U3A Penal Policy and the Coalition Government. Session 2 Howard s Way : punitive populism - prison works?

Transcription

1 U3A Penal Policy and the Coalition Government Session 2 Howard s Way : punitive populism - prison works?

2 Menu Thinking about crime: a quick U3A guide. Penal philosophies. Thinking about penal policy: an honest politician s guide. Howard s Way: Prison Works?

3 Thinking about crime: a quick U3A guide Measuring crime: Crime Survey for E&W(CSEW) and police statistics Trends in crime: total offences have decreased by about 50%, violent offences by 47% and property offences by 54% (CSEW) more limited police recorded crime data shows a similar if less pronounced downward trend between 2004/5 and the present (decreases in total offences (32%), violent crime (25%) and property crime (29%).

4 Penal philosophies the big three? Neo-Classicist: free will (unless the three I s insanity, intoxication and infancy apply), social contract, punishment (desert/ deterrence/ incapacitation/rehabilitation by moral exhortation). Positivist: causal determinacy, social contract, rehabilitation (by changing the causes associated with the individual, the family, the community or the society) Human Rights:

5 Thinking about penal policy: an honest politician s guide to sentencing How much discretion can I allow courts to have? How can I shape what courts attempt to accomplish? How can I structure courts ( in terms of organised and staffing) in order to best achieve my ends?

6 Thinking about penal policy: an honest politician s guide to sentencing How can I encourage courts to make use of the right balance of custodial and community sentences? Whilst preserving, or being seen to preserve, the separation of powers, how can I hold courts accountable to me?

7 Thinking about penal policy: an honest politician s guide to prisons What do I think prisons are for? How do I balance security and control with being seen to treat prisoners decently? How do I make prisons effective? Is a growing prison population a problem a matter to be applauded or something to be regretted?

8 Thinking about penal policy: an honest politician s guide to prisons As prisons are indisputably necessary are they best managed by a state agency or should whole prisons/ parts of prisons continue to be sold off to the highest bidder? How do I maximise internal order and productivity in prisons and minimise the number of suicides/self harm and incidents of bullying and violence? How do I, whilst attempting to achieve greater honesty in sentencing and manage the prison population, reconcile the need for prisoners to serve judge-imposed sentences with the need for early release schemes? How do I render prisons accountable to me?

9 Thinking about penal policy: an honest politician s guide to community penalties What do I think community penalties are for? How do I balance or be seen to balance public protection, punishment, reparation and rehabilitation? How can I persuade sentencers to make more use of community penalties how can I dissuade sentencers from making excessive use of CP?

10 Thinking about penal policy: an honest politician s guide to community penalties As CP are necessary are they best managed by a state agency or should they be sold off to the highest bidder? How do I maximise internal discipline and productivity and minimise defaults, breaches etc? How do I render community penalties accountable to me?

11 Howard s Way: Prison Works? Discretionary sentencing framework and limited exceptions General sentencing framework This reflected the U-turn in penal policy that led to the early amendment of the CJA 1991 by the CJA This framework allowed for wide judicial discretion and expressed a tacit agreement with the view that the aims of sentencing and sentencing decisions were a nogo area for further government intervention. As a consequence court disposal decisions were more influenced by local sentencing cultures (Hood 1962, 1972; Parker et al 1989), than government policies.

12 Howard s Way: Prison Works? Discretionary sentencing framework and limited exceptions Restrictions on the sentencing powers of magistrates courts: one offence a maximum six months imprisonment or a fine of 5,000; for more than one offence a maximum of 12 months of imprisonment). But magistrates had very considerable discretion within these limits. There was one mandatory and one quasi-mandatory sentence. The only fully mandatory penalty was the life sentence for murder introduced in 1965 (Section 1(1) Murder (Abolition of the death penalty) Act). The quasi-mandatory sentence was a driving ban if convicted of drunk driving subject to the court determining whether a particular case represented an exception (Road Traffic Acts 1967, 1988 and 1991).

13 Influencing sentencing by other means The second Major government did attempt to influence judicial decisionmaking in other ways in particular through law n order campaigns supported by some sections of the media and not sufficiently resisted by the formal opposition. This did cause sentencing inflation. Between 1991 and 1999 there was a sharp increase in the proportion of young adults (from to per cent) and adult offenders (from per cent to per cent) given sentences for indictable offences of immediate custody and the proportion of the same kind of offenders sentenced to community penalties declined (young adults: from 66.2 to 59.1 per cent; adults to per cent) Home Office (2002) Criminal Statistics for E&W Cmnd 5696 Home Office /5696.pdf adapted from Tables 7.9 and 7.10 pages ) Alongside this there was an increase in the length of the custodial sentences received from an average of 20 months to 27 months between 1996 and 2003 (Carter 2003:11).

14 Howard s Way: the failure of laissez faire on sentencing? Very late on in its term of office, the second Major government did introduce a significant set of further limits on judicial discretion The Crime (Sentencing) Act 1997 was passed before the general election but implemented by the New Labour government. This was a significant departure: It signalled a departure from strict adherence to the particular interpretation of judicial independence that had reigned up to this point and constituted a further elaboration of the notion of bifurcation, (Tony Bottoms 1977; 1980 ) a penal strategy, which relies on making a strict separation between types of offender: the less serious, run of the mill offenders, who may be dealt with more leniently and cheaply (noncustodial sentences for example) and, the serious or dangerous offenders who may be seen to need more harsh treatment by using longer determinate or even indeterminate sentences.

15 Howard s Way: laissez faire not working regarding sentencing? Such a view may be seen to appeal to a variety of groups including politicians (they can look tough and liberal simultaneously), to the public who think that they may be protected for less (locking up for longer those who are serious or prolific offenders whilst dealing more cheaply with the rest) and perhaps even to sentencers (as it allows greater discretion a sine qua non of the ideology of judicial independence). Of course it might not appeal to other groups like penal reformers (who might raise questions about justice) and offenders who may perceive little legitimacy in such moves.

16 Howard s Way: laissez faire not working regarding sentencing? The changes provided for by the Crime (Sentencing) Act 1997 introduced tougher treatment for repeat offenders and added three more quasi-mandatory sentences thus simultaneously contributing to greater restrictions on judicial discretion, punitive interventions based on incapacitation and bifurcation. The 1997 act required the imposition of a life sentence when an offender was convicted of a second serious violent or sexual offence(two strikes) Later repealed by the CJA The Act also required that firstly, offenders convicted of a class A drug trafficking offence for the third time (three strikes) should be sentenced to 7 years imprisonment as a minimum, unless unjust in the circumstances and secondly, that offenders convicted of a third (three strikes) domestic burglary offence should be given a minimum of three years imprisonment.

17 Howard s Way: Prisons Prison Works? The 1992 election was based on, in the words of its PM, stretching the elastic of democracy too far (John Major 2009) and the second Major government was in need to popular support. Where better for a Tory government to do this than with prisons. Prisons according to this logic were no longer places for making bad people worse (Home Office 1990) but warehouses to be used to separate offenders from their victims. The longer the sentence and the more frequent prison sentences were used, the greater the incapacitative impact. Such a policy reached its highpoint with the two or three strikes and you re out policy of the 1997 Crime (Sentencing) Act referred to above, which had at its heart a penal policy rooted in the notion that repeat offending constitutes an aggravation of the current offence. The impact on the prison population of the law and order rhetoric was dramatic with it rising from 44,246 in 1993 to in 1998, an increase of 35% (MOJ Story of the Prison Population: England and Wales January 2013).

18 Howard s Way: Prisons Prison Works? The prison works strategy papered over two cracks in the prison edifice. Unrest in prisons. The enquiry into the disturbances at HMP Strangeways (Woolf and Tumin 1990: Para 9.19) concluded that order in prisons did not just rely on security and control, but justice too. But the White Paper (Home Office 1991) that followed did little more than kick considerations of this kind into the long grass. Unrest in prisons thus continued. But was seen as little more than a technical problem of making prisons work.

19 Howard s Way: Prisons Prison Works? High profile escapes put the prison service on its mettle striking at its core function. Two enquiries resulted ( Woodcock 1994; Learmont 1995) with both attributing the escapes to permissive prison regimes which led to the prisoners having too much power. In the context of the rapidly escalating prison works doctrine the recommendations that followed from this analysis were rapidly accepted by government They concerned greater internal and external security. They were applied with gusto by prison staff perhaps because they had an affinity with what Arnold, Leibling and Tait (2007:487) refer to as their traditional culture and fitted neatly into the public discourse, prison works because it locks people up thus keeping them away from potential victims and holding them in conditions that are decent but austere (Howard 1993; HM Prison Service 1994:ii).

20 Howard s Way: prisons It was in this period also significant moves were made to address various problems seen to relate to management (the nature of prison regimes, the maintenance of humane conditions, effective accountability and effective management at both the strategic and the day-to-day levels). This took various forms but hinged around a move to an overtly managerialist agenda. The fundamental assumption of this was the need to make public sector institutions adopt the methods of working found in the private sector, with the dual subsidiary assumptions that private sector bodies were more efficient, effective and economic and that they were so because they were the subject of competition.

21 Howard s Way: prisons A two-pronged strategy emerged. Firstly, the internal re-organisation of the management structure of the prison system. Thus in 1993 the prison department became an executive prison agency, meaning that though the Home office set the parameters of action, the prison agency was distanced from it and got on with the job of sorting the details. However, the wheel came off this approach after the high profile escapes mentioned above when Michael Howard tried to deal with the political embarrassment by suspending the governor of HMP Parkhurst, John Marriott, in 1995 and then sacking the first director general, Derek Lewis, who later was successful in a legal action for unfair dismissal (Lewis 1997), in October The extent of the erosion of the arms-length relation was the subject of the now (in)famous TV interview by Jeremy Paxman with Michael Howard in 1997( accessed 23/06/2014).

22 Howard s Way: prisons The second aspect of the strategy was actual privatisation of some prison services and of individual prisons in toto. By the time of the election in May 1997 some prison services had been opened to competitive tendering (education and catering) and there were, six private prisons either already opened or contracted to open during 1997 (HMPs The Wolds 1992, Doncaster 1994, Blakenhurst 1995, Buckley Hall 1995, Parc November 1997 and Altcourse December, 1997). After 1992, the limitation restricting privatisation to new remand prisons, was lifted and the extent of privatisation expanded from the management of publicly funded new build or refurbished prisons (the first four in the above list) to privately designed, constructed, funded and managed prisons (the last two in the list). Equally significant was the introduction of the Private Finance Initiative (PFI) in late This gave priority to the use of private money for public projects by creating a presumption in favour of private funding for such projects, effected by making Treasury approval of projects conditional on having explored and first rejected with good reason, private finance.

23 Howard s Way: community penalties Community penalties were not neglected by a government seemingly obsessed with the prison. The second Major government built on the changes started in the 1980s particularly the movement to national objectives and priorities (Home Office 1984), intended to start the managerialisation of the service, and the move to re-define the core function of the probation service from being a social work agency providing support for offenders to a criminal justice agency whose task it was to provide credible punishment in the community (Home Office 1988; CJA 1991).

24 Howard s Way: community penalties The Major government redefined the purpose of the probation service as no longer just as a credible community punishment provider but as offering public protection, on a parallel with the task of the prison as the instrument of incapacitation (Home Office 1995) and alongside this strengthened regulations concerning the breach of community penalties (Home Office National Standards). In recognition of this the Crime (Sentencing) Act 1997 removed the requirement, existent since 1907, for the offender to consent to the order.

25 Howard s Way: penal philosophy? In this view offenders freely choose to offend (with limited exemptions - see above). They are only stopped in their selfish ways if offending is made painful enough, and for those who resist even this, further offending is made not just more costly but materially obstructive in effect, by adopting a policy of incapacitation (for example three strikes and you re out ).

26 Howard s Way: penal philosophy? Where conventional remedies fail then complementary forms of intervention are justified, based on a similar image of the offender i.e.that nearly all people will act selfishly and criminally if the opportunities present themselves but just different it the point of address. Key targets: the extent of risk of getting caught, the amount of reward that will result from the illegal action, the amount of effort that is put into criminal act (Clarke 1995), the reduction of provocation present and the removal of excuses (Cornish and Clarke 2003) that may be used by an offender. For example: CCTV in town centres may be seen to affect three of these by making the risk of being caught possibly greater, the effort needed to engage in criminal behaviour greater and. where there were warnings that you are now in a CCTV area, the possible excuses explaining away criminal conduct, thus reducing incidence of such behaviour.

27 Howard s Way penal philosophy? Conclusion Though the crucial emphasis of this period was prison works there was a casting round for something that did work. Thus Howard s Way was primarily based on punitive populism expressed through incapacitation, but had a sub-theme, of managierialist pragmatism.