Punishment in Portugal

 

 “I do harm to people”. That’s how a Portuguese judge responds when asked what he does for a living, or so he told a meeting on alternatives to prison this week in the beautiful university city of Coimbra. But surely, only for the good of society, his surprised questioners tend to follow up. To which he replies “Sometimes, but sometimes not”.

Punishing people should leave you “with a heavy heart and burnt hands,” he told us. While some of his colleagues on the bench are unlikely to share this wisdom (or his way with words), the judge’s comments typify a long-standing humanistic approach in Portuguese criminal justice - the country was the first to abolish both the death penalty in 1867 and the sentence of life imprisonment not long after.

More recently, it has led the way on drug decriminalisation and enacted emergency powers to release 2,000 people from prison during the 2020 Covid wave- almost a sixth of the total. No prisoners died from the disease and there was apparently relatively little re-offending by those freed early.

Some have argued that this makes the case for seeking to reduce prison numbers permanently. The judge was certainly in favour of lowering punishment levels and making community service much more central to sentencing so that prison numbers are more in keeping with Portugal’s fourth place ranking in the 2021 Global Peace Index. He questioned whether non-custodial penalties should continue to be anchored so heavily to prison in the law. Most of those serving them are subject to jail terms which have been replaced or suspended in one way or another.

The three-day training event for judges, lawyers and probation officers, organised by the University and Penal Reform International forms part of an  EU funded project Promoting non-discriminatory alternatives to imprisonment across Europe (PRIAltEur). Other activities include a comparative study of penal practice in EU member states – (cue wry smiles in my direction during the presentation when participants were reminded that the UK is not included).  

A pilot scheme to improve access to psychiatric services for people on probation is also being developed in the ambit of PRIAltEur. Portugal’s national coordinator for mental health is enthusiastic about including people in conflict with the law in his ambitious plans to transform the service. 

Several contributors seem rather proud of Portugal’s penal law and policy, while being the first to acknowledge that implementation on the ground can be another story. The Council of Europe’s torture watchdog has roundly criticised overcrowding and very poor conditions in the country’s ageing local prisons, though welcomed some progress when they visited in 2019.  They will be back later this year.   

As for wider society, UN bodies have been concerned about racism both towards Roma and people of African descent. Meaningful discussions at the meeting about racial disparities in criminal justice were prevented by a total absence of information. The Constitution prohibits the collection of data that are disaggregated by race or ethnicity. The UN’s Human Rights Committee worry this hampers the ability to further combat discrimination.      

On community penalties at least, probation is embracing a balanced package comprising structured treatment programmes, relationship based practice and new technology. But probation officers carry an average caseload of 70, and while the conference heard about some impressive work by established ngo O Companheiro, civil society involvement in penal matters is relatively limited.

Portugal has for now at least avoided a descent into populist politics which invariably brings a more hard-line approach to crime and sentencing in its wake. For how long?

Right wing nationalist party “Chega”, meaning “Enough”, won 12 seats in January’s parliamentary election, campaigning for life imprisonment and chemical castration. Its founder and leader Andre Ventura has criticised the Covid prisoner amnesty. Ironically, Ventura, is a former law professor, (though not at Coimbra) , whose doctoral thesis criticised penal populism and the stigmatisation of minorities.   

The judge at our conference told us that he and his judicial colleagues should “run away from prison sentences as the devil runs from the cross.” As we well know, politicians, or many of them, choose to run in the very opposite direction.   

 

Will Market Harborough become the UK's Prison Capital?

 

The policy of creating 20,000 new prison places has been subject to precious little public debate at national level, with seemingly broad political agreement that they're necessary. There’s more scrutiny at local level thanks to the need to obtain planning permission for any new or expanded prison establishments

Last week the Ministry of Justice (MoJ)  published a revised prospectus about their proposed 1715 place  Category B prison next to HMP Gartree in Leicestershire.  It aims to address concerns raised in the 350 comments received by Harborough District Council following the MoJ’s application for outline planning permission. Of these 346 objected to the plans, three were neutral and only one supportive.

For many, “the fundamental problem is that the proposed development would be absurdly out of scale with the small rural communities surrounding the site” with increased pressure on country roads, more noise, light and air pollution, and a negative impact on wildlife.  One argued that “the term "nimby" does not apply here - we ALREADY have a prison in our back yard!” but concerns about the impact on house prices, the reputation of the area as the prison capital of the UK and an increased demand on local services- particularly the NHS and the sewerage system seem widespread.  

One or two are worried about security - “the risks of riots and escapes inevitably increases the larger and more impersonal the establishments”; about visitors hanging around the town centre and even relatives of inmates moving into the area to be close by “which has led to increases in local crime placing an even greater burden on an already stretched police force”. Homelessness among released prisoners was also raised.

There are some more principled objections. One argues that prisons are a human right violation, a disgusting stain on our 'civilised' society and that we need abolition. Another that in order to address crime “there needs to be a massive re-distribution of wealth and resources, as poverty is a massive driver of "crime" under capitalism.

More practically, several residents questioned how 737 new staff will be found for the new prison. Gartree’s existing 700 place prison struggles to recruit and retain people to work there.  One said the plan “does not do anything for the government’s policy of levelling up as it brings more jobs to an area of already high employment as opposed to giving the opportunity to put those jobs where they are actually needed.”

Another resident pointed out that “those who support the current prison in the town, Chaplains and volunteers are in extremely short supply. People from the churches in town who support the prisoners by buying Christmas presents for their children, could in no way help another very large group of prisoners”. 

Several felt the government should be working much harder to reduce prison populations, and that money would be better spent on the more effective rehabilitation of offenders and not just locking more prisoners up; that “this is an outrageous use of funds which need to be invested in public health”; and that "further investment in meaningful jobs, social housing, education provision for adults and children, child care support, local libraries, transport infrastructure, improved community treatment and voluntary rehabilitation services would all serve the community much better than a prison".

The government’s new prospectus makes much of the social value and community benefits that will accrue from the prison and contains commitments to some small scale neighbourhood improvements – a new play space for Gartree Village on MoJ owned land and better broadband among them.

It understandably steers clear of the bigger policy questions on imprisonment, saying only that “Protecting the community and getting criminals off the streets whilst delivering real rehabilitation opportunities and reducing reoffending is at the core of the Government’s prison building programme”. 

Whether its mitigations on environmental impacts, measures to manage pressures on local services and promises to improve communication with local residents persuade the council to allow the development remains to be seen.

Concerning Recommendations

 

In a puzzling move, the Prison watchdog plans to stop making recommendations about what needs to be done to improve the treatment and conditions of detainees.  The inspectorate (HMIP) is consulting about it can best fulfil its twin functions of drawing public attention to problems in custody and supporting efforts to fix them.  Chief Inspector Charlie Taylor explained in a blog that responding to recommendations creates “a blizzard of paperwork for both the prison and the prison service and can distract governors from getting on with the actual job”. Instead, after a visit he wants to highlight concerns but leave it to  governors and their teams to use their knowledge and expertise to find the solutions.

Making recommendations is a core activity for oversight bodies. Globally, The Nelson Mandela Rules say prison inspectors shall have the authority “to make recommendations to the prison administration and other competent authorities” and that the prison administration shall indicate, within a reasonable time, whether they will implement the recommendations. International law says a so-called National Preventive Mechanism (NPM) should have the power “to make recommendations to the relevant authorities with the aim of improving the treatment and the conditions of the persons deprived of their liberty. HMIP coordinates the UK’s 21 NPM members.

As recently as 2016, government plans envisaged that “HMIP should play a stronger role in holding prisons to account, so that the recommendations it makes have a real impact on improving the system, while retaining its independence”. Strengthening the scrutiny that prisons receive was intended to play a key role in making prisons safer and more effective at reforming offenders.

In 2019, the House of Commons Justice Committee report on Prison Governance found it unacceptable that for three years running less than half of recommendations made by the Inspectorate had been fully achieved. The MPs prescription was not for HMIP to stop making recommendations but for the Ministry of Justice (MoJ) and Prison Service to take responsibility for implementing them and provide additional support to governors to make changes that get to the heart of what the Inspectorate is recommending.

In their response to the Committee’s report , the MoJ promised to provide more support to prisons and to make progress against HMIP recommendations a formal performance measure that governors are held to account on. As prisons emerge from the pandemic, the MoJ should be encouraged to make good on that promise.  Taylor’s plan threatens to let them off the hook.

While Taylor may be right that prisons can suffer from what used to be called “initiative overload”, specifying a small number of recommendations as high priority is the way to ensure the most important changes are given the attention they need.  Making no recommendations throws the baby out with the bathwater.

There are plenty of other improvements to its methodology that HMIP could make.

For one thing, its reports should include much more comprehensive and systematic data about outcomes across its four healthy prison domains. Last week’s report on Swaleside recommended the recruitment of sufficient operational and specialist staff to reinstate purposeful activity and support prisoners’ progression. Why not say how many there are and how many are needed? The Probation Inspectorate has found that when practitioners hold a caseload of fifty or more, they are less likely to deliver high-quality work meeting the aims of rehabilitation and public protection. Shouldn’t prison inspectors say something similar?

Second, as the Commons Health and Social Care Committee recommended in 2018, greater prominence should be given to Care Quality Commission  judgements in HMIP reports with a clear rating about the extent to which prisons enable prisoners to live healthy lives.   

Finally, the inspectorate could be bolder. This week Scotland’s Chief Inspector of Prisons proposed that no child under 18 should be held in prison.  Submitting proposals and observations concerning existing or draft legislation is one of the minimum powers which a NPM should have. Using its evidence to press for change in law and policy is something HMIP should do more of, alongside making recommendations for changes in practice.

Where are Labour going on Crime and Punishment?

 

There are many reasons Keir Starmer’s Labour Party might provide better government than the current administration but hoping for a new approach to crime and punishment may not be one of them.

New Shadow Home Secretary Yvette Cooper and Justice Secretary Steve Reed are promising to put crime top of the May election agenda, not only to exploit the PM’s personal imbroglio with the police but to outflank the Conservatives’ law and order credentials. Angela Rayner's call to “shoot your terrorists and ask questions second" might give her former human rights lawyer leader pause for thought, but her hard-line approach to burglars probably won't.

Just as Tony Blair and Jack Straw did thirty years ago, Starmer’s team are seeking to ditch any notion that they care more about criminals than victims, reviving the New Labour commitment to be “tough on crime, tough on the causes of crime” and floating harsh sounding but often unworkable gimmicks- in Reed’s case a “naming and shaming’ scheme for people convicted of buying drugs; in Rayner's, beating down the doors of criminals at 3 in the morning to annoy the hell out of them. 

In the short term, Labour’s repositioning brings with it a real risk of another penal arms race; early skirmishes include the Justice Secretary apparently now personally authorising (or not) moves of prisoners to open conditions; and the plan to increase magistrates' sentencing powers.  While the Johnson government has already put measures in train which could push the prison population to 98,500 over the next four years, Opposition pressure could fan the flames of penal populism yet further, leading to the creation of more offences, increased maximum penalties and more austere prison conditions. The tone for any administration Starmer might form in the future would have been set. It would not be a surprise if the post war trend continued of prison populations rising faster during periods of Labour government than Conservative.  The Blair-Brown years saw a 40% rise from 61,000 to 85,000.

Any more growth in imprisonment would be a financial, social and moral calamity – and an unnecessary one.  Ipsos Mori’s monthly tracker poll shows people don’t currently rate crime among the top ten important issues facing Britain today. Its salience is at near record low levels. Could this be a window of opportunity for de-escalating the war on crime? 

Where Labour could learn something from Blair’s approach is not in terms of his rhetoric but his efforts to create a better reality on the ground- improving clear up rates, reducing delays in processing cases, increasing opportunities for drug and mental health treatment, and creating institutional infrastructure to deliver it. It didn’t all work- too much coercion, too many targets with unintended consequences, not always enough local ownership and commitment.  And the need to spin everything as a success obscured learning about the complexities involved.

The big picture Cooper and Reed should be seeing is of an expanded range of measures beyond cops, courts, and corrections.  Promising approaches such as Restorative Justice and Justice Reinvestment need to be dusted off . Innovative Out of Court disposals should be encouraged as a preferred option to meaningless court processing. Sentencing guidelines need to promote effectiveness and limit the unproductive use of imprisonment. Mental health needs to be addressed much more thoroughly in prison and probation services. These are some of the elements from which Labour could fashion a much more diverse and positive agenda than the dismal offer of more punishment.

Will they do so? Reed told the Mirror that “if you over-focus on the things that have happened in people’s lives that lead them to offend, it can sound like you’re trying to excuse what they’ve done. We cannot because they’ve damaged someone else’s life.” Perhaps he should worry less about what things sound like and more about what works to prevent and resolve crime and the harms it entails. 

 

Another Year, Another Woeful Report on Youth Custody

 

Another year, another troubling report on a child prison. This time it’s Werrington, a small former Industrial School near Stoke which takes teenage boys mainly from the Midlands. The Independent Monitoring Board (IMB) explain in their Annual Report how last summer they considered the Young Offender Institution to be such an unsafe environment that they had to alert prison chiefs in London to their concerns.  

The watchdog found Werrington “often a dangerous place” with an atmosphere of threat and intimidation. 328 weapons were fashioned by young people in the year to August 2021. In February, a violent hostage-taking incident led to £50,000 worth of damage. The IMB were understandably dismayed to learn that a “conflict resolution team” had been disbanded in late 2020, leaving staff and young people without a route to solving problems. They also point to a worrying lack of trained negotiators.

Part of the explanation for the rising violence is the frustration caused by extended periods of 22-hour lock-up – something the Board consider amounts to prolonged solitary confinement of children (prohibited under international law).  The IMB see the disturbingly short time children were out of their rooms especially at weekends as a form of torture.

Due to construction works, some very emotionally distressed young people have been unable to access a unit providing a greater level of support and as a result “created chaos” on the normal wings. “Staff were sometimes seen mopping up flooded water with plastic bags over their shoes and trying to dispose of insanitary water”.

The Board report that for many young people, the rooms in which they spent so much time “were not fit for habitation.” Young people regularly requested that their family photographs (including themselves) be displayed, but this was not allowed due to security issues, a response which the IMB finds inhumane.

The IMB does not consider the educational provision adequate, in part due to lack of facilities but also because of the regular outbreaks of violence. Throughout his time at Werrington, one young person was unable to read and write so could not access the menu to order what he wanted to eat.

It’s not all terrible. The IMB point to good, professional care by the staff, the installation of phones in all boys' rooms for improved contact with family and friends and regular contact with healthcare, chaplaincy, and social work staff. And of course the pandemic lies behind some of the serious problems, restricting regimes and creating staff shortages

But what this report confirms is the fundamental unsuitability of the young offender institution as a model for dealing with children in custody- something which in truth has been known for decades and even accepted by the government for years. 

We still await the first secure school heralded as a new way forward; and for details of a promised expansion of places in secure childrens homes which have inexplicably been allowed to dwindle. The number of secure beds for children in the health service also fell between 2018 and 2021- from 257 to 188. This is hard to justify, not least in the light of last month's IMB report on another YOI, Wetherby, which, for the sixth year running, asked the Prisons Minister  "what is being done to increase the number of beds for those young people for whom prison is clearly not the right place?"  

Covid notwithstanding, the failure of youth custody to cope with a historically low population does not bode well for a future in which more children are projected to enter closed institutions.  

Spending watchdog the National Audit Office have started some work in this area  - their first foray into youth justice for over ten years.  It's a quarter of a century since a report by their now defunct sister organisation -the Audit Commission- published the influential report Misspent Youth . It paved the way for far reaching youth justice reforms. Could something similar be on the cards this year?     

 

Not a Great Year for Prison Reform

Prison reformers are nothing if not optimists, but 2021 won’t be remembered as a great year.

Dismal projections in November suggested prison numbers could reach 98,500 over the next four years. The Treasury confirmed funds to continue the biggest prison building programme in more than a century.  G4S will open HMP Five Wells for business in February although plans for two of the further six proposed new establishments, in Lancashire and Buckinghamshire, have aroused local opposition.

With a prison population rate already well in excess of our Western European neighbours (Scotland aside), surely £4 billion should be spent more productively than locking up more people for longer. Prison building seems increasingly justified on grounds of local economic development and even levelling up rather than penal effectiveness or crime reduction.

The new jails are unlikely to replace unsuitable old ones – indeed the Prison Service appear to have signed yet another new lease with the Duchy of Cornwall to keep HMP Dartmoor open 212 years after it was built to house French PoWs.

Conditions in many prisons remain poor or even unsafe. It will take at least seven years to install automatic cell fire detection across the estate.  The pains of imprisonment have been exacerbated of course by the restrictions caused by the pandemic, back in place at years end as they were at its start.  

Youth custody is in a mess following the closure of Rainsbrook Secure Training Centre and serious problems at Oakhill. The Medway Secure School, heralded five years ago as a brave new world is reportedly delayed yet again, possibly not opening until 2023. Efforts to better meet the developing needs of young adults have stalled.

Glimmers of hope may lie in an expanding and newly reunified probation service, notwithstanding Prime Ministerial nonsense about chain gangs. 2021 saw the launch of the first new Probation hostel for, extraordinarily, thirty years – a period which has seen 19 new prisons built.

A new generation of problem-solving courts could divert more people from custody and sensibly implemented new arrangements for Out of Court disposals could reduce prosecutions. These initiatives could help ensure that 23,000 new police do not inexorably bring about 20,000 more prisoners.  

A relatively small part of the projected increase in imprisonment will directly come about via the longer custodial terms for serious offenders contained in the Police, Crime Sentencing and Courts Bill which has been wending its way through parliament this year. Their impact could be greater if they have a knock-on effect on the length of terms imposed by courts for less serious crimes.

Stopping that happening will be a job for the Sentencing Council. Promisingly, it has decided to give overdue priority to considering evidence on the effectiveness of sentencing and enhancing ways to raise awareness of the relevant issues.  

Back in 2008, when in Opposition a Conservative Shadow Prisons Minister told MPs “the rise in the number of prisoners from 60,000 to 83,000 should not be a point of pride. It should be a point of shame.” He was right. Going up to almost 100,000 would be even more shameful.

So as we go into 2022, lets hang on to the thought that while a future with more and more prisoners is looking likely, it isn’t inevitable.

 

 

Old, New, Borrowed, Blue

 

As someone said about Russian novels, today’s Prisons Strategy White Paper is something of a loose baggy monster.  It contains the usual mix of broad assertions - “having an effective prison system is central to the Government’s mission to level up the country” and detailed info (594 staff, 154 drugs dogs and over 200 archway and handheld metal detectors are involved in enhanced gate security).

The strategy covers action over the next two years and a longer-term ten-year vision. Despite its range, there are some curious omissions: nothing on youth custody (something of a mess at the moment), and very little on countering violent extremism. Nor is there much I can see on tackling racial disparity. On the plus side, comments are invited by February on a set of questions. The Ministry of Justice seem happier to consult on how people are managed in custody than on how long they should stay there.

Reading through the White Paper provides a fair bit of déjà vu.

There’s yet another outing for prison league tables, proposed back in 2016 “to show which prisons are making real progress in getting offenders off drugs and developing the education and skills they need to get work”. And a further plan to empower governors, more than five years after PM David Cameron vowed to give them “unprecedented operational and financial autonomy” trusting them to get on and run their jail in the way they see fit. Will these old chestnuts come any closer to implementation than last time round? The plans seem a bit more granular than before – (yes, the strategy includes that ghastly term) - but no mention is made of why earlier efforts didn’t get off the ground.

There is something new in terms of ideas (or perhaps just labels) – Resettlement Passports which sensibly collate the documents prisoners need on release; a Prisoner Education Service to try yet again to breathe life into a poorly structured and long under performing part of the system; and an innovation task force to identify and pilot new ways of reducing violence and self-harm. There are promising suggestions of more IT access for prisoners and staff which is way overdue.

By contrast, an ambition of the purported new approach to women’s prisons, should surely not be to introduce “smaller, trauma responsive custodial environments for women on short sentences” but to develop the necessary measures in the community to keep these women out of prison altogether.

It’s encouraging that the strategy borrows from the women’s estate the idea of providing trauma informed training for staff in men’s prisons and a welcome acknowledgement of  the scale of neurodiversity.  It's still jarring to read that "around half the prison population have suffered a traumatic brain injury." 

Borrowing the idea of employment advisers and hubs in prisons could help make a difference to job prospects on release.

It’s less clear whether fast track adjudications – for which the strategy prays in aid the concept of procedural justice- will in fact be perceived as fair by prisoners who find “their case diverted straight to the punishment phase more quickly". It will also be worth watching closely how prisons apply the lessons of lockdown. It may be true that “mass unstructured social time can make some prisoners feel unsafe and can inhibit the ability of staff to manage risks of violence and bullying”. But this shouldn’t mean more time behind the cell door becoming a norm.

What’s blue? Depressing certainly is the £4 billion investment in 20,000 new prison places. Yes, six new prisons will serve to modernise the estate. But there is no mention of "new for old". These are additional to not replacements for a crumbling set of buildings, needed because of a policy choice to lock up more people for longer. 

Back in 2016, Cameron thought “politicians from all sides of the political spectrum are starting to realise the diminishing returns from ever higher levels of incarceration”. On that, sadly, he was wrong. Where he was right was to pose the question: "wouldn’t we be better to focus our scarce resources on preventing crime in the first place and by breaking the cycle of re-offending"? 

That’s not answered here, nor even properly asked.