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.       

The Invisible Transformation

Back in January 2013, then Justice Secretary Chris Grayling was admirably clear about what he expected his “revolution in the way we manage offenders to achieve”. "My vision is very simple", he wrote . "When someone leaves prison, I want them already to have a mentor in place. I want them to be met at the prison gate, to have a place to live sorted out, to have a package of support set up, be it training or drug treatment or an employability course. I also want them to have someone they can turn to as a wise friend as they turn their lives around”. The private Community Rehabilitation Companies which were contracted to provide 70% of probation work were supposed to implement this simple vision.

Three and a half years on, the National Audit Office today reported on how Transforming Rehabilitation has  been going. It includes this gobbledygook.

“Through the Gate’ resettlement services began on 1 May 2015; there have, however, been some initial problems associated with the ambitious delivery timescales. For example, some providers encountered challenges in accessing prisons and mobilising their resettlement suppliers. NOMS’ assurance checks found that providers initially focused too much on whether offenders complete the process, which is one of the CRC service levels, rather than the quality of their resettlement plans. NOMS has worked with CRCs to clarify what more they must do for offenders beyond simply completing an offender’s resettlement plans within a five-day period (20 of the 21 CRCs were meeting this target in December 2015) and signposting them to services”.

If you have trouble understanding what that means, you can find an illustration in the Prison Inspectorate’s report on HMP Lewes published earlier this week. They reported that 30% of prisoners were released homeless.Their survey of prisoners  (carried out at the end of last year) found that a much lower proportion  knew anyone in the prison who could help them on release than in 2012- whether with problems relating to accommodation, employment, finance, education or drugs.Somehow however the Inspectors reached the conclusion that “CRC arrangements had developed well”.

In similar vein the NAO flies in the face of their evidence by highlighting the successful restructuring of the probation landscape “within ministerial timescales and without major disruption to services”.  The report makes much of the fact that more than three-quarters (77%) of service users said they had not noticed any change in the overall service they personally received. In fact more felt that the overall level of support and help with housing and accommodation had got worse rather than better. 

But isn’t it a strange revolution when most of the people its designed to influence don’t notice any difference? 

Eating an Elephant: How to reduce the prison population

Last week I heard a senior figure from the Ministry of Justice quizzed about whether the government’s ambitious prison reform plans were possible without a reduction in the numbers of prisoners. He said that while the aim over time was to bring about a fall in the prison population via improved rehabilitation, an overt policy of reducing numbers could alienate the press and public and put the reform strategy at risk. Besides he went on, while the size of the prison population might be the elephant in the room, the only way to eat an elephant is in bite size chunks.

What might be the items on the prison reduction menu if the government did want to adopt a more direct strategy to reverse the rising population?

There has of course been  remarkable (but largely unremarked) progress in cutting the number of under 18’s in custody over the last few years. At the end of February, there were 877 under 18’s behind bars, almost two thousand fewer than ten years ago. The roughly 4,700 18-20 year olds in prison at the turn of the year represents a decline too, of 40% in five years. The forthcoming Justice Committee report could prompt measures to extend the progress yet further up the young adult age range.

Earlier in the year, the Prime Minister accepted that there’s a strong case for the severely mentally ill, and women with small children, “to be dealt within a different way” so we can perhaps look forward to some concrete proposals on what this might entail. This week’s inspection of HMP Lewes, found that the needs of “the large number of disabled and older prisoners” were not being met- the oldest prisoner was 91. The development of a more imaginative way of accommodating such vulnerable people outside the closed prison estate looks long overdue. The Government, will no doubt continue to seek to eat into the number of foreign national prisoners by transferring them, one way or another to their countries of origin. It’s possible too that they will act to address the scandal of post tariff IPP cases.

Each of these initiatives would all help to reduce the pressure on the prisons, but if the Government is serious about achieving its aim “to lead the world with new rehabilitation techniques and smarter ways of managing prisoners”, something much bolder is required in the way of sentencing reform. Ministers seem to be talking up the way that proposed Problem Solving Courts could reduce the use of prison; but threatening swift  and certain spells of detention to encourage compliance with community supervision could well backfire.

Prisons minister Andrew Selous told the Justice Committee yesterday that the Ministry would be reviewing sentencing this year but responsibility for this has been given to Dominic Raab- a hawkish voice who seems to favour extended spells in custody for persistent offenders.

A better approach might be to invite the Sentencing Council to review the going rate for particular offences and make recommendations for scaling down across the piece. The Council has so far proved something of a disappointment, nowadays seeing its role as simply endorsing existing sentencing practice rather than influencing it. But it is the obvious body to help produce a better match between the demand for prison places and their supply.

There is an African proverb that you never finish eating the meat of an elephant. But a wholesale review of sentencing could get a lot further than toying with  a few bite size chunks. 

A Tale of Two Murders

When two boys were convicted of the horrific murder of James Bulger in November 1993, I was working in the Home Office on secondment from NACRO. My job in the Criminal Policy Department was to advise Ministers about juvenile justice and so it was I found myself among a group of officials in Michael Howard’s office watching the news emerging from Preston Crown Court.

I remember two things about the occasion. First, how abruptly Howard dealt with a call put through from Health Secretary Virginia Bottomley, who was considering putting out some sort of statement about the case. In those days there was a long running turf war between the Home Office and DoH about responsibility for children in trouble, but Howard left his Cabinet colleague in no doubt that if any statement were to be made, it would be by him.

Second, when it became clear that the boys would be locked up for many years- the judge initially recommended eight, later raised to ten by the Lord Chief Justice- child care expert Spencer Millham told a TV interviewer that above all, what these boys would need was therapy. Howard turned round and asked us briskly “will they get therapy?  We assured him that certainly while the boys were being held in local authority secure units a therapeutic approach would be taken to their care.

There are of course some echoes of the case in this week’s conviction and sentencing of two young girls for the highly distressing murder of Angela Wrightson. While unlike James Bulger’s killers, the girls’ anonymity has been preserved – although for how long is not entirely clear - their minimum custodial periods they will serve are much higher. 15 years was in fact the period that Michael Howard sought to impose in the Bulger case before having his role in tariff setting ruled unlawful by the House of Lords (and his specific intervention in the case described by a former Master of the Rolls as “institutionalised vengeance”).

The judge’s sentencing remarks in the Wrightson case are carefully reasoned, although his assertion that the minimum term “cannot be reduced or cut down in any way”does not seem to allow for the power- which I understood exists – for the Secretary of State to release life sentence prisoners on compassionate grounds if exceptional circumstances justify it. But the 15 year tariff- greater than the age of each of the girls – begs the question about whether the law complies with the UN Convention on the Rights of the Child which states that the imprisonment of a child shall be used “only as a measure of last resort and for the shortest appropriate period of time”.  The 12 year starting point for consideration of a minimum term for anyone under 18 convicted of murder is surely too rigid to meet the second of these requirements.

The two girls will spend the first three or four years receiving the kind of therapeutic care and education that they certainly need. But as things stand at 18 they will be moved not even to a specialist Young Offender Institution but an adult prison where – as I reported in a recent research study- many women suffer from a toxic mix of fear and boredom.

In 2000,  Lord Woolf reviewed the  minimum sentence for the pair in the Bulger case , recommending their  tariff be reduced back to  eight years, in part because the positive impact of treatment in the secure units could risk being undone in the  "corrosive atmosphere" of  prison. Much the same argument could be made again. There is a case at the least for changing the law so that any progress the girls have made is considered before they are moved into adult prison. Of course if they still represent a danger at that point they should continue to be detained. But what if not?

Many people will feel that the prospect of release after such a period could not properly reflect the terrible wrong that has been done in the taking of a life. But at the very least there is a debate to be had about the proper approach to these kind of highly disturbing and thankfully rare cases. Perhaps the Charlie Taylor review can ask if the diluted version of the adult system which we have in England and Wales is the best way we can provide justice for such highly damaged children as well as those to whom they cause harm.    

Let a hundred flowers bloom, let a hundred schools of thought contend.

Today’s Guardian (4 April 2016) reports that the review of prison education undertaken by Dame Sally Coates will recommend  a scheme along the lines of the Teach First programme, “whereby graduates spend two years working as prison officers before going off to pursue other careers”.  They won’t, it seems, be teachers based with the Prisons’ Learning and Skills providers, but “educational helpers” working on the wings.

Back in February’s prison reform speech, Prime Minister David Cameron expressed his wish too that the best and brightest graduates should want to work in prison but to teach prisoners, “even if it’s just for a short period in their career”. He announced that he had asked the chief executive of Teach First, to advise on setting up a new social enterprise to be chaired by David Laws that will work to develop a similar scheme for prisons. Has this evolved into the programme that the Guardian reports on today or are there to be two initiatives for prison officers and for teachers? All will presumably be revealed when the Coates report is published later this month but the lack of clarity is symptomatic of a broader uncertainty about if, and how, many of the Government’s prison reform proposals will actually work in practice.

Maybe at this stage it doesn’t matter. Perhaps we should just be grateful for the much more constructive approach being taken to prison policy and in Nick Hardwick’s words “seize the day”. “It would be a terrible error” he said in his inaugural professorial lecture a few weeks ago “to stand aside, carping, for fear of disappointment.”  But we veterans of prison reform cannot escape asking the hard questions about the details of well-intentioned reform plans. The 1990’s saw many of Lord Woolf’s post Strangeways reforms quickly derailed and it did not take long in the 2000’s for the National Offender Management Service (NOMS) to turn into the Nightmare on Marsham Street.   One of the best informed commentators on penal affairs Alex Cavendish greeted the Guardian report on the Coates Review as a “mix of interesting ideas and pie in the sky fantasy”. Without proper precision, scrutiny and debate, energy and resources could well be wasted pursuing the latter at the expense of the former. Continuing reports of grave problems in all kinds  of prisons  show the urgency of getting reform right.

Uncertainty too surrounds Charlie Taylor’s review of Youth Justice whose interim findings were published in February, looking every bit a rush job to fit with the Prime Minister’s speech. They comprised barely 11 pages “outlining a vision for a different approach to detaining young people”. At the time, I expressed real doubts about whether Taylor’s Secure Schools will come to fruition any more than the Secure College which was abandoned last year.

One reason for the scepticism is the lack of proper process in the review itself. Taylor has not as far as I am aware invited submissions to his review or even responses to his February paper.  His original terms of reference,announced to parliament, made it clear that “the review will not consider the age of criminal responsibility, the way young people are dealt with in the criminal courts or the youth sentencing framework”.   The emerging findings were accompanied by a MOJ press release explaining that the remainder of the youth review would examine not the practicalities and costs of turning Taylor’s new vision of youth custody into reality but “the way young offenders are dealt with in court and the sentences available”- the very matters originally excluded from the review and which Taylor seems ill suited to consider. When Michael Gove appeared before the Justice Committee last month, the Chair asked if Taylor could further extend the scope of his review to include the young adult age group. “Absolutely, and I will ask him if he can do exactly that” Gove replied as if this were a minor tweak to the work rather than what would be – if it were done properly - the opening of a major new topic of inquiry.  

Coates's and Taylor's are not the only reviews underway in the MoJ looking at difficult and complex areas. Ian Acheson’s review of radicalisation has not been published presumably because of internal arguments about the desirability of concentrating convicted terrorist in one prison and fear perhaps that it may sit uneasily with David Lammy’s review of racial bias in criminal justice. A Problem-Solving Courts Working Group has been set up to advise on a new generation of pilot schemes, which while sounding progressive will be the vehicle through which the Government will look to implement the  controversial “ short, sharp spell in custody to change behaviour” they promised in their manifesto. While details are still being worked up about his Reform Prisons and plans for governor autonomy, Gove found himself telling the Justice Committee last month that a review of security categorisation in prisons is long overdue.

In David Laws book Coalition , David Cameron is quoted as telling Nick Clegg that “the thing that you've got to remember with Michael is that he is basically a bit of a Maoist - he believes that the world makes progress through a process of creative destruction!"' This may be a marked improvement on his predecessor (who lacked the creativity) but it still carries risks. While it is too early to make accusations of bad faith, the most serious are that the prison service is overwhelmed by crises before the reforms can be agreed let alone put into place; or that as with Mao’s hundred flowers campaign, liberalisation is abruptly followed by a crackdown.