It's the Only Language They Understand.

If you want to shrink the prison population, reducing the tariff for murderers in exchange for the modern equivalent of the leg-iron (a "tag"), or chemically castrating a small number of sex offenders, will make little difference. Yet this recourse to the almost Medieval is the predictable focus of the media, and thus politicians, when the obvious short-term solution to over-crowding is a general amnesty for non-serious crimes. Outside of newspaper columns, there is no dispute that the reason British gaols are full is that we send too many people to them for often trivial reasons, not because we haven't built enough of them. It is standard to bemoan the failure of the prison system to rehabilitate, but while this can be fairly attributed to overcrowding and insuffcient resources, it is also the case that many people reading reports that prisoners spend 23 hours a day locked up will respond with "good". In other words, even if resources were infinite, it's unlikely we would prioritise rehabilitation over punishment. 

The government's current sentencing review, which was headed by David Gauke, the former Conservative Justice Secretary, is typical in reiterating this priority even as it admits the spiteful dynamic: "The purposes of sentencing, as set out in legislation, are punishment, reduction of crime, reparation, rehabilitation and public protection. The Review’s Part 1 report History and Trends in Sentencing found that over the last two decades, sentencing has focused disproportionately on punishment with a view from politicians and the media that 'the only form of punishment that counts is imprisonment.'" The response of the Association of Police and Crime Commissioners was similar in its view: "The deprivation of liberty by imprisonment is a powerful tool, and Police and Crime Commissioners (PCCs) are clear it must be used to punish, and keep the public safe from, the most serious offenders. However, we support greater use of community supervision for those convicted of lower level crimes because the evidence shows short custodial sentences do little to rehabilitate repeat offenders". 

What we're witnessing in the latest floating of alternatives to prison is neither pragmatism nor idealism but a determination to maintain punishment at the apex of the hierarchy of purpose for the justice system. Convicts must suffer, hence even the mild inconveniences of tagging and curfews are preferred to the socially useful contributions and reparations of community orders that the press routinely deride as "soft". But the instinctive liberal response - that we should issue fewer custodial sentences, that prison conditions should be more humane and that we should properly support rehabilitation - has its own flaws, not least that it obscures the nature of the prison and the role it plays in society. For this reason, a decision to avoid the use of prison can potentially lead to worse outcomes. A famous example of chemical castration as an alternative to porridge was Alan Turing whose subsequent suicide eventually led to an apology by the last Labour government. No doubt Shabana Mahmood, the current Justice Secretary, is aware of the history, but she has a feral press to placate so it's (chemically, and with consent) "cut their goolies off". It's the only language they understand.

Prisons are the product of another age, specifically the Victorian era of high industrialism and the consequent reduction of labour to standardised units, as explored by social historians such as Michel Foucault in Discipline and Punish. Their mix of the modern (surveillance and regimentation) and the anti-modern (a regime predating all that nonsense about human rights) remains a virtue for many. The reason prisons are antiquated in their operation as much as their fabric is because as a society we don't want to let go of that Victorian regime. We find modern prisons, with their functioning toilets and air-conditioning, irritating because there isn't visible suffering beyond the boredom of incarceration. Insofar as there has historically been an aversion to the use of prison it has been wholly on the basis of class (nicely satirised in Kind Hearts and Coronets), hence the reluctance to jail whitecollar criminals or the preference to send them to "open prisons" if a custodial sentence was unavoidable. 

As some point, there will be a dissolution of the prisons as dramatic as the dissolution of the monateries. Prisons are costly and ineffective, in terms of punishment as much as rehabilitation, as indicated by the high levels of recidivism. There will still be a need for the incarceration of "dangerous criminals" for public safety, but that definition will inevitably elide with that of the "criminally insane" or the "terrorist", whom society is happy to consider as categorically different, not least in their obscurity (the old idea of the oubliette). For the vast majority of crimes we will inevitably drop custodial sentences. The problem is that we will do that by normalising the idea of punishment within society rather than apart from it. Like the leper colonies and madhouses of the late Medieval period, the first purpose of the recognisably modern prisons that emerged in the Age of Enlightenment was quarantine, a principle taken to the extreme of preventing any intercourse between prisoners themselves, or even allowing the prisoner to see his gaolers, as in Jeremy Bentham's famous Panopticon.

We have already shifted the idea of reparation out of the prison system into society with community orders and ritual apologies to victims. The next step will be to shift punishment out as well. It isn't a coincidence that there have been a number of high profile cases of prison staff being prosecuted for having sexual relationships with prisoners in recent years. The subtext is the evaporation of boundaries: the very antithesis of Bentham's regime. That these incidents are often explained as the result of a crisis within the prison service (low morale, poor vetting, inadequate training) is illustrative of the belief that prisons are no longer fit for purpose: that the system is breaking down. But the more telling feature of this trend (the prominence of reporting rather than incidence) is the sense of the outside world breaching the prison wall, whether in the form of drugs and mobile phones smuggled in by drones or the sexual opportunism of warders. It is in this context that we should see the government's plans. Chemical castration is a punishment enacted within society. Tagging and curfews likewise. Punishment is moving out of the quarantine of prison and into society at large, and once that happens the need for forbidding walls diminishes.

The reason the prison population has grown is because the high threshold for custodial sentences has fallen over time. The threshold was obviously very low in the 18th and 19th centuries, as prison became an industry in itself and a key component of industrial society, but it rose over the course of the 20th century, due to "reform", reaching a peak in the 1970s as part of the sociological turn in which institutionalisation was seen as failure. It then fell once more, as politicians under pressure from the reactionary press decided that sending more people to gaol was a reasonable compensation for not reintroducing the death penalty. Tony Blair's mantra "Tough on crime; tough on the causes of crime" was an early sally into social punishment, blurring the boundaries between society and its criminal element, the most famous example of this being ASBOs: a device that recognised a social ill but simultaneously insisted that redress should be social as well, so placing both crime and punishment beyond the penal system.

The danger is that the threshold will remain low but be transferred across to punishment in society. In other words, you could easily find yourself serving a non-custodial sentence for an offence that 50 years ago wouldn't have resulted in more than a caution. We could see a lot more people tagged and curfewed. Not just a handful of murderers who have served half their sentence but youth done for smoking weed or the poor for shoplifting (whitecollar criminals will once more tend to be spared the worst). The choice that faces us as a society is whether the priority of the justice system is punishment or restitution (i.e. the rehabilitation of offenders and the reparation, where possible, of victims). The discussion of alternatives to prison is being carefully curated to emphasise that punishment remains the priority. The full development of a prison industrial complex run by private companies like Sodexo has been ruled out on the grounds of cost and incompetence, but the privatisation of punishment in society, managed by the likes of Serco, continues apace, and despite the same failings.