The Problem with Problem Solving Justice

Last night former Chief Judge of New York Jonathan Lippman extolled the virtues of problem solving justice to a distinguished audience at the Royal Courts of Justice. In a lecture hosted by the Centre for Justice Innovation, Lippman explained how he and other judicial leaders had, over the last 20 years, encouraged courts not simply to process cases through the system but to find ways of addressing the underlying problems of addiction and unemployment. Business as usual had been  sending the revolving door of jail spinning out of control, but Lippman  described how the Midtown and Redhook Community Courts and a number of mental health and drug courts in the State  have combined help and punishment in order to offer defendants a chance to change the trajectory of their lives. The lecture was well received, introduced by the Lord Chief Justice and concluded by Justice Minister Caroline Dinenage.

Strangely, there was not a single mention of the fact that we’ve been here before. Back in the 2000’s David Blunkett, Lord Woolf and many others (myself included)  visited Redhook and returned enthused. The North Liverpool Community Justice Centre, modelled on Redhook was established in 2004 at a cost of £4 million. 13 Community justice courts were set up from Middlesborough to Merthyr Tydfil as were specialist Domestic Violence and Mental Health Courts. Of this experience there was, last night, not a word.

That is maybe because the initiatives did not work as well as was hoped. Unlike evaluations of American schemes, research found no evidence that the North Liverpool court had a positive impact on re-offending for any particular type of offender. Moreover, offenders given court orders at the court were more likely to breach the conditions of their order than the comparator group for England and Wales. North Liverpool Community Justice Centre closed in 2013. The problem solving approach elsewhere has struggled to be sustainable.

The minister said last night that a working group set up to examine models of problem-solving courts and advise on new pilots had completed its work . Hopefully the group will have looked closely at the UK experience and how the context differs from the US.  Relative lack of welfare provision and low thresholds for prosecution may mean some at least of the problems in American courts are more straightforward to fix than over here. More developed options for pre-court diversion may mean that the police or CPS are better agents of change in England and Wales than the courts. Culturally, judges and magistrates here may be more reluctant to get involved in the implementation of sentences (as opposed to their imposition) and unwilling to express the kind of emotion Judge Lippman described on seeing a changed offender at a "graduation" hearing. Maybe performance measures simply don't allow courts the opportunity to identify defendants' problems and arrange the required response from health and welfare services already under stress.

Yet the climate may be more propitious for problem courts this time round although money is much tighter than it was . The Centre for Justice Innovation is able to provide the kind of technical assistance which was lacking with the initiatives in the last decade. The Judiciary is leading a major modernisation programme in courts which provides, at least, a strong following wind.  

A 2009 Policy Exchange Report on Problem-Solving Justice in England and Wales was entitled Lasting Change or Passing Fad. If it’s to be the former, and I hope it is, the question is not why problem solving justice but how. It’s a question of which Ms Dinenage’s father Fred would have been proud.

Reform Prisons - An Elephant Giving Birth to a Mouse?

Fifteen years ago, Michael Gove jointly edited A Blue Tomorrow- a collection of essays subtitled New Visions for Modern Conservatives.  In the foreword, the editors attacked Tony Blair’s Labour government (freshly re- elected in a second landslide) for seeing “the answer to every problem in a new rule, restriction, quango, agency task force or diktat…, micro-managing problems in a manner which denies autonomy and contributes to greater chaos”.  Gove et al preferred much greater humility about the capacity of the state to provide solutions arguing for pluralism in the provision of public services and the devolution of power to the lowest accountable level. Innovation, they asserted "springs from respecting the individual, the quirky and the local".  

Today this particular vision has the penal system in its sights with a Prisons Bill, the centrepiece of the Queen’s speech and the announcement of six Reform Prisons as the icebreakers of a self- styled revolution.

Gove is not the only brain behind the operation. Nick Herbert’s 2008 “Green Paper” Prisons with a Purpose, recommended that public-sector prisons become "independent, fee-earning prison and rehabilitation trusts”, a direction that was developed in the Centre for Social Justice Report Locked up Potential in 2009. But Gove’s belief that institutions of all kinds flourish when liberated from the dead hand of central bureaucracy has given huge momentum to the idea of reforming prisons, which he has described as the most centralised and dirigiste area of public service he has seen.

For those who may be sceptical about the application of simple ideologies on complex institutional arrangements, there are three questions to ask about how exactly the Reform Prisons will differ from the rest .

First, will they be protected from population pressures in any way? At the end of April, all of the Reform Prisons were overcrowded bar Kirklevington Grange open prison. Coldingley, was only slightly overcrowded , its population at  104% of “Certified Normal accommodation”- the capacity which represents  the decent standard of accommodation that the Prison Service aspires to provide all prisoners. The population at Holme House was 116%, High Down 119%, Ranby 125% and Wandsworth 169%.

Although ministers dispute the extent of overcrowding and its impact on prisoners, Inspectors in their most recent reports on the reform prisons have few such doubts. HMIP said overcrowding at Wandsworth, combined with severe staff shortages, meant that almost every service was insufficient to meet the needs of the population. They found overcrowded cells at High Down which were were cramped, lacked furniture and contained inadequately screened toilets. At Ranby, staff in some house blocks appeared very busy with little time to talk to prisoners; and Holme House took prisoners on overcrowding drafts from other prisons. The first question therefore is whether it will be business as usual in terms of the numbers prisoners in the Reform Prisons or will they be insulated from some of the population pressures- something which would of course place greater strain on other parts of the system.

Second while it seems clear that governors will be given greater control over how their budget is spent, will it be increased? There are troubling signs that staffing levels are simply too low in some prisons. At Wandsworth, Inspectors said that  reductions in staff numbers had greatly reduced the capacity of officers to engage constructively with prisoners. At Coldingley, they found  broken furniture and equipment , inadequately screened toilets and windows that needed to be replaced. At Ranby prisoners had difficulty obtaining cleaning materials, clean clothes and clean bedding. The second question is how much additional budget will be given to the Reform Prisons.
There may be an argument for reallocating some of the hq resources to them if they are making less call upon central services. But more favourable resourcing will need to be taken into account in assessing changes in performance.   

Third, we know that the government plan to give unprecedented freedoms to Reform Prison governors, including financial and legal freedoms, whether to opt-out of national contracts; and operational freedoms over education, the prison regime, family visits, and partnerships to provide prison work and rehabilitation services. There's a strong case for concentrating more commissioning responsibility in the hands of governor and restoring to them greater control of what goes on in their establishment. But what will this mean in practice?

NOMS CEO Michael Spurr pondered a few months back whether Governor autonomy might include the ability to introduce conjugal visits. We don't yet know if Reform Prisons be able to pay staff more, disapply prison service instructions or make their own arrangements for resettling prisoners outside the existing contracts with Community Rehabilitation Companies. I suspect the answer to each of these questions may be no. Neither is the governors's autonomy likely to  extend to releasing prisoners early- something Gove favours and has been impressed by at the Military Corrective Centre.

The third and most fundamental question is therefore: if these kind of freedoms are in fact off limits, are Reform Prisons not an elephant that gives birth to a mouse?

Sentencing Remarks

   A fortnight ago, Prisons Minister Andrew Selous told the Justice Committee that "work on sentencing is ongoing this year, in terms of a consultation to which the Ministry of Justice has committed". Yesterday, in the course of answering an urgent question on violence in prison, Selous told the House of Commons that the Government "are currently consulting on sentencing issues".

But there seems to be nothing in the way of a formal consultation underway, at least in terms of an exercise that meets the principles on consultation that the Government launched in January.

There is a working group on problem solving courts involving the Lord Chief Justice and others, one of whose aims is “to encourage innovation in the use of judicial disposals and improve compliance with the orders of the court". Charlie Taylor’s review is also now looking at sentencing in the youth court- something the Sentencing Council, somewhat perversely, is also about to consult upon.

But unless I have missed something there is nothing along the lines of John Halliday's review of sentencing that took place in the early 2000’s. Selous’s colleague Dominic Raab is apparently holding a series of expert roundtables to look at the subject but to what end is not clear. He personally seems to favour a harsher approach but in view of the pressure on prisons and the MoJ budget, the scope for locking up more people for longer is as unaffordable as it is undesirable.

Assuming that ministers may be open to reforms that moderate our comparatively severe sanctioning response to crimes, what could they consider?  I have argued that punishment levels should be reduced for women, young adults and people with mental health problems, as well as the oldest offenders. I also suggested that the Sentencing Council be asked to scale down sentencing levels for crimes across the board.  But what other more specific measures could be put on the table? Here are five.

1. Scrap the plan to widen the scope for Attorney General References, the mechanism by which "unduly lenient" sentences can be increased. Numbers may be small but their effect is greater, pushing up the going rate for particular offences.  It’s true that the Conservative manifesto contained a proposal to enable a wider range of sentences to be challenged “to tackle those cases where judges get it wrong” but it’s surely no longer a priority.

2. Introduce the possibility of releasing non-violent offenders from prison after serving one third point of their sentence with the period up to the half way converted to community payback. This would ease pressure on the prisons while putting more work the way of Community Rehabilitation Companies whose expected volumes of work have not materialised.

3. Enable prisoners to earn earlier release through consistent engagement with education, treatment or work in prison. Justice Secretary Michael Gove is much taken with the Colchester Military Corrective Training Centre where the Commanding Officer has a great deal of discretion over release.

4. Pilot a scheme for prisoners with drug dependency problems to serve the final portion of the custodial part of their sentence in a residential rehabilitation centre.

5. Introduce a presumption of suspending sentences of less than 12 months – a proposal made by Nicky Padfield in the latest version of the Criminal Law Review.

Alongside these sentencing changes , moving forward with the agenda of devolving budgets to a more regional or local level could also introduce a positive new dynamic into the criminal justice process. If Sadiq Khan had to meet the costs of short prison sentences served by Londoners from his budget, he might well look hard to develop more in the way of measures which could reduce the need for their imposition.