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Friday, 13 June 2008 |
Former Deputy Director with the Scottish Government Stella Perrott, questions whether prison would work better if the question of rehabilitation was removed from the equation.
In April 2008 the prison population reached a record level of 7763 in Scotland. Although the numbers have dropped slightly since then, the recommendations of the Scottish Prisons Commission due to report in June will be eagerly awaited by justice ministers in the hope that they may provide some solutions to the rising numbers. Early indications from the commission’s chairman, Henry McLeish, and comments by the Justice Minister, Kenny MacAskill, suggest that greater use of ‘tough’ community penalties as an alternative to prison is favoured as the way forward. Yet over the past twenty years, we have seen a significant increase in community penalties, considerable toughening up of how they are administered and tougher community-based sentencing options such as ‘tagging’ being made available – all without any decrease in prison numbers.
This article urges caution in expanding the use of community penalties and suggests that a more radical approach to reducing the number of offenders sent to custody may be needed. It is my contention that attempting to reform and rehabilitate offenders through punishment does not work; it is unjust to both victims and the offender and is a significant causal factor in the rise in the prison population.
Since 1706 when courts in the UK were first able to sentence to custody, there has been a steady increase in its use and every effort to reduce it has resulted in the reverse. For over two decades, there has been a widely-held belief that if community sentences were tougher and breaches were dealt with more rigorously then there would be greater confidence in them and their use, rather than that of custody, would grow. The evidence suggests otherwise.
According to the Scottish Government’s review of community penalties, Reforming and Revitalising, published last year, the use of community penalties as a proportion of charges proved has risen in the last ten years from 8 per cent in 1996/97 to 13 per cent in 2005/06. However, the use of custody has also risen substantially over the same period and community penalties appear to be replacing fines and, possibly, police cautions and discharges. Community sentences are now imposed for much less serious offences than they were a decade ago and imposed much earlier in an offender’s criminal career. Far from community penalties having an impact on the use of custody, they are vehicles for increasing sentence severity across the piece.
The rise in the use of community sentences is also partially responsible for the rise in the prison population. As orders are made tougher and breaches dealt with more rigorously, more offenders are returning to court for breach of their orders, many of whom will be sent to prison. Based on Scottish Government statistics, the table below sets out the number of orders made during 2006/07 and the number of breaches applied for. (The breaches may relate to orders made in the previous year and there is no direct relationship between the two sets of figures.)
Of course, not all those who breach their orders end up in custody but a good number do, approximately 15-20 per cent (and rising) each year, along with the 6000 or so sentenced to imprisonment for fine default. As community sentences have got tougher, there have been more breaches. Even so, there is a widespread view, supported by inspectorate reports, that some community sentences are not yet being as rigorously managed as they should be. According to Home Office statistics, the level of imprisonment for breaches of community orders in England and Wales, (where there is almost no discretion over taking breach action) is running at about 30 per cent and has yet to plateau, which suggests that in Scotland, we can expect to see the number of people being sent to custody for breach of their orders increasing for some years to come, if current policies continue.
The rise in the number of prisoners attributed to breaches of community orders might be a price worth paying if, overall, community penalties were effective in reducing offending, but they provide mixed results. Scottish Government statistics indicate that, following discharge from prison, 64 per cent of offenders are likely to reoffend within two years, while 64 per cent of those given a probation order and 39 per cent of those given a community service order, are likely to reoffend within two years of commencement. However, when adjusted for previous convictions, the differences are not so great. A male offender with over ten previous convictions has an 81 per cent likelihood of reconviction following a custodial sentence, 69 per cent after community service and 80 per cent after the making of a probation order. At the other end of the spectrum, offenders with no previous convictions are likely to reoffend at a rate of 20 per cent for custody, 28 per cent for community service and 43 per cent for probation.
In England and Wales, the Home Office has developed a reconviction predictor, adjusted for previous convictions and other data that make reconviction more likely. It predicts that Drug Treatment and Testing Orders (DTTOs) will result in an 82.9 per cent reconviction rate, prison 67.8 per cent, Community Rehabilitation Order (probation order in Scotland) 58.5 per cent, Community Punishment and Rehabilitation Order 57.6 per cent and Community Punishment Order (community service in Scotland) 43.5 per cent. While it may be unwise to read too much into these figures (and England is another country), this data is hardly an endorsement of rehabilitative community sentences. Community service, a community punishment, performs better. Community sentences, other than DTTOs, are a better bet than prison but those community sentences that include rehabilitation perform worse than those that do not. According to the reconviction predictor, the greater the emphasis on rehabilitation, the greater the likelihood of future offending. Although the problems of offenders likely to be on DTTOs, may be so entrenched that rehabilitative work is problematic, such a high reconviction rate questions the utility of the order.
Requiring (through sentencing guidelines and appeal court decisions) offenders to be first placed on a community sentence as an ‘alternative’ to custody is also swelling prison numbers. In a great many cases, sentencers will be imposing community sentences in the full expectation that the offender will be serving a prison sentence for that offence, having breached their order, some twelve months down the line. The chaotic, the homeless and the destitute, for whom adhering to the national standards of ‘tough’ community sentences may be an impossibility, are now slow tracked to prison, passing through unrealistic community sentences on the way.
The chaotic, the homeless and the destitute, for whom adhering to the national standards of ‘tough’ community sentences may be an impossibility, are now slow tracked to prison, passing through unrealistic community sentences on the way. 
The system merely prolongs the inevitable. It may also make for longer prison sentences when the offender is returned to court. Breach of orders or reoffending aggravates the court and is seen as flouting the court’s authority. Sometimes this affront is taken far more seriously than the offence itself or the harm done to the victim. Sentencers may also believe the offender has ‘had their chance’ and now deserves no mercy.
If healthcare resulted in a relapse of over 50 per cent of patients, or 50 per cent of children left school illiterate, questions would be asked about health and education’s effectiveness, not so with punishment. It is assumed that the unpromising nature of the material with which professionals work is largely causal of repeat offending and that those who fail to be reformed are the authors of their own misfortune who deserve to be sent to prison. The underlying assumption is that punishment has a part to play in offender reform in spite of all the evidence to the contrary, no matter that only an estimated 4 per cent of offending is punished through the courts.
There is little sympathy for offenders who fail to reform and if punishment does not work, then at least the public can gain some satisfaction from having seen hurt imposed on those who hurt others. This may be an understandable response but not a helpful one. If prison and some other forms of punishment have the potential to increase the risk of offending after they have been administered, the responsibility for this falls not just on the offender but also on the state for having designed the punishment system in such a way as for this to be an inevitable outcome. Moreover, it is generally the same communities that bear the burden of the state’s ineffective punishment system. Offenders leaving prison return to the poorest and most vulnerable communities that are least able to protect themselves from the offender’s return. Meanwhile, resources that should be used for educating their children and improving their health chances are ploughed into a criminal justice system that acts not for their benefit.
Let us be clear, the criminal justice system is perfectly designed to achieve the results it does – a high rate of reoffending, a year on year increase in prison numbers, coupled with increasing breach rates for community penalties and continued public dissatisfaction. The system is designed to fail because those designing it are attempting to resolve conflicting purposes. The conflict between punishment and rehabilitation over the last 400 years has led to a system where both purposes receive attention but neither is met to the satisfaction of anyone.
The blurring of help and punishment began in the 1960s with the introduction of parole and life licences, followed by measures such as supervised bail, probation hostels and day centres and some experiments with more intensive supervision programmes, all ostensibly designed to help offenders but with an increasing expectation of greater rigour in their management. From the 1990s onwards, the blurring of rehabilitation and punishment accelerated markedly. National standards for supervision placed greater emphasis on enforcement of orders, home detention (tagging) was introduced and prisons, hitherto unequivocally sites of punishment, were expected to care for and also rehabilitate offenders. At the start of the 21st century, there is almost no punishment other than fines and short prison sentences that do not incorporate a compulsory reformative element; even community service is expected to increase the employability of those participating.
The justification for incorporating rehabilitative elements into punishments has been argued on the basis of their seeming effectiveness. Over the years, different approaches to the treatment of offenders have appeared to work better than others – the solitude of the penitentiary; the finding of god and sobriety through the work of the Police Court Missionaries (the forerunners of probation officers); psycho-social case work of the 1960s or cognitive behaviour programmes of the 21st century. Why then has each successive approach to reform been found wanting at a later date? In part, it is likely to be because the world changes and so, for example, a religious approach to reform, prevalent during the 19th century and early 20th century, is unlikely to be effective in a largely secular world.
But it is more than this. Most offenders cease offending and do so when their life circumstances improve or they develop important intimate relationships and have more to hope for or lose should they continue to reoffend. Professionals play only a limited role in an offender’s rehabilitation but they can have an important role in supporting an offence-free life. The only constant over the years backed by research about ‘what works’ is that It is the relationship between the helper and the person being helped that has the greatest influence over change,
It is the relationship between the helper and the person being helped that has the greatest influence over change,
the methodology being secondary or marginal. Successful relationships are those where the professional or other helper sticks with the offender through rough times and provides a constant, reliable, respectful, trustworthy and secure source of practical and other help. This sort of relationship cannot be achieved under coercion or when one party is seeking to punish, which is why voluntary projects have much success but translate so badly into the punishment mainstream.
Government efforts to transfer ‘what works’ on a small personal scale into the punishment repertoire inevitably leads to these projects or ways of working being promoted as tough – on the offender’s soul or mind rather than their body, and insistence that they are enforced by punitive sanctions for breach. Successive promising ideas for promoting desistance from offending has been transformed into a punishment and imposed on offenders with the backing of a custodial sentence should they fail to reform, often destroying in the process the very elements that were responsible for success – voluntarism, long-term relationships, unconditional positive regard and respect. Moreover, by categorising and treating people as offenders throughout the full currency of a sentence regardless of how long ago the offence was committed or of the progress made in the intervening years, an offender rather than a law-abiding identity is reinforced in every contact.
Offenders are most motivated to cease offending at the point of being caught yet a system that provides help only as part of a punishment disallows help at the time when offenders would be most receptive to it. Only those offenders who have been subject to lengthy court processes and undertake risk assessments that will determine if their offending is serious enough to warrant help but not so serious as to warrant custody, will receive help. Help will not be made available on the basis of need but on the seriousness of the offence, risk to the public and likely compliance with the punitive requirements that have to be met in order to receive it.
When rehabilitative resources are provided only as part of a punishment, it distorts the help that can be made available. The help provided is not what would be most effective but what the Government is prepared to pay for as part of a ‘tough sentencing option’ and it can only be provided within strict parameters. Although, the rhetoric and content of offending behaviour programmes emphasises personal responsibility for offending and change, the reality is that offenders are viewed as totally incapable of being freed from their criminal impulses without first submitting to a programme that can only be run by professionals. Complaints about the content of the sentence by offenders may be welcomed as demonstrating how much an offender dislikes, is punished by or finds the sentence personally challenging and can be used as a justificatory resource for promoting community sentences as a tough option. This tight suturing of punishment and rehabilitation has left the latter ineffective whilst increasing the former. It has also fuelled the rise in the use of custody.
People are sentenced to custody, especially women, on the basis that they might receive help in prison; both community and prison sentences have become longer as shorter orders are thought to give insufficient time for rehabilitation to work; parole may be denied until offending behaviour courses are completed; homeless, alcoholic offenders cannot be released after a night in the cells but must be put under supervision with the risk of failing within a week and then facing three months of prison. Or worse still, there are no resources available for helping them as ‘help’ is prioritised according to risk and determining this through elaborate risk-assessment processes takes up a considerable chunk of the resources available.
The language of reform with its ‘support’, ‘treatment’ and ‘programmes’ distorts the public’s perception of punishment as something that is for an offender’s benefit and therefore, not really a punishment. So long as the public perceives sentences to have any benefits for offenders, they will understand those sentences as ‘soft’, regardless of the reality. No amount of stating how tough they are will have an effect and combining reform and punishment within the same sentence can only fuel the call for harsher sentences.
A new approach to punishment is needed if the spiral of ineffectiveness is to be stopped and this will require a more realistic approach to punishment and sentencing and a more realistic acceptance of what can be expected from sentencing.
Firstly, there is little evidence to suggest that sentencing has an impact on offending. In the broader scheme of things, it constitutes a response to about 4 per cent of offending and lacks evidence of any individual or general deterrent effect. Secondly, there is no evidence that sentences have any positive effect on those on whom they are made. They do not deter. They do not reform or rehabilitate. There is no evidence that they have any positive effect on the general population other than to confirm to law-abiding people that they are doing the right thing. At best, sentencing is a neutral, if expensive way of concluding a criminal justice process.
All the evidence suggests that preventing offending requires tackling, at an early age, the personal, social and family problems associated with later offending – without criminal justice involvement. Young people’s offending (according to self-report studies, over 50 per cent will offend before they are 18 across all classes and both sexes), is best dealt with by doing nothing as contact with the criminal justice and hearings system can accelerate offending and is best dealt with as a family discipline matter. Punishments that are overly harsh or perceived to be unjust are known to entrench offending attitudes. Shock tactics or boot camps are known to be particularly ineffective with young people. In respect of the vast majority of adult offenders, the least done, the greater the chance of desistance occurring more quickly. In respect of the few dangerous or highly persistent offenders, the evidence suggests that some interventions work, some of the time and if conducted in the right way. However, the prognosis for these offenders is so poor that protective measures such as custody are needed.
This is not a counsel of despair. The failure of punishment to rehabilitate does not mean failure of rehabilitation, nor does it mean the failure of punishment as a means of retribution, censure or reaffirming society’s values. It is the combination of the two within a single sentence and sentencing system that renders both punishment and rehabilitation ineffective.
Until we begin to understand punishment as a necessary evil rather than a force for good, we are unlikely to make much progress on sentencing reform.
Until we begin to understand punishment as a necessary evil rather than a force for good, we are unlikely to make much progress on sentencing reform.
As a necessary evil, the state should ensure that its use is minimal and applied according to a model of social as well as rectifactory justice. This would mean disallowing some matters from being addressed in the criminal justice and court system and reducing the use, length and severity of all sentences to that required for the purpose of denunciation and retribution. The Government might also reduce the opportunities for punishment by scaling back the use of legislation that constructs behaviours, previously understood as social and personal problems, as crimes. Reducing the use of the criminal justice system as a means of resolving problems and investing in other means (mediation, restorative practices and community renewal) would both enable victims and communities affected by crime to have a greater say in how it is responded to.
Perhaps most controversially, it might also mean excising rehabilitation and welfare from punishment and providing for this in another, voluntary, way.
A punishment, justice-based model of sentencing, without any rehabilitative elements provided other than on a voluntary basis, requires wider discussion. It has the capacity to increase the speed with which offenders are brought to justice, if they could be certain that punishments would be fair and reasonable. Sentencing would be a more transparent affair than it is currently. Both victims and offenders would know the substance of the punishment – money to be paid, hours to be worked, days to be locked up – without any pretence of reforming the offender. Each sentence would be a sentence in its own right and could be repeated ad infinitum, without assuming that more intrusive and compulsory rehabilitation would improve on the failure of an earlier dose.
Such an approach would not obviate the responsibility of those administering punishments to create the conditions most conducive to reform. So offenders should be treated with the same dignity and respect society expects them to show towards others; family and social ties should be supported and rehabilitative services should be readily available for voluntary access. Agencies should still seek to employ staff whose attitudes and beliefs have the capacity to touch the lives of offenders in a positive way. Those offenders who want to stop offending and cannot do so without help should have a right to that help, just as those that are ill have a right to healthcare.
Given that the rise in the prison population has been a problem since prisons were first introduced as a sentence over 400 years ago and that every measure to ease the problem has increased it, resolution will not be quick. There is still a debate to be had about the purpose of sentencing and a challenge to the underlying assumption that it has the capacity to achieve benefits other than authorised and orderly retaliation. It is the assumption (or perhaps hope?) that punishments might achieve more than punishment that is at the heart of the problem.
Stella Perrott is a writer and consultant on social policy.
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