This is a reprise of the position I took in the Oxford Union debate: “This House Would Abolish Prisons.”

In writing, I indulge in two of my hobbies: the first is to provoke the Daily (Hate) Mail, who recently accused me of “brainwashing” the youth of Britain by suggesting, in a mock trial, that Richard Drax MP should not be allowed to live off the proceeds of his family’s long history in the slave trade. 

The second is to ask people to ponder what deranged ideas pervade our society, with prisons being the foremost of these. Prisons are, to me, anathema for a number of reasons. While most people think they believe in punitive incarceration, we actually don’t. When pressed, most people at the debate agreed that our ideal society would have no prisons and that we should at least be working towards achieving this. 

But the majority of folk still insist, against their human instincts, that we need prisons – “What alternative could there be?”, they cry. It is surprising in the age of Covid that we can’t think of any other options. People who are genuinely a threat to society might be quarantined, perhaps in a hospital, but they should not be punished. Many of the worst crimes stem from serious psychological illness, and the distinction between treatment and punishment is important. Furthermore, the number of people who are genuinely dangerous is vanishingly small – not the 80,000 general offenders we currently throw behind bars. 

On the other hand, our approach to punishment is evolving quite rapidly. When I was a youth, dispatched to boarding school, I was beaten routinely for the heinous offence of “talking after lights out”. When I went to Radley College I was waterboarded – which came back to me in sharp relief when I was talking to one of my clients in Guantánamo. Today, we reject the notion that to spare the rod is to spoil the child. My own son, of whom I confess I am inordinately fond, has never faced punishment, let alone physical abuse. It doesn’t seem to have spoiled him as he is a nice bloke. So why not see the prison debate in the same light?

Which brings us to love. I often ask each member of an audience to imagine they are the judge, and I am the (unlikely) prosecutor telling them that the person next to me is the person they most adore in life, perhaps their mother. Mum has committed a bad crime. Will they send Mum to prison? Overwhelmingly, the audience will not do it. 

Likewise, I would no more send my son to prison than I would waterboard him. Thankfully nobody tried the hackneyed line that we could not be a judge in the case of someone close to us. But which of Moses’ tablets from Mount Sinai says we cannot treat the defendant with emotional decency? And how many times do the religions of the world have to remind us that we should love our neighbours as we love ourselves? I used to ask the religious jurors in the Deep South the same question– when you get into the jury room, pretend there is a thirteenth person present, Jesus himself. When you are all done with arguing and you turn to him for his views: W.W.J.D.? Who honestly believes JC is going to say, “Yeah, well, um, let’s fry the mother****er!”

So no, we don’t believe in prisons. 

But before we leave the debate, we must touch on the overarching hypocrisy of it all. First, I want you to recall the most reprehensible thing you have ever done in your life. You needn’t tell anyone – in the U.S. (if no longer in the U.K.) you have the right to remain silent. But consider how much hurt you inflicted? I have just written a book about my father, coming out in May, called The Far Side of the Moon (steal it from your local bookshop!). In it I describe a horrible thing I did, which caused my father a great deal of emotional pain but was not classified as a crime. Most of us have done things like that, acting just as immorally as any “criminal”, yet we don’t get jailed for it. 

Next, bring to mind the worst act, defined as a crime, where you have been the victim. The responses will vary widely. In Britain, most people will only have had a bike stolen or perhaps been burgled. I tweet the crime column in my local Bridport paper, and a favourite headline was “Pot Stolen from Shed.” (It was not marijuana, but a flowerpot.) Some of us have been through more. In the U.S. I used to be held at gunpoint rather regularly. I got quite good at it. Normally I would get my wallet back. But the first time, before I was an expert, I ended up in hospital. For that, the three young African-American perpetrators would have faced 99 years in prison. 

When I look at pain caused by my non-criminal “act” against my father versus the unpleasant “crimes” against me, it is a simple fact that I caused more long-term harm. While that is not the case for everyone, it is true for most of us (poll your friends). 

Since the criminal justice system purports to prevent such harm, we must therefore confront this question: why is it that our antisocial act is not deemed illegal, and why are we not facing prison? Some emotional things are criminalised – assault is defined, for example, as only putting someone in fear (it is not battery until you hit him). The truth is that if the law were consistent, we would all be in prison. Instead, we pick only on a certain class of people for a certain class of acts, in which include all kinds of relatively inconsequential things. 

In my view, it is not only that prison should be abolished; the criminal system itself is not fit for purpose. It is primarily designed to punish “the other”, not the comfortable middle classes. And that revolts me, as I suspect it does you. 

So in reality most of us already believe that prison is no solution to anything. Yet my side did not prevail in the debate, and I expect a chilly reception from the Daily Mail. I surely won’t see prisons abolished in my lifetime, and I am depending on the liberal youth of Oxford carry the banner forward. Meanwhile, I do believe passionately – as I hope do you – that the question before us is how long we want to continue with such a medieval concept, and how many people must suffer before we wake up?

Clive Stafford Smith is a human rights lawyer who formerly founded Reprieve, and is now the founder and director of the 3dc. To find out more about how you can work in this field, feel free to contact him: clive@3dc.org.uk.