Should Massachusetts Jails and Prisons Follow the Danish Model?

Issue November/December 2019 November 2019 By Peter T. Elikann
Criminal Justice Section Review
Article Picture
Peter T. Elikann

It would be naive to think that we could adapt our jails and prisons to the way they are run in a variety of countries such as Denmark. In a number of ways, this would be like comparing apples to oranges since we are different societies with distinctly dissimilar dynamics.

Still, there are a number of interesting takeaways to be learned from taking a look at the culture of Danish prisons. There, prisoners do their own shopping and cooking, wear their own clothes, have abundant visiting hours and are required to work a standard workweek, frequently outside the prison walls. They even go to classes on the outside. Their connections to the outside world are encouraged in every aspect of their lives.

The idea is that, if inmates live in a way that they have responsibilities closer to those of the good law-abiding people on the outside and also everyday contact with regular society, once released, their transition to life beyond the prison walls is much easier and therefore their recidivism rate is radically lower. So, the main purpose of the more humane treatment practiced by Danish prisons is not so much to be nicer and kinder to offenders; it is to lower the re-arrest rate in order to make the public safer.   

This, as opposed to some models here on the other extreme — prisoners who become what is referred to as “prisonized” where they have a horribly unsuccessful adjustment to the outside world because, from one day to the next, they are released from maximum security to complete freedom without any transition after years of little contact with visitors, work or programming. They are so removed from mainstream American life that they just can’t get used to it once they are thrown back into the public. Some have been so dehumanized and stripped of dignity by years of not just physical or mental abuse, but by having everything done for them, standing in cafeteria lines and entering bleak cells, as opposed to Danish prisoners, who live in much pleasanter facilities and are not locked in their cells. Though the Danish prisoners have so many more responsibilities, such as washing their own clothes and cleaning their own cells, it does result in an incrementally greater sense of independence, self-worth and dignity.

Obviously, an argument can be made that it is still difficult to correlate recidivism rates since the cultures of Denmark and the United States are dramatically different. For its regular citizens, Denmark in general has low poverty, less income disparity, virtually no access to guns and a huge, wide-ranging social safety net that includes everything from free education to medical care for all. There is subsidized child care, subsidized rents and fuel for the elderly, and a generous pension system. Of course, the Danes pay higher taxes. Yet re-entering a society with so many safety nets might be partially responsible for an easier post-release transition, and it is likely that it cannot be attributed solely to the different prison model.

Incidentally, the demographic profile of the Danish prisoner is not as homogeneous as one would think. About 40 percent of Danish prisoners are not Danish ethnics. The fact that this is quadruple the number of non-Danes living in the general population of Denmark raises the same questions that are asked about whether injustice can be found in the disproportionate number of nonwhites that make up the American prison population.

An obvious question everyone raises is — it sounds nice in theory for certain prisoners, but aren’t there offenders so dangerous or violent that the risk is too great for them to have such freedom and contact with the outside world? The answer is yes. About 60 percent of Danish inmates are in these “open prisons,” while the rest, who might include terrorists, psychopaths, more violent criminals and repeat offenders, are in “closed prisons.” Even those in Denmark’s closed prisons may be treated more humanely and given a plethora of educational opportunities and programming to prepare them for eventual release, but, while incarcerated, they will not experience freedoms that will put anyone else at risk. Yet there is always an effort to eventually move those in closed prisons to open prison toward the end of their sentences to better prepare them for their release. Even those in closed prisons are going to school or working to better prepare themselves for their adjustment back out into the world.

The Danish system is not perfect, and it cannot be claimed that there are never fights, smuggled contraband and escapes. Just less.

Recidivism rates of released Danish prisoners are one third of those of American prisoners. The recidivism rate of those in open prisons is 19 percent, but that is balanced out by the recidivism rate of those in their closed prisons, which is 40 percent. That gives prisoners in Denmark an overall recidivism rate of 24 percent. This, as opposed to the recidivism rate in the United States of 68 percent within three years of release and 77 percent after five years.

So, while acknowledging that it would be foolish to automatically conclude with certainty that the Danish model of prisons could be readily transferrable to our prisons and jails with results anywhere near as successful, there is research out there to show that those general principles existing in Denmark that we have already adopted, though perhaps to a lesser extent, might have at least some effect on our recidivism rate if we expanded them even further.

For example, here studies have shown that those who have greater contact with the world beyond prison walls, perhaps with frequent visits from family and friends or easier access to inexpensive phone calls, tend to have an easier re-entry to life outside prison as it is not as jarring a transition. Also, those here who have access to programming and education while incarcerated and those who have held the few coveted prison jobs have been shown to be better equipped to segue into life on the outside and have lower recidivism rates.

One thing that makes the Danish system easier to enact and maintain there is that, by all accounts, Danish correctional policy rarely encounters political debate. Best practices are evidence-based and formulated by criminologists and professionals in the field. It might be difficult for many here to conceive, but there is something about the Scandinavian culture that politicians don’t run on “I’m tougher on crime than you” platforms and the media rarely sensationalizes a particular crime. They let the evidence lead to where it may in a whatever-works-best effectiveness mode. Here in Massachusetts, as well as most jurisdictions throughout the United States, the reality is that political considerations, indeed, remain a factor to be weighed.

The overall lesson to be gleaned from studying the Denmark humane prison model is not that we should imitate it here by rote as it is not definitively settled either way that its methods and processes would translate perfectly to our own mode of operation. There is a larger tenet here that is simply worth consideration if nothing more — that, in Denmark, the punishment is solely the restriction of liberty and, beyond that, they believe that life inside should resemble life on the outside as much as is reasonably possible since the important goal is to prepare the offender for eventual release to the community in a way that he or she will not recidivate and be a danger to the public. They do this not primarily to be kind to an often-unsympathetic lawbreaker, but, even more importantly, because it is in the self-interest of the public safety of the good law-abiding citizens who deserve better.

Peter T. Elikann is a criminal defense attorney and instructor in criminal law at Bridgewater State University, who is a former chair of the MBA’s Criminal Justice Section Council. He also serves as a member of the MBA’s Massachusetts Law Review board.