Up and Down: What can be done to halt the rising prison population?

 Latest Government projections suggest the prison population will rise over the next five years rather than fall as previously thought. It’s estimated that there will be 87,700 people in prison in June next year- over 2,000 more than the 85,582 locked up in the same month  this year- and the 90,000 mark will be passed by June 2019. These estimates are substantially higher than last year’s projections- more than 10% higher in the case of the 2019 estimate.

How accurate have these projections proved to be in the past? While they have always provided a range of scenarios laden with caveats, recent predictions have not been great.    Take the estimates made for the numbers thought likely to be  in prison June 2014; the projections produced in each of the years from 2008 to 2011 overestimated what turned out to be the actual figure. But estimates produced in 2012 and 2013 were lower than what transpired. In November 2013, the statisticians thought   the prison population in June 2014 would most likely be 83,400, 2000 less than it proved to be. Had these projections been more accurate, Justice Secretary Chris Grayling might have been in less of a hurry to close the four prisons he did during the course of the year.

Yesterday’s report predicting that prison numbers will go up rather than down – apparently based on recent increases in sexual and violent offenders brought before the courts- may enable Grayling to burnish his punitive credentials as some sort of Michael Howard light. But they will sound alarm in the already pressured Prison Service bracing itself for another round of cuts. Officials will be hoping that the controversial Transforming Rehabilitation initiative will eventually reduce demand for prison places. It’s likely that in the short term however, upheaval in probation is reducing courts confidence in alternatives to prison. The introduction of community supervision after short prison sentences next year may produce a further double whammy by   making such disposals more attractive to sentencers and more liable to breach.   The Ministry of Justice estimate that 600 places will be needed for breach cases alone.  Ministers gratuitously trumpeting tough messages about the alleged value of prison and reckless plans to scrap cautions can only ratchet up the use of what is not only an undesirable but an unaffordable approach to penal policy.

What should be done instead? The British Academy recently set out a comprehensive agenda to reduce our reliance on prison through diversion, restrictions on custody, better alternatives and reduced sentence lengths. What’s needed alongside is a change of infrastructure and the way it is financed.

Some lessons might be provided by the NHS, where effective rationing of hospital beds is seen as essential if the system is not to collapse. The prison-hospital analogy- repeatedly made by Lord Ramsbotham since he became Chief Inspector of Prisons in 1995 is not perfect of course, but it seems to have increasing resonance in an era of sharply reducing resources.

In the NHS, keeping people out of hospital has become a key priority. GP’s are encouraged and incentivised to keep their patients at home wherever possible. Enhanced services are being put in place to prevent unplanned hospital admissions, care plans required for vulnerable patients. Community based infrastructure has been strengthened with community matrons organising multidisciplinary care and service hubs delivering it.  There is still much more to do. Labour has drawn attention to how political neglect of social care and a lack of investment in the sector has led to huge pressure on hospital accident and emergency departments. But the direction of travel away from institutions and into the community need to be adopted in the penal system.

Using financial incentives to pay for that journey is long overdue. In health, if emergency hospital admissions exceed what’s expected, providers receive only 30% of the usual price.  Commissioners are expected to invest the remaining 70% of the tariff income into demand management schemes which prevent inappropriate  admissions by improving patient care outside of hospital.

Analogous Justice Reinvestment approaches have been much talked about but so far little practiced. They are just the sort of methods  needed to prove the MoJ statisticians wrong and start to reduce the unnecessary use of prison.  

Beware Stockholm Syndrome- Why Sweden's Prisons May Not Be Perfect

I am looking forward to hearing the head of Sweden’s prison service, Nils Oberg, give the Longford Lecture tomorrow about how the country has reduced its prison population and maintained, and even developed, a progressive approach within the prison walls. The headline in his Guardian interview with Erwin James today is “Prison is not for Punishment in Sweden”, but of course it’s not supposed to be in the UK either. Notwithstanding the present Justice Secretary’s desire to make jails Spartan places, people are sent to prison as a punishment not for a punishment. Its perhaps not surprising in times of austerity that less eligibility assumes greater significance in penal policy- it will be interesting to hear how the Swedes have dealt with the tiresome argument that life in prison should be in no way preferable to life outside, in case people are somehow  incentivised to return to it.

While we have much to learn about the best size for prisons, appropriate training of staff and the philosophy of normalisation, before we all to succumb to Stockholm syndrome it is worth remembering two areas where perhaps the Swedes can perhaps learn from elsewhere.

The first concerns the treatment of remand prisoners. About a quarter of Swedish prisoners are on remand in pre- trial detention, compared to 14% in England and Wales. During 2013 the authorities subjected about half of detainees to extended isolation or to restrictions on mail delivery or exercise. Authorities took this step when detainees’ contact with people outside the detention centre could risk destroying evidence or changing witnesses’ statements, thereby imperilling a continuing investigation.In such cases, the only visits a detainee might receive would be from a lawyer and a priest.

 The Council of Europe and UN have been highly critical of the treatment of pre- trial detainees in Sweden and while rights to appeal against restrictions were introduced in 2011,  we will have to wait until the Committee for the Prevention of Torture visit next year to establish  how far things have changed.

The second area concerns the prevention of torture and ill treatment. Sweden was one of the first countries to ratify the Optional Protocol on the Prevention against Torture which requires the establishment of National Preventive Mechanism (NPM) to visit places of detention. Sweden gave the role to two existing supervisory bodies , the Parliamentary Ombudsman and Chancellor  of Justice.

A UN delegation that visited in  2007 was  left “with a certain degree of perplexity asto the prospects for these bodies to fulfil the NPM mandate” because they were largely reactive and lacked funds. Since then ,  a separate unit has been established in the Ombudsman’s office with a budget- but it remains to be seen whether the arrangements are now satisfactory.

Mr Oberg could rightly claim that these shortcomings are outside his mandate- and they should do nothing to detract from the many positive aspects of rehabilitation and preparation for release which characterise Swedens prisons and the way probation services have helped to bring down the number of prisoners. But they serve to show that penal systems in perhaps every country  have both  strengths and weaknesses - there is cerainly no perfect model.

Women in Prison: is the penal system fit for purpose?

At a Halsbury Law Exchange meeting last night, a top notch panel, aided by a powerful film of testimony from former women prisoners, did not take long to agree that it isn’t. Rather longer was spent discussing what should and could be done to fix it, with  Joshua Rozenberg in the chair.  

A helpful paper prepared by Felicity Gerry QC (marred only by its omission of any reference to the 2010 UN Rules for the Treatment of Women Offenders) focussed attention on four issues: how to keep women out of the criminal justice system, the best approach to sentencing women who can’t be diverted from court, appropriate arrangements for imprisonment where it’s unavoidable and ensuring support on release.

Representatives from the Howard League, Prison Reform Trust and User Voice argued for more widespread and stringent efforts to provide alternatives to custodial remands and sentences, to address the needs of children of imprisoned mothers and seek to resolve the financial, housing and relationship problems which underlie much of women’s offending- the last of which has been made much more difficult by the reductions in civil legal aid.  Lord Ramsbotham repeated his oft made call for a Women’s Justice Board to provide leadership and structure for developing effective policy and practice.  So far, so familiar.  

In terms of likely improvements to the system, three specific directions seemed to emerge. First, at the shallow end of the system, notwithstanding the Government’s crackdown on cautioning, there is still support for keeping petty persistent women offenders out of court and into the kind of agencies that can help rather than punish them. Simon Hughes the Lib Dem minister told the meeting that specific diversion arrangements for women would be in place in all metropolitan areas (covering 40% of the population) by February next year.

At the deep end, by contrast, on prisons, Baroness Corston’s proposal for small prison units to replace large prisons like Holloway and Styal looks to be a dead letter.

But what about sentencing, arguably the most controversial aspect of any reform programme. Corston did not recommend a separate sentencing system for women and the Sentencing Council has never produced a comprehensive set of gender specific guidelines. Lord Phillips the former Chair of the Council said he thought that they should have done so when he was in charge. It seems a very significant gap in recent efforts to improve justice for women. As was suggested last night, he should get on the phone to the current chair and ask them to get working on it.