Radical Rethinking Required

I notice the latest Probation Journal has a forthright editorial:-   

Probation is not a panacea for the prison crisis

The crisis in prisons in England and Wales has been brought sharply into focus. On 16 October 2023, the Justice Secretary announced measures aimed at reducing pressure on the prisons, caused in part by a record high of 88,225 people in custody (Chalk, 2023). As if this is not cause enough for concern, forecasts indicate that the population is due to rise even higher in the coming years with predictions that by March 2027 the population may rise to anywhere between 93,100 and 106,300 people (MoJ, 2023). It is clear from the Ministry's explanation of its forecasts the government's own policies (as well as the post-coronavirus disease 2019 (COVID-19) backlog of cases in the courts) are a central driver of prison population growth. In recent decades, almost every government policy relating to crime and justice has ratcheted up systemic pressure resulting in more people spending longer in prison. This includes longer sentences for certain offences and changes to mechanisms for prisoner release. Not to mention of course the people who remain imprisoned under the egregious Indeterminate Public Protection (IPP) sentence, which although abolished in 2012, has still left approximately 3000 people languishing in prison. While the Conservative party has been in power for over 12 years, this punitive policy direction has a longer lineage, IPPs were introduced in 2003 by a Labour Home Secretary, who has since regretted the injustice.

The government's announcement of measures to reduce pressures on prison is an exemplar of confused logic. The statement to parliament by the Justice Secretary, Alex Chalk begins by emphasising a record of increased punitiveness: Longer sentences for certain offences, proposals to expand the circumstances in which whole life sentences can be applied, and proposals that people convicted of rape and equivalent sexual offences will serve their entire sentences in custody (i.e., they will not be eligible for discretionary release). More prisons are to be built in the medium to longer term, but to address the imminent crisis in capacity more “lower level offenders” are to be released from prison early and placed under the supervision of the Probation Service. In the longer term, the government proposes to legislate to end the use of short-term prison sentences (of 12 months or less), by imposing suspended sentences that will involve community supervision (Chalk,2023). Some of the other headline-grabbing proposals include commissioning prison places overseas to reduce the imminent pressure on the prison system. While it is surely right to seek to curb the use of short prison sentences, placing further emphasis on the ‘toughness’ and enforceability of community sentences is part of the same circular logic that has led to this punitive-sum position in the first place. Moreover, this rhetoric fails to recognise the current parlous state of Probation Services in England and Wales, which are facing high levels of staff vacancies and unmanageable workloads (HMIP, 2023).

The relationship between the use of community sentences and prison is not straightforward. Various analyses including those based on data published by the Council of Europe in their SPACE statistics, which provides information on the numbers of people imprisoned and subject to community sanctions and measures (including probation) in member states, show that increasing the use of community sentences does not necessarily lead to a commensurate decline in prison populations (Aebi et al., 2022). In fact, in many contexts we see that expanding the use of community sentences can have an overall net-widening effect (Aebi et al., 2015), with more people brought under the ambit the criminal justice system. Some of the reasons for this phenomenon include the fact that expanding the use of community sentences may displace other sanctions (such as fines or discharges), or toughening enforcement policies and practices may lead to “backdoor” entry into prison even where prison was not the initial sanction imposed by a court. In England and Wales, the introduction of the post-sentence supervision requirement under the Offender Rehabilitation Act 2014 is a prominent recent example of net-widening (Cracknell, 2018). When this measure was introduced, it was intended to address the issue of re-offending of people sentenced to short-term prison sentences (i.e., prison sentences of less than 12 months), but as various analyses have shown the overall effects have led to a treadmill effect, propelling people further through a broken system (Cracknell, 2021).

The government's modelling predicts that one of the drivers of the potential future growth of the prison population will be an increase in the numbers of people on both determinate and indeterminate sentences being recalled to prison, precisely because of the growth of the numbers of people in prison (MoJ, 2023: 6):

The recall population is projected to increase for the duration of the projection period. The increase is partly due to the expected growth of the determinate population – this will result in a larger pool of offenders on licence after serving the custodial part of their sentence, and a proportion of this group will be recalled to custody. About 20% of the offenders currently in the recall population have been recalled to prison following an indeterminate sentence. This cohort of the recall population is also projected to increase over the projection period because more offenders will leave prison following an indeterminate sentence and therefore more people will be eligible to be recalled to custody.

Or put more simply – unless something radically changes the system will continue to perpetuate itself. What the government proposes is not radical change. As some commentators have noted shifting pressure onto a creaking probation system, which has been buffeted by years of structural reforms and with significant staffing shortfalls will not be a panacea and will place further pressures on a probation system that is in crisis (Probation Institute, 2023). All of this points to the need for more radical rethinking and reform of criminal justice, one in which the emphasis on punitiveness is decentred.

Finally, I want to conclude this editorial with a tribute to Nigel Stone. Remarkably this is the 40th year of Nigel's work on behalf of the journal in various capacities. Nigel served as the Editor of the journal from March 1983 to September 1997, before handing over the reins to Hindpal Singh Bhui. Over the years he has contributed numerous pieces to the journal and most recently he has been the ‘In Court’ stalwart, writing pithy analyses of court and sentencing matters of particular relevance to probation. This issue of the journal contains a typical example, spanning cases including the impact of delays in criminal proceedings, and cases involving sexual harm and relationship and family violence. We thank Nigel for all of his contributions.

Nicola Carr