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Do we need criminal law?

21 Dec 2023

| Author: Professor Leslie Thomas KC

Criminal law has been a cornerstone of legal systems across the world for centuries. Its purpose is to provide a framework for defining and punishing behaviour that is harmful to society.

But criminal law has never been uncontroversial. It is often criticised for serving the interests of the ruling class, repressing the poor, meting out brutality and disproportionately harming people of colour and disabled people.

We will take a critical look at criminal law and examine alternative models of justice that prioritise repairing harm, addressing the root causes of criminal behaviour and promoting community healing.

We will explore restorative justice, community-based justice and transformative justice and consider their potential as alternatives to criminal law. We will look at critiques of the criminal justice system from both abolitionist and reformist perspectives. Finally, we will choose between abolitionism and reformism and attempt to answer the central question: do we need criminal law?

What Is criminal law for?

Criminal law differs from civil law in that it is punitive, rather than compensatory. In a civil case, the primary goal is to compensate a person, usually financially, for a wrong done to them. By contrast, in a criminal case, the primary goal is to punish a person – to inflict suffering on him or her by way of retribution for a wrong they have committed.

The deliberate infliction of suffering has always been politically, morally and philosophically controversial. That gives rise to the basic question of why we have criminal law at all.

Broadly, there are two main justifications for criminal punishment. One is retributivist, based on the idea that a person should be punished for their wrongdoing simply because they deserve to be. The other is consequentialist, based on the idea that punishment serves certain positive social ends.

For example, punishment may deter the offender from reoffending. It may deter others from offending. It may incapacitate the offender to prevent them from offending again. And it may rehabilitate the offender, encouraging them to change their behaviour in future.

When judges sentence, they usually consider all these objectives to some degree. In England and Wales, s 57 of the Sentencing Act 2020 tells judges that, in adult criminal cases, they must have regard to the following purposes of sentencing:

  • punishing offenders;
  • reducing crime, including its reduction by deterrence;
  • reforming and rehabilitating offenders;
  • protecting the public; and
  • making reparation by offenders to people affected by their offences.

Let’s now look at some criticisms of criminal punishment as administered in contemporary societies.

Critiques of criminal law

Critiques of the criminal justice system can be broadly divided into reformist and abolitionist. Broadly speaking, reformist critiques accept that the criminal justice system should continue to exist in some form. They argue for reforms within the system, such as sending fewer people to prison, greater use of alternatives such as non-custodial sentences and restorative justice, better prison conditions and better-funded legal aid.

Abolitionists, by contrast, call for the abolition of criminal punishment altogether. Famous abolitionists include Angela Davis, who wrote the landmark book on the subject Are Prisons Obsolete?, and Mariame Kaba.

Let’s turn to some of the core criticisms of criminal law.

The first critique is that the criminal justice system overwhelmingly criminalises the poor, not the rich. It prioritises the property of the rich at the expense of the lives of the poor.

This is not a new critique. As Anatole France famously said, “The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets and to steal loaves of bread.” The law itself overwhelmingly penalises actions that are more likely to be committed by the poor, while not penalising the far more harmful actions of the rich.

As the criminologist Alex Vitale says in The End of Policing, “the criminal justice system excuses and ignores crimes of the rich that produce profound social harms while intensely criminalising the behaviours of the poor and non-white, including those behaviours that produce few social harms.”

To take a few examples, a homeless person begging in the street is committing a crime but the landlord who made them homeless is not. Stealing a sandwich to feed oneself is a crime but owning a payday loan company that has plunged many families into poverty and hunger is not. Fly-tipping is a crime, but owning an oil company that contributes disproportionately to climate change is not.

The second critique, which is closely related to the first, is that poor communities are the most heavily policed and the state uses policing and incarceration instead of putting the necessary resources into these communities to solve their social problems.

Instead of responding to homelessness by providing housing or responding to mental illness and drug addiction by providing adequate healthcare, we respond to both by locking people up.

In his book, Vitale refers to three homeless men who were killed by police in the United States. He acknowledges that these three men “posed regular threats to public order and in some cases public safety”. He argues, however, that “[t]he use of the police to manage those threats… was largely ineffective and ultimately deadly. These individuals were immune to threats of arrest and incarceration, which they had all experienced in the past. The criminal justice system, with its emphasis on punishment, could not address the underlying and intertwined problems of homelessness, mental illness, and substance abuse that drove their problematic behaviours.”

He goes on to point out that it would be cheaper to provide permanent housing and support services for homeless people than to keep arresting and jailing them. Drug abuse, too, is often linked to poverty. As Vitale highlights, “Many people involved in the drug industry don’t really have a drug problem; they have a job problem. Many others have drug problems that directly stem from the economic conditions they struggle with. There is no way to reduce the widespread use of drugs without dealing with profound economic inequality and a growing sense of hopelessness.”

A third critique of criminal law is its disproportionate impact on marginalised communities, most obviously communities of colour. In the United States context, it is often pointed out that the history of criminal law is deeply rooted in the country’s long history of exploiting and brutalising black people.

For instance, in her book Are Prisons Obsolete? Angela Davis talks about how after the abolition of slavery in the American South, the convict lease system was instituted, where criminalised black people were subjected to forced labour in even worse conditions than they had suffered under slavery.

Similarly, the influential book The New Jim Crow by Michelle Alexander examines how the modern-day US penal system replicates much of the racism of the former system of racial segregation. She argues that the US imprisons a larger percentage of its black population than South Africa did at the height of apartheid and that ex-offenders are discriminated against legally for the rest of their lives, including through denial of the right to vote. She describes the system of mass incarceration as a “racial caste system”.

The high point of this racial disparity is seen in the war on drugs. Despite similar rates of drug use among different racial groups, individuals from minority communities are more likely to be arrested, charged and sentenced to longer prison terms for drug offences.

Much has been written about the racial disparities in drug policing in the US. Vitale writes, in an American context, that “Drug policing is almost exclusively undertaken in poor, mostly non-white communities. Across the country, most people in prison for drug offences are black or brown.”

President Richard Nixon’s chief domestic policy advisor, John Ehrlichman, reportedly told a journalist: “The Nixon campaign in 1968 and the Nixon White House after that had two enemies: the anti-war left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin. And then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

But this issue isn’t restricted to the United States. An analysis by the Liberal Democrats of Ministry of Justice statistics in 2021 showed black people were 12 times more likely to be prosecuted for cannabis possession than white people. Yet black people are certainly not 12 times more likely than white people to be users of cannabis.

The Adult Psychiatric Morbidity Survey showed 11.7% of black adults, 8.9% of white British adults and 3.4% of Asian adults had used illicit drugs in the past year.

There are also disparities at the sentencing stage. Sentencing Council research covering the period from April 2012 to March 2015 showed black and Asian drug offenders were more likely to be sentenced to immediate imprisonment than white offenders, even after controlling for aggravating and mitigating factors. Asian offenders also received statistically significantly longer sentences than white offenders, although black offenders did not.

And race isn’t the only vector of oppression in the criminal justice system. Disability is another huge factor. In my career I have encountered numerous cases in which people in mental health crisis, particularly black men, have been killed by the police. People with mental health problems and learning disabilities are also overrepresented in the prison population.

A third critique of criminal justice is that, even taking its intended purposes at face value, the increased harshness of sentencing in recent decades does not achieve those purposes.

Earlier, we looked at the core consequentialist rationales for punishment: deterrence, incapacitation and rehabilitation. This is in a context where sentencing has become substantially harsher over the past 50 years. The rate of imprisonment in the US skyrocketed between the 1970s and the 2000s, increasing by over 500%, although it has since declined somewhat.

The rate of imprisonment in England and Wales per capita is significantly lower but has also increased over time. The prison population of England and Wales quadrupled between 1900 and 2018, with around half this increase taking place since 1990.

But does this harsher sentencing achieve the goals of deterrence, incapacitation or rehabilitation? Recently, Jay Gormley, Melissa Hamilton and Ian Belton carried out a review of the effectiveness of sentencing for the Sentencing Council of England and Wales. On general deterrence – that is, the ability of sentencing to deter others from committing offences in future – they highlight that “a range of evidence on human behaviours and decision-making lends credence to the idea that certainty of punishment is likely a much stronger driver of deterrence than severity”.

On the effect of sentencing on the individual offender, Gormley and colleagues find that using more severe deterrent sentences (in particular, custodial rather than non-custodial disposals) does not reduce reoffending. On the contrary, researchers have found evidence for the criminogenic effects of incarceration.

Prison is a social environment where prisoners are exposed to pro-criminal attitudes, learn from other prisoners’ behaviour and are incentivised to adjust to prison life and criminality in general. Further, the challenging events inmates experience, such as loss of autonomy and privacy and victimisation, may trigger psychological strain and provoke criminal coping strategies. Ex-prisoners also suffer from the negative social and economic effects of being labelled as such. They find, in particular, that short sentences of imprisonment “may be criminogenic, hinder positive outcomes, and make reoffending more likely”.

Of course, this is an area where an abolitionist and a reformist response might differ. A reformist might respond to this research by advocating less use of imprisonment, more non-custodial sentences and more diversions such as restorative justice.

They might point out that the research I’ve just referred to doesn’t say that punishment is useless. Rather, it merely challenges the assumption that greater harshness of punishment, as opposed to greater certainty of punishment, increases its effectiveness in reducing crime.

An abolitionist, by contrast, would say that this is simply putting a sticking plaster on the brutality and injustice of policing and prisons, and the end goal should be to abolish criminalisation entirely.

Angela Davis argues that “frameworks that rely exclusively on reforms help to produce the stultifying idea that nothing lies beyond the prison”. At the same time, it would be wrong to caricature abolitionists as blue-sky thinkers.

As the abolitionist Mariame Kaba argues, abolitionists are also involved in campaigns that win politically achievable reforms. She argues that “[a]bolitionist groups have often led fights for better conditions, connecting them to more transformative political possibilities”, and abolitionists have been at the forefront of campaigns such as decriminalising drug use, sentencing reductions and better prison conditions.

So what are the alternatives to criminal law? Are the abolitionists or the reformists right? Next week we will explore some of the alternative models of justice that have been proposed to address the critiques of criminal law and create a more just and equitable system. ■

Read his follow-up article, “Can the criminal laws be reformed?”, here.

Professor Leslie Thomas KC is a lecturer at Gresham College in central London ■

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