials must recognize and respond to the needs of society… society support can also enhance leader’s willingness to act…. Governments do not just passively respond to societal demands. They also try to shape and control them.

Thus, many of our policies are instituted by factors outside of justice and even general utility. Public support for anticrime laws and prison reform measures are often steeped in irrational fear. This fear is often fueled by media images and specific political agendas. Oftentimes, decision-making strategies of politician rather than domestic concerns play the largest role in anticrime measures such as the "war on crime" campaign. For example, in the United States, most state court judges and prosecutors are elected and are therefore sensitive to a public that is, according to opinion polls, generally in favor of tough crime policies. In the rest of the world, criminal justice professionals tend to be civil servants who are insulated from popular demands for tough sentencing. (Liptak The Times). Game theory and rational actor theory recur when rallying public support for a new crime law. Again, politicians make calculations based on what they predict voters will do. Voters want to predict the behavior of released prisoners. But that is impossible to solve unless one understands what values underpin the ideal game.

The strategy in solving the problem of the penal excess lies not only in redressing current policies, but in addressing our use of power in the criminal justice system. This involves rethinking the role of incarceration and in what way our application of hard power in penal law and corrections exacerbate the existing problems.

Scandinavian societies like Norway and Finland prove the soft power yields better results. By creating humane prison conditions, placing a strong emphasis on education rehabilitation, treatment and deferring to non-custodial alternatives where appropriate and employing moderate sentencing practices, these countries keep their prison population at bay. But most importantly, Scandinavia’s willingness to use historic insight concerning its practices makes the Scandinavian justice system one from which the U.S. could learn. Even when studying propitious models of penal justice, one must keep in mind that a truly successful system is one that prevents its people from becoming a part of it in the first place.

Countries like Poland, Singapore and China that employ hard power have proven that bullying its captives into reform might generate results (i.e. influence an actor’s behavior) but that is not correction; it is coercion and compliance. And their recidivism rate, along with ours, is evidence that that is not enough.

In the name of deterrence the United States justifies its notorious draconian laws and harsh sentencing practices, yet prisons continue to fill; proof that these hard power tactics almost always lead to fuller prisons and more returns.

Soft to hard power pass-offs by way of the media and the courtroom also contribute to prison overflow. People have the right to be informed. But they also have the right to know the truth. However, media hype often creates false ideas and instigates policies that fill prisons.

Additionally, we should understand that countries that do not condone courtroom procedures with ulterior purposes render the most effective forms of justice. One of the ostensible goals of corrections is to change an offender’s behavior so that he or she can reintegrate into society and abide by its laws. But of the three objectives of incarceration: rehabilitation, deterrence and punishment, the U.S. falls short in two out of the three of these aims.

Our answer to our failure is tougher laws and stiffer penalties for violating them. Hard power application to crime management trickles down into correctional facilities where more hard power tactics are employed to "correct" the offender. Rather than considering that maybe it is time to develop a change of consciousness as to how we view crime and punishment, we continue to rely on costly, ineffective techniques that simultaneously cause and contribute to the current incarceration crisis

Soft power does not mean soft on crime. It means that we are serious about finding solutions that actually work. Soft power application in criminal justice means that we see value in every citizen and care enough to implement policies that reflect this; policies that show that we care more about people than politics. Reparative justice for victims, restoring offenders to productive members of society, reuniting families, and repairing broken communities-this should be the chief concern of any progressive society. Adopting soft power tactics means that we are wise enough to recognize when it is time for change because penal excess is not an unavoidable feature of all justice systems; it is something that we choose. And it is time for us to make a different choice.


Chasity West 266589
York Correctional Institution
201 West Main Street
Niantic, CT 06357

My name is Chasity West and I’m a lifelong native of Connecticut.  Prior to my arrest I worked as a licensed nurse.  In 1998 I was sentenced to life without parole on a first offense. Since my imprisonment I have written dozens of short stories, memoirs, essays and poems.  I have immersed myself in many projects and programs, including writing workshops, dance and yoga classes, college courses, gardening and agriculture and drama classes. I think that prison can be a catalyst for self-reform.


1 comment:

Rebecca said...

Chastity, thank you so very much for writing this. Your insights and research have taught me--here, from my computer, in a different state than you!--so much I did not know before. Thank you for sharing your well-researched knowledge and understanding and for opening my perception to the idea of soft power vs. hard power. I only hope that the United States and other nations will pay attention to the rehabilitative models you present here, and their proven successes.