Reflections on Prison Overcrowding

How best to eliminate the scourge of overcrowding in the world’s prisons? Two countries much in the news are promising different solutions with Turkey planning to release 38,000 "ordinary" criminals (if only to make room for alleged coup plotters) and the Philippines substantially increasing its capacity to reduce the squalor so shockingly revealed at Quezon City jail.

Neither approach generally finds favour with prison reformers; amnesties are seen to erode the rule of law and encourage corruption;  prison construction uses limited resources better spent in other ways and risks the induced demand effect:“if you build it, they will fill it”.

More favoured strategies include systematic efforts to reduce the use of pretrial detention and the development of alternatives to prison sentences.  There is much to be said for both of these. Many of the most congested prisons are those holding large numbers of suspects awaiting trial. The measures outlined in PRI’s recent Ten Point Plan – including diversion of minor cases, time limits for court cases, pretrial release options and effective file management- could all help to ease demand for prison places: and the development of sentencing options such as probation or community service which place burdens on offenders without depriving them of their freedom can help ensure that petty offenders at least are kept out of jail. 

While both these approaches are necessary – and in certain circumstances amnesties and prison building have a role to play too- they are not sufficient. This is particularly true in Africa where prison reform has struggled to have an impact. On that continent, overcrowding is little short of a humanitarian disaster.  Some countries which have reduced the use of pre-trial detention – Malawi is an example- still have grossly overcrowded prisons albeit on the sentenced rather than remand side. Others which have implemented community service orders have seen limited impact on prison populations.

On a recent visit to Uganda, I saw a thousand plus prisoners in Jinja’s pre- trial prison, built for 300. We were told that 106 were charged with petty offences but the vast majority had allegedly committed serious crimes such as murder, rape and robbery. Improved pre-trial justice would bring them to trial quickly but those convicted would face long sentences, generally served in full. Alternative sanctions as currently constituted might divert the petty offenders from the penal system but even if the law allowed it, would not be accepted by courts or the public as an adequate response to more serious criminality.  

A much more robust form of alternative sentencing has been developed in neighbouring Rwanda. In the aftermath of the 1994 genocide, conventional legal responses were simply impractical given the scale and gravity of the problems to resolve. Alongside the creation of Gacaca community courts, an innovative form of Travail d’Interet General (TIG)  was introduced - an intensive community service order undertaken as part of a prison sentence. Rather than stay at home and do unpaid work for a few hours a day which is the model of community service in place in the rest of East Africa,  the genocidaires - so-called tigistes- were based in camps doing a full working day six days a week. This enabled substantial infrastructure projects to be completed- including construction of roads, homes for vulnerable people (including genocide survivors) and school dormitories. The Rwandan government have claimed that up to 2013 more than $50 million worth of work had been done Prisoners have been released much earlier than they would have been and have learned skills to help them resettle. The prison population has been stable for the last six years.

The Rwanda model has not been without critics, in respect of living conditions, health and safety concerns and ability of tigistes to stay in contact with families- in short whether it is in fact a second prison or form of forced labour. The tigistes seem to prefer it to spending longer in prison; and the more tangible community benefits make it more appealing to courts and public alike

Rwanda’s 2012 Penal Code extended TIG to all offenders who have committed an offence which is punishable by a term of imprisonment of up to 5 years.  The limit  is two years in Uganda and lower is several countries.

Policies developed after Rwanda’s exceptional horrors may not seem relevant to other contexts. But by showing that people guilty of some of the worst crimes can be punished in part at least through reparation in the community , the TIG model offers the prospect that increased development need not always entail greatly increased imprisonment. As long as the rights of participants are respected, it could be tested as a way of  replacing or shortening prison sentences and contributing to major public works elsewhere in Africa and beyond.

Prisons should be tough, unpleasant and uncomfortable places: our new Justice Secretary's view of the world

Back in February, David Cameron set out why he believed prison reform should be a great progressive cause in British politics. It was certainly a top priority for his Justice Secretary Michael Gove, but in truth despite warm words and myriad reviews, virtually no progress was made before the careers of both men came to an end this week. What are the prospects of the reform agenda being pursued by the new management?

It’s unlikely that six years in the Home Office will have sharpened Mrs May’s appetite for a policy based on redemption and rehabilitation. But what of Elizabeth Truss, the woman May today appointed to succeed Mr Gove?

While she has been described as socially liberal, five years ago Truss co-authored a book called "After the Coalition: A Conservative Agenda for Britain". This argued  the need to "reverse the tide of soft justice", complaining that some judges have declined to jail criminals on human right grounds and that punishment in the justice system is too often a dirty word. Ms Truss and her colleagues were also “not ashamed to say that prisons should be tough, unpleasant and uncomfortable places”. They wanted persistent offenders sentenced for prolonged periods, praying in aid Howard League research on the ineffectiveness of short prison terms. They also proposed privatising all prisons.

So far, so discouraging. But differing policy views notwithstanding, one of the other authors of the book, Dominic Raab found himself able to work with Mr Gove over the last year, although not directly on prisons. Raab has recently been looking at sentencing reform, apparently more constructively than his 2011 views might suggest.

Let’s hope Ms Truss has had a similar change of heart and will not throw the Gove reforms into reverse before they have got out of first gear . There was perhaps likely to be a lot less to the reality of those reforms than was being promised. But at least the terms of the debate framed by the last government were positive ones. Conservative governments  have often swung between progressive and hard line responses to crime and offenders: Brittan v Hurd, Clarke v Howard, Grayling v Gove.  Where will Ms Truss fit?   

Meanwhile in Other News.... What we Learned about Prison and Probation Reform this week

With energies consumed on political manoeuvrings, it must be hard for Cabinet ministers to focus on their day job. But while the Captain’s hands may be lightly attached to the departmental tiller, the ship of state sails on and so it was this week that we learned some interesting things from the crew who were hauled up before two Parliamentary committees.

On Monday, the Public Accounts Committee quizzed senior Ministry of Justice officials about the probation reforms. In a telling exchange, the Permanent Secretary Richard Heaton was asked how he thought the privately run Community Rehabilitation Companies were performing. His impression was that “this has not quite settled down and the story is probably mixed. It is not a part of the service that I am 100% confident about”. Why’s that, he was asked by Caroline Flint MP. “Just because I detect inconsistency, that’s all. I am not 100% confident about any of this; that is why it is such a difficult programme”. 60% confident? pressed Ms Flint. “Yes, all right, if you like”, Mr Heaton is recorded as admitting in the transcript.

To their credit, the Committee were holding their meeting at a prison; Hatfield in Ms Flint’s Don Valley constituency. Perhaps because they were away from Westminster, the MP’s went pretty easy on the officials, prepared to accept the NAO’s verdict that the programme was a success because the whole system did not "fall over". Mr Heaton looks like he was getting in his excuses for when it does.

The next day, the Justice Committee heard from three criminal justice inspectors and the Prison Ombudsman. With six so-called Reform prisons underway from 1^st July, the Committee were understandably interested in how their progress would be measured. So it turned out were the Inspectors, who struggled to explain what governor autonomy  would mean, what the baseline is for measuring performance and what minimum standards were in place. Ombudsman Nigel Newcomen seemed concerned that under the current arrangements, prisons had accepted almost all of the recommendations in his reports about complaints and fatal incidents but often failed to implement resulting action plans.  Would the new Reform Prison be any more likely to do so he wondered?

More generally, the inspectorates do not seem to have been overly involved in developing what was an “evolving” policy although Prison Inspector Peter Clarke mentioned meetings with the Bill team. The previous day Mr Heaton had said he expected to be able to publish a White Paper “before the end of the year” so, wisely perhaps unlike the headlong rush into “Transforming Rehabilitation”, prison reform is progressing at a steadier pace. Who know whether it will match the speed of electronic monitoring: satellite tracking pilots were announced this week almost 12 years after they were first promised?  

Whether prison reform progresses at all will depend on the make-up of the new government. Peter Hennessey once described the Home Office as the graveyard of liberal thinking since the days of Lord Sidmouth. If its current incumbent, with Mr Grayling at her side, moves into no 10 , it will be no surprise if there is what is sometimes called a reverse ferret.
    

Contemporary Dilemmas in Criminal Justice

Did you know that in the early 19^th century, an ancestor of former Attorney General Dominic Grieve MP was transported to Botany Bay (for a theft he probably didn’t commit), where through hard work and enterprise he started to accumulate the family fortune? Or that David Davis MP has brought a case to the European Court of Justice in Luxembourg while simultaneously campaigning for the UK to leave the court’s jurisdiction?  Or that one of the suspects acquitted of involvement in planning the 7/7 terror attacks in London now teaches citizenship to new arrivals in the UK?

I do, thanks to an excellent conference organised by the Oxford Centre for Criminology yesterday to celebrate their 50^th anniversary. Anecdotes apart, three important themes emerged from the day’s deliberations on contemporary dilemmas in criminal justice.

First, justice is in trouble. At the international level there are growing questions over the effectiveness of mechanisms for holding the powerful to account for grave crimes after the dismissal of Kenyan cases at the ICC. Last year also saw an increasing resort to the death penalty- Clive Stafford Smith told us that Pakistan currently has 8,262 prisoners on what is the world’s largest death row.

Domestically, criminal justice is, in the words of one participant, running on fumes and goodwill. Grieve revealed that without continuing falls in crime during his time in office, the system would have collapsed. One consequence of resource pressures on prosecutors, courts and lawyers is a heightened risk of miscarriages of justice.

Second, despite that fall in crime, law enforcement and justice agencies are facing new sets of challenges which existing ways of working look increasingly ill- suited to meet. Whether investigating fraud and cybercrime or responding to growing number of allegations of sexual offences - likely to multiply during the Goddard review- new methods are needed which are better attuned to the private and complex nature of much of this activity. More police on the beat- the favoured political refrain - is not going to crack it.  The overlap between illegal migration and criminal justice also presents new dilemmas for policy and practice.

As for terrorism, serious concerns were raised about the criminal and civil law response to suspects which were described as lacking coherence, rationality and legitimacy. While ex -Met chief Lord Ian Blair  did warn that further atrocities –thus far thankfully but sometimes narrowly avoided –could herald a yet  more draconian regime,  the Conference heard powerful arguments for refocussing  the law  relating to the preparation of acts of terrorism, the use of secret evidence and the role and accountability of the security services.

The third theme to emerge was that paradoxically perhaps, there may be a window for constructive and potentially radical criminal justice reform. Grieve said that Michael Gove’s retreat on legal aid reform means that reducing prison numbers is the only option for balancing the justice budget. That is clearly not the only reason for seeking to cut the prison population. Felicity Gerry QC denounced the whole system as “rubbish” at dealing with vulnerable defendants, arguing for fundamental change in how criminality by women is defined and dealt with. The conference heard proposals to strip magistrates of their powers to imprison, require courts to consider family impact statements prior to sentencing and strengthen sentencing guidelines for women.

Could these and other reforms happen, not just in respect of women, but others in conflict with the law? The climate of political, public and media opinion may be more favourable than for some time and the loosening of central government control over criminal justice agencies may encourage innovation in England and Wales at least. 

Change whether at home or abroad will require both technical knowledge about what to do and the political will to do it. The first of these should receive a boost from the establishment of Oxford’s Global Criminal Justice hub which will develop a research agenda to inform future policy development. As for political will, this can be nurtured by the kind of advocacy, public debate and commitment to progressive reform that was evident throughout the day.   As Stafford- Smith exhorted us, “never apologise for helping countries to do the right thing”- not least our own.

 

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.