Alternatives to Prison - a Shot in the Arm or Shot in the Foot ?

The movement to cut the prison population picked up steam this morning when the Lord Chief Justice told the Justice Select Committee that “fewer criminals should be jailed and tougher community punishments developed as an alternative to imprisonment”. In contrast to Michael Gove, who last week called for a reduction in prison numbers having steadfastly refused to countenance it when in office, Lord Thomas is in a position to do more than talk.

As head of the judiciary he can exercise a strong influence on the 20,000 judges and magistrates who send people to jail. Unfortunately, he seems to have passed up the opportunity to persuade the Sentencing Council (of which he is President) to take a more ambitious line on alternatives to prison in its recent guideline on the imposition of community and custodial orders.  He might, however, look for an opportunity to issue a guideline judgment encouraging the greater use of community sentences.

The Chief Justice might say that his support for such sentences is contingent on their being tougher.  If he means that they should impose more and more onerous requirements on offenders, his positive intentions could easily lead to unintended consequences. The numbers spared custody at the front door of sentencing could be exceeded by those experiencing it via the back door of breach- a risk Lord Thomas seemed to recognise in respect of the post release supervision of short term prisoners introduced last year. If the Chief means the sentences should be , to coin a phrase , tougher on the causes of crime, he might be on to something.

Gove last week called for community sentences to be far better policed, with swift and certain sanctions for those who don’t comply. “Swift and Certain” is shorthand for an American approach to probation originating in Hawaii. It appeared in the 2015 Conservative manifesto but has yet to find its way into legislation. I’ve long had doubts about its applicability here, though these would be alleviated if the response to missing appointments or drug tests were not swift and certain periods of detention- as they are in the US HOPE Probation system- but more intensive rehabilitation efforts or lesser sanctions such as community work or curfews reinforced, if necessary, by tagging.

There’s a bigger problem of course which is whether the reformed probation service is able to step up to the plate.  It may be that the Ministry of Justice review of the new arrangements finds the new model fatally flawed, but its hard to see it being abandoned. The MoJ  may look to reinvigorate it by encouraging more diversion from prison.

We are told that the Community Rehabilitation Companies are struggling because the numbers of cases they supervise - and the fees that go with them- are lower than they’d expected. On business grounds if no other, they’d presumably be keen to get onto their books some of the 90,000 people sentenced to custody each year, as an alternative to custody and not just after release from it.

If that’s something the Lord Chancellor and Lord Chief Justice want too, it shouldn’t be beyond their wit to arrange it.  

From Prison Reform to Sentencing Reform ?

Will last week’s events prove a defining moment in the history of prisons in England and Wales? The Sun thinks so, yesterday proclaiming that jails have become little more than a war-zone as the level of rioting, violence and drug-abuse reaches a tipping point.  Tuesday’s action by prison staff certainly represented a very a serious breakdown in industrial relations and whether these have been repaired remains to be seen. With the ink barely dry on a Prison White Paper  claiming to be the biggest overhaul of our prisons in a generation, it looks as if those who work in prisons are unconvinced that the measures it contains will secure their safety and that of the people in their custody.

Unsurprisingly, more radical measures are now being suggested. Former Governor Ian Acheson who reported on radicalisation in prisons earlier this year called in the Telegraph, for the National Offender Management Service (NOMS) to be scrapped. NOMS -  Nightmare on Marsham Street, as it was known when under the  Home Office-  was intended to break down the silos of prison and probation and ensure a better focus on managing offenders. Acheson argued that it has become “an unloved, unlovely bureaucratic monster, dangerously out of touch with its operational heartland”.

NOMS first Chief Executive, Sir Martin Narey widened the focus still further in the Times by arguing for sentence lengths to be reduced, giving support to Michael Gove‘s argument in his  Longford Lecture that “we need to work, over time and pragmatically, to reduce our prison population”. This is something Gove resisted when as Justice Secretary he could have done something about it. Narey is still  a non-executive board member at the Ministry of Justice so perhaps could persuade Gove’s successor to do something on prison numbers. But what?

I was out of the country last week speaking for Penal Reform International at two events in Central Asia.   Kazakhstan has halved its prison population over the last fifteen years through a comprehensive package of reforms- decriminalising and reclassifying offences, diversion of minor cases, reducing remand time, shortening sentence lengths, earlier release, a new probation system and community sentences. The country developed and implemented a plan - “Ten steps to reduce the number of inmates”.  True the prison population is still pro rata higher than the UK’s – 250 per 100,000 population compared to 150 – but the direction of travel adopted in Astana is now sorely needed in Westminster.

Of course, the technical elements of any Ten Steps in England and Wales will be somewhat different to Kazakhstan’s.  Next month, Transform Justice will be publishing a report I’ve drafted which will argue that the Sentencing Council which produces guidelines for courts should play a much stronger role in reversing sentence inflation.  Earlier Transform Justice reports have argued for a justice reinvestment approach which devolves custodial budgets to regions to incentivise local bodies to prevent crime, rehabilitate offenders and reduce the use of prison.  With radical changes like these, prison numbers could start to come down to a more manageable level. Without them, the Government might be tempted to emulate one of Kazakhstan’s less progressive policies; back in 2011 it moved the prison system back from the Ministry of Justice to the Ministry of Interior.

Conventional wisdom is that politicians who adopt a soft approach will be slaughtered in the media and the polls.  But the Sun on Sunday said today  “Our jails are stuffed with too many non-dangerous criminals…” That's as much of an  invitation to sentencing reform you are likely to get.        

Forget about the price tag? What to look for in the Prisons White Paper

Today’s meeting between Liz Truss and the POA will have come too late to influence the contents of tomorrow’s White Paper, but prison staff and those of us who care about prisons will be looking at two key elements if we are to have confidence in the government’s plans for the beleaguered service

First will it include a costed plan for properly staffing jails? It’s quite clear that in the Coalition years, faced with wholesale privatisation, public prisons accepted staffing levels in many cases too low to be safe, let alone achieve the lofty objectives subsequently promised by Messrs Gove and Cameron. While Mr Grayling is the main villain of the piece as the author of the Faustian pact forced on the service, Ken Clarke bears some blame for reaching too stringent a financial settlement with the Treasury back in 2010.  When his plans for reducing prison numbers crashed and burned, the funds were not adjusted upwards to cope with new projections.

Six years on, the bottom line is that the benchmarking exercise which helped take a billion pounds out of the NOMS budget needs redoing and the resources found to fund what results from it. Just as  the National Institute for Health and Care Excellence (NICE) were asked after the Mid Staffs Hospital disaster to look at safe staffing for nursing in adult inpatient wards in acute hospitals, an independent body should do so in respect of prisons. With an advisory board comprising personnel at all levels and ex prisoners, it should look seriously at how many staff are required to meet the expectations set by Prison Inspectors and the various recommendations made by them and the Ombudsman. Benchmarking Mark Two should be completed by Easter. 

An alternative would be to return to 2010 frontline staffing levels- something recommended by last week's admirable RSA report. But whether Ms Truss has persuaded the Treasury to provide much in the way of additional cash must be doubtful. Her Permanent Secretary told the Justice Committee a fortnight ago that “the subject we talk about most in my executive committee is improving our finances and bearing down on the gap between our allocation and our projected spend.”

This means the White Paper must propose ways of reducing the prison population, the second and more controversial matter.  I have argued that replacing short sentences with community supervision may be desirable but will not provide enough relief. In addition the Ministry will need to look to halt the upward drift in sentence lengths. A report I’ve written for Transform Justice, to be published next month, will argue that the time is right to revisit the aims and purposes of the Sentencing Council in order to reduce the extent to which courts impose imprisonment and the lengths of its terms.   Ms Truss previously argued for longer sentences and tougher prisons but wherever she once wanted the ship of penal policy to go, she surely knows now her job is to keep it afloat.

Without manageable prisoner numbers and enough staff, the governor autonomy agenda – now known as empowerment – will not get prison reform very far.  Nor will the £1.3 billion capital programme for 9 new prisons which are supposed to be completed by 2020. Expect some re-profiling of this. If Treasury rules allow, some of the funds could be used to boost the budgets for running existing prisons (and the new prison at Wrexham) more safely and  for pump priming measures to divert low risk offenders from prison. This must be the priority for Ms Truss over the lifetime of the parliament rather than the grandiose schemes of her predecessor.