Prison reform cannot succeed unless we reduce the number of prisoners

Despite last week’s riots in Birmingham Prison, I know that prison works.

I suspect that’s not a popular view amongst readers of this blog. Over the years I’ve tended to write rather sceptically about the value of long sentences, and – all things being equal – I’ve tried to advocate a generally non-punitive approach to sentencing, and if you’re reading this now I’d guess that you’re more likely to be comfortable with a liberal rather than a hard-as-nails penal policy. I don’t like to generalise, but my idea of most of my readers is that you probably think that prison is at best a necessary evil.

But in some cases prison really does work.

I am not mainly thinking about the sort of dangerous people who have to be locked up because if they weren’t they would kill you.

I am thinking about people like my client from a year or two ago – I’ll call him Danny, although that’s not his real name.

He was a twenty-one year old man remanded in Winchester Prison for arson being reckless as to endangering life. It is a very serious charge; it often results in a sentence of many years. His crime was a simple one. After a particularly depressing New Year’s Eve he had sprinkled petrol all round his flat before drinking a bottle of whisky, lying down in bed and throwing a match onto the floor. His only wish was to die. He very nearly succeeded but somehow the Fire Brigade rescued him before he and the other occupants of the building were engulfed by flames. He was remanded into custody. I met him a few days later, a sad figure shuffling and coughing into a stiflingly over-heated interview room at Winchester Prison. He still wanted to die.

Yet 3 months later he was changed almost beyond recognition. He had been suffering from an undiagnosed mental illness. For the first time in years he had had proper medical treatment and had been able to begin to train as a chef. He was ambitious and his girl-friend’s dad had offered him an apprenticeship in a professional kitchen. A judge took a chance, and he came out of gaol happier and more optimistic than he had been for years. I don’t know what happened to him, but I would guess that with his mental health problems under control he will have made a success of his life. Without prison, he probably would have been dead.

I can think of a teenage client (let’s call him Gary, and I’ve changed a few other details) who stabbed a complete stranger: he was fortunate to survive. His home life – actually he barely had a home – was a mess: drunken and fighting parents and drug-dealing brothers. Off Gary went to prison on remand, where it turned out he could neither read nor write nor calculate the simplest arithmetic. He was unemployable, except for the most menial manual labour. Seemingly his only chance in life was to become a hod-carrier, although it was far more likely that he would follow his brothers into drugs, destitution and probably an early death.

6 months later, he came in front of the Crown Court for sentence. He proudly brought with him a file of certificates awarded for learning to read and write. He had even brought a book with him to help him to pass the time in the court-room cells. Somehow, the young offenders’ education system had broken through the fatalism and apathy that characterises so many caught up in the justice system. He was set on a path that could conceivably lead him to a better life.

Unfortunately these success stories are very much the minority. Far more common are the clients who have gone to prison to vegetate; to sit for hour after interminable hour in a locked cell with an equally bitter cell-mate, or perhaps just a lidless toilet, for company. In such an environment cutting yourself with whatever bit of broken crockery or blunt cutlery comes to hand might seem an almost rational response. It is punishment, certainly, but in every other respect it is utterly pointless and counter-productive. Nobody, I’d guess, was ever reformed or helped by that sort of regime. After a year or two the typical ex-prisoner emerges into the outside world having lost what little they had, barred from most employment – what employer would take an ex-con if they had the choice? – and understandably further embittered against “the authorities.”

Deaths in Prison

And even these are the lucky ones. Far too many never come out of prison at all except in a coffin. So far in 2016 there have been 102 apparent suicides in prisons in England and Wales, the highest number ever recorded.

The number has been steadily rising since 2012 (although in fairness I suppose it should be pointed out that in terms of numbers of deaths per thousand prisoners the suicide rate is still a little below its all-time peak). There were also more murders and what the Ministry of Justice terms “non self-inflicted deaths” than in any year since at least 1990. Medical care for prisoners, though officially as good as that for non-prisoners, is in practice often appalling. Anyone wanting to know the reality about dying in prison should take a little time to read this bleak post by Alex Cavendish on his Prison UK blog (which should be essential reading for any politician involved with prisons).

Filthy, unhygienic, bleak and oppressive

Every week seems to bring a new report from the Prisons Inspectorate into some God-forsaken hell-hole of a prison, whether it is Pentonville:

“Many external areas were covered in extensive amounts of food and clothing debris, and communal areas on some wings were grubby. Far too many cells were dirty and covered in graffiti, with missing, broken or non-closing windows and insufficient and poor-quality furniture. Most cells were overcrowded and cramped. Not all prisoners were able to shower daily and showers were often filthy and unhygienic. Prisoners struggled to get a sufficient amount of clean clothing, bedding and cleaning materials.”

Or Winchester, a local nick

where I have spent longer than I care to remember, in which over a quarter of the inmates felt “unsafe,” and where the segregation unit

“… was bleak and oppressive, partly because of its location in the basement, with very limited natural light. There was no communal space and cells were dirty and poorly furnished, and some in-cell toilets were filthy. During the inspection, four of the seven cells were out of use due to extensive damage by prisoners. There were broken observation panels on most cell doors and there had been unacceptable delays in repairing these and the other damage…

The daily regime on the unit was poor, and included a telephone call, a shower, access to a stock of library books and a 30-minute period of solitary exercise. The cage-like exercise yard was dirty and grim.

Indeed so; the partially underground segregation unit is a bit like a dungeon

Dogs fed better than prisoners

Food in most prisons is unpalatable to say the least, and little wonder; the MoJ food budget per prisoner in 2015 (according to Freedom of Information reply FOI 96015) was £2.02 per prisoner per day. Its dogs are fed far better: in 2016 the annual budget for food for the Ministry’s 510 dogs was £688,000, equivalent to £3.69 per dog per day.¹ Admittedly the Department patrols some prison walls with a number of high maintenance Belgian Malinois, 

described by one authority as “A high-energy breed with a need for regular mental and physical stimulation … alert, smart and serious, an ideal watchdog and guard dog … he can be aloof with strangers and … can be domineering,” but much the same could be said for many prisoners who are expected to get by on less food and less mental and physical stimulation. Little wonder that unlike the dogs, such prisoners have trouble in remaining “alert, smart and serious.”

Unacceptably Violent Places

Little wonder too that the Chief Inspector of Prisons did not pull his punches in his 2016 annual report:

What I have seen is that despite the sterling efforts of many who work in the

Prison Service at all levels, there is a simple and unpalatable truth about far too many of our prisons. They have become unacceptably violent and dangerous places.

Nor did the Justice Select Committee pull its punches in its April report into safety in prisons, which noted “ongoing and significant deterioration in levels of safety.”

Last week’s riots at Birmingham need to be seen against this background. There are still exceptions, but our prisons are increasingly filthy, overcrowded and dangerous.

The Full Force of the Law

The immediate response to the Birmingham riots of Justice Minister Liz Truss, who is beginning to make her predecessor but one, Chris Grayling look sagacious and competent, was to retreat into an empty cliché. The rioters, she said, will “face the full force of the law.” Her considered response, delivered to the House of Commons today, took matters little further.

We shall see what that entails. When 11 inmates of High Down Prison were prosecuted for prison mutiny in 2014 the jury acquitted every single one after hearing that the riot was a protest against ever more austere conditions. The prosecution case had included evidence that the rioters wrote a note saying:

‘The reason for these capers is we are not getting enough food, exercise, showers or gym and we want to see the governor lively. … [We are] not getting any association and [we were] banged up like kippers’.

(Their demands for ending the protest had continued the oily-fish theme by requesting a supply of mackerel and dumplings).

Juries cannot always be relied upon to impose the full force of the law on prisoners who have what jurors perceive to be legitimate grounds for protest. Subsequent prosecutions of rioting prisoners have taken place and the authorities have taken a notably more cautious line. The death of an inmate’s hamster sparked a riot at HMP Stocken in which a prison landing was trashed causing £12,000 worth of damage. Although originally charged with Prison Mutiny, the perpetrators’ pleas to the lesser offences of affray and criminal damage were accepted. They were still given hefty sentences, but they avoided the “full-force” of the law.

White Paper Misses the Point

Last month the Government published a White Paper on Prison Safety and Reform. Surprisingly perhaps, it contains many sensible and even imaginative proposals. There is much to be said, for example, for giving Prison Governors more autonomy from the ghastly cold hand of central government bureacracy. Underneath a picture of herself looking serious and determined, Ms Truss says:

“We will never be able to address the issue of re-offending if we do not address the current level of violence and safety issues in our prisons. That is why I am determined to make prisons work.

This requires a huge cultural and structural change within our prisons – a transformation away from offender warehouses to disciplined and purposeful centres of reform where all prisoners get a second chance at leading a good life.”

It would be hard to quarrel with that and some of her plans are even summarised in a reassuring new organogram.

Ultimately, though, the White Paper misses the point. It avoids discussion of the main problem, which is that ever more people are being sent to prison for ever longer. England and Wales now imprison the highest number of people per head in Western Europe. Even if this were a desirable policy in itself (which it is not) the combination of rising prisoner numbers with cuts in funding and cuts in staffing means that it is virtually certain to fail. There are now 7,000 fewer staff than in 2010, despite a rise of 2,500 in the numbers of prisoners. The White Paper talks about the recruitment of an extra two and a half thousand officers by the end of 2018, but that hardly begins to address the scale of the problem.

The blunt fact is that there is not enough money to keep prisoners in decent conditions. Too many prisoners lie in unwashed underwear, shivering beneath the broken windows of their filthy cells, stirring themselves out of their torpor only to receive the occasional delivery from a psychoactive-substance-laden-drone, or perhaps to eject a package of shit into the exercise yard below. Unless the prison population is cut any proposed reforms will, at best, merely tinker with the problem.

The prison population has risen steadily since 1945. It has doubled since 1993.

Over the same period crime, as measured by the Crime Survey England and Wales (or its predecessor), has fallen. (Police figures which might suggest otherwise are, according to the Office for National Statistics, “not currently considered a reliable measure of trends in crime for most crime types.”

Lessons from Holland?

Could it be, then, that filling up our prisons has led to the fall in the crime rate? Whilst the subject is too complex for this post to addess in detail, that seems very unlikely. Over the last decade crime has fallen across the EU as a whole, and it has done so both in countries with relatively harsh penal policies like England and Wales, and in those with relatively liberal policies like Holland.

Indeed, such has been the decline in Dutch crime that the main prison problem in the Netherlands has become what to do with steadily emptying gaols. The Netherlands used to have one of the highest numbers of prisoners per head in Europe, but the number of Dutch prisoners has fallen by 43% since 2005. England and Wales imprisons about 148 people per 100,000; in Holland the corresponding figure is 57. So successful have Dutch penal policies been that Holland has been able to take prisoners from Norway (which shares a similarly rehabilitative approach to imprisonment).

Six Suggestions

Here, then, are six suggestions for reducing the prison population. I put them forward as suggestions for discussion rather than carefully argued proposals.

1. Grant an immediate amnesty to prisoners serving short sentences

Most such prisoners will not be in prison for particularly serious offences. Few will pose any particular danger to the public; where they do they can be excluded from the amnesty. This measure won’t make much difference in the long run, but it will at least remove some of the short term pressure on our prisons.

2. Ensure that all prisoners serving sentences of Imprisonment for Public Protection (“IPP”) who have served their tariffs are released as soon as possible.

The sentence of IPP was introduced in 2005. In all but name it was a life sentence: that is, although the court was able to set a determinate “tariff” sentence, completion of the determinate sentence did not lead to release unless the prisoner satisfied the Parole Board that he was safe to release. To make matters worse, when the sentence was first introduced by the Criminal Justice Act 2003 various statutory presumptions led to some defendants receiving all but mandatory IPPs, sometimes for comparatively minor offences. The Court of Appeal mitigated the application of the sentence to some extent, and eventually new (but not existing) IPPs were abolished by the coalition government in 2012.

The Parole Board became overwhelmed, or to be strictly accurate even more overwhelmed than it already was, with prisoners serving IPPs. Prisoners would be required to complete various courses to prove their suitability for release, the courses would be cancelled, the prisoner would be moved to a different prison, or a Parole Board 12 or more months later would decide that there was some other reason why a prisoner should not be released. The upshot has been that there remain nearly 4,000 prisoners still serving IPPs, even though the sentence itsself was abolished in 2012.

It might not be wise to release all 4,000 IPP prisoners immediately. Some will be very dangerous men; possibly some would have been given discretionary life sentences had the IPP never been invented. Others, while not dangerous, will need to be gradually prepared for release. But many will have been caught in the Kafkaesque world of the Parole Board, required to complete often pointless courses, which they are then unable to access anyway.

At the very least, however, the burden of proof should be reversed. Instead of the prisoner needing to show he is safe to release, he should be released unless he is on the balance of probabilities likely to be a serious danger.

3. Ensure that the Sentencing Council is under a statutory duty to consider the need, so far as possible, to reduce the prison population.

The Sentencing Council is the statutory body responsible for producing sentencing guidelines that judges are required to follow in all but the most exceptional cases. Sentencing is now more consistent and there is less opportunity for the quixotic or imaginative judge to pass lenient sentences. The problem is that since the introduction of sentencing guidelines the tariff, or “going rate” for almost every sentence has risen. The effect is amplified by the fact that Prosecution appeals (or “references”) against unduly lenient sentences have become relatively commonplace. Practically every guideline issued has served to ratchet sentences higher than they have been previously. This year has seen, for example, a new guideline for dangerous dog offences requiring judges to pass longer sentences, and consultations are in train for possible new – and if history is any guide almost inevitably more severe – guidelines on the breach of community orders and knife offences.

Again, the subject is too complex for this blog to do more than outline the problem, but anyone interested should read the excellent recent report of Transform Justice, The Sentencing Council for England and Wales: brake or accelerator on the use of prison?

3. Consider the overall effect on prison numbers before agreeing to any proposal that will increase the length of sentences.

For example, the Ministry of Justice has launched its own consultation, quite separate from the Sentencing Council, on sentencing for drivers who cause death or injury. The fact is that sentences for causing death by dangerous driving have risen steadily in recent years, but amongst the proposals is a suggestion that the maximum sentence for causing death by dangerous driving should increase from 14 years to life imprisonment. In fact, very serious cases of causing death by dangerous driving can already be charged as manslaughter (which carries a potential life sentence), but the effect, should the proposal be accepted, is that sentences for driving offences are likely to rise and more people will be imprisoned for longer. The ratchet will be turned another notch.

And once sentences have been increased for causing death or injury by driving, the pressure will of course switch to sentences for other offences which will then seem lenient by comparison. This is how, slowly but inexorably, sentences rise across the board, and how, slowly but inexorably, our prison population rises ever higher.

5. Repeal the Misuse of Drugs Act and regulate, and in some cases tax, the supply of all controlled drugs.

Again, this is a subject for a whole book, not a paragraph in a blog. The legalisation of recreational cannabis in Colorado and Washington did not lead to the collapse of civil society; on the contrary its comparative success paved the way for proposals for the legalisation of recreational cannabis use in California and Massachusetts to be passed last month.

The Portuguese experiment in de-criminalising and regulating the supply of al drugs, including heroin, has also been a success by most measures; reducing deaths from heroin use, reducing prison numbers and saving money.

6. Prosecute fewer people for historic offences

Too many such cases – which almost always relate to sexual allegations – depend on uncorroborated evidence. Many date back to the distant past where the supporting evidence for prosecution or defence is scant or non-existent. Without corroborative evidence the verdict in such cases can come down simply to which witnesses seem more believable in the witness box. The potential for injustice is huge. Anyone doubting the scale of the problem should read through some of the posts on Sir Henry Brooke’s blog. Sir Henry is not some wacky campaigner, he is a retired Court of Appeal judge. He says this:

“There are increasing indications that the relaxations of relevant rules of criminal evidence, coupled with a culture which has demanded that those who make these allegations should be presumed to be telling the truth, has led to an increasing number of unjust allegations being pursued through the courts, from time to time – and nobody can say how often – culminating in the conviction of innocent defendants of crimes they did not commit.”

That again is a subject for a book rather than a blog: fortunately an excellent one has been written, and edited by Ros Burnett: Wrongful Allegations of Sexual and Child Abuse, Oxford University Press (2016). It rightly gets 5 straight stars from the Amazon reviewers.