If you ask children what the purpose of a punishment is, most will say “to learn your lesson.” This is why life imprisonment and the death penalty don’t make much sense to them. Yet in the United States alone, 140,000 people are currently serving life sentences, and 41,000 of them have no chance of ever getting released. Meanwhile, more than 3,200 people were on death row by the end of 2011, also in the United States.
Recently, a 10-year-old child from my daughter’s class asked me this pertinent question: “What’s the point of learning your lesson if you never get a chance to show that you did?” The answer is simple: not much. Unfortunately, rehabilitation (the adult word for “learning a lesson”) is often not at the heart of criminal justice reform. In fact, the harshness of a punishment is frequently not determined by the possibility of recidivism, but rather by public opinion.
Take, for example, sex offenders in the United States. Long sentences and additional punitive measures such as sex registries and zoning laws are often imposed with the explicit goal of preventing further crime after news reports of particularly heinous acts, notably those involving children or that end in death. Yet the majority of former sex offenders do not re-offend and most sex crimes are not committed by former offenders. Meanwhile, most sexual abuse against children goes unreported. Further, about 30 percent of child sexual abuse is perpetrated by a relative of the child, and another 60 percent by someone the child knows well.
In other words: the imposition of harsher punishment does little to generate the lesson-learning and change we need to prevent abuse in the first place. But punitive measures meted out through criminal laws and restrictive policies often have other objectives than rehabilitation, the two most prominent being deterrence and control.
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Deterrence is perhaps the most frequently mentioned reason to strengthen sentencing laws. This Sunday, India’s president approved new sexual assault provisions, including for the first time the possibility of death sentences for rape cases in which the victim dies. The Indian government’s sudden and accelerated interest in sexual violence was fueled by the public uproar after five men viciously raped a young woman, Joyti Singh, on December 16, 2012. Singh later died as a result of the rape. The new ordinance has been criticized by Indian women’s groups for side-stepping several very real issues, such as for example marital rape, which is rife in India (and many other places too).
Equally to the point, not very many of the rapes that do occur in India (or elsewhere) are reported, let alone investigated, and prosecuted. An infinitely small proportion of rapes committed end with convictions and actual sentences imposed. The resulting impunity means that perpetrators have little incentive to look at or think about the potential consequences of their acts in terms of jail time.
Social control through stigma is another objective for longer sentencing. The length of the punishment assigned by the law signals the weight of our disapproval of that act. This is the reason we are offended by laws that mete out stronger sentences for stealing a cow or growing pot than for rape: we expect the law to be proportional and “fair.” And control through stigma certainly has a role in rehabilitation and lesson-learning. Studies show that people are less likely to engage in behaviour they believe is wrong than in behaviour they know to be illegal but don’t think of as morally wrong.
But stigma cuts many ways. When we criminalize an act, the stigma attaches both to the act and to the person doing it—or even to persons associated with the act. The stronger the stigma, the more likely the person will be vulnerable to abuse and discrimination. It is, for example, virtually impossible for a convicted felon to find a job after jail, yet studies are clear that getting a job is key to preventing recidivism.
Obviously, the relationship between morality, the law, and criminal behaviour is complex that has been subject to study for decades. But at the most basic level, whenever we as a society agree to impose sanctions and punitive measures, we should be asking ourselves the question of a 10-year-old: what’s the point? In many cases, we’ll find that even if there was an original point, it doesn’t bear out in practice.