Matters of conviction
A justice system that truly rehabilitates must reach beyond the prison walls to demand more of society
By Rachel O’Brien
Follow Rachel on Twitter @racobrien
For every 694 citizens of the world, one is in prison, according to the International Centre for Prison Studies (ICPS). Since the turn of the millennium, the verifiable global prison population has expanded by almost 20%, faster than the rate of population growth. It now stands at over 10 million, and if we factor in countries where official figures are not available, that number rises to over 11 million. Amnesty International estimated in 2011 that in North Korea alone, 200,000 people are incarcerated, many in vast internment camps. If correct, this would mean a staggering one in every 123 North Korean citizens is behind bars, a larger proportion than the ‘official’ top three biggest incarcerators: the Seychelles, the US and St Kitts and Nevis.
These headline figures reveal and disguise fundamental issues about imprisonment. They indicate that the number of people incarcerated does not neatly reflect levels of global population or criminality. There has, for example, been a 2% increase in the proportion of the global prison population that is female. But this is not evenly spread; while figures stayed relatively stable in Africa and most of Europe, Brazil’s female prison population increased by 146% between 2005 and 2012. Change can be rapid and ruthless: while Rwanda experienced a massive increase in its prison population following the genocide of 1994, this has decreased by nearly 65% in the past 15 years.
Conversely, shifts in policy can be glacially, and catastrophically, slow. The US incarcerates over 2 million people and accounts for around a fifth of the world’s verified prison population. Decades of evidence-based campaigning about the systemic racial bias of the US justice system — from stop and search, to arrests, through to sentencing, including the use of the death penalty — looks set at last to see some meaningful gains in the form of legislation passed in 2015. This changed sentencing policy in relation to some drug-related offences, accorded judges discretion for lower-level drug crimes and is seeing some decreases in the use of incarceration.
These figures do not reveal the degree of churn, the number of victims that result from repeat offending or the multiple needs (or capabilities) amongst incarcerated populations. National statistics vary, but since this piece will focus on prison reform in England and Wales, it is worth noting that, in these jurisdictions, there were over 85,000 people inside at the end of July 2016. Around a quarter will have been in care as a child, at least one in three will have a mental or physical disability, and half will have the literacy levels of an 11-year-old. In 2015, around 70,000 people were released from prison. Or to put it another way, most people leave prison and, on average, 190 people do so every day in England and Wales combined; their prospects will impact on communities now and in the future.
Beyond basic
What are the implications of all this for the government’s prison reform agenda and its renewed focus on rehabilitation? Of course, any sensible strategy will need to consider how many people are incarcerated and why, the impacts of this, and must address the conditions within which people live and prison staff work. At the very least, we should seek to create a system where prison leaders — alongside government — are held accountable for upholding basic standards of care. As closed institutions holding some of the most troubled and troubling individuals, prisons can be dangerous places, they lend themselves to abuse and corruption and must be open to independent rigorous inspection.
In his foreword for the 2015–16 annual report of Her Majesty’s Inspector of Prisons for England and Wales, the Chief Inspector of Prisons, Peter Clark wrote: “There is a simple and unpalatable truth about far too many of our prisons. They have become unacceptably violent and dangerous places.” The report highlights a 27% increase in assaults (to 20,000 incidents), a 25% increase in incidents of both self-harm (to 32,000) and self-inflicted deaths, and accelerating deterioration in safety. It makes clear that a key contributor to this is the presence of novel psychoactive substances, and while these are having a very negative impact, the issue should not be overstated or mask underlying systemic challenges. It is undeniable that these trends have mostly gone in the wrong direction since 2013, when funding for the prison service was reduced, resulting in a 23% reduction in the number of frontline staff.
Defining justice
So, should prison reform ‘simply’ focus on making prisons safer, reducing the numbers in custody and reversing the cuts to the number of frontline staff? Yes and no. These changes are urgent and necessary to reform but they are not sufficient if the government is to succeed in its intention of creating a modern service that does more to reduce risk through rehabilitation. Safety is critical but needs to be seen as a constraint to meeting the overall purpose of the service, not as an objective in itself. But strictly speaking, rehabilitation means returning something to its original state, which in terms of the lives of the individuals outlined above, falls short of what prisons and their workforce are being asked to do. If people’s lives are chaotic, purposeless, amoral and miserable before prison, we need a higher goal; one that prisons cannot deliver alone. Incarceration forms part of a journey, or repeated journeys, not the end of a process; this means prison reform can never just be about prisons.
A system that strives to go beyond the ‘very least’ needs to do more, not just to hold prison leaders to account for what happens in their leg of this journey, but also to be fair in doing so. As well as tackling failure and rewarding success, fairness requires the acknowledgement of the range of skills and time needed by the workforce if it is to boost rehabilitative outcomes. It requires an accountability framework that has more to say about leadership and management but that recognises that governors cannot control what happens post-custody and will often have people in their care for just a few months or weeks, and in some cases a matter of days. The system needs to incentivise integration and collaboration between prisons and those charged with placing people in custody in the first place and supporting their re-entry into society. It should further encourage leaders to reach out to employers, the families of those in custody and the neighbourhoods to which the vast majority of people will return.
Such approaches do exist. In 2013, four Swedish prisons closed; this decline has been linked to the amount of post-release support provided by Sweden’s state-run probation service and the 4,500 volunteer lay supervisors who support people in the community subject to supervision orders.
In the US, prisons cost the taxpayer over $80 billon a year (more than higher education). The state of Texas, not considered a hotbed of liberalism, has combined investment in evidence-based programmes, including drug courts, with prison and sentencing reform; this has contributed to the closure of three prisons, a 25% reduction in reoffending and has saved nearly $3 billion.
Reform prisons
In November 2016, the central focus of the Queen’s Speech was prison reform; hailed by the government as the most radical programme of change for a generation and welcomed by some, including this author, as having the potential to be transformative. The reform narrative is consistent with the government’s focus on equalising people’s life chances and its public service agenda, which emphasises transparency and accountability. There is a need to reduce the ‘command and control’ nature of the prison service, which alongside probation services, is overseen by the National Offender Management Service (NOMS), an executive agency sponsored by the Ministry of Justice. There seems to be some consensus, not least amongst some governors, staff, and people within NOMS, that excessive bureaucracy and opaque and complex measurements have arisen in part from successive ministers’ demand for control and reactive leadership. This approach has encouraged episodic rather than strategic change, discouraged innovation and disempowered governors. It has not succeeded in shifting reoffending rates, which remain stubbornly static at almost 50% for those leaving prison, and higher for those serving short custodial sentences.
Most welcome is the government’s emphasis on the role of rehabilitation and the growing recognition that we cannot expect prisons to successfully help people transition from custody to active citizenship without greater engagement of local businesses and communities and that this requires a more community-based approach. The reform package included the creation of six ‘reform prisons’, given greater freedoms in relation to budgets, staffing and testing new approaches. The idea was that these establishments would act as pioneers of wider reform, testing how local autonomy and accountability could better support rehabilitation in advance of legislation. As originally conceived, this would make way for prisons at the lower end of risk to be established as independent legal entities with local boards. The aim was to free governors from some of the worse excesses of large-scale centralised commissioning, enabling them to enter into contracts, generate and retain income, increase local partnerships, and adapt to the changing needs of their populations and local circumstances.
Since June, there have been changes in ministerial responsibilities in the wake of the EU referendum result and, it seems, less appetite for legislative reform. But the central driver of change appears intact: namely to strengthen prison’s rehabilitative purpose. Here lies the opportunity and the challenge.
Like schools, prisons have their ‘three Rs’: reoffending, resettlement and rehabilitation. Their relationship to one another is complex. A reduction in reoffending rates could mean effective work being done by prisons, their partner agencies and the individuals involved. But you can also reduce reoffending through changes in police action. You can resettle people back into their own communities but you can also ‘tick box’ your interventions regardless of impact. Resettlement often fails, and services frequently fall short of what good prison governors and officers would wish to see; people’s return to the community as active citizens, capable of playing a full and positive part in the stuff of a good life, not exclusion and, in many cases, a return to custody.
“Prisons have their ‘three Rs’: reoffending, resettlement and rehabilitation”
The attraction of these first two Rs is that they seem to be easily understood and, with some difficulty, measured. Reoffending rates provide attractive hard data. Resettlement work can be measured by outcomes but is too often assessed — and funded — by outputs, which tell us little about what has been achieved. Effective rehabilitation does not just reduce reoffending, but also dependence on welfare and wider impacts on families and neighbourhoods; it both requires and drives local buy-in. It may be dependent on effective resettlement and may result in reductions in reoffending, but it is not a linear process that lends itself to easy measurement. Rehabilitation is often described by people as a profound change in themselves, their self-efficacy, hope, resilience and thinking, but achieving it may require micro-steps and relapse along the way. As leading criminologist, Alison Liebling, has suggested, a ‘rehabilitative culture’ cannot be measured effectively through dry processes, but through assessing the different components that support progress: staff and prisoner relationships, levels of responsibility and trust, people’s ability to make choices and to access the supportive networks inside and out.
This is not a question of semantics. A clear and relentless narrative — capable of mobilising public support and forging political consensus — on what is meant by rehabilitation will be critical to achieving the government’s aspiration of transforming the prison service. This needs to drive system change and broader and deeper integration of the key services involved. But the statistics included here show that shifts in national prison populations reflect a complex set of trends that may include crime levels as well as shifts in population, sentencing, prejudice, economics, culture, and even the public ‘mood’. While legal systems may seek to bring evidence, objectivity and rationality to the criminal justice process, implementation of the law still depends on fallible and subjective human beings; the law can be subjected to bias, set aside or used as an instrument of overbearing states and demagogues.
While criminal justice policy gets buffeted in the winds of media, scandal and fear like almost no other (immigration being an exception), reductions in levels of crime and public concern about crime provide an opportunity for change. At the same time, the government is responding to the challenges around extremism in prison and the implications of recent events in France. Yet, with little short-term political capital to be gained by improving prison policy, an unsympathetic client group and a largely invisible and undervalued workforce, the lure of piecemeal change and risk-aversion is tempting, even where a system may be broken. In this context, political leadership is critical.
Incarceration and citizenship
Prison reformers have a favourite trope; we can judge a nation’s character by the way it treats its prisoners. This is often an amalgamation of two quotes — one dating back to the 1860s from Fyodor Dostoyevsky, and the other, some 50 years later from Winston Churchill — which are used so ubiquitously as to risk cliché. Nonetheless, they are worth revisiting because they give power to the argument that those with direct experience of prison, as these men both had, often become the most persuasive advocates of change, and because each gives distinct insights into notions of citizenship, the role of the state and our own responsibilities in relation to prisons.
In his largely autobiographical 1862 novel, The House of the Dead, Dostoyevsky portrays life inside a Siberian prison, including the cruelty of the guards, the apparent brutality and ease with which some men’s crimes were committed, but also the decency, vulnerability and goodness of people in the mix. The narrator asserts that: “The degree of civilisation in a society can be judged by entering its prisons.” Dostoyevsky understood the extent to which the inequities and social norms of the outside world were reflected in the incarcerated as well as how imprisonment could shape pathologies and lead men to self-destruction, suicide, madness and violence. His is not so much a call to action as an expression of deep empathy arising from an acknowledgement that imprisonment is, for some citizens, an almost inevitable side effect of wider societal injustices.
This is as important, as it is obvious, as it is neglected. When crime and punishment are articulated, the incarcerated tend to be cast as critically, inherently and inevitably different from ‘us’. The line between many of those who end up inside and the rest of us is more etched by the brute luck of birth and circumstance than innate moral character. And as David Maguire powerfully shows in another RSA journal article, it may be the invisibility and different trajectories of the lives of others that make prisons so hard to understand. Despite, or maybe because of, our fears about crime, this makes it easier for us to treat the prison service as residual (unlike the schools or hospitals) and as an end to a process. As former prison governor and writer, John Podmore claims, it enables us to place prisons out of sight and out of mind, without the wider public engagement that is needed. None of this requires us to surrender justice being served; Dostoyevsky and others have articulated how, for those who have committed the most heinous crimes, prison can signify the opportunity to address their conscience and restart their lives. Rather, it reminds us that the nature of our prisons, and those who reside in them, is a barometer against which to judge our national character, from levels of inequality (there is a correlation between the most unequal societies and high levels of imprisonment), to particular forms of exclusion and discrimination. As such, responsibility is shared by all.
“It may be the invisibility and different trajectories of the lives of others that make prisons so hard to understand”
In his now famous speech to the House of Commons, made during his short spell as Home Secretary in 1910–11, Winston Churchill concluded:
“The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the state, and even of convicted criminals against the state, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of curative and regenerating processes, and an unfaltering faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols which in the treatment of crime and criminals mark and measure the stored-up strength of a nation, and are the sign and proof of the living virtue in it.”
Churchill’s name looms large in prison reform for a number of reasons. Not just because of his oratory power, or because he embarked on an ambitious programme to reform the English prison system. Or because he reminds us that prison reform is not the preoccupation of either the left or right of politics (too often it is neither). It is also because of his argument that the gravity of responsibility given to the state in removing people’s liberty needs to be matched with equal gravity in supporting their return to full citizenship. The test of all of our civility is the extent to which the public and the agencies of civil society take up that challenge and give consent to that task.
Listen to those inside and, amongst the jargon of criminal justice speak, you will hear talk about: the value of trust and mutual respect; the importance of being listened to; the need for opportunities to exercise choice, decision-making and responsibility; and the desire for purpose and meaning. What floats to the surface are people’s aspirations about being ‘back in society’, ‘part of a community’, of being an active citizen.
In delivering the good prison service to which it aspires, the government will need to invest in the workforce that can make this happen. It will need to match governor empowerment and outcome-based accountability with an equal onus on the services on which they depend. And it will need to maintain courage in the face of bad news, and consistently articulate that our safety is dependent on investing more in the citizens who, while not amongst us, are of us. And as for us, we do not need to have bleeding liberal hearts or blind faith to support change; we can mine the evidence, compare the costs of incarceration (at over £36,000 per person) with outcomes for community safety. We can look at why the Netherlands has just been able to close 19 prisons. We can even participate in change. Or we can just think about what we want our prisons to say about our country and give our consent.
Mapping the future prison
The RSA began work on its Future Prison project in January, building on its work in this area undertaken over the past decade. This has included testing how unused land adjacent to prisons could be used to develop more community-based approaches to rehabilitation and co-designing peer-to-peer interventions that support active citizenship. Later this year, we will set out a blueprint for the future prison and identify the policy framework needed for such approaches to flourish and be sustained. Our work has focused on the practical implications of bringing greater autonomy and a stronger focus on rehabilitation to prisons and what this could mean for leadership and governance, commissioning, employment and education, the role of service users, health services and how we approach risk.
Rachel O’Brien is Director of Transitions Spaces, a community interest company concerned with understanding and developing practical approaches to rehabilitation
Find out more about the Future Prison project
This article was originally published in the RSA Journal Issue 2 2016
