Prison Reform around the World: The Need for an Alternative Approach

The international community has been showing welcome interest in how to improve prisons. A new International Committee of the Red Cross (ICRC) publication Towards Humane Prisons sets out principles for prison design which complement the technical planning guidance produced by the United Nations Office for Project Services (UNOPS) in 2016.   The last three years have seen the UN’s Office on Drugs and Crime (UNODC) publish handbooks on managing high risk and violent extremist prisoners, developing prison-based rehabilitation programmes and combating corruption in prisons. Civil society organisations have been active in producing guidance documents on matters such as tackling the mental health needs of prisoners, and undertaking inspections after serious incidents have taken place in prisons.

One important driver of these developments has been the Nelson Mandela Rules (NMR) - revised standard minimum rules adopted by the UN General Assembly at the end of 2015. Both the lengthy process of revision and the launch of the rules have helped to raise the profile of the harsh and damaging prison conditions which prevail across much of the world. The NMR themselves have highlighted the need for countries to modernise their prison laws, invest properly in infrastructure and personnel and improve training for those who work in prisons.

If prison reform activities are to stand any chance of success, what’s needed now is a similar exercise in respect of alternatives to prison. As the ICRC guide puts it “Considering the human, social and financial costs of detention, prison should only be used as a last resort and that alternatives to detention should be more seriously explored and developed”.    Penal Reform International’s latest Global Prison Trends study reports that the use of non-custodial measures has expanded in recent years, particularly for low-level offending; but crucially it points out that there is not necessarily a correlation between reducing prison population rates and increasing community sanctions.

While many countries have fines, probation, community service or suspended sentences on the books, their use by the courts and implementation on the ground vary enormously. Alternatives to pre- trial detention for suspects awaiting trial and systems of parole for prisoners serving long sentences are also patchy, often failing to play the role they should. 

There are international norms on alternatives in the form of the UN Standard Minimum Rules for Non-custodial Measures, the so called Tokyo Rules, dating from 1990. These aim to promote the use of alternatives to prison, provide minimum safeguards for persons subject to them and encourage greater community involvement in the treatment of offenders. But the Tokyo Rules are little known and need both publicising and updating.

There is scope for instance in reflecting recent developments in restorative justice which enable offenders to make amends to the victims of their wrongdoing; and for revised rules to stress the need for better ways of dealing with alleged and convicted offenders with special needs and vulnerabilities- such as people with mental health and addiction problems whose conditions can be worsened by imprisonment. The current rules make no mention of electronic monitoring – or tagging- which plays a growing role in many jurisdictions.  

If there’s a strong case for targeted revisions to the Tokyo Rules, there’s also an opportunity coming up. The 14th United Nations Congress on Crime Prevention and Criminal Justice will be hosted by the government of Japan in 2020, albeit in Kyoto rather than the capital city.  But 30 years after the rules were adopted, it would be a highly appropriate forum in which to promote the use of alternatives to prison. There may not be time to complete any revision process by then, but there is certainly time to start one

The draft agenda for the Congress includes an item on integrated approaches to challenges facing the criminal justice system. Of these challenges, prison overcrowding is among the largest. It’s not one that can be solved by prison building, however humane that may be.   

Yet More Council of Despair

Hopes that penal policy might be taking a less punitive turn took a blow this week when the Sentencing Council issued its long awaited guideline on dealing with offenders who fail to comply with court orders in the community. The Council accepts that the guideline, in particular the part on Suspended Sentences, Community Orders and Post Sentence Supervision “could have an impact on the prisons, with more offenders being sent to custody than at present”.  They don’t really know because the resource assessment the Council is required to do is even more of a guesstimate than usual. But why at a time when ministers are looking to encourage alternatives to short prison sentences is the Council requiring courts to adopt a more robust approach to sentencing of breaches?

A generous interpretation might be that stronger consequences for non- compliance will give courts and the public greater confidence in community based alternatives to prison and help to expand their use. More likely is a view that flouting court orders simply deserves less tolerance than it has in the past. It’s more cocking a snook at authority requiring punishment rather the sign of a problem needing to be solved. 

The less offenders adhere to their sentence, the greater the punishment will be. Under the new guideline, wilful and persistent non-compliance with a community order will result in a prison sentence -even where the original offence was not serious enough to merit custody.

To be fair, after consultation, the final guideline now encourages courts to take into account factors such as an offender’s mental health difficulties or personal circumstances when deciding if their level of compliance hitherto should be categorised as low, medium or high. It’s not quite clear how courts will calibrate the presence of what the guidelines call factors impeding compliance; but the focus on why an individual may not have followed their order is welcome.

Less so the Guideline’s restriction on what courts should and shouldn't take into account when deciding whether to activate a suspended sentence. The law says a court must do this in the event of a further conviction or failure to comply with a supervision requirement “unless it would be unjust in all the circumstances.” The Council doesn’t want courts to consider all the circumstances however.  Yes, they are able to consider any strong personal mitigation, whether there is a realistic prospect of rehabilitation or whether immediate custody will result in significant impact on others. But only new and exceptional factors or circumstances “not present at the time the suspended sentence order was imposed should be taken into account”.

The House of Commons Justice Committee argued in their Consultation Response that faced with sending someone to prison for breaching a suspended sentence, courts shouldn’t have to sit on their hands if the original offence had fallen short of the custody threshold. The Committee were particularly concerned about cases that had been sentenced before the Council issued its guideline on the Imposition of Community and Custodial Sentences, which has sought to prevent courts suspending prison sentences as a tougher form of community sentence. 

It’s hard to believe some aren’t still doing so. Indeed the Sentencing Council Chairman wrote to Judges and JPs as recently as April, because he thought they were. So the Committee’s point still has force.  But the Council won't accept it. 

A second proposal by the Justice Committee has also been rejected by the Council. The Committee thought the guideline should require sentencers to consider whether supervision by the probation services had been of sufficient quality to be effective and take into account “any shortfall in the quality of supervision by probation services which may have contributed to the likelihood of a breach”. The Transforming Rehabilitation reforms have probably produced many such cases.  

Some probation failings will of course have allowed errant offenders to escape breach proceedings for too long. But in almost half the cases inspected in an enforcement study, the person under supervision had not received a sufficient induction, with the Community Rehabilitation Company  then missing the opportunity for early, effective engagement.  The Council take the view that “assessing the quality of offender management is not within the remit or responsibility of sentencers and do not agree that the guideline should impose such an exercise”.

Such a view is symptomatic of the narrow approach to their remit that the Council has often taken. More worrying on this occasion is the way that they are championing not a fairer or more effective approach but a more "robust" one. The Council was supposed to save sentencing from the politicians not to adopt their language and tone.

Here We Go Again : Another Type of Youth Custody A Step Closer

The ‘How to Apply Guide’ published today sounds like it’s to help young people or their parents get a place in one of the Government’s new Secure Schools. It’s not of course. It’s guidance for organisations who want to run one of two new custodial establishments first proposed by Charlie Taylor’s Youth Justice Review 18 months ago. When the review was published, I thought the schools the least promising of his recommendations. Despite mountains of evidence about the ineffectiveness of custodial institutions, Taylor seemed to feel obliged to invent yet another species.  

Approved schools, Detention Centres, Borstals, Youth Treatment Centres, Young Offender Institutions (YOIs), and Secure Training Centres (STCs) have all started with high hopes and proved more or less expensive failures. The Coalition’s absurd plan for a huge Secure College was quickly killed off by Michael Gove before he announced Taylor’s review.  So good on the Ministry of Justice for setting out a vision and consulting on the shape of their “schools with security”. But the nagging question remains. Do we really need another variant of a fundamentally failed model?

Of course, there's a strong case for a very different youth secure estate than the one we have .  It should be smaller, no more than 750 places in my view, and  comprise a network of  high quality establishments "akin to special residential schools or secure children's homes" (to quote from the vision document ). No children should be  in prison establishments.  But are plans for secure schools a step in that direction - or will they, like STCs before them, serve as much to replace existing therapeutic units than to shrink the use of prison places?

The new schools will be run as Academies, but reassuringly providers will be not for profit company with a licence to run a Secure Children’s Home (SCH) and integrated with a health provider. Justice Minister Phillip Lee wants a more innovative and tailored approach to the care and education of young people. Back in the 1990s, that’s just what STCs were supposed to provide although contracting private sector security companies was always an unlikely way to achieve it. This time we are promised “child-focused providers in full control of the education they deliver”.  

The question therefore is why not simply extend the number of places in SCHs rather than create a rival to them ?  The quality of care they provide for children in custody is far superior to Prison YOIs or the STCs. The number of SCHs has fallen from 17 to 14 since 2010 and the beds from 311 to 254.  More are needed in any event- children whose liberty is restricted on welfare grounds are not uncommonly placed in Scotland due to lack of places in England.   So why not have a coherent but measured expansion of the best we’ve got.

The reason is part money, part ideology. The largest SCH, Aycliffe in County Durham has 42 beds, the smallest just 7. The 70 places in each of the Secure schools could mean lower per capita costs and rightly or wrongly ministers will think the Academy model won’t be saddled with inflated local authority overheads and governance structures. The Ministry of Justice is asking for views on the major cost elements in the schools “to help us to determine the budget.” If respondents are honest about how to meet the ambitions set out in the guidance, the new schools will certainly not be cheap. The MOJ don’t seem to be asking about the appropriateness of the Academy model.

When STCs were proposed a quarter of a century ago, it was argued to be “insane to set up these new centres at the same time as the local authorities are having to close some of their facilities for disturbed young people in communities throughout the country”. That was then Shadow Home Secretary Tony Blair.  It didn’t stop his government extending the insanity. But maybe this one should.

It should also think seriously about Blair's more fundamental warning that ‘the last thing you want to do with those persistent young offenders is to put them alongside 40 or 50 other persistent young offenders and lock them up for a considerable period of time'. Charlie Taylor had some ideas about reducing numbers : an end to short custodial sentences, fewer secure remands and stronger restrictions on detention for under 16s. Why not consult on that as well?  

 

A Tale of Two Cities

Today’s inspection report on HMP Leicester gave a hint that prisons might perhaps be turning a corner. Outcomes on all four of the Inspectorate’s healthy prison tests have improved since 2015, and while safety is still not sufficiently good, respect, purposeful activity and resettlement are now all reasonable.  Could this show that belated and inadequate as it may be, recent investment in prison staff is beginning to have a positive effect?

Any optimism about the system as a whole was dashed a few hours after the Leicester report was published when Chief Prison Inspector Peter Clarke decided that the failures to tackle safety issues at HMP Exeter were serious enough to put the Justice Secretary publicly on notice to fix them. We’ve become all too used to the rocketing rates of violence and self-harm, easy availability of drugs and poor living conditions in local prisons. But what’s worrying in the letter Clarke published today was that additional staff had not (yet at any rate) started to improve the dire situation he reported on in 2016. 

Clarke was shocked by the failure of prison officers to answer cell call bells: “Given that the prison is now much better staffed, this was inexcusable.  Inspectors saw bells going unanswered even when staff were doing nothing else.” He is aggrieved too at how little progress had been made on his recommendations from last time- compared to Leicester where inspection and Ombudsman findings seem have driven the improvement agenda.

So what are the lessons?  First, ministers’ words about reducing short- term prison sentences need to be turned into action. We don’t yet know how many prisoners at Exeter were serving short sentences when the inspectors visited last week but in 2016 18% of prisoners were serving 6 months or less and a further 5% between 6 months and a year. Diverting at least some of these to community-based supervision could see disproportionate benefit in grossly overcrowded local prisons- if the places are not back filled by long termers.

Second, ministers and the prison service need to get ahead of the game on prison conditions. I’ve been impressed by Prisons Minister Rory Stewart so far but not so much with him telling the Guardian that he was “grateful to the chief inspector for identifying the urgent attention required at Exeter.” After the promises he made to the Justice Committee about Liverpool four months ago and the first Urgent Notification at Nottingham, why has he himself not taken steps to identify what’s needed and ensure remedial action is taken? After all he has started a "back to basics" campaign , prioritising making prisons "clean and decent, with a proper broken windows policy".

Presumably he’ll be on a train to the west country, but he well knows micro managing isn’t a sustainable way of fixing this.  But given his commitment to sorting out the basics, he should make it his business to know- or at least ensure that Prison Service chiefs know-  the extent of squalid cells, blocked lavatories, broken glass and furniture.  It would be a start.  

Prison Reform: See it, Say it, Sorted?

Is the Government finally grasping the nettle on Prison Reform?  If dynamic duo may not quite be the right description for Justice Secretary David Gauke and Prison Minister Rory Stewart, they are certainly adopting a bolder approach to criminal justice than their predecessors. In particular they are now openly recognising the desirability of getting prison numbers down. Their employment strategy launched this week included proposals for much more in the way of temporary release for prisoners serving sentences.  Now Gauke’s told The Times he wants a concerted effort to drastically reduce the number of people who are being locked up every year.

Having seen the parlous state of the prisons and the ever more yawning gap between policy aspiration and day to day reality on the wings, the new ministerial team are certainly saying many of the right things. The question now is can they sort them?

When I read that Gauke wants to start a debate about what punishment means, I was reminded of the work of the Rethinking Crime and Punishment (RCP), a programme I directed for the Esmee Fairbairn Foundation in the 2000’s. The first recommendation in our 2004 report was that “political leadership should be exercised to emphasise the goal of reducing the prison population while promoting the value of alternatives to prison”.  Gauke’s off to a promising start on that but how about the other ideas which emerged from the work we funded.  We wanted to see business coordinators in every prison to maintain positive relationships with local employers; and more and better arts activity for prisoners. On both Gauke is on the same page. We argued for new approaches outside prison for women offenders and those with mental health problems; on this we’ll have to wait and see.

On alternatives to prison more broadly we wanted to see a major public education campaign about community penalties, and greater involvement of sentencers and the public in their implementation. We piloted these ideas in the Thames Valley , enabling judges and magistrates to visit and discuss community-based programmes and members of the public to propose unpaid work assignments.  As RCP ended, we published a costed manifesto showing alternative uses for the £2.3 billion which had been allocated on new prison places. It would pay instead for higher quality community supervision, wider availability of restorative justice, women’s centres and link worker schemes for petty persistent offenders with mental health problems. Structured dialogue arrangements would keep judges and magistrates informed about what was available and how it was working.

The plan was politely received but no more. But it’s that kind of approach and investment that’s now needed, utilising some of the £1 billon in the MoJ’s new for old prison coffers. Along with encouragement for the Sentencing Council to do more to curb unnecessary imprisonment and development of models  for  more localised funding arrangements, there’ the chance not just of the tide turning,  but of a sea change.  

Youth Justice: Future Directions

How should courts decide what to do with children in trouble? Sir James Munby the President of the Family Division told a seminar held by the National Association for Youth Justice (NAYJ) that he has some ideas. He’d like to see a one stop shop which would make decisions currently determined in the separate jurisdictions of the youth courts, immigration tribunals and family courts.  The new court would adopt an approach which grappled with the wide range of personal, family and social difficulties which lie behind delinquency and other childhood problems.

Such a problem-solving approach has been shown to work well with in the Family Drug and Alcohol court where evaluation has shown that for every pound spent £2.30 is saved. He’d also like courts given powers to require authorities to provide the services they judge are needed for individual children.  Munby recognised the challenge this posed to existing doctrine on the separation of powers but felt these would be outweighed by real world benefits.  Making the kind of stand he did in the Re X case- warning that society would have blood on its hands unless a secure clinical placement was found for a highly distressed young woman – was not a sustainable way to run the system.

A new court would need guiding principles combining the family court’s emphasis on the best interests of the child with the wider requirements of criminal justice. It could do worse than adopt those developed by Anna- Christina Jones in the different context of her action research with young people in Manchester. Meaningful participation is key along with an approach which aims to understand why children have behaved in the way they have and acknowledges their often limited chances. Working with children to help them solve their problems, find better options for the future and develop their ambitions – while as far as possible avoiding threats and sanctions -are surely the right way forward for youth justice workers. Should they not help guide Munby’s new court too? 

A reformed system could not work without a reliable range of services available locally to meet the needs of young people. Shadow Policing Minister Louise Haigh MP argued for much greater expansion of mental health services for both adults and children and for the latter a professional approach which recognises adverse childhood experiences including trauma. Labour is still working up its policy but their “children first, offenders second” philosophy seems a welcome distance from Tony Blair and Jack Straw's “No More Excuses”. For all age groups, we can expect much greater emphasis on diversion from the courts combined with evidence-based interventions.

A children first approach has implications across the system.  Joanne Cecil pointed to some rays of light in the culture of the Crown Court where children no longer always sit in a dock, and increasingly benefit from specially trained advocates. The new Chief Justice has made constructive judgements recognising the developing maturity of young people, even those above the age of 18.  

How to make it happen? Munby would exclude serious violent offences from his new scheme despite the evidence that many of the young people involved have themselves been victims of abuse and neglect and would benefit from a therapeutic approach. The reason? To make it more palatable. Public attitudes look like a huge roadblock although as Penelope Gibbs has shown, problem solving resonates well.

Money is tight of course. Shockingly Munby admitted that despite his efforts children seldom attend family proceedings with various central and local agencies bickering about who should meet the transport costs. If those modest sums can’t be agreed it seems fanciful to imagine a system in which courts can order more costly interventions to be provided.   

Maybe the answer lies in more local devolution. Labour are looking to devolve more- including Probation- to the PCC’s and mayors – as well as cutting the number of police forces.   Is the future direction of youth justice a local one?

Youth Custody - On the Mend?

Judged last year to be “on the edge of coping with the young people it was charged with holding,” the youth custodial estate was placed under new management. Whether as a result or not,  Inspection reports on two of the most challenging institutions suggest that the crisis that has engulfed detention of young people may be easing.

Chief Inspector of Prisons Peter Clarke found that “overall, there had been excellent progress made at Feltham since the last inspection” with the west London Young Offender Institution achieving dramatic reductions in violence and improvements in child protection, safeguarding and governance of the use of force.  Medway Secure Training Centre was also judged by OFSTED, HMIP and the Care Quality Commission to have “improved in all areas since the last inspection”.

In both cases, progress has been from a low base and clearly there is very much more to do. Medway is still rated as requiring improvement and while Feltham is now judged reasonably good on safety, respect and resettlement, it’s still not sufficiently good on purposeful activity.  Clarke is of course right to say that “the progress could easily prove to be fragile if investment falls away or leadership loses its focus.” After all, Medway was judged good with outstanding features in September 2014, less than 18 months before Panorama revealed “targeted bullying of vulnerable boys by a small number of staff, conditioning of new staff and a larger group who must have been aware of unacceptable practice by colleagues. 

One of the most valuable elements of all inspection reports are the surveys which ask a sample of prisoners about their experiences and attitudes. The results enable comparison both with those of prisoners at the last inspection and at similar establishments.  It’s surprising perhaps, that despite its progress, boys at Feltham rate a worse experience in 17 areas and a better one in 9. Not all the areas should be given equal weight of course. But they merit a pause for thought.

Safety is fundamental and therefore it's highly  encouraging that fewer than one in ten boys felt unsafe this time compared to one in five last year. It's important too that many fewer boys think shouting through the windows is a problem. But the “dramatic” improvement in safety has left the numbers of boys who say they’ve been victimised by staff or young people at roughly the same level as before- just under a quarter.

In accounting for improvements, the inspectors are probably right to point to a better privileges scheme which has placed more than a third of boys on the top level compared to 12% last time- and which, contrary to the BBC’s frivolous reporting amounts to more than handing out sweets.   

But it's troubling that fewer boys can shower or make a phone call every day, find it easy to see the nurse, make an application or have a visit which starts on time. And while more have a remand, training or sentence plan fewer have a caseworker.  These are all areas which managers need to address in the coming year alongside those where previous findings have been ignored.

Most notable of these is the recommendation that under 18s should not be segregated in the Unit in the prison's young adult side. Clarke is right that progress depends on his recommendations being implemented. By my calculation, of the 80 made last time, 32 were fully achieved, 18 partially achieved and 30 not achieved. 

Such a calculation is not so easy to do in the case of Medway STC where the compliance with recommendations is not logged. Last time for example, inspectors said staff should be aware of young people with health conditions so modified holds can be used if physical restraint is needed. Now, "handling plans" are in place, but some staff did not know why, "undermining its purpose in ensuring that only safe holds are used for certain children". This recommendation has been partially achieved at best. But there is no summary of compliance.

The Medway report shows continuing wider issues with what is the widespread use of physical restraint of young people. During some episodes of physical restraint, “children felt pain even though techniques intended to cause pain were not used". Injury warning signs were identified eight times in the previous 6 months, most because children said that they could not breathe.

Just as troubling is the fact that 71% of children said in the survey that  they had been restrained while at the Centre, though records showed it was about half.  Indeed, the survey responses give a number of causes for concern. 29% of children said they'd felt threatened or intimidated by staff (vs 6% last time). More also experienced insulting remarks and physical abuse by staff. While, the changes may not be statistically significant, they look hard to square with the inspection’s conclusion that the STC has got better in all areas.