Why criminal justice shouldn’t just be about what punishment people ‘deserve’

Prisons running near capacity have created a dilemma for Andy Burnham. The new prime minister has now confirmed that anyone convicted of manslaughter would not be eligible from the prisoner early-release scheme.

Questions around prison capacity hinge on public safety, of course, but also on what types of criminals “deserve” to be let out early.

There was little pushback when Burnham announced that those convicted of rape, grooming offences or serious child sexual offences would not be eligible for early release. But the revelation that two of PC Andrew Harper’s killers could be released early sparked a passionate public campaign for changes to the scheme. Burnham has now exempted all manslaughter offences, meaning hundreds more people will remain in overcrowded prisons.

The point here is not whether that particular decision was right or wrong, but that there is a tension between what punishment people are thought to deserve, and what evidence suggests may best reduce future offending.

The prison overcrowding crisis shows how politicians struggle to balance evidence on reducing crime with deeply felt and understandable public views about punishment and accountability.

Behind this dilemma are broader questions explored by both philosophy and psychology: what shapes human behaviour, and why do people act as they do? Questions about free will sit at the heart of this debate. In recent research, my colleagues and I explored beliefs on free will, finding that the more strongly someone believes in free will, the harsher the punishment they favour for criminals.

This aligns with other research that has suggested beliefs about free will can influence how much retributive punishment people think someone deserves.

Put simply, a purely free will view holds that people are agents of their own behaviour, and whether or not they choose to commit a crime.

However, a substantial body of research shows that behaviour does not occur in a vacuum. A complex range of developmental, family, social and individual factors have all been associated with offending and violence.

Research on adverse childhood experiences has found associations between these and later interpersonal violence and problematic drug use. Wider social and structural conditions, including poverty and neighbourhood disadvantage, also matter. Neuroscience research has identified subtle differences in brain structure and functioning in groups with conduct problems or persistent antisocial behaviour.

None of this means that any single factor inevitably leads to crime. And most people exposed to any one of these risk factors do not go on to offend.

The point of understanding why people offend is not simply to explain their behaviour. It can help identify ways to prevent crime and reduce reoffending. But attempts to explain offending can also clash with deeply held ideas about responsibility and deservingness.

Understanding offending

There has long been a perception among some sections of the public and politicians that trying to understand why someone offends risks being “soft on crime”. In 1993, then prime minister John Major argued that when it comes to crime, society should “understand a little less, condemn a little more”.

Understanding the factors linked to offending can help identify what preventative interventions should target before offending occurs, and what rehabilitative support should address afterwards. Understanding does not require us to excuse what someone did. If that understanding helps reduce reoffending, its value is not in being “soft” on offenders, but in creating fewer future victims.

Preventing offending is, at least conceptually, relatively straightforward: if research identifies factors that increase risk, interventions can try to address them before harm occurs.

This thinking is already shaping policy. The government’s plans for youth justice emphasise earlier intervention and prevention, including targeted support for children at risk of entering the criminal justice system.

Once an offence has been committed, however, things become more complex. Criminal justice has to protect the public, respond to understandable expectations of punishment and accountability, and consider how best to reduce further offending. These aims can overlap, but they do not always point in the same direction.

Making criminal penalties more severe does not necessarily reduce offending. There is strong evidence that criminals respond more to the likelihood of being caught than to harsher sanctions. A systematic review comparing custodial and community sentences found no evidence that imprisonment was more effective at reducing subsequent reoffending.

Alongside this sits a large body of research on rehabilitation and what supports people to stop offending, including psychological interventions, and support for education, employment and accommodation.

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This can lead to uncomfortable conclusions. Treatment, education, help finding work and support with reintegration may look insufficiently punitive to some. Rehabilitation is not a substitute for protecting the public where someone poses a serious ongoing risk. Nor do we know what works in every case – evidence varies in strength. But if rehabilitation and support can reduce reoffending, failing to invest in them because they appear too compassionate may ultimately mean more future victims.

With the right support, some people who offend go on not only to stop offending, but to build constructive lives and contribute positively to their families and communities. Humane treatment can be compatible with accountability, public protection, and concern for victims.

None of this means prison is unnecessary, or that we must all agree on how much punishment or compassion an individual deserves. For victims and bereaved families, wanting punishment that reflects the seriousness of the harm done is entirely understandable.

But policymakers must also ask which response is most likely to prevent future harm. Views about what punishment someone deserves understandably shape public debate, but they are not the same as evidence about which responses are most likely to reduce future offending.