of the difference can be traced to the fact that the Dutch favour lighter non-custodial sentencing and shorter sentences.73 In fact, in 2015, the Dutch government announced it was to close eight prisons due to a lack of prisoners.74
The dramatic increase in rates of imprisonment in the UK can be traced to Michael Howard’s assertion in 1992, as Conservative Home Secretary, that ‘prison works’. When he made this claim, 45 per cent of adults convicted in the Crown courts were put behind bars; in 2001, the figure had risen to 64 per cent.75 In what amounted to a continuation of Conservative policy, New Labour’s Home Secretary Jack Straw stated that ‘Prison doesn’t work but we’ll make it work’. In 2003, in a special edition of the flagship news programme Newsnight, Prime Minister Tony Blair proudly explained that his government had presided over a period in which more people had been sent to prison than ever before.76 Perhaps this was due, in part, to the fact that between 1997 and 2009 some 4,289 new criminal offences were created, approximately one for every day New Labour were in power.77
In the US, the situation is even more extreme. In 1978, roughly 450,000 people were imprisoned; by 2005, the figure had risen to over 2 million.78 As with the UK, this phenomenal rise was largely down to people being sent to prison rather than being given non-custodial sentences. Today, a quarter of the world’s convicts reside in America. In 2004, 360 of these were serving life sentences in California for the heinous crime of shoplifting.79 The irony of this was not lost on novelist and activist Arundhati Roy, who made the memorable observation that ‘the world’s “freest” country has the highest number’ in prison.80
Focusing on rehabilitation and root causes makes sense once we stop thinking of crime as a product of an individual’s free agency and view it, instead, as a doctor might view the symptoms of a disease. Although potentially dangerous, violent prisoners are not ultimately responsible for the threat they pose – anyone exposed to the conditions that breed violent crime could exhibit similar ‘symptoms’. Removing those ‘infected’ from society, as we would a person with a deadly virus, may be necessary – at least temporarily – but punishing them does nothing to prevent further ‘outbreaks’. Instead, it draws resources and attention away from discovering the deeper causes of the outbreak. A more humane and rational approach to crime would focus on eradicating the conditions that produced it, and instead cultivate the empathy, self-control and self-worth that is so bound up with ethical behaviour. To pretend, as legal systems do, that the buck stops with the individual prevents us from tackling the cultural, economic and political causes of violence and criminality.
Double standards
Richard Nixon’s 1968 presidential campaign warned of ‘the deterioration of respect for the rule of law’ and the danger of ‘the corrosive doctrine that every citizen possesses an inherent right to decide for himself which laws to obey and when to disobey them’, a principle he blamed on civil rights leaders such as Martin Luther King and Malcolm X.81 Within a few years Nixon was forced to resign in disgrace, facing impeachment over the Watergate scandal. Discussing the events in a 1977 interview with David Frost, he justified his actions with the words: ‘When the president does it, that means that it is not illegal.’
Shortly after his resignation, Nixon’s successor, Gerald Ford, granted him a presidential pardon. ‘I deeply believe in equal justice for all Americans whatever their station or former station,’ he insisted, adding that ‘a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized . . . And the credibility of our free institutions of government would . . . be challenged at home and abroad.’82 Justifying Ford’s actions, Dick Cheney, George W. Bush’s Vice President, said at Ford’s funeral that ‘he was almost alone in understanding that there can be no healing without pardon’83 – a principle denied to the 7.3 million Americans on probation, behind bars, and on parole.
It’s a familiar pattern. The evidence for crimes committed under the recent Bush administration, for instance, is overwhelming, well documented and widely accepted. Few now deny that persistent lawbreaking took place, including the authorisation of torture, imprisonment without trial, the kidnapping and disappearing of detainees, warrantless domestic spying, the destruction of incriminating evidence and an illegal war. In 2014, former top US counter-terrorism official Richard Clarke, who served under the Bush administration before resigning following the 2003 invasion of Iraq, said he believes that Bush and his administration are guilty of war crimes for launching the invasion.84 Yet, neither George Bush nor his partner in war, Tony Blair, has faced any criminal charges.
As a presidential candidate, Barack Obama passionately declared his support for the rule of law, claiming he was open to investigating and prosecuting Bush-era crimes, but, once elected, his rhetoric quickly changed to support the view that ‘we need to look forward as opposed to looking backward’ – a principle he has not extended to the 2 million inmates that crowd his nation’s prisons, the illegally held captives of Guantanamo Bay, or the whistleblowers Chelsea Manning and Edward Snowden.85 Obama has blocked every attempt to conduct an investigation into his predecessor’s actions.
The 2008 financial crash was caused by fraudulent activity on an incredible scale. This is now widely acknowledged, even by long-time defender of Wall Street, Alan Greenspan, ex-Chairman of the Federal Reserve, who described the financial sector’s behaviour as ‘just plain fraud’.86 Their actions have had an unimaginably negative impact on the lives of millions of people but – to date – not a single senior American or British banking executive has been placed behind bars. Instead, those responsible for the crash in the US received over $700 billion of public money with no strings attached; their counterparts in the UK were granted a £1.3 trillion rescue package. Some American states did try to take legal action against the banks, but the Obama administration fought hard against these attempts.87 A number of banks were found to have lied in court, not once or twice but hundreds of times, yet no bank officials were sent to prison.88
The multinational insurance company AIG is a case in point. The same executives who presided over the fraudulent transactions that led to its demise – one that was only averted with taxpayer’s money – were soon pocketing millions of dollars in bonuses. In the face of public pressure, Obama claimed there was nothing he could do. Defending his boss, Obama’s economic adviser Larry Summers claimed, without a hint of irony, that ‘We are a country of law. There are contracts. The government cannot just abrogate contracts.’89 Later, in 2010, commenting on the $17 million bonus given to Jamie Dimon of JP Morgan Chase and the $9 million bonus paid to Lloyd Blankfein of Goldman Sachs – both banks that were recipients of the billion dollar bail-out – Obama declared that ‘I know both those guys; they are very savvy businessmen’ and ‘I, like most of the American people, don’t begrudge people success or wealth. That is part of the free-market system.’90 Of course, this had little to do with the ‘free market’. These banks would not have survived but for the government bail-out. As many have observed, the financial sector has managed to privatise profits while socialising risk: the rich take home the winnings while the poor are forced to cover the losses.
In the UK in 2014, two RBS bankers who were found guilty of £3 million worth of property fraud walked free after Judge Rebecca Poulet QC decided they had ‘suffered’ enough already, having ‘expressed shame and embarrassment’ at what they had done.91 Matt Taibbi, an American journalist who has spent years exposing the crimes of Wall Street, writes that ‘Even in the most abject and horrific cases – such as the scandal surrounding HSBC, which admitted to laundering more than $800m for central and South American drug cartels – no individual ever has to do a day in jail or pay so much as a cent in fines.’ Taibbi often asked officials why there were no criminal cases. ‘Well, they’re not crime crimes,’ was an answer one prosecutor gave him. Taibbi continued, ‘When I asked another why no one went to jail in the HSBC narco-laundering case,
