19.10.2023

Not tough on the causes

The prison system is in deep trouble. Mike Macnair suggests that there is more to it than bad government

Last week we were given the striking news that the UK is about to run out of prison space - no doubt with a view to increasing pressure on the government to take quick decisions about how to deal with the problem, the leak-briefings given to the press produced headlines like ‘Don’t jail rapists and burglars - our prisons are too full, judges told’ (The Telegraph October 11), ‘Convicted criminals could avoid jail from next week because prisons are full’ (Sky News October 12).

The story is striking, but not particularly surprising. Warnings that prison spaces were running out have been repeated, and Tory promises to build large numbers to add to them have had a peculiar history of announcement, modification and very limited actual change.¹

The government’s response has been a series of ad hoc ideas. They are keen to avoid (at least in the run-up to the 2024 general election) the expedient applied by the Blair government in 2007 - administrative early release of prisoners² - though in March they announced a substantial extension of ‘electronic tagging’ parole.³ A kite flown at the Tory Party conference was to rent prison cells overseas.⁴ Last weekend we saw the suggestions of the use of prefab ‘rapid deployment cells’; the return of cell-sharing; and delays to ‘non-urgent maintenance work’ to allow continued use of cells that would otherwise be under repair. (I put scare-quotes round ‘non-urgent’, because it is all too familiar that delaying ‘non-urgent’ maintenance results over time in the need for urgent, and massively more expensive, repairs.) On October 16 it was added that deportation of foreign offenders will be brought forward from within one year of end of sentence to 18 months, and that there may be a prohibition of ‘short’ sentences.⁵

Lord chancellor Alex Chalk’s statement on Monday includes all of these options, plus more prison building (without any explanation of the non-delivery on promises of this sort since 2015); plus a series of steps that would increase pressure on the prison population, such as removing the usual remission for good conduct from rapists.⁶ The Times headlines its report of Chalk’s speech, ‘Violent convicts may be freed this week to ease pressure on jails’ (October 17), while the Mail’s version is ‘Hundreds of offenders including violent prisoners to be set free early, as prisons reach bursting point, government announces’; and the Telegraph goes with ‘Prison sentences under a year to be scrapped for most criminals’. Evidently the editors don’t believe most of Chalk’s story.

Too many

Chalk’s statement, after starting with proposals to give longer sentences to certain “serious and violent” crimes, and the spin about prison-building, contained an idea with which communists agree: too many people are being sent to prison for not very serious crimes. In our Draft programme the CPGB states:

•  Too many people are unnecessarily in prison. A high proportion of prisoners lack basic literacy skills, have mental-health issues or suffer from an alcohol or drug problem.
•  Prison should always be considered a last resort.⁷

The press release for Chalk’s statement says that

… despite the overall reoffending rates falling by almost a quarter since 2010, the public are being failed by short prison sentences that result in some of the lowest-risk offenders getting trapped in a revolving prison door. He pointed to the fact these short-term sentences often lead to offenders who could otherwise be turned away from crime losing their jobs and family ties, making them more likely to reoffend.

He noted that reoffending rates are far higher for offenders in prison for under 12 months, and higher again for those in for under six months. While the overall reoffending rate is 25%, the rate for people who spend fewer than 12 months in prison is over 50%. This goes up to 58% for those who serve sentences of six months or less.

This is also far higher than the 23% for a suspended sentence order with requirements, 38% without requirements, or 34% for those given a community order.

It is, of course, not just communists who agree with these points. They have been being made by UK criminologists for at least 40 years. Over the same period, they have been resisted with equal persistence by the Tory party and the Tory press, by middle management at the home office, and - for different reasons - by the judiciary and the criminal bar.

For the Tories and their press and the home office cadre it is an article of faith that ‘prison works’. For the judiciary and criminal bar, the problem is that the sentence of imprisonment is the ‘money’ of crime and punishment - the universal equivalent that enables comparability of punishments relative to crimes. How is the severity of a sentence of imprisonment to be compared to that of a ‘community order’?

The two issues are somewhat interlocked. For the judiciary, robbery of £25,000 is considerably more serious than an assault occasioning actual bodily harm that would attract £25,000 in tort (civil compensatory) damages - as is apparent from Sentencing Council guidelines.⁸ In consequence, sentencing for violence inevitably appears ‘soft’ by comparison, providing the ground for Tory press campaigns about ‘soft sentencing’. Sentences tend to be ‘bid up’.

This bears on Chalk’s actual proposal to reduce the use of prison. This also needs a long quote for clarity:

In order to end the merry-go-round of reoffending the government will legislate that there should be a presumption against prison sentences of less than 12 months. Instead of going to prison these offenders can be punished in the community, repaying their debt to society by cleaning up our neighbourhoods and scrubbing graffiti off walls. By remaining in the community these offenders will also be able to better access the drug rehab, mental healthcare and other support that properly addresses the root causes of their offending …

Judges and magistrates will still be able to send offenders to prison for less than 12 months if deemed appropriate, such as prolific repeat offenders, as well as anyone unwilling to obey the strict requirements of the sentence - such as breaking curfews, cutting off a GPS tag or breaching a court order to clean up the neighbourhoods they’ve damaged.

When these caveats are added up, the ‘presumption’ against prison sentences of less than 12 months will at best, hopefully, change nothing. The reason is that the courts have in recent times moved in the direction of using prison only for violent, serious and repeat offenders. This is visible in a report from the (rightwing) Civitas think-tank already in 2017; it is confirmed for January-March 2023 by the ministry of justice’s ‘Offender management statistics bulletin’: “Most prisoners under an immediate custodial sentence have been convicted of violence against the person (31%), sexual offences (20%) or drug offences (17%)”.⁹

I say ‘hopefully change nothing’, because there is a possibility, given the dynamics between the judiciary and the Tory press discussed above, that creating a presumption of non-use of sentences of less than 12 months imprisonment will lead judges to the view that, where custody is ‘appropriate’, 12 months should be the starting point. This would then drive up the duration of all sentences, for the sake of maintaining the scale of ‘proportionality’ in the sentencing council guidelines. It would thus make the problem worse.

Also in our Draft programme in the section on crime is: “End the war on drugs. Recreational drugs should be legalised and quality standards assured. People with a dependency problem should be offered treatment, not given a criminal record.” In fact the 17% of prisoners held for drug offences comes to around 12,000 prisoners - quite a lot of prison space that could be freed up for other offenders. ‘But they are dealers, not users’ is true, as the Civitas report points out. But our proposal is to fully legalise recreational drugs, so that ‘drug dealers’ would be no different from tobacconists, publicans or off-licence operators.

Indeed, it could reasonably be expected that fully legalising recreational drugs would reduce the extent of ‘gang violence’. This is partly related to the enforcement of contracts in the field - which under our policy would become ordinary judicial business. It is partly related to competition between suppliers; this has to take the form of fighting over territory, because the enforcement of contracts depends on personal violence at a level below the state violence which, in the last analysis, enforces ordinary contracts.

No money

On October 9 Andrea Albutt, president of the Prison Governors Association, used her demitting-office speech to the PGA’s conference to blame the prison places crisis on a “lurch to the right” by a government that promoted locking up more and more people.¹⁰ The problem is that this complaint could equally be made of the Blair government, with its “tough on crime, tough on the causes of crime” rhetoric. Indeed, the logic of alternating moral panics about crime (leading to increased severity of sentence) and about inhumane punishment (leading to measures of amelioration) goes back certainly to the 1690s and possibly to the early 1300s and the panic then about ‘trailbaston gangs’.

Moreover, it is not just the prisons. The Tory conference saw discussion of an ‘epidemic’ of shoplifting, and police minister Chris Philp suggest that the police “can’t be everywhere” and that people who see shoplifters should make citizens’ arrests
(a suggestion widely deprecated).¹¹ The Times reported on October 16:

The average time taken to bring a case to charge or summons rose from just over two weeks in 2016 to six weeks this year … The situation is much worse for sexual offences, with the investigation time rising from an average of 110 days to 247 days.¹²

You might expect a Tory government to spend heavily on ‘law and order’. But this has not been the characteristic of the post-2010 administrations. ‘Austerity’ has outweighed traditional Tory priorities. It has not gone away, even though Osborne’s ‘austerity’ spin has gone.

Nor is it just - as it plainly is, in part, in relation to the national health service - a matter of starving the service in order to make a privatised alternative more attractive. While October 18 saw a splash about a private security firm prosecuting a shoplifter,¹³ this is not really a novelty, since such prosecutions were commonplace in the 1970s.

Liam Byrne, chief secretary to the treasury under Gordon Brown, on leaving office when Labour lost the election in 2010, left a note for his successor: “I’m afraid there is no money.” Byrne later apologised.¹⁴ But in reality, his letter told a fundamental truth, which governments ever since have been spinning their way around. The UK is an offshore centre with a moderately large ‘real economy’ attached. It depends on borrowing to pay for imports, and on a larger scale on financial services. Unlike the US, it cannot run a radical deficit policy - witness the Truss government. Equally, however, it cannot sharply raise direct taxation, which would scare away the hot money that keeps the UK afloat.

So infrastructure and public institutions have to be starved of funds.

1. prisonreformtrust.org.uk/blog-unpicking-the-governments-prison-building-plans.↩︎

2. ‘Blair: I regret early release of 25,000 prisoners’ Evening Standard June 18 2007.↩︎

3. insidetime.org/new-early-release-scheme-unveiled-by-government.↩︎

4. ‘UK could rent space in foreign jails to ease shortage of cells’ The Guardian October 3.↩︎

5. The Times October 16; www.bbc.co.uk/news/uk-politics-67116658.↩︎

6. www.gov.uk/government/news/prison-reforms-will-cut-reoffending-and-put-worst-offenders-behind-bars-for-longer.↩︎

7. communistparty.co.uk/draft-programme/3-immediate-demands, section 3.17, ‘Crime and prison’.↩︎

8. See www.sentencingcouncil.org.uk/crown-court.↩︎

9. www.civitas.org.uk/research/crime; www.gov.uk/government/statistics/offender-management-statistics-quarterly-january-to-march-2023.↩︎

10. ‘Prison places in England and Wales are ‘bust’, says governors’ union chief’ The Guardian October 9.↩︎

11. Philp to Policy Exchange’s panel: ‘Shoplifting, violence and abuse: confronting the crime epidemic faced by retailers and shop-workers’ (policyexchange.org.uk/conservativepartyconference). On criticism, see, for example, www.lawgazette.co.uk/commentary-and-opinion/citizens-arrest-a-tool-or-a-trap/5117519.article.↩︎

12. ‘Suspects and victims now waiting much longer for charge decision’.↩︎

13. www.dailymail.co.uk/news/article-12642667/Britains-private-police-suspected-burglar-court-shoplifting-spree.html.↩︎

14. ‘“I’m afraid there is no money” - the letter I will regret for ever’ The Guardian May 9 2015.↩︎