The case for decriminalisation
Mark’s visceral experience of the criminal justice system has impressed upon him the urgent need for reform. “You just don’t learn this kind of thing at law school, the real, practical issues that undermine and delegitimise the entire process”. Invited to contribute to a new book, ‘Crime and Consequence‘, Mark shines a light on the way that custodial sentences are overused in England & Wales. You can listen to his chapter in a podcast series accompanying the book, above, narrated by an actor.
“Man was born free, but he is everywhere in chains” – Rousseau
What is ‘crime’? Our immediate response might be to define it in accordance with what we would consider to be immoral, wrong, or harmful to others. Yet there are many things which meet these criteria that aren’t in fact against the law. Extra-marital affairs, tax-avoidance, or some forms of air pollution might be good examples. On closer inspection, we find that crimes “are not ‘given’ or ‘natural’ categories” at all, but rather “vary from place to place and from time to time” with astonishing diversity between different cultures and jurisdictions. That other countries criminalise heresy, homosexuality, and abortion reminds us that ‘crime’ is a social construct, defined by politicians and enforced by judges.
British politics has tended to fetishise crime to such an extent over recent decades that it has become the “preferred context for governance”. As politicians “scramble to appease an angry and frightened constituency that they may have helped to create in the first place”, our Parliament has succumbed to a fever of hyperactive legislation. Between 1997 and 2015, for example, more than 5,373 new ‘crimes’ were enacted. But this ‘war on crime’ is gravely, perhaps knowingly and cynically, misconceived. Since 1995, overall crime – both here and across Europe – has been steadily falling every year, and yet two-thirds of the public remain convinced that it is on the rise. Academics have termed this anomaly the ‘reassurance gap’, a gap that would seem easy enough to plug if only parliamentarians and the mass media focused their attention upon facts rather than buying into the demonising rhetoric of ‘law and order’.
The outcome of all this legislation however, has been a 70% increase in our prison population, more than two-thirds of whom haven’t committed violent crimes. For more serious offences like murder, the average sentence has almost doubled since 2003.
None of this is sensible or sustainable in the long run. When one considers the question posed by this book, ‘What should happen to people who commit criminal offences?’, our first response should be that there are simply too many ‘crimes’. We can only reverse this punitive tide through a policy of decriminalisation, recognising that we have become too quick to label people – particularly young people – as ‘criminal’. Generating a vast cohort of disaffected and alienated individuals seems manifestly counter-productive. We desperately need to pause to consider what good this kind of mass stigmatisation actually does for our society as a whole. Adapting John Stuart Mill’s formulation, the state should only criminalise those acts capable of causing serious harm to others. Any intervention beyond this represents an illegitimate incursion upon liberal values.
"The function of the State should be not to punish but to educate" – Frank Tannenbaum, after inspecting New York prisons in the 1920s to find only idleness, torpor, and ill-health amongst inmates. Sound familiar?— Mark Alexander (@PatientCaptive) October 16, 2022
Our second reaction ought to be that – of the remaining crimes that meet Mill’s test – far too many are punishable by imprisonment. In the majority of cases, non-custodial alternatives would be more appropriate. When we consider that a two-year community order costs the same as a 6-week prison sentence, we can start to appreciate just how much more can be achieved with the limited resources available to us. The Netherlands and Estonia have achieved 43% and 35% reductions in their respective prison populations between 2005 and 2015 through depenalisation projects of this kind, while overall crime rates continue falling in both countries.
Latvia’s recent introduction of electronic monitoring as an alternative to imprisonment has contributed to a similar 29% drop over the same period, whilst across the Atlantic, half of all American states have closed entire prisons down – more than 20 in Michigan alone – simply by abolishing the ‘three-strike’ rule or eliminating mandatory minimum terms. Tens of millions of dollars in state expenditure have been saved and countless lives redeemed.
Locking people up should be our last resort, when all else has failed, not a knee-jerk reaction.
 David Garland, ‘Punishment and Modern Society’, (Oxford, Clarendon Press, 1990), p. 29
 David Garland (1996), ‘The limits of the sovereign state: strategies of crime control in contemporary society’, British Journal of Criminology, 36(4): 445 – 471, p. 448
 Ian Loader (2006), ‘Fall of the Platonic Guardians: Liberalism, Criminology, and the political response to crime in England and Wales’, British Journal of Criminology, 46(4): 561 – 586, p. 581
 Ibid. p. 576; Jonathan Aitken and Dennis Macshane, ‘Gove must bang judge’s heads together’, The Times Newspaper (12 December 2015)
 Home Office, Crime Survey for England and Wales, (Office for National Statistics, October 2017)
 National Audit Office, ‘Comparing International Criminal Justice Systems: Briefing for the House of Commons Justice Committee’, (February 2012), p. 13
 Ibid. p. 36
 Mike Maguire, Rod Morgan, and Robert Reiner (eds.), ‘The Oxford Handbook of Criminology’, 5th Edition, (Oxford, Oxford University Press, 2012), p. 820
 Alex Hewson and Emily Knight, ‘Bromley Briefings Prison Factfile’, (Prison Reform Trust, Autumn 2018), pp. 10 – 11
 David Downes, ‘Contrasts in Tolerance’, (Oxford, Clarendon Press, 1992) – p. 94
 John Stuart Mill, ‘On Liberty’, (London, 1859 / Jonathan Bennett, 2010) pp. 6 – 7, 63
 National Audit Office (2012), op cit. p. 49
 Council of Europe, ‘Annual Penal Statistics: SPACE I – Prison Populations: Global Indicators’, (Strasbourg, 15 December 2016)
Cynthia Tavares and Geoffrey Thomas, ‘Population and social conditions’, 58/2010 (Eurostat, European Commission) – tables 1 and 8
 Brett Garland, Nancy Hogan, Eric Wodahl, Aida Hass, Mary Stohr, Eric Lambert (2014), ‘Decarceration and its possible effects on inmates, staff, and communities’, Punishment and Society, 16(4): 448 – 473, pp. 450, 454  Todd Clear and Dennis Schrantz (2011), ‘Strategies for Reducing Prison Populations’, The Prison Journal – Supplement, 91(3): 138S – 159S, p. 139