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.