Twenty Year Stretch: Michael Howard and the Legacy of Punishment

Twenty years ago this month, Michael Howard became Home Secretary , bringing a sea change to penal policy in England and Wales with which we have been living ever since.   Overturning a consensus that Home Office policies could do little to reduce crime, he embarked on an ambitious programme designed to increase arrests, prosecutions, and convictions but it is his view that “prison works” and the impact of his policies on the numbers behind bars for which he will be most remembered.

 Howard latched on to two influential conclusions from an academic review prepared for the US Congress about what works in crime prevention. The first was that incapacitation policies prevent crime because people in prison simply do not have the opportunity to commit offences and second that there are a small number of offenders who commit a large number of crimes. “If they could be incapacitated “, the review said “a large number of crimes would be prevented.” Despite caveats in the report, falls in the crime rate in the US   together with political saleability made the policy irresistible to Howard, who was by instinct sympathetic to victims and hostile to offenders.

Howard’s 27 point law and order package  delivered to the Conservative Party Conference in October 1993 included new Secure Training Centres for children as young as 12 and  mandatory minimum sentences for repeat  burglars and drug dealers to be served in decent but austere prisons.  Later policies to abolish parole and severely limit early release were never implemented but during his four year tenure prison numbers rose from 44,500 to 61,000.

Howard’s legacy was longer lasting however. By provoking political adversaries to oppose his reforms, he pushed his shadow Tony Blair and New Labour as a whole into a repressive approach to penal policy.  Prison numbers have continued to rise ever since 1993.

More disturbing perhaps was Howard’s  shamelessly  populist approach to law and order- most notoriously in his attempts to increase the tariff for the juvenile  killers of James Bulger, later  described by  a senior judge  as “ institutionalised vengeance ... [by] a politician playing to the gallery”.  In respect of his sentencing policy the Lord Chief Justice told the House of Lords that “Never in the history of our criminal law have such far reaching proposals been put forward on the strength of such flimsy and dubious evidence.” Indeed the most recent review of evidence by the Ministry of Justice has found that  “to date there has been no clear consensus from criminologists and commentators about whether there is an incapacitation effect at all, and if so, its scale.”

Howard’s treatment of the probation service was equally cavalier, removing the requirement for university based social work training and threatening the very existence of the service.  When he left office recruitment had almost dried up and it was left to Jack Straw to introduce a new scheme of professional training as an urgent priority.

Twenty years on , the liberal Ken Clarke has again been succeeded by a hardliner promising spartan abut humane prisons and threatening the probation service. Rehabilitation now plays a more significant role among policy objectives but Howard’s approach can be seen among a new generation of Tory politicians who want “ to reverse the tide of soft justice”. A group of them have written  “After the Coalition - A Conservative Agenda for Britain” in which they call for persistent offenders to be sentenced for prolonged periods in  tough unpleasant and uncomfortable prisons all to be run by the private sector.   With problems on Europe and the economy to contend with , such a back to basics approach may prove attractive  to the Tory Party at least in the run up to the next election. 

Cheating the System and Breaking the Law

Twenty years ago I was involved in  a series of international sentencing seminars. Judges from across Europe would present real life but anonymised cases from their jurisdictions which would then be analysed and discussed to establish what penalty would be likely in other countries. The method was intended to get away from a dry analysis of penal codes and case law to understand what really happens in courts’ practice. The aim was to try to expose what we thought were the harsh practices of the British judiciary compared to their European counterparts. For the most part our judges were indeed more ready to send ordinary criminals to prison and for longer periods. I remember one highly enlightened and philosophical German judge, Hartmut Horstkotte , who was reluctant to send almost any case to jail, constantly probing the purpose of imprisonment. When prison was unavoidable he always argued for the shortest possible term, ideally suspended.

The picture changed when our Dutch hosts presented the case of wholesale importation of cannabis to the Netherlands. A businessman had, over many years,  paid off police and customs officials to allow him to supply the “Coffee Shops” where retail sale for personal consumption was not prosecuted. From memory, the English judges proposed a sentence of 5 years or so and were, like me, astounded when the normally lenient Horstkotte announced his opinion that the right sentence in this case was 20 years. In his view, corrupting the system was a far more serious matter than an individual act of delinquency. He reasoned that acts which endanger the fair operation of the rule of law are both deserving of retributive and deterrent punishment.

I wonder what he would have made of the Chris Huhne and Vicky Pryce  case?

I think he would have had sympathy with the judge’s view that the case goes to the heart of the criminal justice system whose operation somewhat paradoxically depends in part on those who have broken the law acting honestly. When people are found not to have done so, courts sentencing them have little room for manoeuvre.  

The seminars revealed that that the going rate for punishing offences varies widely across Europe. As one participant observed, in their discussions, judges were using different currencies.  In a report last year for  the Criminal Justice Alliance I found this is still the case. 

The real message of the case is the need for a downward revaluation of punishment levels across the board. If public services  are reducing spend by 20% over five years so too should our sentence lengths. Were this to happen , Huhne and Pryce might have satisfactorily been punished with a large fine, a period of house arrest monitored by a tag and some meaningful community payback.  I'd like to think that this is what Horstkotte would have imposed.     

20 years on from the Bulger Tragedy: The dangers of Precipitate Policy Making

Next week marks the 20^th anniversary of the murder of Liverpool toddler James Bulger by two ten year old schoolboys in Liverpool. Among its many consequences, what then shadow Home Secretary Tony Blair called “hammer blows struck against the sleeping conscience of the country “ are  widely agreed  to have ushered in a much harsher climate of public and political climate on crime in which we are still living. 

Whatever its wider impact , the tragedy provides important lessons about the dangers of precipitate  policy-making, not least perhaps for the present government’s plans to revolutionise the probation system. Three weeks after the murder, Home Secretary Kenneth Clarke announced to parliament that he would introduce a new custodial sentence, the Secure Training Order to deal with the ‘menace to the community’ created by 12-15 year old persistent juvenile offenders. The orders were to be served in new institutions to be provided through agreements with public, voluntary or private organisations that could demonstrate the ability to meet the required standards and   give value for money.  They would be different from anything that had ever been provided before.

Working on secondment in the Home Office at the time, I well remember a conversation with junior minister Michael Jack during one of a series of visits to existing secure accommodation, hastily arranged to inform the implementation of the new policy. ‘I wish’ he said – or words to this effect – ‘that we had seen all this before we had made the announcement’.  I can imagine Junior Minister Jeremy Wright saying much the same to his advisers as they troop around the Probation services his boss has pledged to dismantle.  As with STCs, the introduction of payment by results and privatisation is being introduced on the basis of almost no research and in the teeth of professional hostility.

What was the result of all this rushed policy-making back in 1993?  First while the policy was quick to announce, implementation was anything but and in a sense , short lived to boot. The first STC did not open until April 1998. Two years after that, Secure Training Orders were effectively scrapped, folded into a unified custodial sentence.  Second, despite this, decisions made in 1993 have served fundamentally to reshape the juvenile custodial sector.  Three further STCs were subsequently opened, despite much of the original justification for their creation being lost in the mists of time. As one consequence, the number of places in local authority Secure Children’s Homes has fallen by a third since 2000.  Unit costs   have proved somewhat cheaper than the Secure Children’s homes but the STCs' chequered history hardly justifies Clarke’s promise that they would be different from  what went before.  Third, despite the potential role for public, voluntary or private organisations in running the new system, it is the private sector that has run them all. 

Are there lessons here for the current probation plans? One may be that political opposition cannot be relied upon to last. In 1993, Blair  described it as  insane to set up STCs  at the same time as  local authorities were  having to close some of their facilities for disturbed young people. The insanity is in fact what happened under the government he came to lead. As a member of the Youth Justice Board from 1998 I have to accept my share of responsibility too.

Given the far reaching nature of the probation proposals, there is a strong case for some kind of pause that goes beyond the short consultation which ends this month. What about a Probation Futures panel that could look objectively at the very serious concerns that have been raised during the consultation?      Had such a body been able to give serious and impartial consideration to government plans in 1993, the history of custody for juveniles might have been very different.

If Titan Prisons are back on the agenda , we must know more about the one we've got

   There is a strong sense of déjà vu about the Justice Ministry’s announcement that it is to start feasibility work on what would be Britain’s biggest prison with a capacity of more than 2,000.   Five years ago Jack Straw wanted to build 2,500 place Titan prisons but strong opposition from practitioners, parliamentarians and pressure groups forced a climb-down of sorts. The Conservatives were amongst the critics, proposing in their Green paper Prisons with a Purpose that they would “sell off old prisons and rejuvenate the prison estate, building smaller local prisons instead of the ‘titan’ prisons proposed the Government.” They seemed to accept the Prison Inspectorate’s view that smaller prisons worked better and the argument that so-called super jails will struggle to prepare their residents for return to the various communities in which they live.

Now in government, the attractions of economies of scale seem to outweigh concerns about impact on the reintegration of prisoners. On costs, the government are particularly fond of pointing to HMP Oakwood, the 1600 place G4S prison which opened last year and is the closest we have to a Titan prison. “The average cost at Oakwood” the Justice Secretary told Parliament today “is £13,200 per place. This is less than half the average cost of existing prison places, and sets the benchmark for future costs.”

I have long been sceptical about whether such low costs are reliable or represent a fair comparison. Running any institution or concern at less than half the average cost of a comparator seems on the face of it unrealistic, even allowing for economies of scale.

The alleged costs reported for Oakwood by the MoJ have already crept up. According to the Impact assessment for the Probation Review in January 2012, Oakwood “will provide places at the lowest operational unit cost in the estate at £11,000 per prisoner per year".  By the time of the NOMS Competition Update in June 2012 the cost had risen to £13,000 per prisoner per year. The MoJ told me that the discrepancy was because “for true comparison with other prisons, it is necessary to include other cost elements that are not included in the contract price. These include rates, controller teams, interventions, gas utilities, library and head of learning and skills.”  Today the cost is reportedly £13,200 although the prison is not yet running at capacity and therefore the cost per prisoner is presumably higher.

As for whether this figure represents less than half the average annual cost of an existing place in a comparable prison  depends on whether we are talking about the direct resource expenditure  (what is spent at each prison) or the overall resource expenditure (which adds spending at national or regional level) . The average direct cost per prisoner place at Category C prisons in 2011-12 was £21,561; the average overall cost was £31,339. So if Oakwood’s costs are accurate they are indeed well under half of the average overall resource spending on similar prisons but well over half -61% -of the average directly incurred costs.

The government have emphasised that Oakwood’s low cost does not come with an impoverished regime – the specification for the prison requires standards as high as those in other prisons. But how it is working in practice is as yet unknown.

If Oakwood is to be the model for future prisons we surely need some objective information about how well it is operating. And if its low costs are to be put forward as the new benchmark, greater clarity is needed about what they include and how they are achieved. The Inspectorate and NAO need to take a trip to Wolverhampton.

Do we really need a market for probation services?

If there was a prize for 21^st century organisational meddling and ineptitude, despite a strong field, the Home Office and then Ministry of Justice would win hands down for their treatment of the Probation service. Successive ministers have been unable to reach a settled view or workable policy about the proper balance of national and local accountability, the nature of probation’s relationship with prisons or the extent to which probation services might be outsourced to private and voluntary sector organisations.

On the last of these, Lord Carter’s 2003 review of Correctional Services, accepted without consultation by David Blunkett, expected that within five years, contestability – Labour’s word for competition- would have been introduced across the whole of prisons and community interventions, with outcome based contracts. But it is only now, ten years on that there look like serious intentions to contract out large chunks of probation supervision to private companies and charities, although legislation permitting this has been in place since 2007. 

A range of practical objections have, and no doubt will , be raised to the dismantling of a hundred year old service, not least about the  fragmentation or atomisation of  offender supervision the success of which depends crucially on  cooperation between agencies, reliable exchange of information about risks and needs and partnership working to address them.  Some scepticism is also in order about the viability of introducing a whole new tranche of work –  the supervision of short term prisoners on release.  So called custody plus- Labour’s  attempt to do this -   was only removed from the statute book last year, never having been implemented because of costs . Are the savings from privatisation really likely to be able to fund this new work, and meet MoJ austerity targets?

There are however two broader questions which have not received so much attention. The first relates to the legitimacy of supervisors in the eyes of those made subject to community sentences.    Chris Grayling might be right that there's no-one better than a former offender turned good to help someone turn their life around and the brave new world may provide more opportunities for initiatives like peer mentoring. But what of the bread and butter supervision requirements that form part of almost all community sentences, all of which are to have a punitive element in the future. How will offenders react to being punished for profit?   Recent Cambridge research has modified earlier  claims that the private sector offers a more courteous prison environment than the public sector  in the light of findings that   public sector establishments were better   at ‘getting things done’; a distinct component of respect in prison, according to prisoners . It is plausible to think this is important to those on probation too. Comparative research also found that in the public sector prisons, officers are confident and knowledgeable, delivering routines that are safer and more reliable than in the private sector.

The second question relates to how magistrates and judges will relate to the implementation of sentences by profit making companies. Their sentencing decisions will suddenly take on a commercial dimension. Work at Rethinking Crime and Punishment a few years ago gave judges and magistrates the chance to visit community based programmes to try to boost their understanding and confidence about what’s involved when they impose a particular sentence.  But the context of a corrections market may inhibit these kinds of endeavours. The Guide to Judicial Conduct makes it clear that the requirements of a Justice’s office and terms of service place severe restraints upon the permissible scope of his or her involvement with any commercial enterprise.

Evidence and Sentencing

   Ben Goldacre’s Radio 4 programme on January 2^nd 2013 rightly argued that the outcomes of public policy should be much more rigorously tested in advance of implementation and more thoroughly evaluated afterwards. Ben sees a much greater role for randomised controlled trials in identifying the most effective measures for producing a given outcome and even for checking that certain practices do not in fact aggravate a problem they are designed to alleviate; RCT’s revealed that despite their appeal, Scared Straight programmes which take young people into adult prisons increased rather than reduced future delinquency. 

There is no doubt that RCT’s can show to a high standard of proof of whether something works    and they should be encouraged as a way of  evaluating interventions which have  clear objectives; curing disease or  relieving symptoms in medicine or, teaching children to read and write. In criminal justice RCT’s have played an important role in showing the value of psychological treatment programmes, Restorative Justice and strict enforcement of probation.

Where I consider RCT’s to be more problematic and less useful is in relation to sentencing. By this I mean the decisions made by judges and magistrates to dispose of individuals convicted of criminal offences.  The underlying question is what would RCT’s be testing?

For Ben the answer is simple.   According to a piece he wrote in the Guardian in May 2010 he thinks that a judge is in “the exact same position as a doctor making a decision on a patient’s treatment  ... ...choosing an intervention for an individual in front of them with the intention of producing a particular set of positive outcomes” which Ben sees as reduced crime and reduced drug use.

Were this true, RCT’s might help to identify the best treatment approach for particular types of individual offender- although the record of so called “what works” programmes has been somewhat less than hoped for.  Unfortunately treatment is only one aspect of sentencing. In our legal system, the sentence imposed on an offender must reflect the crime committed and be proportionate to the seriousness of the offence. In reaching their decision courts must have regard not to one but to five purposes of sentencing. Giving effect to one of these purposes – the reform and rehabilitation of offenders- could well be informed by the findings of RCT’s . Ways to achieve another -the reduction of crime- could also be identified through research although this would be complicated by the inclusion of reduction by deterrence. The impact is thus not simply being sought on the individual culprit but on potential culprits of the future.

 As for the other three purposes- the punishment of offenders, the protection of the public and the making of reparation- it might be possible to construct experiments to assess how well particular sentences served them. But we suddenly seem to need an awful lot of RCT’s; but more importantly how useful would their findings be in assisting judges and magistrates to sentence?

 The law does not indicate that anyone purpose of sentencing  should be more important than any other and in practice they may all be relevant to a greater or lesser degree in any individual case. As the Sentencing Council, which gives guidelines to courts says “the sentencer has the task of determining the manner in which they apply”. The key decision is thus a normative one – which purpose or purposes are relevant?   So yes, RCT’s could tell us something important about the relative effects of components of the execution of sentencing. But the big sentencing questions – should I send this defendant to prison or not, should he get three years or five years – would remain relatively unaffected by this kind of evidence.

Even if the results might be useful, there is a more specific problem relating to the ethics of mounting RCT’s in relation to sentencing. For the sake of argument let’s agree that a judge, setting aside the other factors that he or she must consider, wants to impose the most effective rehabilitative sentence on a heroin dependent offender. Surely an RCT might indicate whether this might best be achieved by sending the offender to a community based drug treatment programme or to prison. But how would one mount such a study? According to Ben’s paper for the Cabinet office, the methodology would “assign each unit to one of the policy interventions, using a robust randomisation method”, before introducing the policy interventions to the assigned groups.  I doubt judges would or could agree to different sentences being assigned to defendants in this way. 

Peter Neyroud has suggested that there are several studies in the US and Australia which have used RCT’s to study sentencing.    The one he referenced- the study of HOPE Probation in Hawaii- did involve random allocation of probationers to a special programme with strict enforcement on the one hand and probation as usual on the other.  This was not a decision made by a court however. All of the offenders had been sentenced and were assigned to different modes of probation afterwards. It is hard to see how a judge could ethically impose sentences in the random way required by a RCT. The execution of the sentence can , as in the HOPE example, be varied up to a point for experimental reasons but not in my view where  there is a question about deprivation of liberty . The European prison rules make it clear that “Prisoners shall not be subjected to any experiments without their consent.” The objection is clearer if one thinks about an RCT comparing the effectiveness of short, medium and long prison sentences.

A tetchy exchange with Ben on twitter did not allow us to explore the fact that the disagreement may in one sense be over a narrow point. I agree there should be more research, including RCT’s, on different approaches to addressing offending behaviour. I also think there needs to be much more research about sentencing and in particular the cost- effectiveness of imprisonment. This is a deeply contested question reflecting profound disagreements about the impact which prison has on the future behaviour of individual offenders and on the wider community. A recent review of evidence by the Ministry of Justice found that  “To date there has been no clear consensus from criminologists and commentators about whether there is an incapacitation effect at all, and if so, its scale.” However I am not sure how easy, useful or morally acceptable RCT’s would be either in settling this question or in relation to the specific decisions made by judges.  I quite see the case for trials of programmes and interventions which can be applied in the execution – as opposed to the imposition- of sentences.

Julian Assange and Remands in Custody

Why did the Swedish Prosecuting authorities appeal against the bail decision  made earlier this week in respect of  Julian Assange? They are no doubt familiar with the Council of Europe's rules that " in individual cases remand in custody shall only be used when strictly necessary and as a measure of last resort "  and that " it shall not be used for punitive reasons." With the heavy conditions attached  to his bail and  the substantial restrictions on his freedom which they entail it is hard on the face of it to understand why they went to such lengths to keep him locked up.  It may of course be political. But it may also simply reflect how pre trial detention is used in Sweden. Remand prisoners represent a quarter of Sweden's prisoners compared to 15% in England and Wales, suggesting that their prosecutors and courts may be keener on pre trial detention than their British counterparts.  And while Assange's  might have  faced Dickensian conditions at Wandsworth,  he was not as far as we know subject to the kind of isolation and restricted regime for which the Swedes have been consistently criticised by international monitoring bodies.

There is much that is progressive in Sweden's approach to sentencing - a low rate of imprisonment, shorter sentence lengths than in the UK, small community prisons . But as far as remand is concerned , the principle of  innocence is outweighed by the demands of  prosecution.  Paradoxically in Sweden, the unconvicted lose more rights than the sentenced. It seems surprising to say but any moves to harmonise the justice system across Europe should be composed with an  English approach to remand at its core rather than the Scandinavian.