Defining Decency Down

There were wry smiles among staff at the headquarters of the National Offender Management Service (NOMS) last week. Apparently bailiffs turned up in Reception in pursuit of an unpaid debt. It took a senior legal adviser a couple  of hours to get them off the premises but at least the  furniture still seemed to be in place in the bit I visited anyway.

It doesn’t get much starker as an illustration of the financial pressures facing the Ministry of Justice but it wasn’t the only one to surface in the last few days. A far more serious example lies in Nick Hardwick’s inspectorate report into Cookham Wood, woeful  even by the standards we have sadly come to expect . High levels of violence, a backlog of disciplinary cases and worsening outcomes no longer shock as they should. All are symptoms surely of the need for greater numbers of capable staff to work with these troubled and troublesome boys in the care of the state.  The failure to provide enough well trained people is as much a sign of reckless cost cutting as are bailiffs at the door of hq.  

What did surprise was the response of the Youth Justice Board to the inspection, its Chief Executive pleased to see that inspectors had recognised the progress made at Cookham Wood  “which is especially encouraging in the light of the challenging and vulnerable cohort of young people whose needs the establishment seeks to address”. 

It’s true that the report commends certain improvements – in the reception process, safeguarding and resettlement for example. But progress? It is the deterioration in safety and in basic care which should really be worrying the YJB as the body that commissions the places at the establishment. In the inspectorate’s survey, only 14% of the boys said they had association every day and exercise in the fresh air was limited to 30 minutes a day, a breach of the best known international prison rule which requires double that. Many of the 25% of staff who were from other prisons “did not know the work, the institution or the boys.” Not long after the Inspectors visited, a boy died in Cookham Wood.  The YJB’s response to the findings looks like a case of “praising with faint condemnation”.

As Hardwick hints, all this is yet more evidence, if it were needed, that prison is no place for this age group. Yet if there is to be fundamental change, there is a need to be outraged by what is happening in places like Cookham Wood. The YJB , MoJ and NOMS are in danger of turning a blind eye to the impact of the budget cuts they oversee.  Given the state to which the youth custody sector has been reduced, looking to it to help the YJB find fresh savings imposed on it by the MoJ seems a poor call.

In one of his well- received pre-recess speeches Michael Gove  warned , in his philosophical way, that reforms to the criminal justice system should not be achieved by “defining deviancy down”- a phrase coined by Daniel Moynihan in the 1970’s to decry a permissive tendency to normalise what was once offensive. Whether or not he’s right on that, he certainly should not be defining decency down and accepting what is happening in prisons for young people. He should not be reviewing them- he should be planning to shut them. 

PS from America

The final leg of my Justice Reinvestment (JR) study tour took me to North Carolina where the Department of Public Safety provided a valuable insight into how their 2011 JR Act has brought down prison numbers and taken small but important steps to rebalance corrections away from incarceration and towards community based sanctions. There will be more of that in the report I’m preparing for Transform Justice who have commissioned the follow up to the paper I produced last year. I was struck today however by what has not changed and how in some respects at least the philosophical underpinnings of the American approach contrast so starkly with our own.

There is rightly growing concern in England and Wales about the criminal court charge and how it places a simply unaffordable burden on poor defendants and incentivises them to enter a guilty plea. When I mentioned it, American colleagues couldn't see what the fuss was about. 

In North Carolina, defendants are expected to pay not only a court cost ($180) but fees for time they spend in jail before trial- anything between $10 and $40 a day. If they have been represented by a public defender, they must reimburse the state for the attorney’s costs - $60 for an hours work in court, nearer $1000 if the case goes to trial.

But this is just the start. If they get Probation, offenders are expected to pay a supervision fee of $40 a month. If their sentence involves community service they pay a $250 fee while house arrest will set them back a one off bill of $90 plus $4.37 per day. CAM – Continuous Alcohol Monitoring in the form of a sobriety tag -runs closer to $15 per day- unsurprisingly it’s seldom used. Fees for courses required of those who drive while intoxicated are set by the providers at roughly $300-400 for 20 hours.

As in England and Wales, offenders may be fined (fines help to pay for the public schools system) while restitution is commonly ordered too- whatever it takes “to make the victim whole”. This will be the reimbursement of the value of stolen or damaged property and medical and counselling costs in cases of personal harm. This can run into hundreds or thousands of dollars.

Failure to pay these sums represents a violation of probation. Offenders cannot complete their orders until their account is clear. Not surprisingly, I heard that many low risk offenders who otherwise fully comply with probation reach the end of their orders in arrears. This is in spite of help they receive with budgeting and scheduling payments. Fortunately, judges seem to show some sense, prioritising restitution and suspending or writing off the other debts where failing to pay is not “wilful” and where efforts have been made to pay at least something.  But owing money to the justice system is surely an unnecessary block to rehabilitation. Up to half of people on probation have no driving license- it has often  been forfeited and they simply cannot afford  to clear the many debts they need to in order to get it back. In a country with very limited public transport, this is a huge disadvantage.

There is, I suppose, an argument for this approach- offenders have to be accountable and should literally pay for the consequences of their actions. It’s not the balance of responsibilities allocated between individual and the state that we are used to in the UK or indeed in Europe.  But it could well prove attractive to a conservative mindset which looks to roll back further the frontiers of state, shift costs from government to the citizen  and emphasise individual accountability irrespective of  social circumstances. I hope it's not an approach that Mr Gove finds attractive when he visits the US later this month..

Another Letter from America

I spent Friday in the delightful city of Annapolis observing a session of the Maryland Justice Reinvestment Coordinating Council. The sleepy colonial era state capital might be a slightly incongruous setting for discussions about improving the justice system’s response to crimes and misdemeanours on the mean streets of cities like Baltimore but there was no doubting the energy with which the Commission engaged  and interrogated a comprehensive presentation about its current performance.

A technical assistance team funded as part of the Federal Justice Reinvestment initiative (JRI) bombarded the meeting with data on trends in incarceration and recidivism and how well current practices across the state and its 24 counties comply with evidence about what works to reduce offending by adults.  The meeting was one of a series designed to enable the State to reform its law, policy and practice to obtain greater public safety, better value for money and less unnecessary use of imprisonment.

Two things stood out about the meeting. First is the range of participants. Representatives from all three branches of government took part – legislators from both parties and both houses, judges, prosecutors and public defenders  and a variety of executive agencies including police and corrections from state and county level. Such a wide ranging presence is not an accident. It is a requirement if States want to join the JRI and benefit from the federal support in diagnosing problems and proposing solutions.

Second, the type of reforms which the Council will consider are equally wide ranging. Three sub groups have been established to look at possible changes to sentencing, to release and re-entry arrangements and to the type of supervision available in the community.  They will work speedily to ensure proposals are on the table by year end. If Maryland follows the other 27 states who have worked on Justice Reinvestment, legislation will follow soon after. The reform measures introduced in these states have included, repeals of mandatory minimums and reductions in the going rate for certain crimes; increases in the ability of prisoners to earn early release and more generous parole eligibility and improvements. Resources freed up by the resulting reductions in prison numbers have funded more and better education and treatment programmes both in prison and the community.

A forthcoming report for Transform Justice will look at what might be learned from this approach in England and Wales. Many of the specific reforms made in US States are of course first attempts to start to unwind the catastrophic growth of incarceration seen over the last thirty years, an increase which makes our own prison population  increase over that period look extremely modest. But some of the principles of JR may well have a good deal of relevance.

Michael Gove’s announcement on Friday of a review of youth justice suggests for example that quite a lot might be learned about how best to go about introducing  reform in the justice field.. It is scarcely credible that the review he has ordered will not consider the age of criminal responsibility, the way young people are dealt with in the criminal courts or the youth sentencing framework.  Quite apart from the fact that the UK is in clear breach of international law by prosecuting children as young as ten in England and Wales, it is hard to see how a meaningful assessment can be made of how youth justice agencies are performing without considering the legal framework within which they are operating and the effectiveness of the sentences imposed on young people.

The whole thing may simply be a fig leaf to complete the unfinished business of abolishing the Youth Justice Board. But youth, and come to that adult, justice needs something much more comprehensive in scope along the lines of the exercises being conducted in respect of adult offenders across the US. 

Letter from America

I’m in the US this week researching developments in criminal justice reform. It’s part of a project to update the report I prepared last year on Justice Reinvestment for Transform Justice. A few minutes into my first meeting, my interviewee looked down at his phone and told me he’d that minute received a text from the British Embassy inviting him to meet Justice Secretary Michael Gove when he’s in Washington DC later this month. I had to explain I had not been sent ahead as some sort of scout.

But the coincidence is perhaps not surprising. The election of a new Conservative government with savings to find in criminal justice and an interest in localism and devolution does provide a timely  opportunity to see whether the range of reforms undertaken in the name of Justice Reinvestment in more than 20 states - plus important changes at the Federal level -offer lessons for England and Wales.What might Gove learn about developments over here?

On the evidence of day one, most significant perhaps has been the changing conservative mind set on crime and punishment. At an American Enterprise Institute seminar this afternoon, Republican Congressman Jim Sensenbrenner described federal prison policy as “financially unsustainable and morally irresponsible”. He argued not only that continuous increases to the list of federal offences did the nation no service but that mass incarceration has torn families apart. As a former Chair of the Judiciary Committee who oversaw much of the federal prison expansion in the 1990’s, his conversion to the cause of reform has taken many by surprise.

As with better known advocates  of Right on Crime such as former Republican speaker Newt Gingrich  a combination of budget pressures, ideological preference for a smaller state and a belief in redemption have created a paradigm shift. The fact that the public have shown themselves more interested in effectively  reducing recidivism than in ensuring lengthy sentences are  served in full has meant that arguing for reform in this area no longer carries the electoral costs it once did. Californian voters have for example ensured that a third offence must be serious and violent to qualify for a mandatory minimum and that  stolen property must  be worth more than $950 for a theft to count as a felony. Small steps but probably unthinkable a decade ago.

Whether the public would go as far as David Kennedy who told the AEI meeting that overuse of incarceration actually leads to more crime- both by limiting life chances of offenders and weakening informal social controls in the community- is another matter. But there seems widespread support for his contention that improved legitimacy of  police and other criminal justice agencies and more effective communication to offenders of the punishments that they’ll face, could bring crime down further.

Indeed it is the bipartisan nature of the criminal justice reforms that is striking. Adam Gelb from the Pew Trusts told the AEI seminar that votes for reform packages in states around the country have received support from 6000 legislators and opposition from just 500.  This reflects no doubt the horse trading that has taken place before votes are taken.  Some agencies- prosecutors in particular – seem to have been nervous in some states. It’s not clear whether this is due to outdated knowledge about the most effective use of prison or political self- interest- they face the electorate in most states.

Other officials and unions might become more agitated if more aggressive reforms lead to prisons closing or more serious or violent offenders facing shorter sentences. Yet these are the measures which will be needed if serious inroads are to be made into US prison populations and substantial funds freed up for social programmes. In truth the reforms introduced so far have only touched the edge of what is compared to Western Europe still a draconian system.

Gove will find out that the momentum of those reforms has been slowed by reports of spikes in violent crimes in particular cities and by particularly horrific cases such as a San Francisco murder committed by an illegal immigrant.  If America’s twenty year crime decline goes into reverse, arguments for reform will be harder to make.   Whether these turn out to be bumps in the road or the end of the road remain to be seen.

For God's Sake George, Take a Look at Criminal Justice Policy

Earlier this week the Ministry of Justice greeted the latest criminal justice statistics by celebrating record levels of prison sentences given to sex offenders in 2014. Their press release not only welcomed the harsher punishments given to the 6000 of these offenders sentenced last year. The Government seemed keen to publicise the fact that prison sentences for all offenders have been getting longer and that the proportion of serious offences given a community sentence has declined. They see as positive too the fall in the use of so-called out of court disposals- police cautions and warnings usually given for petty offences.

The consequences of the last of these trends is being shown daily in the Howard League’s excellent campaign to end the criminal courts charge. Not only are the Howard League highlighting the injustice and absurdity of imposing additional financial penalties on defendants whose criminality is born of poverty and desperation but raising the question on why on earth some of these petty offences are being brought to court at all. Just as most of the public came to see it as crazy to ban prisoners from receiving books through the post, so surely will a majority eventually accept that thefts of small amounts of food, begging,or drunkenness cry out for a problem solving response rather than a punitive one.

The use of courts for these kind of misdemeanours seems part of a broader pattern of criminalisation. The criminal statistics reveal an increase in the numbers of summary offences – the least serious- being prosecuted and sentenced. This is apparently due mainly to an increase in speed limit, vehicle insurance and TV licence offences. Other non-motoring summary offences that continued to rise during the year and the last decade include littering and truancy.

Separately this week we learned more details of the 16,000 parents prosecuted for failing to secure their children’s attendance at school, 18 of whom (ten mothers) ended up in prison. This week also saw an expensive Old Bailey trial resulting in a couple fined £1000 for outraging public decency; the judge blamed the defendants for maintaining their innocence but could easily have criticised the CPS for continuing a prosecution which while of significant interest to the public was hardly in the public interest.

In a time of stretched resources, it is odd to say the least that more and more cases are being brought before the courts unnecessarily.  A rational approach would surely see everything being done to deal with cases at the lowest and cheapest level in the system. This is what is happening in the health system where GP’s are being incentivised to reduce pressure on hospital admissions. Its what happens in the criminal justice systems of many European countries where prosecutors can settle many more cases than happens here. 

The one area in criminal justice where a sensible use of diversion  has been happening is in respect of young offenders. Figures out today show continuing reductions in the numbers of under 18’s in custody. In large part that’s because cases are diverted wherever possible by the police, and where cases go to court a wide range of alternatives are proposed to the courts and a large proportion imposed. This is precisely what’s needed for defendants of all ages.

Last week civil servants were asked to meet a public sector efficiency challenge by proposing ideas for improving public services or save money. Categories of reform include reducing bureaucracy, improving customer services, staffing and making services work more effectively together. Keeping cases out of the court system as far as possible would meet all of these objectives and more.

The Chancellor's initiative asks respondents not to “use any profanity or abuse in your responses as it will automatically disqualify your idea”.  But for God’s sake, George  have a look at criminal justice and penal policy. 

Fine Words Better No Prisons

Prison reformers are almost by definition optimists but the expectation placed in Michael Gove by those of us who want to see a better prison system seems to be in danger of becoming distinctly Pollyannaish.

Yes he (or more likely George Osborne) has knocked the absurd Secure College on the head.  And his talk about prisoners as assets rather than liabilities, and the importance of redemption mark a welcome shift in philosophy from his predecessor’s obsessions with making prisons cheaper and less comfortable. Gove’s gone out of his way to praise the Prison Service and today he floated a number of ideas for improving its effectiveness.

Some of these were interesting, though reheated. Enabling prisoners to earn release through involvement in education, giving prison governors more autonomy, and selling Victorian prisons to fund a modern estate were all proposed in the 2008 so-called Conservative Green Paper Prisons with a Purpose. Gove made clear these are ideas to which he is attracted rather than firm policies. Some may be sensible, others less so- all are technically difficult to implement. I’m not sure I’d like to stay in prison longer because a Governor has not provided the opportunities for me to undertake the courses need to qualify for early release. The POA and others are surely right to be a little sceptical. We all heard Ken Clarke five years ago promising that prisons would be places “of education,hard work and change”.  To coin a phrase, "Fine words better no prisons".

It’s what Gove didn’t say that is the problem. It’s easy to point at the disgusting conditions at Pentonville as emblematic of the challenges facing jails but that’s only a part of it. As the Justice Committee , HMIP and Lord Harris have pointed out a significant number of prisons have been operating at staffing levels below what is necessary to maintain reasonable, safe and rehabilitative regimes. With more cuts looming what is Gove planning to do?  How can he in good faith promise “an end to the idleness and futility of so many prisoners’ days” when he knows he will have significantly fewer resources at his disposal.

The obvious measure is to cut prison numbers or as Nick Hardwick put it “match the demand for custodial services to the resources available”.  As Gove will know by now, this can’t be achieved through tougher alternatives alone. Cutting sentence lengths is the most direct way of doing so but perhaps unsurprisingly there was nothing from Gove on this.  Reviving interest in Justice Reinvestment in which local agencies benefit from savings that accrue from reductions in prison admissions might be more palatable. But there was no reference to that either. Developing a more appropriate approach to young adults could also produce dividends in terms of reduced prison numbers just as it has with the under 18’s. But there was no mention of that and rumours are that the YJB may shortly be for the chop.

So despite his flowing rhetoric Gove's problem is more prosaic -not so much finding treasure in the heart of every man, but getting enough cash from the treasury to run a safe and decent system. Or shrinking the system so that it is.

Commercial Misjudgement?

In May, I raised concerns about an income generating scheme established by the Magistrates Association (MA) which involves private Community Rehabilitation Companies (CRC’s) investing in the MA Education and Research Network. I argued that the MA -which represents the 23,000 lay justices who deal with 90% of criminal cases in England and Wales- should not put itself in a position where the content of any guidance, information or advice it produces could be seen to be influenced by commercial considerations.

Yesterday the Network was officially launched at the Supreme Court. A brochure describing the plans for the Network does little to allay those concerns.

It is not a problem with research itself. The MA’s Royal Charter specifically permits the organisation to “promote or undertake study or research and disseminate the results of such research”. It is the invitation to become an affiliate of the Network which raises a potential conflict of interest for the MA.

Affiliates are offered- presumably in return for funding - a variety of benefits. These include:

* A conduit for valuable research information which may assist in the “development of affiliate businesses or organisations”

* Networking with other affiliates leading to information exchange, “helping to identify commercial trends”

*  The ability to commission additional research projects “and own the results” and

*   Opportunities to host seminars or functions in Association with the Network “to promote your organisation”.

I understand that at least two CRC’s have become affiliates. It is easy to see why they and other private sector organisations might have an interest in doing so. Only five years ago, the House of Commons Justice Select Committee reported that “the Magistrates’ Association raised concerns about the impact that introducing a profit motive for reducing re-offending may have on meeting the core aims of the criminal justice system”. The MA’s then Chair had given evidence that sentencers must have confidence that the sentence will be properly and effectively delivered and they “did not believe it should be driven by profit”.  What better way of winning round a sceptical stakeholder than helping to fill a hole in their finances?  

Moreover in order to help ensure a prosperous shape for future criminal justice developments, under what better auspices could private companies showcase their technological innovations – the focus of the Network’s first year’s work?

The MA will no doubt claim that the research undertaken through the Network will be independent and rigorous and will test the claims for these and other products, programmes and measures. Indeed, the Network has an impeccable academic consultant.  She will presumably ensure that the Network’s research will in all cases be peer reviewed and published, (even when the results are “owned” by the commissioning affiliate). Otherwise we may be in in for the kind of controversy seen in the pharmaceutical industry about access to data and research producing negative as well as positive outcomes.

The MA will claim too that the Network is an independent company and it is- a wholly owned subsidiary of the MA set up, in part at least, to raise funds for the association.  The Network is chaired by a former MA Chair and the Company Secretary is the current MA Chief Executive.

The objects for which the Magistrates Association is established and incorporated are to promote the sound administration of the law, “including, but not restricted to educating and instructing Magistrates and others in the law, the administration of justice, the treatment of offenders and the prevention of crime”.  Its Charter makes clear that the income and property of the Association, however derived, shall be applied solely towards the promotion of those objects.

These provisions may provide the legal wriggle room for the arrangements that have been put in place for the Network. But one is left wondering if the MA has really considered that it looks to be lending its name to the expansion of business opportunities for private companies in criminal justice?