BANGED UP (1)

How prisons reinforce our own failure

Kay Carmichael

Kay Carmichael, accepting the Institute of Contemporary Scotland's award for services to justice in 2006, delivered a speech on the theme of justice. This is a short excerpt:

The notion of justice as socially desirable is rooted in the earliest days of written commentary. The prophet Micah commented that what was required of us was 'to do justly, and to love mercy'. In the first century BC, Horace in his Satires was saying, rather more dryly, that 'if you study the history and records of the world you must admit that the source of justice was the fear of injustice'. He may have meant injustice to oneself or simply chaos within the society, as people sought to enforce their own 'justice'.
     Every society has to find ways of settling disputes which occur between its members. Conflict is inevitable in any community. It is neither good nor bad. It is a part of living. What is important is how we deal with it along with the recognition that how we deal with it is also a matter of how we live together. In very small societies, which live apparently simply, but in some ways using quite sophisticated skills, these disputes may be settled without intervention from any other than the participants in the dispute, their families, and possibly their neighbours. In the main the aim was to achieve negotiation, restitution and reconciliation, sometimes by the paying of compensation to the injured party. Offences were private or community affairs without written laws to be consulted. There was in their place a sense of tradition and custom. There were, and still are in some communities, senior members of the group, or the tribe as it may be, who can be called on to offer a just solution to the problem. A 'just'solution in this context is likely to mean one that all the parties can accept and live with – even if reluctantly. There are advantages in not having police and prisons – it makes people work harder to find solutions that will prevent the disruption of their society.
     Injustice can be a source of great suffering. The notion of injustice appears to be hardwired into the human psyche and must be treated with respect. Very young children can be heard to complain, 'It's not fair!' Where negotiation has failed, a surviving relative may demand the punishment of the killer, using an ancient demand of 'a life for a life'. This is the point where justice appears to have failed; the sense of an injustice not recognised moves into revenge to achieve justice. This response has stayed with us through the centuries. We still hear it today. Equally the families of victims have a need to be morally vindicated as a mark of respect. They ask for public acknowledgement by an offender of their responsibility for the harm done.
     Private and community justice with its emphasis on negotiation, restitution and reconciliation has been replaced over time by public and state justice based partly on Roman law and partly on Christian theology. It is situated in courts which seem to require a whole cluster of supporting structures on which they depend. These are in the main legal chambers employing lawyers, who in turn depend on a police force and prisons where the law seems to require punishment. One American criminologist (Jerold S Auerbach) has said: 'Law is our national religion; lawyers constitute our priesthood; the courtroom is our cathedral, where contemporary passion plays are enacted'. Indeed the whole process is built on adversarial drama. Someone has to win; someone has to lose.
     This adversarial nature of our courts seems every day to offer material for newspapers and television. We seem to be obsessed with crimes, not only on the evening news seeing offenders leaving court with a jacket over their head to hide their face, but being given gory details the next day in our newspaper. It is a drama in which we play no part except to express our horror. We are offered no thoughtful explanation of the possible causes of criminal behaviour nor any sense that we can contribute in any way to the processes involved. We also learn horror stories about the prison system which is the end point the adversarial system has to use when other milder solutions seem socially unacceptable. Yet it is widely recognised that overcrowding, bullying and intimidation among prisoners, lack of educational facilities (a high proportion of prisoners are illiterate) do nothing to help reintegration into the wider society. But the majority of offenders are not hardened criminals; they are poorly educated, unemployed drifters through our streets and their own lives. They are our failures. We, and the institutions we have created, have failed them. Prisons will reinforce that failure. We need to seek other ways of living in community with them.