830 words; 4 minutes to read

Our criminal justice system goes back well before the advent of the social sciences and the development of reliable knowledge about human behaviour.  But because it is so firmly based on precedents and past practice, the justice system struggles to incorporate social science evidence into its practice.  Even quite strong evidence that our existing practices are harmful rather than helpful – for example putting so many people in jail and keeping them there so long – is not effectively incorporated.  Old and harmful practices remain the standard.

Many people in the justice system are well aware of this problem.  Eve Hanan, a law professor in Nevada, has recently published a fascinating and stimulating discussion of some of these issues.  Hanan argues that the criminal justice system tends to assume that people who commit crimes will never change, so the protection of society requires permanent control of these people.  Thus we have very long sentences but also many other provisions such as lifetime registries, and exclusion of people with criminal records from many aspects of social life.

But, she contends, this belief in people as being incorrigibly bad is an outdated ‘folk wisdom’ that is contradicted by science.

Three key points

Her position can be summed up in three quotes from her paper:

Yet a growing body of scientific literature, derived from diverse fields of science, suggests that people continue to change throughout adulthood depending, in part, on external stimuli.”

Second, because adult brains change in response to environmental stimuli, prison conditions can be understood to directly “rewire” the brains of incarcerated people, often in ways that are ruinous and frustrate rehabilitative and even deterrent goals.”

Therefore, “the state’s response to crime should be designed to provide the context that will support the kind of change that leads to desistance from crime. Policies should include: reduced reliance on incarceration; shorter sentences; options for early release from prison; and accountability for ruinous conditions of confinement.”

In other words, people can and do change for the better, but putting them in prison makes this less likely.  We would do much better if we adopted an approach that helped people change in desirable ways.  This contention is consistent with several previous posts on this blog related to desistance.

In support of this position Hanan has reviewed and discusses evidence from several different fields. (Her article has 376 footnotes!).  Among the key findings she emphasizes:

People can and do change throughout life

– The brain can and does ‘rewire’ itself throughout life allowing people at any age to develop new capacities.

– Individual personality traits are much less stable over a lifetime than had been thought. “… humans remain an ‘open system’ throughout life, susceptible to change at the fundamental level of personality.”

– These personality changes tend in the direction of people becoming more pro-social; more confident, warm, calm, and optimistic.

– People change in response to the environments in which they find themselves.  The effects of the situation appear to be stronger than any specific personality traits.  “… the studies demonstrate that change continues throughout life, and environmental stimuli are pivotal in determining the direction of certain changes.”

– We know that participation in crime declines steadily with age, which calls into question the utility of very long prison sentences.

– “A clear contribution of the newer criminology studies is its conclusion that it is ‘never too late to intervene’, meaning that, if dynamic risk factors that occur later in life can be altered, people with persistent patterns of criminal conduct may change.”

Imprisonment makes things worse

– Imprisonment actually makes things worse because prisons are places that reinforce undesirable behaviour and do little or nothing to encourage positive behaviour. “Modern prisons are, after all, designed to punish through deprivation, not to rehabilitate.”

– “…prison harms in specific ways that frustrate both the goals of rehabilitation and specific deterrence. The brain changes [that occur in prolonged imprisonment] decrease capacity to make decisions; reduce the chance that the defendant could, in the future, weigh the costs of committing another crime; and reduce the social-emotional intelligence needed for empathy, perspective-taking, and decision-making that takes into account the needs of others.”

Acknowledging the physical evidence of brain deterioration in response to imprisonment should spur more than a call to prison reform. It should also spur a call to dramatically reduce incarceration as a response to crime.”

The evidence supports a very different approach

Whether we believe that people can change directly impacts our punitive response to their harmful actions.”  These newer findings of science support an approach that should mean shorter sentences, fewer controls on people after their sentences, and more supports to help people live in appropriate ways.  There should be multiple opportunities for people sentenced to demonstrate that they have changed and so can be released earlier.

The brutality of both the practice of imprisonment and the conditions of confinement stand in stark contrast to our commitment to provide the circumstances in which people can change for the better.”

If only criminal justice systems actually paid attention to these ideas!