Fired Up about Prison Reform

It’s less than 18 months since David Cameron cast prison reform as “a great progressive cause in British politics”. His vision was for “the leadership team of a prison to be highly-motivated, to be entrepreneurial and to be fired up about their work”. The President of the Prison Governors Association is certainly fired up alright but less with enthusiasm than exasperation. I can’t recall such a broadside being delivered by a public servant to her bosses- nor one that is so (almost) wholly justified- as that which was delivered by Andrea Albutt today.

Cameron’s hubristic vision of a modern, more effective, truly 21^st century prison system looks as far away as ever. The levels of violence, drug-taking and self-harm which he thought should shame us all in February 2016 have continued to soar.

So what’s gone wrong? Three things. First was the failure- wilful or otherwise - to see the severity of the impact which budget reductions would make on the stability of prisons.  There was never really a “Golden Years pre austerity” as Andrea Albutt has put it. But all too often, “too great a degree of tolerance of poor standards and of risk” as Robert Francis QC said of Mid Staffordshire NHS Trust. Such a tolerance was one of the reasons why numerous warning signs did not alert the health system to developing problems in Mid Staffs. The same is true of many prisons which were never truly stable enough to withstand the level of cutbacks, particularly when Ken Clarke’s efforts to reduce the population were shelved.   

Second the government applied a formula approach to reform which ignored some of the distinctive challenges of prisons. Cameron promised to "bring the academies model that has revolutionised our schools to the prisons system". It was a mistake. An approach is needed that recognises that individual prisons cannot float free in the same way as schools and their customers have no choice over which establishment they attend. Given the risk averseness of government, whatever ministers may say, innovation is always likely to be closely controlled from the centre. The so called empowerment agenda has, says Andrea Albutt, yet to gain any traction, with governors now accounting both to their headquarters and the Ministry- the result of a ‘perverse’ severance of policy from operations which has so far added cost but little benefit.

Third there has been an optimism bias about the reform agenda. I’m not sure whether Maslow’s hierarchy of needs is still in vogue, but it should have been obvious that without safety and security, loftier ambitions about rehabilitation have no chance of success, however flowery the rhetoric. Too many stakeholders have been taken for a ride. The National Audit Office for example, will presumably look back with some embarrassment on their 2013 assessment that "the strategy for the prison estate is the most coherent and comprehensive for many years, has quickly cut operating costs, and is a significant improvement in value for money on the approaches of the past". Their view that the Ministry of Justice make good use of forecasts of prisoner numbers and have good contingency plans is flatly contradicted by the PGA’s view that the recent rise in the population, unforeseen by the statisticians in MOJ, has left virtually no headroom in prison spaces.

So what to do? First to stabilise the population, create that headroom and make a dent on overcrowding, some kind of early release scheme should be introduced while longer term plans to reduce the population are put in place. There’s no shortage of ways of doing that -only a shortage of political courage to do so. The new Secretary of State for Justice needs to show that. 

Second, some structural changes. Shifting responsibility for juveniles out of the MOJ and prisons into the education ministry; a Youth Justice Board for young adults, a new body to deliver alternative accommodation for elderly prisoners. Devolving financial responsibilities for prisons to local areas.  They won’t produce quick fixes but could help take the pressure off an overburdened prison system in the medium to long term. 

Finally, capable prison governors working in Whitehall should be returned to the front line and experienced staff who have left the service in the last five years lured back into it whatever it takes. Plans to recruit more and better qualified staff are promising but will take time the service has not got.  Some of the capital resources intended to build new prisons should be converted to revenue to pay for staff .There is growing scepticism that the £1.3 billion secured from the Treasury for new prisons can be spent by 2020. Some of it should be used to repair the current arrangements rather than establishing new ones.

In less than three months, the largest annual gathering of international prison professionals takes place in London for a week of discussions about “Innovation in Rehabilitation: Building Better Futures”. Its focus is on improving outcomes for prisoners. But that won’t happen unless they are improved for prisons first.

Prisons- a Collective Failure?

As part of the celebration of the life of Nelson Mandela, today has seen efforts to promote the rules bearing his name which seek to establish minimum standards for the world’s prisons. The first of these rules states that “the safety and security of prisoners, staff, service providers and visitors shall be ensured at all times”.

How shameful therefore that today also saw the Chief Inspector of Prisons publish a damning indictment of the prison system in England and Wales. A year ago, in his 2015-16 report, Peter Clarke found that too many prisons had become violent and dangerous places. Far from seeing improvements since then, things have got even worse with “startling increases in all types of violence”. Surely, it is- or should be- a national scandal that there was not a single establishment that Clarke inspected in 2016-17 in which it was safe to hold children and young people.

There may be some satisfaction but limited value in allocating blame for what is in truth a collective failure over the last seven years. Successive Justice Secretaries since 2010 should carry the bulk of the can. In the Coalition years, Kenneth Clarke made a gung- ho financial settlement with the Treasury which he failed to adjust when his plans to reduce the size of the prison population crashed and burned. His successor, Chris Grayling focussed on making the prison system “cheaper not smaller” by allowing it to remain largely publicly run in return for reckless staff reductions. The Lib Dem Coalition partners were silent throughout.

Post 2015 when prison reform allegedly became a top social justice priority, Michael Gove was allowed to pontificate endlessly while conditions in jail continued to deteriorate. It’s perhaps only been Liz Truss who came close to recognising the scale of the crisis and started to get staff back on the landings.

There are questions too for the senior officials in the Ministry of Justice who could arguably have put more obstacles on the path to destruction. Exactly ten years ago, the Labour government were forced to release prisoners 18 days early to combat overcrowding.  Ministers took flak for the End of Custody Licence Scheme but had been told by officials that the system couldn’t cope without it. One would like to think today’s generation of prison bosses at least suggested something similar. The Youth Justice Board too fell asleep at the wheel of the children’s secure estate and has now been relieved of those duties.  

In truth, there are uncomfortable questions about the arrangements as a whole. Can a monitoring system said to be working when most Inspectorate recommendations are not achieved, and the Ombudsman finds prisons unable to learn lessons from his reports? It is dispiriting that pre 2017 election plans to strengthen monitoring bodies and require a response to what they say have been scrapped.

On the wider front, the Justice Committee has found it hard to hold ministers to account in Parliament. Perhaps like some of civil society they have been taken in by the grandiose rhetoric around prison reform. While looking at the stars they have forgotten that prisons are in the gutter.   

Peter Clarke says, without conviction, that he hopes sharper responses to his Inspectorate reports can be realised through administrative directions. For all our sakes, a much more comprehensive set of answers are required to the grave charges he makes in his annual report.    

Satellite Tracking of Offenders - Pie in the Sky?

The National Audit Office Report on recent efforts to expand electronic tagging paints a sorry picture of failed procurements, contract disputes and wasted public money including £60m of sunk costs. The report finds the new generation electronic monitoring system (EM)– which both enforces curfews by verifying whether an offender or suspect is at home and a location tracking function -will be five years late if it gets going by next year.

Whether this is realistic or not “will largely depend on the plans of G4S, the new preferred bidder for the tags”. It’s hard to understand how the controversial private security company is still involved in this field at all. For one thing, they are under investigation for fraud following the 2014 overbilling scandal- one of the factors identified by the NAO as contributing to the delays in the new system. Should criminal wrongdoing be proved, could they really continue with the contract?  And while G4S’s future role seems to be limited to providing the tags themselves, only last year faults were found with these. As a result enforcement action may have been taken against offenders or suspects in response to false tamper reports.

What the NAO report doesn’t do is make a broader and longer term assessment of the contribution that EM has and could make to criminal justice. If they had, they’d find the delay in getting location tracking off the ground is closer to fifteen years than five.   In 2004, with the prison population at 74,000, then Home Secretary David Blunkett promised that satellite tracking technology could provide the basis for a 'prison without bars', potentially cutting prison overcrowding, and expensive accommodation. Plans were announced for the 5,000 most prolific offenders in England and Wales to be tagged and tracked using the global positioning system (GPS). Pilot schemes were duly arranged and evaluated with magistrates and District Judges finding tracking “a helpful sentencing option”.

Since then, while the prison population has increased by 11,000, the NAO found that the average number of subjects having their movements tracked using GPS in 2016-17 was …20. It’s true that more than 10,000 people are subject to curfews of one sort or another and some – particularly those on Home Detention Curfew- would otherwise be in prison.

But for whatever reason- political, technological, administrative- the promise of tracking as a way of emptying prisons has simply not been delivered. When I put this point to a provider of EM recently, I was told something to the effect that only 2% of households had fridges in 1950. Success, it seems is just around the corner.

An excellent recent study of EM concluded that it has universal appeal, with its chief purpose being “its perceived ability to bring about cost savings by operating as an alternative to prison”.  But as the NAO finds “there is still limited evidence"about its effectiveness. While their report documents a shocking history of failure to organise EM properly, it avoids the bigger question about the role it is expected to play in the criminal justice system in England and Wales.

Prison Break

Why has the government junked the prison bit of the Prison and Courts Bill? There seem to be three main possibilities.  

The first is that with big issues like the purpose of prisons and the role of the Secretary of State in running them due to be determined, ministers didn’t fancy depending on mavericks like Philip Davies MP let alone the DUP to get their way. The Tory party has always had its Michael Howards as well as Douglas Hurds and the risk of being held to ransom by hardliners – and having to rely on Labour votes to get their way- simply wasn’t worth the candle.  Besides, the key to sorting out prisons-so this theory goes- doesn’t lie in a new legal frameworks but putting staff boots back on the ground as the new Justice Secretary told us in his open letter today.   

Theory two is that when Theresa May and her people asked what was in the bill, they were told that inspectors would get greater powers and ministers would have to respond to their criticisms. To which came the reply why on earth are we making another rod for our own backs? More transparency and accountability are the last thing we need just now.

Option three is that Mrs May is simply no prison reformer or at least not in the grandiose Cameron/Gove mould which gave shape to the thinking behind the Bill. She may be an instinctive hardliner herself but her record on social issues defies that simple characterisation.  More likely in her weakened state she has realised that as far as the public is concerned, there are no, or few votes in prisons.  With crime rising once again and what maybe a growing threat and reality of terrorist violence, reform and rehabilitation of prisoners is unlikely to help her government’s popularity in the country.

Whatever the reason- and it may be a bit of all three- within 18 months prison reform has been marched to the top of the hill and back down again. Mr Lidington’s letter promises that the work of making prisons places of safety and rehabilitation goes on. Maybe that is better done away from parliamentary and public gaze. But it feels, as the Chief  Inspector of Prisons  has said, a missed opportunity.    

The History Boy

New Justice Secretary David Lidington has strong links with the past. For one thing, he gained a PhD by studying the enforcement of  penal statutes in the 16th Century. More recently, he worked as a special adviser to Douglas Hurd in the Home Office from 1987, in the days when the Home Secretary was responsible for penal policy and for the prison and probation services which gave practical effect to it. Hurd is remembered as a liberal although preferred to describe himself as pragmatic. While Hurd paved the way for the 1991 Criminal Justice Act which sought to limit custody, it was his successor David Waddington whose White Paper included the famous (though surely flawed) axiom that imprisonment can be an expensive way of making bad people worse.

As Hurd’s SPAD, Lidington will have been familiar with many a prison crisis. Almost thirty years ago, Hurd had to tell the Commons that prison numbers had risen by 4000 in twelve months pushing the population more than 9,000 above its uncrowded capacity. With 600 prisoners in police cells, Hurd had to announce a range of short and long term measures to avert disaster;  a series of disturbances the previous year prompted  Hurd to tell MP’s "of the delicate balance between order and disorder in our prisons.”

I don’t know what if any part Lidington played in putting together the remedial plan which emerged. It included an accelerated building programme, the introduction of the private sector and the opening of an army camp. There was also action to reduce demand for prison places- a more generous regime of early release pending a wide ranging review of parole, remission and post release supervision to be undertaken by Mark Carlisle QC. 

The package provided short term relief but three years on the Strangeways riot showed it to have been a sticking plaster at best.

As Lidington takes up the reins, he will want to avoid history repeating itself. He already has a building programme in place, so it’s demand rather than supply he needs to look at. While the prison population has been stable for the last seven years, prisons are still overcrowded. He and Hurd managed to get the numbers down from 51,000 to 45,000. Could Lidington achieve a 10% reduction and bring an end to overcrowding?

Back in 1987, one reason for the sharp rise in numbers was an increase in the average length of custodial sentences passed by the Crown court.   Sentence lengths have risen recently too.  One lever that’s now available is the Sentencing Council. Lidington should ask the Chair how he plans to reduce sentence inflation. He should also find some long grass into which to kick the manifesto plan to extend the unduly lenient sentence scheme. 

More positively, Lidington should look seriously at the pledge to devolve criminal justice responsibilities to metro mayors and Police and Crime Commissioners.   Building local incentives to reduce the need for imprisonment should be a long term aim. He will probably have to stick with (and invest into) the reformed probation landscape in the short term. But planning a stronger and more stable set of arrangements for the future should be an important priority.

Come What May

In February,Theresa May quipped that when she was at the Home Office she used to say of Justice Secretary Ken Clarke “I locked ’em up and he let ’em out”.  Fears of a tougher approach to criminal policy in the Conservative manifesto have largely been allayed- continuity is the order of the day. While that may be a relief, it’s disappointing to see retained the policy of extending the scope of the Unduly Lenient Sentence Scheme “so a wider range of sentences can be challenged”.  Given recent increases in sentence lengths, reviewing the work of the Sentencing Council would have been a better way forward.

The prison reform legislation interrupted by the election looks set to continue with an additional much needed plan to reform the entry requirements, training, management and career paths of prison officers. Alongside efforts to attract graduates to work in prisons, this suggest a welcome recognition of the need to invest much more in prison staff. Figures out today show a large increase in prison officers leaving their jobs; almost a quarter today have less than two years’ experience in the work.  The pledge to reduce the disproportionate use of force against Black, Asian and ethnic minority people in prison, young offender institutions and secure mental health units represents an overdue commitment to address racial injustice inside prison as well as outside. There's a good idea to encourage employers to take on ex offenders via a 12 month National Insurance break.

As for non-custodial measures, there are promises to create a “national community sentencing framework” and introduce “dedicated provision” for women offenders- whatever they might entail. The drafters of this section seem to have taken on board Churchill’s view that manifestos should be a lighthouse not a shop window.  

There is a bit more clarity about increasing the role of police and crime commissioners. They will sit on local health and wellbeing boards, enabling better co-ordination of crime prevention with local drug and alcohol and mental health services. There’s the prospect too of “greater devolution of criminal justice responsibility and budgets to local commissioners”. With Mayors in London and Manchester keen to extend their responsibilities we could see important changes in governance. 

   

The Conservatives have not been averse to promising changes to police structures- bringing the Serious Fraud Office into the National Crime Agency and creating an Infrastructure Policing body combining Transport, Nuclear and Defence police forces. There will also be a new domestic violence and abuse commissioner.

I wouldn’t rule out further changes when, as seems likely, Mrs May forms the new government.  I still think we could see prisons moved back to the Home Office. Then the Home Secretary would be in charge of locking up and letting out.  

Liberal Order

One of many recent disappointments for prison reformers was how little the Liberal Democrats were able to influence criminal justice policy during their time in government. Almost none of their 2010 manifesto pledges on justice – such as a presumption against short term prison sentences - made it into the Coalition agreement. They might pray in aid a modest expansion in restorative justice. But the Lib Dems share of responsibility both for the disastrous underinvestment in prisons and rushed privatisation of probation weigh heavily on the debit side as does the absurd and thankfully abandoned Secure College for young offenders.  What are they offering to the electorate this time round?

Despite their electoral meltdown two years ago, the 2017 Lib Dem manifesto creditably retains many of the proposals from previous campaigns; the presumption against short prison terms, an extension of the role of the Youth Justice Board to young adults, and a new Women’s Justice Board. They continue to want to see Community Justice Panels and other local schemes designed to resolve conflicts and reduce harm.

As in 2015, the Lib Dems would replace the elected Police and Crime Commissioners (whom they helped to introduce) with local boards and introduce a Victim’s Bill of Rights. This would include a right for victims “to request restorative justice rather than a prison sentence” (whatever that exactly means).

The radicalism comes in the drugs field. Previous manifestos have pledged an end to imprisonment for possession for personal use, but policy on legalisation has gone no further than looking at evidence from abroad. The party is presumably satisfied that the impact on public health and crime of legalisation initiatives in the US and Uruguay are such that they can go further and so now promise a legal, regulated market for cannabis. They’d repeal the Psychoactive Substances Act and move responsibility for policy from the Home Office to Department of Health.

The ambition on the drugs front is not quite matched on prisons. Yes the plan is to transform prisons into places of rehabilitation, recovery, learning, and work, with suitable treatment, education or work available to all prisoners. Trans prisoners would be placed in prisons that reflect their gender identity, rather than their birth gender. And the overrepresentation of individuals from a BAME background reduced at every stage of the criminal justice system, taking into account the upcoming recommendations of the Lammy Review.

But unlike in previous manifestos, there’s nothing about stopping or scaling back prison building. Two years ago the party believed “that a large prison population is a sign of failure to rehabilitate, not a sign of success. So our aim is to significantly reduce the prison population by using more effective alternative punishments and correcting offending behaviour".  In 2017 they look a bit more cautious.

It’s Plaid Cymru whose manifesto has a hint of reductionism. They would block the development of the Port Talbot super prison. But it’s only a hint. Instead they would provide “much-needed” prison spaces for women and youth offenders in Wales.