The new prison framework will be inflexible, costly and do nothing to ease chronic overcrowding and violence
The Conservative manifesto planned to create a series of legally enforceable standards that prisons, and those who work with inmates, will have to meet. Nasrul Ismail and Nick de Viggiani (University of the West of England) have interviewed 30 prison policymakers about the proposed new framework. They warn its inflexibility will lead to a ‘compliance mindset’ and make the job of running England’s already overcrowded prisons much harder.
Wormwood Scrubs, 2008. Photo: Catholic Church England and Wales via a CC-BY-NC-SA 2.0 licence
English prisons are in a state of turmoil. On average, there are 74 assaults, 110 self-inflicted injury incidents, and almost one prisoner death in prisons on a daily basis. Rates of physical and mental illness are also high. Overcrowding is one cause; the prison population has now reached 86,413, 1% below the full usable operational capacity. It is not surprising, then, to learn that England and Wales have the highest imprisonment rate in western Europe.
David Cameron first announced wholesale prison reform in February 2016, giving prison governors financial and commissioning freedom. Liz Truss, the former Justice Secretary, maintained this approach, proposing that the secretary of state and prison stakeholders should have legal responsibility for offender reformation, although the dissolution of Parliament in May 2017 jettisoned this proposal. The manifesto the Conservative government released in June 2017 reinvigorated Truss’s plans by proposing a new legislative framework that seeks to establish sharper external scrutiny of prisons.
We have interviewed 30 prison policymakers from key organisations across England, including Her Majesty’s Prison and Probation Service, NHS England, Community Rehabilitation Companies, and voluntary organisations, to talk about the proposed new legislative framework. Based on these conversations, we believe there are five major reasons it will fail.
Prescribed standards will lead to inflexibility and exacerbate problems
First, the current system, which calls for self-regulation between HM Prison and Probation Service, NHS England, and Public Health England, should remain. Underpinned by a collaborative framework, these organisations are free to mobilise their resources and expertise according to local needs.
The proposed model would undermine the benefits it confers without addressing the problems in the system. It calls for a set of prescriptive standards that key prison stakeholders will have to meet. Our research participants expressed frustration with unnecessary red tape and disproportionate monitoring: a service development manager of a national voluntary organisation lamented “…[yet] another list of things you’ve got to have been talked to about …,” and a World Health Organisation project lead for the Health in Prisons Programme cited “… more monitoring … more returns … to prove that you’re implementing the legislation.”
Statutory imperatives have the tendency to become frozen in time. It is not possible to encapsulate the dynamicity of needed prison reform in a single, unchanging piece of legislation. Incarceration policies should uphold values such as justice, morality, and rehabilitation. Forcing these values into rules may make them rigid.
Second, the framework will lead to significant litigation. The proposed legislation would induce a compliance mindset that suppresses effective implementations on the ground. From our interviews, we know that those who work in the prison field are committed to delivering good outcomes for the system and prisoners, such as reducing reoffending and ensuring that prisoners become effective and contributing members of society. Yet regulations such as those proposed in the Conservative manifesto can produce anxiety and stress. The proposed legislative framework will open up prison oversight to litigation from prisoners, their families, and wider stakeholders if prison actors deviate from the prescribed framework. This will be costly for taxpayers and work against the sectoral improvement the government wants. We believe the self-regulation model can be improved by forging stronger shared priorities, leveraging resources, and brokering multiple accountabilities across partner organisations.
Third, a statutory framework will only be as good as a standard operating procedure. The actual mobilisation of the work depends upon the street-level bureaucrats: prison governors and staff, many of whom we interviewed. As one participant, a former chief inspector of HM Inspectorate of Probation and former chairman of the Youth Justice Board for England and Wales, pointed out, “prison staff spend more time in prison than most prisoners.” This is accurate: while the average prisoner stays for four years, many prison staff have had their jobs for a decade or more. Buy-in from prison staff is critical to ensure the statutory regime is a success.
We anticipate a great deal of local variation in the way the statutory imperatives are interpreted, particularly when it is leadership-driven and locally contingent. The question then will be how we can judge the success of the statutory measure, given such variations from one prison to another.
Budgetary restrictions and changing the mindset
The fourth problem with the proposed change is that legislation will be futile without fiscal support. The penal system bears the brunt of austerity. The prisoner-to-staff ratio increased from 4.9 in 2013 to 5.8 in 2016, and assaults on both prisoners and prison staff increased. Given that the impact on prisons is still unfolding, one of us has research in progress investigating the impact of austerity on prison establishments in England, with a particular focus on health and wellbeing.
Fifth, rather than fixating on the prison legislation agenda, the focus should be upon changing the mindset of politicians, the media, and the public to become more receptive towards the prison rehabilitation agenda. The tough-on-crime stance of the government can impede that, and the lengthy and poorly-considered sentencing guidelines do nothing to help. A paradigm shift would allow judges to impose community sentences to avoid the continued growth in the prison population and allow jails to concentrate on more serious offenders.
Legislation aside, better media messages would do a great deal to educate the public about prison rehabilitation. Messages that focus on reducing reoffending could be used to frame rehabilitation programmes in a way that benefits the public, particularly in a declining economic climate, rather than fuelling a desire for more and tougher punishment.
A poisoned chalice
Rather than introducing risky new legislation, we should learn lessons from an existing law that appears to have done very little to ease the suffering of older prisoners. Prisons as institutions are best left to their own devices. Echoing one participant, who is a prison advocate, “we just need to make sure that what is in place at the moment is being implemented properly.” Transformations must be voluntary rather than coerced. We believe that there is enough goodwill among those who work in the sector to improve the conditions without statutory imperatives – provided that they receive enough support, resources, and leadership from the government to make English prisons work again.
This post represents the views of the authors and not those of Democratic Audit.
Nasrul Ismail is a PhD Researcher at the University of the West of England (UWE), Bristol. His current research focuses on the impact of macroeconomic austerity on prisoner health in England. This interdisciplinary research is funded by the Economic and Social Research Council.
Nick de Viggiani is a Senior Lecturer in Public Health at UWE Bristol. His area of expertise is the health of prisoners under the criminal justice system, with particular interest in hard-to-reach groups, such as young offenders, older prisoners, sex offenders and foreign national prisoners.
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Some really quite troubling presumptions are made in this piece about the value of litigation.
Lawyers, like me, who find solutions across the prison estate, which enfranchise prisoners, rather than rehabilitate them according to a commercially bound agenda, will read the analysis in disbelief.
Rules have existed on the prison estate since 1967. What has been lacking is access to justice. Falling into similar traps as media stories, this piece imagines access to justice as comprising lawyers stalking the corridors of prison wings, poised to capitalise on slight deviations from the Prison Rules. In reality, despite a recent Court of Appeal victory, there are advice deserts across the country, and there are huge safeguards against over-zealous litigation, including the requirement not to unreasonably refuse mediation.
There is also real naivety in leaving the fox in charge of the chicken coop, in the context of a rehabilitation agenda which couldn’t be more controversial.
I am massively interested in your research and don’t want to second guess or blunder into a discussion of your choice of interviewees. May I ask, however, why you didn’t interview prison lawyers? We would be at liberty to talk about our work, as long as we upheld confidentiality standards. Standards, incidentally, we tend not to comply with begrudgingly. Surely we would offer balance against the official accounts you have taken.
I should add, finally, that I don’t want to overstate the value of law. Prisons are inherently brutal places, irrespective of architecture and well-trained staff. It is a shame to see the abolitionist idea overlooked, namely that by uncritically trying to improve the prison estate, we are neglecting an analysis of community alternatives. I know you touched on community sentences to ease overcrowding, but where punishment is at the heart of this, I understand the research is not promising.
Dear Kushal,
Thank you for your query regarding our article. You asked the question as to why we did not interview prison lawyers. The purpose of our research was to examine whether legislation could lead to enhanced implementation of prisons agenda from the perspective of prison policymakers. As such, it was this which informed our sampling strategy. We used four inclusion criteria to determine the suitability of our research participants, namely: the specific perspective or standpoint of the participants, the richness of their experiences, their decision-making capacity and geographical coverage. Strictly speaking, prison lawyers do not fit within our sampling criteria, although some of our participants do come from a legal background.
We value the utility of the law, particularly in terms of how it relates to prison work. Indeed, the first author of this study has an extensive legal background. For this research, we used grounded theory as a methodology, meaning that the data, interpretations and conclusions were based on input from our participants. We had to be led by the views of our study participants, and the findings we presented are grounded in their perspectives and experiences. Regardless of our personal preferences, it is their voices which recommend self-governance in the sector as opposed to the permanency of a legal measure.
Thank you again for your interest in our article.
I very much appreciate your response Nasrul, and I now appreciate that your research is grounded in considered observations of official actors’ views, rather than a critique of those views. The article seems to me to stray into the latter, and I hope I haven’t overstepped any boundaries in providing a practitioner perspective.
Wishing you both the very best of luck with your research, and re-reading my initial comments, I’d like to correct any impression I’ve given that I in any way don’t support academic research, even where it is critical of my profession. On the contrary, I welcome it, as we can all learn from each other.