Britain has finally run out of prison cells. We are only days away from prisoners having to share the local nick with PC Plod, but it would be wrong to think that this has come about because the courts have finally given up on community sentencing or rehabilitation more generally when it comes to punishment. In the same week that the home secretary John Reid announced he had no cells left, Harriet Harman let it be known that Britain was about to receive its own English version of Judge Judy. Ministers are set to open ten community justice centres where the public get to choose the magistrates, decide what penalties can be handed out, provide impact statements to the court before sentencing and discuss community problems with the judge (Gibb 10.10.2006). No doubt more prison cells will be built, but of far greater significance is the emergence of community justice centres in the administration of criminal justice in the UK. Their emergence is symptomatic of a wider trend: the emergence of therapeutic justice as the primary paradigm within which ideas about and the actual practice of punishment now take place. Therapeutic justice represents a system of ideas which places greater emphasis on emotionalism than the law has traditionally allowed for. It can be broadly defined in the following way:

Therapeutic jurisprudence concentrates on the law’s impact on emotional life and psychological well-being. It is a perspective that regards the law (rules of law, legal procedures, and roles of legal actors) itself as a social force that often produces therapeutic or anti-therapeutic consequences. It does not suggest that therapeutic concerns are more important than other consequences or factors, but it does suggest that the law’s role as a potential therapeutic agent should be recognized.[1]

Considerations such as ‘emotional life’ and ‘psychological well-being’ were traditionally outside of the old debates about punishment which focused on rehabilitation versus retribution.

When we talk of punishment the debate in the past was between those who believed in retribution, who had a broadly conservative outlook, and those who believed in rehabilitation, who had a broadly liberal outlook. Liberals who believed in rehabilitation had a basically positive view of human nature. People could be rehabilitated. Offenders were essentially rational beings – all they needed was an opportunity to come to their senses and when they demonstrated that they were no longer a threat to public safety they should be considered for release. Conservatives, in contrast, had a broadly negative view of human nature and believed that the purpose of punishment was to punish a rational subject for their actions. They should be made to pay and to hell with the idea of rehabilitation. While liberals and conservatives appeared to be in violent disagreement with each other, it is clear in retrospect that they had one very important common assumption: that an offender who was being punished was a rational being who understood why they were being punished and had the ability to be held responsible for their actions. Therapeutic justice makes the opposite assumption. Individual offenders are not necessarily rational. They are better understood as damaged human beings in need of help who can’t be held responsible for their actions.

The Rehabilitation of Offenders Act 1974 marks the legal highpoint of the rehabilitation viewpoint. The Act’s very publicly stated aim placed rehabilitation at the centre of the debate around punishment. Since the 1980s, rehabilitation appears to have been displaced by a move towards retribution. Since 1994 successive governments have passed criminal justice bills approximately every 18 months, introducing both new offences and stiffer prison sentences for existing offences. The law of sentencing is now very different from what it was fifteen years ago. Then, for example, a life sentence meant 12 years followed by release on licence. Now it can mean anything up to natural life. In the past only police killers like Roberts or notorious villains such as the Krays would expect to receive 30 years inside. Today, if you commit murder 25 years to life is not unusual depending on the circumstances of the crime. You no longer need to be notorious to receive such a sentence. However, the shift towards longer prison sentences has also coincided with a proliferation in the different types of community sentences now available to the courts.

So we appear to have two processes unfolding simultaneously. We have both (i) an increase in the length of prison terms and an increase in the absolute number of prisoners, and (ii) an increase in the types of non custodial sentences or community-based sentences available to the courts.

Let us first turn to how the ideas of therapeutic justice are now influencing the sentencing of offenders in non-custodial community based sentencing.

One important example is the emergence of restorative justice programmes where offenders are forced to come face to face with their victims to make them take responsibility for their actions. Restorative justice is ‘about putting victims’ needs at the centre of the criminal justice system and finding positive solutions to crime by encouraging offenders to face up to their actions’.[2] On the face of it it sounds a bit like rehabilitation, but I believe it is different. It doesn’t pre-suppose a rational subject who needs to see the error of their ways. Restorative justice programmes are more like personality re-construction where the state is directly intervening and making up for the lack of moral education that the offender has received – as evidenced in their being convicted in the first place – by directly confronting them with the consequences of their actions. Restorative justice programmes also serve, just as importantly, to make the victims feel better and help them to overcome the crime that has been committed. Restorative justice lies beyond the old ideas about retribution and rehabilitation.

Community based sentencing is now full of concepts of therapeutic justice. The proliferation of ASBOs (antisocial behaviour orders) demonstrates this. An ASBO isn’t really a punishment in the old sense of the word. They are attempts by the authorities to make (usually young) people behave better through new forms of control while simultaneously seeking to assuage the public’s fears about crime. They are used to place all sorts of restrictions on ‘offenders’ in both time and place and are handed out with impunity. Only three per cent of the applications made for ASBOs have been refused (Foot 5.4.2005). They are often handed out on the basis of hearsay evidence in the absence of a jury and can be permanently binding. Learning to live with your ASBO is a guidebook waiting to be written.An ASBO assumes that the person who is subject to it is unable to change their perceived problem behaviour and the only solution is to make them subject to an order which if breached is a criminal offence. It is very difficult for someone who has an ASBO to be rid of it.

Take the following examples: the 13-year-old who received an ASBO stopping him from using the word ‘grass’ anywhere in the UK, the 17-year-old who is prevented from using his own front door, the 87-year-old (yes, eighty seven years old) who is ordered not to make sarcastic remarks to his neighbours, the 28-year-old who is banned from having drugs anywhere in Britain, or the ASBO served on an entire area of Skegness giving the police the right to arrest anyone there for antisocial behaviour.[3] These examples clearly show how ASBOs are being used in a wide range of circumstances where the courts feel that they have no option but to make these orders. ASBOs are not traditional punishments. They are something you have to live with (especially in Skegness) which suggest that you are damaged and unable to function properly in modern society. Even worse is Tony Blair’s recent announcement that ASBOs could be handed out to the unborn in recognition of the fact that they will otherwise more likely than not need one later! (Glendinning 1.9.2006). This is a deeply elitist and offensive policy development. To assume before someone is even born that they are in need of a lifelong ASBO can only serve to criminalise, stigmatise and punish that individual from birth. Blair appears to have a very dim view of us all.

The courts initially had trouble using ASBOs and failed to utilise them. This is not surprising as ASBOs are not intended to punish. They are used to control, are often open ended and assume that once you have an ASBO you may have to live with it forever, unlike a prison sentence which is served and terminated by release. Conservative and liberal judges clearly couldn’t get their heads around using them. Only 104 ASBOs were handed down when they were first introduced in 1999 (Napo 2005). This compares with the 3,000 plus that have been issued since 2003. In Scotland judges are still having difficulty using ASBOs, presumably because they still can’t get their heads round using them in the context of sentencing offenders to a punishment (Howie & MacNab 6.5.2006).

In the USA therapeutic justice is much more advanced in the sentencing of offenders. Courts will often pursue programmes aimed at restoring a defendant’s self worth and getting them off drugs, sit around in case conferences talking about the convicted person’s mental health and developing programmes to deal with these. One good example is Florida where Miami’s drug court directly intervenes to try to restore defendants’ mental health.[4]

Elsewhere in the USA schemes have been introduced to help offenders who are in prison significantly shorten their prison terms by going to what can only be described as a therapeutic justice boot camp. When at the boot camp prisoners are systematically broken down, not through physical abuse but through constant verbal abuse from the prison guards. The penal regime in place aims to break a prisoner’s individual identity, sense of self and self worth and then rebuild that individual’s moral being through therapy sessions. We used to call this brainwashing. The payoff for the prisoner is a vastly reduced sentence. But many prisoners who volunteer for the programme don’t make it and can’t tough it out. In this boot camp the prisoners are basically being remoulded by the prison officers into moral beings who may be safe to release into society again.

All these examples of therapeutic justice at work are very different from old liberal notions of rehabilitation. Therapeutic justice is about the state directly intervening to reconstruct, remould, supervise and control the offender’s personality in recognition of the fact that social forces are perceived to have reduced them to damaged beings incapable of acting rationally for the purposes of the law.

Let us now turn to how therapeutic justice has led to an increase in the number of prisoners and the length of prison terms.

In Britain we now have victim impact statement being trialled in various courts where the victim’s experience is being given a privileged position in the sentencing of offenders(Furedi 24.4.2006). The victim impact statement is designed to place before the court evidence of how the crime has impacted on the victim’s and victim’s family’s emotional state. This then becomes a relevant factor in sentencing with judges being encouraged to hand out a stiffer sentence than may otherwise have been handed down. The danger here is that the victim’s experience is given a privileged position over other factors that should determine the offender’s sentence: principally considerations of rehabilitation, public safety and a rational assessment based on the relevant statute of how long the offender should serve. Is it right that a victim’s or a victim’s family’s sense of moral outrage at the crime that has been committed should be given a privileged position over considerations of public safety and what the proper sentence should be? Victim impact statement will lead to the development of arbitrary justice.

It is not just the emotional outcry of the victim that has led to increased prison sentences. The emotional outcry of the public has now also been enshrined in law and reflected in a number of legislative changes that have resulted in increased sentences for serious crimes – principally rape and murder.

The increase in sentences for murder have been brought about to avoid arguments about the Home Office sentencing notorious offenders for political reasons. In the past the Home Office used to determine a person’s sentence when they were convicted for murder. After the outcry from the Bulger case these sentencing powers have now been devolved to the courts. Whereas before a life term usually meant 12 years, now a judge has to set a minimum term.[5] As a result, the terms for murder are much longer as they are now stipulated by statute. So the victim’s concerns, as expressed in the popular press, which the Home Office would obviously respond to, have now been enshrined and privileged in law. This has already led to many more criminals receiving 20 years to life for murder.

This process is more advanced in the USA, as evidenced by the total number of prisoners as a percentage of the population compared to the UK. In the USA there are two million prisoners, which is approximately 0.66% of the population, compared to the UK where there are circa 80,000 prisoners, approximately 0.13% of the population.

So while the increase in the number of prisoners and the increase in prison terms appear to indicate a movement towards retribution being given greater prominence in sentencing, the reality is different. The law is being used as a therapeutic agent to make victims and the public feel better about themselves and to satisfy our emotional needs and moral outrage at the crimes that have been committed, all at the expense of legal objectivity and rationality in the sentencing of offenders.

Does that mean Michel Foucault was right? Foucault, a French philosopher and historian, raised the notion of the ‘carceral continuum’ by which he meant that there was a continuum running modern society, from the maximum security prison, through secure accommodation, probation, social workers, police, and teachers to our everyday working and domestic lives. All are connected by the (witting or unwitting) supervision (surveillance, application of norms of acceptable behaviour) of some humans by others. Foucault argued that:

The second process is the growth of the disciplinary networks, the multiplication of their exchanges with the given penal apparatus, the ever more important powers that are given them, the more massive the transference to them of judicial functions; now, as medicine, psychology, education, public assistance, ‘social work’ assume an ever greater share of the powers of supervision and assessment, the penal apparatus will…become medicalized, psychologized, educationalized; and by the same token that turning-point represented by the prison becomes less useful (Foucault 1977).

As therapeutic justice grows in influence we can see these processes being played out. The modern day obsession with emotionalism has paved the way for offenders to be considered as less able humans in need of help from psychologists, social workers and educators, whether they be behind bars or serving their sentences in the community. The point here is that old notions of punishment now seem redundant. You no longer serve your debt to society and move on. Now you are sentenced, supervised and controlled through these new institutions and processes that are being developed. Therapeutic justice assumes that once convicted you cannot take responsibility for your actions; you are to be treated as a damaged individual in need of constant control and surveillance as well as help and support.

To conclude, the old debate about retribution versus rehabilitation is being displaced by the growing practice of therapeutic justice which gives emotionalism a privileged position in sentencing. Emotional concern for the offender and emotional concern for the victim will lead to justice becoming ever more arbitrary. We are in danger of losing legal objectivity and rationality as the legal establishment take up the ideas and practice of therapeutic justice.

Daniel Lloyd is a qualified barrister and co-founder of the civil liberties group, Freedom and Law

[1] See http://www.law.arizona.edu/depts/upr-intj/

[2] See http://www.homeoffice.gov.uk/crime-victims/victims/restorative-justice/for an up to date outline of restorative justice programmes in the UK administered by the Home Office.

[3] See http://www.statewatch.org/asbo/ASBOwatch.html for more examples of outrageous ASBOs.

[4] See http://www.miami.com/mld/miamiherald/news/local/states/florida/counties/miami-dade/cities_neighborhoods/northcentral/15414443.htm

[5] While many sections of the media argued that the sentences handed down to Bulger’s killers were too lenient, they successfully appealed to the European Court of Human Rights to say that the sentences were too long.