Where Incarceration Isn’t the Answer

Despite declining incarceration rates in some states, the United States still outpaces the rest of the world when it comes to putting human beings in cages. The U.S. is home to approximately 20% of all prisoners in the world even though it has only 4.4% of the world’s population. A staggering 2.12 million people are in U.S. prisons instead of in the communities they call home.

Progressive voices long ago characterized America’s penal system as a failure. However, in recent years, even a few button-down conservative, law-and-order types have grudgingly acknowledged the need for change. Of course, they don’t sign on to so-called “bleeding heart” concerns about human rights. But they do express alarm about the dollars and cents required to warehouse human beings with no financial return. 

Texas lawyer Marc Levin, who helped establish the organization Right on Crime has asked, “How is it ‘conservative’ to spend vast amounts of taxpayer money on a strategy without asking whether it is providing taxpayers with the best public safety return on their investment?” 

In his essay “The Conservative Case for Jail Reform,” Arthur Rizer of the conservative think tank R Street Institute writes, “Incarceration separates offenders from their families, which increases rates of homelessness and single parenthood. Approximately 17 million children are currently being raised without a father, a growing social problem that only perpetuates cycles of violence and crime.”

While Rizer and other conservatives have defaulted to “family values” as a reason for concern, true conservatives have to acknowledge the immorality of corporate exploitation of warehousing humans. Specifically, conservative rhetoric decries welfare and other forms of government assistance for individuals. Nevertheless, some corporations have shamelessly looked to government to feed them a guaranteed, steady diet of people to populate their private prisons. Some corporations have also relied on government to cut their labor costs by providing access to prisoners as low-paid or unpaid workers.

However conservatives might arrive at their reservations and objections to mass incarceration, the frustrations with the U.S. system are now universal across the political spectrum and have prompted a global search for better alternatives. 

Low Incarceration

Let’s begin our search in countries with the smallest prison populations per 100,000 residents. Several such countries are in Africa. Those countries include, among others: Ghana, Democratic Republic of Congo, Nigeria, Guinea Bissau, and the Central African Republic. As a whole, the African continent confines 1 million of the 11 million prisoners worldwide. 

These countries’ small prison populations are not necessarily an indicator of progressive prison practices worthy of imitation. In fact, overcrowding, violence, and corruption exist there as well. The very concept of “prison” was mostly imposed on African countries by European colonizers to curtail rebellion, and to maintain social, economic, and political order. Moreover, in certain cases there has been no commitment of resources or creative energy to refining these institutions into effective rehabilitation facilities. The general poverty in certain African countries resulting from underdevelopment and the ravages of colonialism have in some cases yielded prisons with unacceptable conditions of confinement.

“What seems to be generally accepted is that penitentiary institutions are not legacies of African traditions from the past,” writes Jeremy Sarkin in his paper “Prisons in Africa.” “Imprisonment was by no means a standard practice in African justice. In fact, the local judicial systems in African states generally focused more on supporting victims, rather than focusing on perpetrators. Indeed, the purpose of this system was the restitution of the harm.”

The very concept of “prison” was mostly imposed on African countries by European colonizers to curtail rebellion, and to maintain social, economic, and political order.

It is tragically ironic that the very features of traditional African systems that were suppressed by European colonizers in the past are what have now been adopted by some European prison systems. These traditional African concepts like ubuntu, which has varied translations related to human connectivity but simply means “humanity,” have not only distinguished some European prisons, but they have also attracted the attention of those looking for progressive incarceration alternatives. The systems viewed with greatest favor are in Scandinavia. 

For example, Finland moved to reforming their open prison system in the 1960s, and in the 1990s Norway implemented restorative practices.

Consequently, those who look to these systems for different ways of addressing criminal justice are in some ways looking to traditional Africa.

A Look at Scandinavia

Many believe that not only are the prison systems in Scandinavia the best thing going, but the Scandinavian way of doing things may also be the best option for the U.S. Norway attracts special attention because recidivism rates in that country are among the lowest in the world. Only 20% of those released from Norwegian prisons are arrested within the next two years. Compare that to the U.S. where approximately 68% of formerly incarcerated persons are arrested within three years.

Norway’s experience is attributed to a 1998 decision to radically redirect the prison system away from retribution and toward rehabilitation. A second wave of reforms in 2007 involved the creation of special programs for job training (many who are incarcerated will be released with carpentry or culinary skills) and education, as well as assistance with the search for housing, employment, and other necessities of re-entry to the world outside of prison walls.

Also, unless they’ve been convicted of a crime that “targets the state or democratic order,” Norwegian prisoners can vote, and they have access to health care.

Perhaps most striking to observers are the Norwegian prison facilities. Halden is a maximum-security prison near Oslo that has been dubbed by Time Magazine as “the world’s most humane prison.” There is only a single wall, and many features of the standard American prison, such as guard towers, massive cell blocks, and barbed wire are conspicuously absent. Instead, prisoners have private bedrooms, bathrooms, and kitchens. The underlying philosophy is that prisoners are sufficiently punished by depriving them of their liberty, and if there is any hope of rehabilitation, other aspects of their lives must be as normal as possible.

The experience of Norway’s prison guards is also different. After observing Norwegian prison facilities, one Pennsylvania prison official was quoted by HuffPost as saying, “We feel we’re serving our communities by keeping these dangerous individuals enclosed from society, and here, I think they feel like they’re serving their community, serving their society, by taking those dangerous individuals and changing them for the better. … I’d never really looked at my job as an opportunity to change somebody’s life.”

Doran Larson, who toured and wrote about prisons in Denmark, Norway, Sweden, and Finland, writes in his article “Why Scandinavian Prisons Are Superior”: 

“Each prisoner has a ‘contact officer’ who monitors and helps advance progress toward return to the world outside—a practice introduced to help officers avoid the damage experienced by performing purely punitive functions: stress, hypertension, alcoholism, suicide, and other job-related hazards that today plague American corrections officers, who have an average life expectancy of 59.”

Clearly these restorative justice practices provide a different paradigm.

Finland’s prisoners are allowed civilian clothing, extensive opportunities to visit with families, and opportunities to keep tabs on what’s happening in the outside world with modern technology like mobile phones and flat-screen TVs. Prison officers don’t carry batons, handcuffs, tasers, or other weapons. 

In Finland, there are also “open prisons,” where even those who have committed murder get to experience the semblance of a normal life. At the open prison in Kerava, prisoners work for $8/hour, and they pay rent to the prison. They study at the nearby university, do their own grocery shopping, and get vacation days. 

Although open prisons in Finland have been around since the 1930s, it’s taken decades for the country to remake its penal policy. All of this contributes in various ways to preserving the dignity of prisoners with hopes that they will also be transformed. (According to Finland’s Criminal Sanction Agency, the open prisons actually cost less because there’s not the expense of extra security measures and personnel.) 

But whether open or closed, restorative justice is one of the more important aspects of Scandinavia’s rehabilitation process.  

“One point of criticism of traditional criminal justice was that the victim is absent and the offender is silent,” explains Norwegian scholar Anna Nylund in her study “Restorative Justice and Victim-Offender Mediation in Norway.” “The offender does not need to face the victim and the consequences of the crime, nor take responsibility for his or her action. The victim cannot share his or her feelings and view of the crime, nor understand why and how the crime was committed.”

Nylund continues, “Restorative justice is not about fact-finding: The offender must at least admit to the facts or plead guilty. The main interest is how to repair the wrongs of a crime and to make the offender take responsibility for his or her actions, by recognizing the pain and problems inflicted on the victim and by apologizing. The victim shares his or her views and feelings with the offender, as does the offender, consequently both get a better understanding of the crime, the actions before and during the crime, and consequences of the crime.”

Although restorative justice is a flexible process that does not easily lend itself to rigid procedural rules of the type used in court proceedings, Norway has institutionalized the method by establishing a National Mediation Service under the auspices of the Ministry of Justice and Police. Services are provided in 22 regions where more than 8,000 cases are processed each year. Trained community volunteers are used rather than professional mediators. Agencies refer cases with no limitation on the types of offenses that are eligible for services. It is even possible for these cases to be diverted away from the criminal justice system altogether, leaving the offender with no criminal record for the offense.

But can these successful models work in the U.S.?

Careful deliberation and analysis are prompted by the radically different demographic circumstances of Scandinavia and America, as well as the overall contrasting socio-economic and political cultures.

The Race Factor

In his article, Larson explains, “Scandinavian prisons are roughly as racially and ethnically homogeneous as American prisons: 70% of Nordic prisoners are ethnically white citizens; the other 30% are foreign-born (mostly from other EU countries). In U.S. prisons, ethnic and racial minorities make up over 60% of the population.” 

It’s not just the optics of the racial demographics that matter. America’s tragic racial history adds innumerable layers of complexity to any effort to rehabilitate prison populations. These challenges involve, among many other things, the explicit and implicit racial bias against prisoners of color that causes many in the broader society to regard them as a throwaway population not deserving of the resources needed for genuine rehabilitation. Because of this, many politicians likely assume that providing U.S. prisoners with the living amenities provided to Scandinavian prisoners would be a hard sell. 

“The difference is that the majority of Scandinavian prisoners look like the majority—including the voting majority—outside,” Larson writes. “Laws, enforcement policies, and prison practices are those that the majority of citizens assume would work for themselves.” If the population outside of prison walls does not identify with those within, the political and social will for meaningful rehabilitation opportunities is unlikely to exist.

This suggests that a rehabilitation strategy in a homogeneous society is more likely to have effective, productive results in a homogeneous community, while the opposite may be true when the offender’s reality outside of prison is that of an alien of sorts—a sojourner in a hostile world. A Black prisoner newly released into a dominant White culture is likely to encounter dismissiveness at best and cruelty at worst because of both his race and his criminal history. A Black job seeker with a criminal record is not generally welcomed by employers. The Equal Employment Opportunity Commission concluded that because of the disproportionate incarceration of people of color, with only a few exceptions, employers who disqualify job applicants solely because of a criminal record engage in racial discrimination. The frequency of such discrimination prompted the formation of a movement to “ban the box” on job applications where candidates must place a checkmark to report their criminal convictions.

If whatever was done in prison to prepare prisoners for re-entry into society has not prepared them for hostility, or at least indifference, to their efforts to rejoin the community, the chances of recidivism will be increased. For a Scandinavian-style prison system to work in a racially diverse country, there must be a supportive, affirming community that embraces offenders who are people of color. Because community was of great importance in traditional Africa, this may be especially important for African Americans because of their ancestral roots and an enduring culture.

Tanzanian law professor Julena Jumbe Gabagambi, in her paper “A Comparative Analysis of Restorative Justice Practices in Africa,” explains, “This makes perfect sense because African peoples tend to live communally and abhorred anything that could strain relationships, disconnect an individual or family with the community, and paralyze their social relationships.” Gabagambi goes on to say, “[P]eople who know the offender are community members and they are better placed to reconcile and reintegrate the offender by making him or her accountable for his or her criminal acts or conduct.” 

The desired supportive community may not be present because of America’s racial challenges, and the prospects for a good outcome for a Black former prisoner are at least dubious. A released prisoner may receive support and affirmation from his immediate family and maybe even from his neighborhood. But when dealing with the anti-Black, anti-former-prisoner wider world, he will be faced with not only barriers to employment, but also to housing and other necessities, not to mention problems presented by police officers who have not yet learned that Black lives matter.

The challenges are not limited to external threats posed by a hostile community. In some cases, the problems are internal. Black offenders who have taken pervasive White supremacist messages to heart can descend into self-hatred and become their own worst enemies. If a Scandinavian model is to be used in the U.S., internalized White supremacy or “internalized oppression” must be thoroughly understood, and systems must be adjusted to address it, because it is a real phenomenon. 

If whatever was done in prison to prepare prisoners for re-entry into society has not prepared them for hostility, or at least indifference, to their efforts to rejoin the community, the chances of recidivism will be increased.

Notions of White superiority that were created in the 15th century to justify conquest and slavery have a firm grip on the minds of people of all colors. Harvard law professor Randall Kennedy explains in his book Nigger: The Strange Career of a Troublesome Word,  how even his own African American grandmother was affected: “She swore that she would never allow a ‘nigger doctor’ to care for her and repeatedly warned that ‘if you see a bunch of niggers coming, turn around and go the other way.’ Big Mama had clearly internalized antiblack prejudice. She truly believed that white people’s water was wetter than black people’s water, that as a rule, whites were nicer, better looking, and more capable than blacks.”

In the 1950s, psychiatrist Frantz Fanon of Martinique, who was a participant in African decolonization struggles, explained in his book, Black Skin White Masks, how this sense of inferiority is created. He wrote that comic books “are put together by white men for little white men. This is the heart of the problem. … In the magazines the Wolf, the Devil, the Evil Spirit, the Bad Man, the Savage are always symbolized by Negroes or Indians; since there is always identification with the victor, the little Negro, quite as easily as the little white boy, becomes an explorer, an adventurer, a missionary ‘who faces the danger of being eaten by the wicked Negroes.’”

In 21st-century America, popular culture is still dominated by “wicked Negroes” in the form of thugs in cop shows, music videos, movies, and other media. If an individual hates himself because of his skin color, it is only a short step to hating and victimizing others of his race. When those crimes are committed, how does one answer the question of who is at fault? If Scandinavian rehabilitation strategies are focused on seeking an acknowledgment of guilt from the offender, are the broader social and historical forces that played a role in the conduct to be left unaddressed? If so, is a rehabilitative process truly complete if those loose ends are left dangling? Because restorative justice is at the heart of Scandinavian rehabilitation models, there may be value in first examining how well that process addresses prisoners’ racial circumstances.

Henry McClendon, director of community engagement for the International Institute for Restorative Practices, suggests that as a restorative justice facilitator engages in a colloquy with the offender, there are likely to be clues that the feelings or emotions that prompted the offending conduct were not experienced for the first time during the crime. This will prompt participants to revisit other occasions when there were similar feelings until ultimately, they identify the triggering event—which could involve feelings of racial inferiority experienced during early childhood. “At the core people are the same,” McClendon says. But “[a facilitator] should be culturally sensitive” in addition to being properly trained.

Beyond the issues that are personal to the offender, account must also be taken of his or her community’s unique historical and social experience and the consequent psychological impacts. For example, it may not be enough to communicate to a Black offender that he has been “bad,” and he needs to commit to being “good.” On some level a person of African ancestry who has navigated America’s racial landscape may not even know what that means. Consider that the dominant culture tells children police officers are “good.” Yet many Black children routinely observe police officers being violent, deceptive, and indifferent to human suffering. 

If that is what a “good” person does, it is possible that the offender has already signed on to that program, and it is what caused him to become incarcerated in the first place. Thus the rehabilitation of such an individual demands a deprogramming of sorts that defies the use of checklists and routines. What may be required is a highly individualized evaluation and program that considers how all of America’s racial negatives may have contributed to the production of an individual who the broader society regards as “criminal.”

Keep Politics Out 

In the U.S., more than 2 million people are warehoused in state and federal prisons, local jails, juvenile correction facilities, detention facilities, Indian Country jails, state psychiatric hospitals, etc.  That’s approximately 700 per 100,000 people.

According to the Prison Police Initiative, the most contentious issues in our criminal justice system—the overcriminalization of drug use, private prisons, and low-paid or unpaid prison labor—still do not explain why most people are incarcerated and how we can dramatically and safely move toward decarceration. 

But Larson gives us a hint. He writes that the reform of Scandinavian prisons was possible because their criminal justice policy “rarely enters political debate.” 

Decisions about the criminal justice system are left to the professionals in the field, Larson writes.

So there is, for example, no “War on Drugs” waged by politicians that by default targets particular people (as is the case in the U.S. where Black, Brown, Indigenous, and poor people make up the majority of the incarcerated). Also absent is a class divide and culture of socio-economic disparities that can produce violent behavior.

In the U.S. where punishment along the lines of race and class is common, Larson writes, “This peculiarly American institutionalization has created a nation where few middle-class white Americans can name anyone they know personally who has been sentenced to prison, and even fewer black Americans of any class cannot.” According to Norwegian criminologist Nils Christie, “The more unlike oneself the imagined perpetrator of crime, the harsher the conditions one will agree to impose upon convicted criminals, and the greater the range of acts one will agree should be designated as crimes.”

It’s not hidden that the United States was established by and for property-owning (read: wealthy) White men. The same make up the majority of U.S. politicians at every level—federal, state, and local. There is a range of retribution toward those who are not part of that demographic. 

In tailoring a Scandinavian model for use in the U.S. while addressing the scars of White supremacy, U.S. prison officials may have to be both thoughtful and creative. 

They may, for example, have to consider the possibility that elimination of racial self-hatred will require an injection of racial pride and self-esteem. Perhaps that can be accomplished at least in part with professionally designed courses on the history of Africa and its global diaspora. There might also be benefits to providing all prisoners with a structural analysis of society that helps them to gain a full understanding of systemic racism and the ways in which their personal circumstances were influenced, if not determined, by broader social forces. There are many other programmatic possibilities. 

The bottom line is that what may work well in Finland or Norway may not fit in the U.S. unless adjustments are made. This should not stand in the way of developing a U.S. criminal justice system that is both humane and transformative.