Less eligibility: Why prison reform fails

J M Moore writes on the failures of prison reform, and why the core function of prison is to maintain an unequal social order.

On most days my Twitter feed contains the exasperated tweets of frustrated prison reformers. They talk much sense: prison conditions are appalling, they could relatively easily be improved; short sentences are disruptive, causing massive collateral damage to the lives of the incarcerated and their families; education inside is appalling … I could go on. As one recent tweet stated-in respect of getting ex-prisoners jobs- “it’s not brain surgery”.

Reformers’ frustrations are at one level entirely understandable. They repeatedly make proposals that have the potential to reform the prison place, many of which would undoubtedly improve the lives of the incarcerated. These proposals could be implemented relatively easily, often with little or no cost. But despite this the reforms either get rejected out of hand or, when implemented, are rapidly subverted in ways that defeat their reformative aspirations.

The rejection of reformers suggestions often appears to be irrational. Surely reformers and those in charge of prisons share the same aims? Prime Ministers acknowledge prison’s failure to achieve its stated aims. Justice Secretaries talk about rehabilitation, about making prison work, the potential of education, training and useful work. Is the prison just being wilful? How else can we explain its consistent rejection of these reformative proposals?

I have written previously that the “Prison Works” debate routinely fails to consider ways in which prison works remarkably successfully. By focusing on the stated objectives of deterrence, reformation, retribution and incapacitation – theoretical philosophical justifications – state punishment’s function of maintaining the existing unequal social structure is ignored. This was understood by the Frankfurt School sociologist Georg Rusche, who wrote in 1933 that:

all efforts to reform the punishment of criminals are inevitably limited by the situation of the lowest socially significant proletarian class which society wants to deter from criminal acts. All reform efforts, however humanitarian and well-meaning, which attempt to go beyond this restriction are condemned to utopianism (Rusche 1978: 4).

By focusing on state punishment’s core sociological function rather than its philosophical justification Rusche highlights the role of less eligibility – a Benthamite concept developed in relation to the development of the new poor laws in the early 19th century – in limiting the potential for penal reform.

Since the financial crisis of 2008 social policy has been dominated by austerity. Its impact has not been equal, with the burden falling disproportionately on the poorest, most marginalised, and socially excluded in society. In other words, the very class whose condition, according to Rusche, placed a limit on the potential of reform. Austerity has been accompanied by an increasingly penal approach to social welfare, characterised by the punitive sanctioning of those on benefits and the imposition of racist internal controls on migrants and ethnic minorities.

The transfer of the cost of the financial crisis onto the poorest and most marginalised – the banks got refinanced and the poor get poorer – has significantly shifted the baseline against which prison life is measured. To reflect these changes in society prison regimes have inevitably deteriorated. Penal reformers will, as they have done for centuries, continue to argue for reforms. But their “common sense” arguments are blunted by the principle of a less eligibility. As life outside the prison gets harder, so regimes inside need to adjust. The deteriorating conditions in prison are therefore not a malfunction but a successful adjustment which enables the prison to continue to function.

The challenge therefore is not to reform prison – that is as Rusche points out ‘utopianism’ – but to recognise the links between the prison and wider social structure. Prison is unreformable and needs to be abolished.  But abolition cannot be achieved by critiquing the prison solely in terms of its philosophical justifications.  It also requires understanding prison’s core function of maintaining an unequal social order and working to create a more equal and just society alongside the dismantling of the prison place.

Reference:

Rusche, G. (1978) ‘Labor Market and Penal Sanction: Thoughts on The Sociology of Criminal JusticeCrime and Social Justice, Vol. 10, pp. 2-8.

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