Don't Forget Rehabilitation: Remember It in Everything A Prison Does

Sir Martin Narey’s call for prisons to “Forget Rehabilitation” was no doubt designed to provoke a reaction and in that the former head of the National Offender Management Service has succeeded. Canadian expert Frank Porporino found Narey’s presentation at the conference of the International Corrections and Prisons Association (ICPA) in Buenos Aires saddening and puzzling because as Narey himself admitted he had, as prisons chief in England and Wales, overseen a big  expansion of education and psychological programmes  designed to help prisoners change their behaviour. The disappointing results of the latter have led Narey to conclude that “the real and moral challenge is to make imprisonment humane”.

Much of what Narey had to say was uncontroversial. Prisons should be clean, orderly and respectful institutions and ensuring decent everyday conditions and treatment should be given a higher priority than they often are. His warnings about the risks of jails descending into brutality and violence were powerfully made. But is he right that humane containment is the best that prison should strive to achieve?

International law makes clear the “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”, and while the reality of most prisons worldwide may be far removed from that lofty ideal, that’s no reason to dismiss it. There’s good evidence that education, vocational training and work in prison reduce recidivism and as a recent manual I drafted for the UN recommends, these need to be expanded not forgotten. It would be a disaster if Narey's headline deters the developing countries represented at ICPA from doing so.

Moreover, without a strong emphasis on rehabilitation, how will prisoners in any jurisdiction be able to prove to a Parole Board that they have made efforts to reduce their risks of re-offending? What conclusions will  politicians concerned about violent crime draw about how to protect the public?  And how will Prison Services be able to attract the optimistic and skilled staff to work with the people in their care?

Other presentations at ICPA have stressed the need for a more humane and hopeful philosophy and practice in prisons-  not in opposition to rehabilitation but as the very foundation of it. A public health approach to incarceration in the US state of Oregon has seen dramatic improvements in wellbeing of prisoners and staff. There and in other states, new practice is informed by prisons in Norway where staff are trained not only as guards but as “facilitators for rehabilitation” and mentors.  A similar initiative in Pennsylvania is having to overcome the hurdle of regulations prohibiting fraternisation between staff and prisoners. But good relationships between staff and prisoners is increasingly recognised as the key not only to safe prisons but ones where prisoners can use their time positively.

Shadd Maruna, in a magisterial lecture demolishing the false science of static risk assessment tools, encouraged instead an approach which takes a much fuller account of what has happened to prisoners in their lives -which in many cases includes the experience of trauma.  This is not just a matter for psychologists and social workers but for everyone working in prison and making decisions about prisoners.

The emerging consensus is that prisons need both to treat prisoners with dignity and respect and to offer them opportunities to come to terms with what they have done and chart a new course for the future. In fact, you can’t have one without the other. As Debbie Kilroy, the Australian activist and former prisoner told the conference, it's only when prisoners are treated as people and not defined by the worst thing they have done, that they ill take up the opportunities to change. 

So, while it may be right to forget the false promise that a short psychological course can repair deep seated problems of disadvantage, a rehabilitative culture should remain a central aim for prisons, alongside all that is required to make it a reality.

If You Build it, They will Come

When Boris Johnson announced in August that 10,000 new prison places would be built, commentators- myself included - were quick to point out that similar plans had been made as far back as 2015. What’s very different is that the new policy is not about relocating prisons from outdated city centre sites to modern new facilities. It’s about adding 12% or more to prison capacity in England and Wales. The Permanent Secretary at the Ministry of Justice, Sir Richard Heaton told MPs this week that compared to the 85,000 places in prisons today, by the mid 2020’s “the total prison capacity we anticipate ….to be between 95,000 and 105,000.” His boss Lord Chancellor Robert Buckland confirmed that he was not planning any prison closures.

Back in August the MoJ estimated the numbers inside would be lower in 2024 than at present . They estimated a 5% likelihood it will reach or exceed 87,300 in June 2023.So why do we need all these additional places?

One good reason might be to reduce overcrowding in existing prisons so that prisoners are held in a “good decent standard of accommodation” that the Prison Service aspires to provide. There are currently only 75,000 places in use that provide this kind of uncrowded accommodation. So almost all of the new building could be used to improve the basic conditions for a prison population of the current size. But in their evidence to the Justice Committee, the MoJ made no reference to this worthy aim.

Instead they justified the increase in prison places in terms of first, a surge in prison numbers resulting from the 20,000 more police officers who will be available to catch more offenders; and second the longer portions of sentences to be served by sexual and violent offenders.

On the impact of more police, Sir Richard admitted it’s “hard to convert those into prison places” because we do not know  if they will be pursuing “high-level crime, low-level crime or crime that results in imprisonment”. Buckland took the view that “we will see quite an increase in volume crime detection. That might not necessarily result in prison sentences; it might result in more community sentences”. The Justice Committee failed to press him on whether investment in probation and other community-based services wouldn’t be a wiser course to take.

The increased portion of sentences served in prison by violent and sexual offenders (not considered dangerous)  is estimated to require 2,000 more prison places by 2030.  Between the Queens Speech on Monday and the Committee hearing on Wednesday, the Government decided to restrict the group having to serve two thirds from those getting 4 year plus sentences to 7 years plus.   Buckland told the Committee he is “trying to make sure that we create a system that is supported by the resources I need.”

The decision that these prisoners should serve a longer portion of their term was ostensibly made following a Sentencing Review announced by the PM in August. Buckland told MPS that the Review “took the form of very thorough advice to Ministers. It is an internal document”. So, nobody will see it.

As for the Review, Sir Richard had already explained to the Prison Reform Trust that “Given the time constraints it has not been possible to undertake any formal public engagement, but we have conducted telephone interviews with some key stakeholders to give them the opportunity to give their views.” The MoJ have listed the 13 organisations they spoke with in the review.[1]   Noticeable by their absence are any sentencers, and the Sentencing Council. This is despite the Government’s Impact Assessment (IA) acknowledging that “it is possible that as a result of this policy the length of sentences handed down by the courts could be reduced in view of the longer period to be spent in prison”. 

The contrast between the depth and detail of the IA which is consistent with the Treasury Green Book Guidelines on policy development, and the superficiality of the Review (which is far from it), is frankly embarrassing. The IA notes "potential transitional risk to prison stability" with  increased tensions in prison establishments, with consequent impacts on prisoner violence or self-harm; and possible increases in the risk of re-offending; plus a cost over ten years of £710 million. 

Woeful too is the lack of proper consultation about the need and use for more prison places. The Green Book recommends that “research, consultation and engagement with stakeholders and the wider public, should be conducted at an early stage” of policy development. “This provides understanding of the current situation and valuable insights into potential improvements”. The rate of imprisonment in England and Wales - 141 per 100,000 of the population- is second only to Scotland’s among the countries of Western Europe. We need to find ways of moving down that league table of shame not cementing our place near the top of it.

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[1] The Association of Youth Offending Team Managers; CLINKS; Criminal Justice Alliance; HM Inspectorate of Prisons; HM Inspectorate of Probation; Howard League; Independent Advisory Panel on Deaths in Custody;NPS Victim Liaison Officers; Parole Board; Probation Institute; Revolving Doors; Standing Committee for Youth Justice; Victim's Commissioner (Office)

UNlocking Children from Custody

Today, the UN General Assembly will hear the results of the Global Study on Children Deprived of Liberty. Worldwide, at least 410,000 are held in detention every year in remand centres and prisons   If you assume the study’s findings and recommendations are not really relevant to a wealthy country like the UK, think again. As the study finds, being locked up means “deprivation of rights, agency, visibility, opportunities and love”; and there are all too many examples of that here in the UK.

Take the Safeguarding Review published last week by the Youth Custody Service (YCS). It provides an honest and down to earth assessment of the “harmful cultures that have become inherent in parts of the system” in England and Wales. “Custody” the review admits “provides a potentially traumatic environment and establishments with a punitive, macho, hierarchical culture can further impact on vulnerability and risk of harm.”

The UN Study notes that “States have an obligation to apply child friendly conditions” and children consulted for the study specifically expressed concerns about the lack of child-sensitive procedures. In England and Wales, the YCS admit  “there is a lack of child focus at strategic level, thus all subsequent levels of governance within Young Offender Institutions (YOIs)”, whose rules and policies talk about prisoners and inmates rather than children. The Safeguarding Review reports on staff wearing uniform of adult establishments; young people unable to access confidential services such as psychology and social work for security reasons; and a young person prohibited from playing the guitar due to concerns around the use of its strings as a potential ligature with risk aversion “driven by financial penalty rather than a child focus”.

The Safeguarding Review makes many sensible recommendations to embed that focus in staff recruitment and training and the day to day running of establishments- although it’s not clear if they have all been accepted. Some are shockingly basic- for example that all children and young people should have appropriate clothing to their size and the weather conditions; and that the YCS should develop a Strategy for Females.

Some of the findings are troubling too; that children can be allocated to and received by institutions without information about their needs and vulnerabilities- a  “no docs” scenario; that staff engage in behaviour and language that they also apply sanctions to young people for; and keeping certain young people apart – the standard approach to keeping them safe “can increase risk of violence”.

There’s clearly a long way to go to creating the rehabilitative culture the YCS is striving for. The YCS Director welcomes “a refreshing first look” at what can be done to address the problems in YOIs and STCs in particularly but in truth many are longstanding, deep-seated and resistant to reform.  

That is why the Government is pinning its hopes on the Secure School- more details of which were supposed to be made available last month. Delay it seems too for Charlie Taylor’s Restraint Review which was due to report in the summer.

But the evidence is mounting that while some institutions are undoubtedly better than others- the Safeguarding Review makes clear that Secure Children’s Homes are considered the best model of practice within the sector-, the fundamental approach is wrong. The Prison and Probation Inspectors have yet again reported on “children … not being effectively prepared to re-enter their communities and start to live productive and safe law-abiding lives The services that they needed on release were often not in place to help them resettle, and the risks that they posed were not always sufficiently managed in their early days in the community”.  Nor had those risks been addressed while in custody. So, what is the point?

The failure of custody is one reason why the UN Study has recommended that States should develop and implement a strategy for progressive deinstitutionalization which includes significant investments in family and community-based support and services. States should prioritise the closure of large-scale institutions and avoid the creation of new ones. Plenty of relevance in that .

    

Conference Calls

As an unusual Party Conference season draws to a close, what have we learned about where the parties stand on criminal justice and in particular sentencing?

The Lib Dems confirmed their commitment to reduce the prison population not only by pledging a presumption against prison sentences of less than 12 months, but cutting numbers remanded and recalled to custody; ending imprisonment for drug possession and repealing mandatory sentences for possession of knives and corrosive substances. So far so good, although their proposal for weekend and evening custody looks impractical as it is unnecessary.

Labour’s offer on short jail terms is more modest -a presumption to end ineffective "super-short sentences" of six months or less for non-violent and non-sexual offences. Much more ambitious is their pledge not only to end future prison privatisation but to bring existing PFI prisons back in-house- although Jack Straw’s similar promise prior to 1997 foundered on Gordon Brown’s spending cap. Labour plans to fund diversion for women properly looks more doable.

As for the Conservatives, only three months ago Robert Buckland told the Justice Committee that he believed “the British public are with us on this; they do not want to see their taxpayer resources wasted on short-term prison sentences that do not reduce victims of crime. They want to see their taxpayer money used on effective solutions”. This was not a belief the Justice Secretary chose to test with his Manchester audience however, instead telling the Daily Mail that David Gauke’s plans to scrap short jail terms have been, like Gauke, ruled out.

 Buckland used his speech to decry automatic release at the half way point of prisoners on determinate sentences as “madness”, blaming Labour’s 2003 Criminal Justice reforms. In boasting of the “great strides in criminal justice in the past nine years of Conservative Government”, he did not explain why the full review of sentencing policy carried out when the Tories took office in 2010 left the “madness” undiagnosed let alone treated.  

In fact, the 2010 Breaking the Cycle Review maintained “the basic structure of the determinate custodial sentence, because it can enable effective resettlement and public protection”. The 2010 review found that “surveys have shown that the public tend to understand the logic of the licence period once it is explained and promised steps to ensure it is better understood and explained”. Now, according to new Justice Minister Chris Philp “the public expect someone who is sentenced to serve the majority of their sentence. Releasing them at the halfway point undermines public confidence in the sentence that is handed down”. By describing the sentence in this way- as if it's only the custodial part that counts, Philp's doing just that.   

Courts have been given powers to require certain serious and violent offenders to spend more than half their sentence in prison and a longer period of supervision on release. It is these extended sentences which it seems will become applicable more widely and perhaps mandatory.  Where does that leave the need identified in Breaking the Cycle to simplify the sentencing framework and reduce elements of the law that constrain judicial discretion?

We’ d find out the reasons for the change in emphasis if the latest Review, on which these proposals are allegedly based is published. We’d see the survey evidence too about the change in public attitudes. We might also learn what plans are in store for toughening up community penalties beyond the roll out of sobriety tags announced this week. I, and many others no doubt, have asked to see the Review. But it’s now being described as  "internal," so unlikely to emerge.

What’s really needed is not Buckland's dystopian vision where "only criminals who earn their liberty should have it"; but what the Lib Dems have proposed – “a full review of sentencing with the aim of reducing excessively long sentences.” In Nietzsche’s words “Beware of all those in whom the urge to punish is strong”.

Swift but not yet Certain. New Government Policy on Prison.

There was some relief yesterday when the new Prime Minister placed the Justice brief in the experienced and relatively liberal hands of Robert Buckland. Yes, as Solicitor General he had appeared to relish appealing unduly lenient sentences, but his policy instincts are not necessarily punitive. As a back bencher, he spent a good deal of time on the Justice Committee and was a member of the Independent Parliamentarians’ Inquiry into the Youth Court which backed a more problem-solving approach to children who offend.

More importantly perhaps, Buckland's admittedly brief ministerial exposure to the prison and probation services will have alerted him to their current fragility- forcefully confirmed in the case of prisons by the latest set of performance ratings in which a record 14% establishments are of serious concern. Buckland’s predecessor as Justice Secretary was perhaps suffering a touch of gate fever himself when he informed the Justice Committee nine days ago that that he felt “we have made good progress in addressing some of the challenges that prisons face right now - on safety, security, decency, and the estate in general”. That assessment rather flies in the face of the evidence. 

Today as expected, PM Johnson told MPs that he had “tasked officials to draw up proposals to ensure that in future those found guilty of the most serious sexual and violent offences are required to serve a custodial sentence that truly reflects the severity of their offence and policy measures that will see a reduction in the number of prolific offenders”. Whatever else they might achieve, these priorities for government will almost certainly place yet more pressure on the prison service. So too of course will pumping funds into the police.

Average sentence lengths for sexual and violent offences have risen sharply since 2010- from 49 to 61 months for sex and 20.8 to 23.5 months for violence. England and Wales have more life sentence prisoners than the rest of Europe, with average tariffs almost twice as high as they were in 2003. So, what’s Johnson's thinking?

Tories have long been uncomfortable with automatic release of most determinate sentenced offenders at the half way point. Back in 2008 they pledged to “introduce honesty in sentencing so courts set a minimum and a maximum period, with no possibility of parole until the minimum has been served." Grayling and Gove mulled an earned release system. Maybe we are in for one or both of these options. Expect too, further extensions to the scope of the unduly lenient sentence scheme. 

Johnson will be alive to the electoral appeal of these kind of changes. His views may also have been shaped by his partner Carrie Symond's awful experience- as a 19 year old-  as one of the many victims of John Worboys. She certainly felt that “the justice system and the Parole Board let us down", helping to fund raise for the Judicial Review of the latter's decision that Worboys should be freed.  Can we expect further reform of the Board? 

On prolific offenders, the 2015 Tory manifesto promised “a new semi-custodial sentence …allowing for a short, sharp spell in custody to change behaviour”. Briefings afterwards revealed that so called flash incarceration will mean “persistent vandals, shoplifters and drug addicts will spend two nights in a police cell under Conservative plans”. Despite it's impracticality , is this "swift and certain punishment" back on the cards? Or can we hope for something more measured building on the public health approach?

Think tanks Policy Exchange and the Centre for Social Justice are each likely to claim the role of midwives for any policy of “swift and certain" with Crest Advisory currently working on proposals. The first two as least have extolled the virtues of Hope Probation, a tough love programme piloted in Hawaii which involves probation supervision accompanied by frequent drug testing. Failures lead to immediate but short terms of detention. Research has found impressive outcomes in terms of reduced drug use and jail time.  Because of its success, the short terms of detention imposed on programme failures require fewer prison beds in Hawaii than do the longer sentences served by those who fail normal probation supervision.  

Despite the research, I have been a bit sceptical about the wisdom of importing the approach in the UK. Some observers at least, while acknowledging the impact that Hope has had in Hawaii, question whether that is enough to justify its “correctional popularity”. Frank Cullen and colleagues at the University of Cincinnati point to “uncritical acceptance and importation of the programme to the U.S. mainland” and argue that several uncertainties about the programme may potentially compromise its effectiveness in other jurisdictions, thus offering false hope as a new paradigm.

Whatever happens it’s hard to see David Gauke’s consultation paper on limiting short prison sentences seeing the light of day. In a worst case, we'll see more short sentences for petty prolific offenders and more long ones for serious offences. Let's hope Buckland can find a way to prevent that outcome. 

Short Changed ?

Soon to be ex Justice Secretary David Gauke rightly told us in a farewell speech last week that a short spell in prison doesn’t protect the public, doesn’t serve as much of a deterrent and exacerbates those already deep-rooted difficulties an individual faces. Sadly, his own 18-month spell as Justice Secretary hasn’t proved long enough for him to do much about the problem. He should really have started tackling the issue much sooner. He seems to have listened to his deputy’s Rory Stewart’s foolish view that there had been too much talk “about grand issues of sentencing policy, reoffending and the policy context.” In reality there hasn’t been enough.

David Gauke has done what he can to encourage his successor to take forward his progressive reforms to sentencing. He’s bequeathed them a Single Departmental Plan for the MoJ that aims to protect the public from harm caused by offenders through building confidence in an effective probation system, reducing the use of prison and increasing the use of community and alternative sentences. And he’s got his department to produce a sheaf of research showing an £18 billion cost of reoffending, very high level of needs experienced by people who commit crime and the fact that sentencing them to short term custody- even with supervision after release- is associated with higher proven reoffending than if they'd instead got community or suspended sentence orders.  But will all this be enough to keep a policy of reducing prison numbers in place?

A somewhat different view has been put forward by new Tory think tank Onward who argue that a greater number of persistent offenders should go to prison for longer periods.  Disappointingly, on penal policy, Onward's “new ideas for the next generation" turn out to be Michael Howard's Prison Works vision from the last one. Onward seem to want “three strikes and you’re out” mandatory minimum prison terms, arguing that “super prolific offenders” account for more crime and get fewer prison terms than in the past. They also want more prisons to be built. (Their Director Will Tanner used to work for G4S).

The statistics Onward deploy seem arguable. With fewer crimes being cleared up, it’s not surprising if “the usual suspects” loom larger in the population of those who are brought to justice. It would also be odd if the calamitous decline in prison performance and debacle of probation privatisation have not had negative impacts on the unfortunate people who have experienced them as service users.

Dealing with petty persistent offenders raises some fundamental questions of sentencing philosophy in particular about the weight that should be attached by courts to previous convictions. On one view, anything but a very limited weight can amount to a kind of double- or more-  jeopardy in which you can end up being punished in perpetuity for past misdeeds.  

The short-lived 1991 Criminal Justice Act controversially provided that an offence should not be regarded as more serious because of any previous convictions of the offender or any failure of his to respond to previous sentences.

On another view, repeat offenders deserve to be dealt with more harshly, because spurning a chance to go straight and continuing to flout authority make bad behaviour worse and elevate the need to protect the public above concerns about reform and rehabilitation. For the last 25 years, courts have been required to find recidivist offenders more culpable; and many of those who end up getting short prison sentences are likely to have simply exhausted the patience of the magistrates and judges.

Whatever Onward might think about the feebleness of the courts, the fact remains that since 2010 for the more serious types of cases , the proportion of offenders going to prison has gone up along with the length of their sentences. They are right to call for a review of Sentencing Guidelines, but if the Sentencing Council were to do its job and properly have regard to the cost of different sentences and to their relative effectiveness in preventing re-offending, the conclusions would be very different from Onward’s dismal prescription.

Unfortunately, evidence may struggle to prevail in the forthcoming government. Back in 2011, several up and coming Tories argued the need to reverse the tide of soft justice, “not ashamed to say that prisons should be tough unpleasant and uncomfortable places”. Liz Truss, Dominic Raab, Priti Patel and others who now expect jobs from Johnson, argued that what was to become Gauke’s policy of a presumption against short prison sentences is the wrong approach and that we should be doing exactly the opposite- ensuring that persistent offenders are imprisoned for longer periods. “When the law is broken, our condemnation should be unequivocal. The primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals.”

Such a forlorn view may bring an end to short prison sentences – but only by replacing them with longer ones.
   

Don't Look Back in Anger

Back in the early 1990’s, in one of the more disreputable periods in my career, I worked in the Home Office helping to design the new Secure Training Centres. I remember accompanying a senior mandarin to Northern Ireland to look at their Training schools.

At St Patrick’s, run by the De La Salle Brothers we were offered a glass of sherry -it was about 10.am. We watched the boys running – and in some cases hobbling- around the yard -as Brother Francis struggled to explain the legal basis of their detention and showed us bare dormitories and boxing trophies. We moved on to Rathgael, the Protestant School – run by imposing and large sharp-suited men but seemingly a bit more modern in its approach. Lisnevin – a mixed but miserable Borstal establishment down the coast completed our tour.

If its purpose was to provide inspiration, the trip was a failure. In fact, I’d worked out the main aim was to enable my colleague- who’d done time in the Northern Ireland Office- to attend a Burns supper at Hillsborough Castle hosted by Sir Patrick Mayhew.

Whether religion should play a role in secure establishments for children has become a hot topic in England and Wales with the announcement that the Oasis Charitable Trust will operate the first Secure School – on the site of the first STC at Medway in Kent. Oasis , established by the Reverend Steve Chalke runs more than 50 academy schools and a range of other social provision. According to its website, Oasis UK is inspired and motivated by the life, teaching and example of Jesus.  Chalke has said of running the secure school  “Youth jail detention centres don't work. This is a great opportunity for us to show that a Christian ethic, a Christ-centred ethic produces a different result”.

Christianity has long been involved in prison reform of course- the penitentiary after all was a Quaker invention. And whatever the religious motivations of Oasis, the organisation’s values include a desire to treat everyone equally, respecting differences. Presumably that’s a requirement for running their academies. But secure units are not schools. 

The UN Standard Minimum Rules for the Treatment of Prisoners, the  Nelson Mandela Rules say that “if any prisoner should object to a visit of any religious representative, his or her attitude shall be fully respected”. The UN Rules for the Protection of Juveniles Deprived of their Liberty give every juvenile the right freely to decline religious education, counselling or indoctrination. The Council of Europe's Rules say juveniles may not be compelled to practise a religion, follow a belief, attend religious services  or meetings, take part in religious practices or to accept a visit from a representative of any religion or belief. 

 The Secure School’s residents will probably not have any choice about whether they go there.  Last year, one in eight (13%) children in STCs  identified as Muslim - almost a quarter of those in Young Offender Institutions.

The experience of running academies hasn’t been without problems. Back in 2008, in one of them, “around 150 teenagers caused hundreds of pounds of damage after running through the corridors armed with bits of wood, smashing windows and trying to rip plasma television sets off walls”. Much more recently, in 2015 Ofsted criticised the  'limited leadership' in the Oasis academy chain, finding that disadvantaged pupils,particularly boys, make significantly less progress than their peers nationally.  The challenges of running a closed facility will be immeasurably greater than running a school.

It would not, however, be right to pre judge the organisation. We will apparently get to see the plans for the school in September though why the Ministry of Justice don't publish them now is a mystery. But I’m not sure that putting redemption at the heart of youth custodial system will produce any better outcomes than previous noble sentiments.

Why not ? Because the fundamental flaws inherent in bringing together troubled young people in closed institutions almost always outweigh the positive intentions of those that run them. Almost a quarter of allegations of sexual abuse in custodial institutions reported by the Independent Investigation were from secure children’s homes- generally agreed to provide the best type of child custody.

In its existing work, Oasis boasts an integrated ‘Community hub' model, which seeks to create a new sense of neighbourhood in communities that had previously been forgotten by society so that everyone, regardless of their background and starting point, can join together to overcome life’s hurdles. I’d be more comfortable if the organisation was extending this approach to deal with children in conflict with the law without depriving them of their liberty.