At the end of September 2010 I was fortunate enough to be invited to speak to the Portuguese Secretary of State for Justice and his colleagues from prisons, probation, the police, the Bar and the judiciary in Lisbon, Portugal. The event was organised by the Associação Portuguesa para o Desenvolvimento das Comunicações.

The text of my keynote address is reproduced below, and I hope may be helpful in framing some of the higher-level discussion about the value of innovation in the justice sector.

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‘The case for justice innovation’  – key note speech by Anton Shelupanov given to APDC Conference in Lisbon on 29 September 2010

Dear Colleagues,

I am grateful and honoured to be speaking in front of such a distinguished, professional and knowledgeable audience today. I am especially grateful to the chairman of APDC, Mr Diogo Vasconcelos for the invitation to work with you. I apologise that I am not speaking Portuguese, but I understand that our interpreters are working very hard to make sure we understand each other.

I represent the Young Foundation, which is a centre for social innovation based in East London, in England. The area where our office is situated is a deprived area, with many challenges, but it is also very vibrant and home to some very inspiring people. We work in the UK and internationally.

The Young Foundation is named after Michael Young who for over 50 years created many innovative organisations to address unmet social needs, including such internationally renowned ones as the Open University and the peace-building charity International Alert. He passed away some years ago and today we follow his tradition of identifying unmet social needs through research and creating practical innovative solutions to address them.

I work specifically on the criminal justice programme, which is why it is my honour to speak with you today. My own background is in prison management, which is an area in which I worked for nearly 10 years prior to joining the Young Foundation. In that time have worked with a number prison systems, from England to China and have visited, and worked with, many prisons. I am glad that I have an international perspective, because from an international penal reform point of view Portugal presents a special interest.

At the beginning of this millennium, Portugal had one of the highest rates of imprisonment in Western Europe. It shared this unfortunate “honour” with England and Spain.

Those two countries continued to send more and more people to prison, with no visible improvement on reoffending rates, high rates of addiction and all the problems of ill health and suicide associated with overcrowding. They continue to do this, even though there are many voices – including some senior government ministers – saying that this is not a healthy way – in any sense – to address the questions of crime and justice.

Portugal did not choose this route. While those two countries locked more and more people up, Portugal’s prison population rate began to decline, with the benefits to society which come with this. This was not an accident.

It was Nelson Mandela who said that you could judge the level of civilization in society not by how it treats its most prominent citizens, but those at the bottom. And Portugal demonstrated its commitment to this by pursuing a drugs policy which is held in high regard by reformers around the world, and by seeking to apply problem solving principles to the issue of drugs. Indeed, Portugal has a fine tradition of problem-solving justice.

It is not a coincidence that the EMCDDA – one of the most respected European institutions speaking out on drugs is based here in Lisbon. It has plenty of good practice to draw on.

Moreover, it is very reassuring that at this gathering today all branches of the criminal justice system are represented. In the UK, where I work, this would be a rarity – most branches of the criminal justice system are stuck in their own silos and as such a gathering like this, where all agencies come together to find a way forward, would not happen often.

So I believe this country’s justice system to be fertile ground for embracing innovation and recognising that it is a necessity, not just a pleasant add-on which you could do if desired during the good times.

An innovation- based justice system is not an impossibility, but our sector overall is regarded as a low innovation one. Other sectors like health or education are supposed to be great at harnessing and implementing innovation, so what about us in the justice sector?

In part this is to do with our sector’s quasi-military history. In part it is because we are often too busy fire-fighting – dealing with escapes, suicides, security breaches – and even actual fires when a prisoner sets fire to their cell – to be thinking strategically about what we want our part of this sector to achieve in the future.

I firmly believe that there is no lack of innovative capacity – in England alone there are 900 NGOs working with the criminal justice system – but an issue of coherent support, evaluation, dissemination and scaling.

We have recently proposed the creation of a UK Centre for Justice Innovation, not dissimilar to the successful New York Center for Court Innovation, which runs experimental projects to address offending and helps scale them when they work well. During its lifetime both crime and the use of custody in New York have dropped significantly, resulting in improved public safety and savings to public funds. The centre should be independent from government, so as to allow it to be experimental without the government having to take on that risk.

The inventor Dyson – a great technological innovator – recently proudly said that he created several thousand prototypes of his revolutionary vacuum cleaner before creating the successful model. For him the many experiments were a source of pride and a mark of the quality of his work. Can you imagine a prison governor, police chief, probation officer, judge or politician proudly making a similar claim about their caseload?

As well as creating a safe space to fail – something most practitioners fear because of public opinion considerations, such a centre would provide a strong base of independent research. It would evaluate demonstration projects and understand the lessons from developing them – aiding their scaling and / or replication. Because one thing that is missing in most European criminal justice systems is a strong and independent research, development and evaluation capacity. I do not need to tell you that in Europe we are not very strong on evidence-based policy making in the criminal justice field, although the drugs policy in Portugal is a rare example which goes against the trend. And of course it would unlock the great entrepreneurial potential which the many talented grassroots professionals and volunteers who work with offenders have.

I have a question for you, dear colleagues. Might there be a space for such a centre in Portugal?

Another idea I’d like you to consider is one about financing innovative responses to preventing, reducing and addressing crime and re-offending. In most European criminal justice systems, right now there is no more money. So the argument goes, we can’t afford reform any more, but we can’t afford the system as it is either. It’s not about investing to save any more. It’s about saving to save. And even in countries like Portugal who have worked hard to reduce their prison population, the prison system remains a costly and not the most effective intervention.

So I’d like to propose the idea of Social Impact Bonds. This would involve local government generating a hybrid of charitable funding and private sector investment to run innovative schemes which result in a reduction of demand on the justice system – less reoffending, fewer court appearances, less use of custody. The savings by the system are then repaid to the implementing organisation, with a return on the initial investment. This could become a powerful tool for ensuring the local solutions are not left to monolithic national agencies.

My organization, the Young Foundation, has recently published this book – Turning the Corner: beyond incarceration and re-offending. Unfortunately it is currently only available in English. The ideas I described can be found in there, and are discussed in greater detail. It is available electronically on the Young Foundation website, and I have a hard copy here.

Finally I’d like to talk about the role of technology in supporting innovation in our sector. I think its key role should be enabling people to be more innovative. For example, the use of remote courts can sometimes de-humanise the system. Or it could support a network of robust alternatives to custody, where an individual appears before a judge when arrested and then a judge, via a video link can recommend that that person is taken into the care of a representative of a community organization who is waiting for them at the police station and then works with them on their issues. They do this in the Bronx, and this stops thousands of people going to prison every year where they would have done before. Or, on a much more basic level, helping young people on probation keep their appointments via SMS or social networks. Or using video to inspire young offenders in creating visual CVs and getting jobs as Media for Development do, or inspiring young people to condemn violence as the impressive Cure Violence project does. It’s not all about electronic tagging and CCTV, and reducing human contact. It can be about enhancing the quality and meaningfulness of human contact.

Albert Einstein once said that the definition of madness is doing the same thing over and over again and expecting a different result each time. I agree with him, and I think there is a strong appetite in this room for not doing the same thing over and over again.

So I would like to leave you, dear colleagues, with a question and a challenge. How can Portugal’s criminal justice system become a world leader on embracing, implementing, scaling and disseminating both social and systemic innovation?

I hope that some of the suggestions I have put forward may stimulate this discussion, even if colleagues do not agree with all of them. Thank you so much for your time and attention.

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I wrote this contribution to the Future We Deserve, a curated collaborative online project. It re-iterates some thoughts to responding to crises whilst also providing a brief overview of prison and its purpose.

If there is nothing else the current economic crisis has taught the modern Western world it’s this: hyperincarceration is not affordable or sustainable. This is by no means a new lesson – when Churchill was Home Secretary at the beginning of the 20th Century, in the face of a World War he reduced the prison population of England by half. When the Nazi war machine hit the Soviet Union, Stalin – the granddaddy of the penal state – released some 2 million prisoners to fight against Hitler’s hordes in the penal battalions. More recently during the crisis of the late 1990s, Russia embarked on an ambitious programme of penal reform to reduce its sick, addicted, economically inactive and hugely expensive million-strong prison population – something it managed up to a point.

Now, as a society we are re-discovering these ideas – and everyone from Kenneth Clarke to Arnold Schwarzenegger is attempting to reduce the use of imprisonment in their jurisdiction – with limited success – because they understand that first and foremost, hyperincarceration is a luxury politicians can no longer afford.

The current Western model of imprisonment is a fairly recent one, dating back to the early 19th century. In historical terms, that’s not long. Whilst we see the prison-industrial archipelago as some kind of unmovable monolith, not least because of its physicality and the psychological associations it invokes in our culturally conditioned minds, the reality is whilst it is violent, inflexible and simply too big, it is nonetheless very fragile.

Broadly speaking, prison systems the world over have four stated goals.

  • The first is deterrence – the reasoning goes that the idea of going to prison should put people off committing crimes, or as the case may be, acting outside a certain societal norm.
  • The second is rehabilitation – the idea is that people who make mistakes can become free from addiction, reflect on their past actions and become educated enough to be able to re-enter society as a socially and economically active citizen.
  • The third is retribution – society wants vengeance, and it wants to see those who commit crimes be punished in an obvious way.
  • Finally there is public safety – isolating criminals from society and keeping them in a safe and secure environment so they have no further opportunity to cause harm to others.

The truth, widely accepted by practitioners and scholars is that the vast majority of prison systems fail almost completely in the first three, and partially in the fourth. When a junkie is desperate for his next hit, he won’t think rationally that he is afraid of going to prison so he better not break into the car to steal something to sell it on. The myth of rehabilitation has been blown out of the water long ago – prison is “an expensive way of making bad people worse”; to quote just one statistic up to a quarter of all new heroin addictions are acquired in prison. The public being satisfied that vengeance has been extracted certainly is very rare – in part thanks to the constant stream of news stories originating from the colourful imaginations of tabloid journalists about prisons being a holiday camp. Finally, from the point of view of public safety, most of the time the physical buildings are secure and keep people in, but the various high profile escapes over the years and the crimes which occur in prisons and are organised from within them give the lie to the notion that walls and barbed wire can give any full guarantees of keeping the public safe and those inside secure.

There is no correlation between crime rates and incarceration rates, so why, when none of the four stated goals of imprisonment are met fully, and most are barely met, have we found ourselves in a situation in which we hit a global financial crisis with the burden of bloated, exorbitantly priced and dysfunctional penitentiary systems?

The answer lies in the third goal – the need for vengeance and visible punishment. When times were good, politicians could afford to spare no expense in making themselves look tough, and so locking lots of people up with no other purpose than their self-image and feeding the popular media was common practice. The number of people a country chooses to imprison is a purely political choice: compare Scotland and Finland – similar in size, demographics, population profile, and yet Scotland chooses to imprison three times more people. Notably though, Scotland still imprisons a lower proportion of its citizens than England & Wales.

The problem is, after every binge there is a comedown and then a hangover. So too will one follow our current hyperincarceration binge, although the sooner we halt, the less future damage we are causing and the less explosive the timebomb. The future we deserve, or at any rate have earned, is one of expanding infectious diseases, increasing inequality and more criminalisation and alienation.

The correct response is not difficult, but it will not be popular with the tabloid press and less statesman-like politicians looking to score political points at the cost of common sense, as for example the former champions of hyperincarceration Tony Blair and Jack Straw have been doing recently in response to the current UK government’s attempts to pursue a more enlightened penal policy. People and publications who engage in these activities will come round eventually, as they did in Moldova or Kyrgyzstan when the HIV epidemic became self-sustaining and harm reduction legislation had to be introduced, in the face of the mythology which equated needle exchanges and methadone maintenance to condoning illegal behaviour. Politicians and practitioners had to be courageous in the face of an infectious disease which threatened to wipe out much of the population, and ignore the denigrators with personal agenda of self-promotion or newspaper circulation.

As a result of an over-crowded system, which is under-resourced by some 30%, public safety and public health will be severely compromised. This applies in all jurisdictions, not just the UK. A series of actions is needed to ensure that the fallout from the crisis is as painless as possible. The trend towards hyperincarceration must be halted and reversed. This can be achieved by remanding far fewer people in custody whilst they are awaiting trial (currently c. 20% in England) many of whom are released when they reach trial, stopping incarcerating all but the most prolific offenders who are detained for non-violent crime (currently about 2/3rds), and addressing the issues of those who are mentally ill outside of the prison setting (currently some 90% of all prisoners suffer from a diagnosable mental illness). This should be accompanied with a much stronger focus on strengthening the management of non-violent offenders and former offenders in the community, new ways of investing in prevention and early intervention and a bold and extensive programme of de-criminalisation (the last UK government created over 3,000 new criminal offences on the statute books.

Of course custodial establishments should also be able to continue to perform their core function well, in any crisis. They should be able to hold people who are very dangerous safely and securely without disruption. Preparation for a crisis-type scenario should entail all secure establishments ensuring that they are equipped with generators, water purification equipment, vegetable gardens, staple food stocks and possibly bakeries, fire fighting equipment and sufficient emergency healthcare facilities to cope with interruptions in supply which a crisis might bring. However, such preparations should be secondary to a much more pressing need – unburdening the system by removing those who shouldn’t be there into a safe and well managed community environment, and ensuring that those who remain are kept safely and securely.

Society will never escape the need for a certain degree of coercion, but how civilized that society is must surely be judged by how sparingly and safely this coercion is applied. Only by moving away from the current cycle of imprisoning more and more people and churning out a generation of unhealthy, addicted, jobless and criminally inclined individuals can we begin to move towards a society where the default response to the problems of crime and justice is not based on trying to please the readership of tabloids and is instead concerned with our future and safety.

In a way, I’ve been very lucky. I cut my teeth in the world of human rights and prison reform mostly in the naughties (having started in ‘99), which globally I think was a golden decade for prison reform. Not because suddenly all the hawks became doves or there weren’t people being tortured or dying from preventable diseases in prisons but because there was a sense that none of the bad stuff was irreversible and that there was a true appetite in some countries to clean up their act and begin to adhere to international human rights covenants and instruments, and to appear civilized and respectable on the global scene. It was by no means easy but it was interesting, challenging and the balance of power and interests was such that it looked as though there was a real chance of winning for the good guys – and indeed significant victories were achieved. Prison health was back on the agenda, more sensible policies and practices were coming about for HIV in prisons, the new European Prison Rules came out in 2006 and one of the most significant global human rights compliance mechanisms, the Optional Protocol to the Convention Against Torture came into being.  So bad stuff was going on as always, but good stuff was never too far away either.

The backdrop for all of this has been the War on Terrorism, which presented a number of challenges. Prison reformers and system professionals have had to think about how to tackle the resurgent issues of foreign nationals in prison, people on indeterminate sentences, people being held without trial and long-term prisoners. With many “leading” countries such as the US and the UK also on a hyperincarceration binge (because the expense was not an issue), the lock-em-up-and-throw-away-the-key brigade used the predictable net-widening effects of (arguably unnecessary) anti-terror legislation which allowed for such things as indefinite detention, to lock up more “ordinary decent criminals”, most of whom come from vulnerable backgrounds and lower social strata and most of whom really don’t need to be in prison. Of course prison systems the world over are beginning to feel the bite bigtime as I warned last year but at the time of plenty and a decade of economic boom the financial cost of creating a less safe and less healthy society just didn’t figure in the debate and we had to make the argument against hyperincarceration on other grounds – public health, public safety, morality and so on.

The paradigm then was “how to do human rights with the War on Terror”. Now it’s “how to do human rights with no money”. All change.

Except very little HAS changed. Locking up more people is still making society less safe. It’s still increasing the threat of infectious diseases like TB and HIV to the general population. It’s still creating a generation of drug addicts. But the financial cost has also suddenly become unsustainable.

All is not lost though. Crisis leads to innovation. Just as, when I was working with the governments of Moldova and Kyrgyzstan 5-6 years ago and prison-driven HIV epidemics were hitting 3-5% IN SOCIETY, they had to introduce harm-reduction legislation despite bigger countries like the traditionally conservative Russia and George W. Bush’s US being totally opposed. They had no choice – defy (unfounded) convention or lose a third to a half of the country’s population to a deadly but preventable disease.

We are nearly at this point now. The most recent Bank for International Settlements report (the group of heads of central banks around the world) warns that countries potentially including the UK may not be able to bail out their banking systems and public sectors when Credit Crunch mark II hits. We don’t have to agree with their findings, but wouldn’t it make sense to stop wasting billions on  locking “bad” people up to make them worse, make everyone less safe, and less healthy?

As I suggested last year, you can easily cut the prison population by 30-50% by not remanding people who don’t need to be there and not jailing the very large number of non-violent offenders on short sentences. But you need courage. As a politician, you must step away from the megaphone and stop rattling your sabre, and think about the safety and welfare of the people who elected you, which of course now more than ever should include their financial safety and welfare. There is still time – the effects of the kind of moratorium that penal reformers are proposing would take 3-6 months to filter through the system. It shouldn’t matter who is in charge – socialists, liberals or conservatives – we are now talking about this being a matter of national safety and as such it must be above party politics.

That sounds more like the title of a book or a social movement, but I just wanted to commit to writing a few thoughts about the possible scenarios facing us in the “developed” world in the coming months and years. Perhaps someday sooner rather than later I could gather some of these ideas in something a little more solid than an online repository, but until then I shall document these thoughts here.

Many of you will of course recognise that title as a reference to my former director and mentor Prof. Andrew Coyle’s seminal treatise Managing Prisons in a Time of Change. That book discussed the implications of the sort of upheavals that many countries went through in the course of reforming their prisons, voluntarily or not, and their impact on structures and staff. Taking his invaluable work on board, we can attempt to think about responses to possible scenarios facing the criminal justice system in the near-to-medium term.

Most people reading this probably know my background – my original degree was in History & Economics and when I first entered the world of human rights and prison management at the age of 21, that background played a major role in my approach. Put simply, when one is faced  with a problem in the prison setting, one needs to know how long it has persisted, what its origins are and what attempts have been made to analyse and remedy it (history); and then what the current drivers are for its persistence, how much it costs and what it’d cost to solve it, and what the incentives and disincentives would be for those who’d have to engage in different behaviours or take specific actions in order for the problem to be eradicated (economics).  This approach has served me well when I first walked into a cell designed for 20 and holding 100 in Russia’s most notorious prison (Butyrka in Moscow, the name is synonymous with “jail” in Russian, like “the Clink” in English) and I rely on that approach to this day.

So, when I started thinking about how the current economic crisis is going to reflect on the criminal justice system in the developed world, it seemed natural to apply this approach, at least in part. I’m no futurologist of course, but current patterns point to difficult times ahead. Whilst Dmitry Orlov’s predictions may or may not be accurate, it is not outside the realm of possibility that public finances in West European countries will have to cope with something like a 20% drop in GDP. I have seen this happen before – my teens coincided with the early and mid 1990s, and I began working with East European and Central Asian penal systems in 1999, the year after Russia’s economy collapsed.

What has happened in the past?

A complete systemic meltdown is unlikely in the West, just as it did not occur in much of the FSU with Georgia, Moldova and Tajikistan being the exceptions. However, it’s fair to say that most penal systems in FSU countries underwent a serious crisis during that time and some have not yet fully emerged from it to this day. The problems were characterised primarily by high mortality rates in prison, largely through tuberculosis and suffocation caused by overcrowding, with violence, HIV and starvation as secondary causes. In a hot Siberian summer in a pre-trial cell overcrowded to five times over capacity and holding 80-100 people instead of 20, deaths from suffocation were a daily occurrence.  TB, a disease of poverty and overcrowding was made all the more severe by an outdated treatment system – the post-Soviet medical community viewed DOTS with suspicion, which led to 40% of patients developing multi-drug resistance, which usually resulted in a fatal outcome. Needless to say diseases have no respect for prison walls and the impact on public health was (and remains) very serious – the TB epidemic in jails spilled out into society. These days the TB situation in Russia seems under control, but it has been overtaken by HIV with more fatal outcomes monthly. According to the WHO, once the infection rate hits 1%, the epidemic is self-sustaining, so the disease must be contained before then.

The charts below (from the WHO and the Moscow Centre for Prison Reform respectively) demonstrate how closely TB morbidity in society was linked with TB rates in custody during the period in question. As someone who has sat on the UK TB Implementation Taskforce, I am in a position to say that the threat of TB to Western Europe is growing, and will continue to do so in conditions of increased poverty, overcrowding and poor diets.

tb-in-society tb-hiv-in-prison

The likelihood of the penal system in the UK and other Western countries facing similar challenges in the current climate to the ones former Soviet countries faced post-collapse is moderate to high. Crime rates and imprisonment rates have no correlation – high or low use of custody is a question of political will and nothing else. In the UK in the past decade crime has fallen steadily whilst the imprisonment rate has virtually doubled in steps over 15 years, in addition to the thousands of new offences which have been added to the statute books via 55 new Criminal Justice acts. Since 1996, the number of under-14s going into custody has increased by a staggering 550% – this is just one illustration of the default response to society’s problems being an inappropriate criminal justice-based one.

The situation is not unique to the UK, these problems are endemic in the Western world. In the US nearly 8% of  citizens have been in contact in with the criminal justice system. In the Netherlands (once the poster child for penal reformers) the prison population has neraly tripled since the 1990s. Poland, which did so well to reform the Soviet-style system has gone far the other way, and is experiencing US-type levels of overcrowding. In fact, the only EU country where the prison population rate is falling is Romania. All of these countries have suffered from the financial downturn and analysts agree that their suffering is not yet over. It seems that almost everyone is in trouble.

What can happen in the future?

There is a potential scenario where the hyperincarceration trend continues to be the standard of public policy regarding imprisonment, and budgets drop by, say, 20 – 25% because of the economic downturn, whilst the prison population rises by a similar percentage. No-one can dispute that one or both of these conditions are possible in coming years. The UK Ministry of Justice’s high-end estimate for the prison population in coming years hovers around the 100,000 mark and we are beginning to see signs of serious cost-cutting at the same time  – most worryingly the cost cutting is happening in the sphere of probation too, but more on that later.

Potentially therefore, the scenario has high overcrowding and low staff/ prisoner ratio. It is not impossible to govern a prison under such conditions, depending what the stated goals of imprisonment are. Most countries state that there are four goals when sending people to prison:

  • Deterrence (to send a signal to others that offending has consequences)
  • Retribution (to derive satisfaction from seeing the offender punished)
  • Rehabilitation (to correct offending patterns of behaviour to ensure that the person does not re-offend when they emerge)
  • Public safety (to contain those who are a threat to society in a secure environment)

We know that the majority of prison systems fail in the first three, and largely succeed in the fourth. In a scenario which is described above, it is not impossible to govern prisons if the fourth principle takes precedence. This was the case in Butyrka in Moscow when I first began working there in 1999. The regime staff had 50% vacancies because of very poor pay (circa $30 a month at the time) and the prison was running at twice the operational capacity. Thus on a given day shift on a wing, instead of two staff and 500 prisoners, you had one staff member and 1000 prisoners.

The first three principles had to be abandoned, but the fourth just about functioned – bar the catastrophic escapes of three very dangerous prisoners due to poor management practices, the prison remained largely secure. The death rates were comparatively high and conditions were appalling, both for staff and for prisoners, but the walls remained standing and the majority of prisoners stayed within them. This was the case in many other prisons in former Soviet countries and it is still the case in some instances, e.g. in Georgia. Indeed upon visiting the Kresty prison in St Petersburg in 1999 which was holding 10,000 prisoners in a space designed for 1,000, Vladimir Putin was sufficiently horrified to prioritise penal reform and pour much of the funds which became available as Russia emerged from the crisis into this important cause.

A milder version of this scenario is possible in Western Europe too – say a 15% rise in the prison population and a 15% reduction in funding – that would result in fewer deaths and a lower threat to both public health and public safety than what happened in the FSU in the 1990s, but a significant one nonetheless. The question is, in our risk-averse society, how much risk is reasonable? A badly run, overcrowded and understaffed prison is a powder keg, and if there are similar budget cuts to the police and healthcare services, the threat becomes amplified even if it does not reach the level of pitch experienced in the FSU.

There are examples from other places, from the very violent open-plan prisons in South America, to the vast industrial penal colonies in East Asia – different systems dealt with crises which hit them in different ways. But in each case disorder and disease were the two most obvious threats to human life, both inside and potentially outside of prison establishments.

Can such a scenario be avoided?

In any situation involving policy development, some factors cannot be controlled. Others however can be contained and even reversed though bold policy decisions. Just as an offender’s journey through the system can be tracked in terms of prior, during and post-custody, we can track the criminal justice system’s journey through its phases before, during and after a critical period. Each phase requires a different response, and different models are already available – some have been proved to work, whilst others are more questionable.

Before

Clearly the biggest threat to the future security of the system and of society is hyperincarceration – as we saw above. If budgets become dramatically reduced, as they are liable to be, it will naturally be easier to manage fewer prisoners with fewer staff and resources. Bold action must be taken now to ensure that far fewer people are sent to prison, as the majority of those currently incarcerated do not need to be there. About two thirds of people in prison are there for a non-violent offence, and 90% are mentally ill. Is it helpful to incarcerate these categories of prisoner at a great cost, when time and again community penalties and drugs treatment have proved far cheaper and significantly more effective in terms of reducing reoffending.  In most Western European countries 15% – 25% of prisoners are on remand, and typically around 80% of them are charged with non-violent offences. This is a major and unnecessary cost to the system, and it must be pruned now.

The way to do this is not, as Dmitry Orlov suggests, through amnesties. Amnesties are ineffective as they do not typically account for individual circumstances of those released, interrupt resettlement activities and medical treatment and rarely are subject to proper risk assessments. Lessons from Eastern Europe where amnesties were a major policy tool during the crisis suggest that the majority of those amnestied quickly return to prison. Nor is the recent UK tactic of early release effective – as it has a similar effect on resettlement activities. However, there are other opportunities radically to reduce the prison population.

Three things need to happen:

  1. Sentencing needs to be radically revised with as immediate effect as possible. In jurisdictions with mandatory sentencing this may require changes in legislation (this is where unity of government and opposition parties in the face of the oncoming financial crisis is important, and where pragmatism and common sense must take precedence over sabre-rattling and macho but unfounded tough-on-criminals talk). In other places with more flexibility, bodies like the Sentencing Guidelines Council may simplify this process. Since around 70% of prisoners are sentenced to 12 months or less (of which they typically serve half), the reduction will become apparent in 3-6 months.
  2. An easy way to reduce overcrowding is to reduce the use of remand. One way to do this is to stop detaining most non-violent offenders on remand, preferring instead proper community supervision, which leads onto the next point.
  3. The measures above need to be accompanied with immediate investment in robust supervision and preventative structures – even if current structures are adequate (which they are not), they clearly do not have the confidence of sentencers, and further divestment in services such as probation is a dangerous trend.

If these measures are enacted quickly as they can be (it is a matter of political will and cross-party partnership), then it is plausible to reduce the prison population by similar factors to the potential drops in public finances and budget allocations to the system. This in turn would serve to protect public safety and health from risks posed by an overcrowded and under-resourced prison system.

During

The hardships faced by prisons in former Soviet systems have demonstrated what challenges governors and staff encounter in running prisons in a time of crisis. Various lessons have been learnt, and penitentiary systems in the West can prepare for leaner times. The importance of having much lower custody rates has already been discussed – this was the biggest challenge faced by FSU countries, and that was the factor which resulted in the most deaths and human rights violations. Other lessons have been learnt too. Some examples include

  • All prisons having their own basic facilities such as laundries, generators, bakeries, vegetable gardens and animal rearing facilities (utilising all available space such as roof spaces and out-buildings)  and fire brigades and not being overly reliant on external suppliers.
  • Prisons actively engaging and co-operating with their community to share facilities both inside and outside prison and working together to provide employment and voluntary activities for prisoners to benefit the public, and also actively involving the local community in educational and resettlement activities on a voluntary basis. Could a post-downturn custodial establishment be a genuine Community Prison?
  • International standards are important and applicable – managing a prison from a perspective of legality and transparency is easier, especially at a time of crisis. Propriety is key.
  • Prisoners serving sentences as close as possible to their homes – this should be possible if fewer people are in prison.
  • Facilities for proper long-term family visits, and families having the opportunity to bring food and medical supplies to prisoners should budgets become too scarce to supply these at an adequate level.

Moreover, timely investment in bolstering resettlement structures and post-release supervision is key both in terms of improving security and savings from less re-offending. Policymakers should take the opportunity now to re-orientate budgets towards probation and other resettlement activities in the knowledge that this will save on security and custody later on when the squeeze on public finances tightens.

Many prison governors from FSU countries who managed their establishments at the time of crisis with a degree of success, attempting to minimise death rates whilst largely preserving security and keeping violence and corruption at levels which didn’t completely undermine the safety of their establishments are still around, and their expertise could be tapped for ideas on sustainability and security in lean times. That dialogue would not be difficult to facilitate.

After

Without knowing what the outcomes of an enforced Justice Perestroika might be, it’s difficult to talk about the state in which the West’s prisons might emerge from it. One lesson from Russia and other countries is an important one. There, much action was taken to reduce the prison population by as much as possible, albeit it came too late – but nonetheless the prison population was reduced by 300,000 – around 25%. The problem was that once the situation stabilised, reforms were rolled back and the prison population started to creep back up. This is a disappointment and Western societies would do well to avoid such a mistake.

It is also difficult to speculate about what will happen to crime rates in a downturn. Poverty does not lead to crime, but in many societies it leads to criminalisation. Inequality and alienation however does lead to crime – as evidenced by countries with the highest inequalities such as Brazil, South Africa, the USA and Russia. Therefore it is important that pragmatic policies to preserve lower re-offending rates are maintained beyond responses to critical situations.

What next?

In summary, in an uncertain future, security matters, and prisons are an important aspect of it. As Winston Churchill and Nelson Mandela both observed, society can be judged by its prisons. How a society reacts to the challenges posed by an economic downturn will be reflected in how it deals with the prison question specifically. For all the problems that the downturn poses, it presents an opportunity for some progressive and courageous policies to reverse the hyperincareceration trend and address the underlying causes of offending and re-offending. Society can be strengthened and made more secure through a pragmatic approach free from the need to ratchet up political rhetoric. Some models for this already exist, other can be developed, through new thinking and learning from past failures in other jurisdictions.

The most important thing is for governments to act now, since action will result either in avoiding the deepening of the penal problem if the downturn worsens, or in creating a space for positive reform and improvement if things don’t deteriorate as badly as some commentators fear.

You may have noticed that there is often confusion in describing where one is working, be it engaging in reform, or in innovation or both. The current funding climate is in part to blame – third sector organisations, consultancies and even delivery agencies often tailor their descriptions of where and with whom they intend to work to the definitions and criteria of funding bodies.

In conversation with my colleague Sophia recently, I attempted to crystallise this important distinction. We were discussing the work of the Innovation Catalyst with which we have both been involved.  It is a complex programme of work with four local authorities in England, and essentially what it aims to do is analyse a specific aspect of youth offending and responses to it in a specific area, and through innovative ways of engaging with users (e.g. the kids themselves, practitioners, sentencers and so on) find the “hinges” where an innovative approach could improve outcomes.

The idea is that through intensive micro-analysis and innovative design, you can nail a specific area where you can have impressive results relatively fast. My instinct for these things is usually relatively good and we seem have moved towards our proposed innovation occupying the sort of ground that’s beginning to be talked about. An example is what we’re trying to do in Sheffield – we are trying to find new ways of getting kids, practitioners and magistrates to design elements of a supervision programme (ISSP) to ensure that kids attend and don’t breach their conditions, and as a result don’t go to custody. The wider context is that England & Wales locks up the most children in Western Europe (around 3,000 compared to just 3 in Finland) and 12% of all these kids in custody are in for breaches of their supervision conditions – not for committing an actual offence. If we can find a way of stopping the “easy” ones of these cases reaching custody (and I believe we can), we can make a serious dent in the custody figures.

The initial idea of the Innovation Catalyst project was to demonstrate how innovation can work in Local Government. It’s been an extensive and labour intensive piece of work, not without its challenges, and I believe it’ll produce strong results.  I think the distinction between setting and sector is an important one when engaging in this kind of activity, and one which must be understood properly by social innovators and reformers (and those of us who try to be a bit of both).  I shall attempt to illustrate.

Let’s take an example away from criminal justice – right now I am sitting in a cafe in Istanbul airport, sipping some overpriced but quite nice Turkish tea. My setting might be the airport, but I’m clearly not interacting with the aviation sector. My interaction right now is with the catering sector, and if I order that tempting-looking baklava, that interaction will intensify, and possibly move me even further away from having anything to do with the aviation sector. Another example – as I was writing this, a man collapsed in front of me and started having a fit. I ran over to help him, and kept him from swallowing his tongue until medical help arrived. The doctors are now looking after him and he’ll be OK. They’ve taken him to a treatment room somewhere in the airport for him to rest and recover. His interaction now is with the healthcare, and not the aviation sector (as the poor guy might have been hoping), although the setting is still this vast airport.

Similarly, the Innovation Catalyst started out with the assumption that Local Government was a sector. In fact, it is a setting, like Istanbul Airport, Sheffield or the year 2009. The setting can be anywhere and it’s the content of the work that dictates the sector. In our case, we were asked to look at innovations around youth offending – placing us firmly in the criminal justice field, and thus, in the security sector.

Local Government as a setting straddles many sectors – security, education, waste, housing, health, social care, commerce, elder and childcare and so on. It is definitely not a sector in itself, no more than Istanbul Airport is.

Understanding the distinction between the two is as important as understanding the content of the work. For example, innovation capacity is different in different sectors and arguably is higher in the healthcare sector than in the security sector. Structures and processes are different, so are funding streams, hierarchies and responsibilities. Drivers for innovation are different too – for example in the security sector the aim is to reduce negative outcomes, whilst in education it is to increase positive outcomes. Often there are overlaps, where both opportunities and problems can arise.  All of this takes place within the setting of local government. This notion of the setting is largely about boundaries, not only geographical but also political and up to a point financial. Models for innovation in different sectors within this setting will not be the same, but they will in part be defined and constrained by the boundaries this particular setting may dictate.

In short, it is important, especially when one is embarking on a serious undertaking, to recognise not only the boundaries of the setting, but the specifics of the sector, and its capacity for innovation or reform, which will be similar in that sector across various settings. Thus, in my interaction with the catering sector, I would be able to enjoy a cup of apple tea not just in Istanbul airport but also in a completely different setting – a Turkish cafe in my native Tottenham – without the boundary constraint of worrying about missing my plane because I have become too engrossed in writing this piece.

Perhaps appropriately, innovation as a subject which is formally discussed in policy circles is in itself relatively new. Reform however has been around for centuries and millennia, and even in its contemporary guise, penal and security sector reform has been around for a few hundred years and has a strong history with its own legendary champions like Peter the Great, Jeremy Bentham and Nelson Mandela. There is a relationship between the two, but what is it, and at which point do they intersect?

I write this on the balcony of my hotel room in Ashgabat. The rotating golden colossus of Turkmenbashi is facing me directly from a kilometre or so away, the jagged mountains along the Iranian border loom in the background and the skyline is peppered with cranes building hundreds of new white and gold marble palaces which have come to characterise progress in the City of Love, but nonetheless acknowledge the ancient architectural tradition of this fascinating region. The new president has made reform a priority – a new constitution was adopted last year along with a spate of new laws and a new parliament established; a new currency has crowned fiscal reforms and I am hoping that my work here will contribute to the development of a new paradigm for the penal system. In this place, the two concepts are more relevant than ever, but as elsewhere, their definitions are uncertain and their purpose not fully established.

As I was preparing for my trip here, I put together a presentation on the necessity for penal reform not just in Turkmenistan but in the UK and many other countries. It is widely acknowledged that penal systems worldwide fail to fulfil their stated purpose of rehabilitation. Prisons are overcrowded and unhealthy places, rife with drugs, violence, corruption and infectious diseases. The main thing they succeed in doing is ensuring that people who go there emerge without employment, accommodation or family links, but with new addictions and criminal connections. They do sometimes successfully contain the very small number of dangerous people from whom society must be protected, but those people account for perhaps 10% of the total, perhaps less. In short, penal reform is as necessary now as it was during the reign of Peter the Great, since as politicians are so often fond of saying, criminal justice systems are not fit for purpose.

How does innovation then fit into the context of penal reform? We don’t think of reform as necessarily being innovative, we view it as a means to make society safer, make prisons more secure, ensure that the human rights of both prisoners and staff are respected and protected, and that people who do go to prison have less of a chance of acquiring an infectious disease or an addiction. Must innovation be part of that process?

In my presentation to the Turkmen parliamentarians, chief justice, and senior Ministry of Interior and Justice officials, I argued that it must. However, first it is important to acknowledge that not all innovation is good. Some can lead to a further deterioration of something important such as the observance of human rights. Take the presence of technology in prison. An over-reliance on technocorrections in some US jails for example can mean maximum isolation for prisoners – doors are opened and shut automatically by timers or remote control, surveillance is carried out using CCTV, meals are dispensed from machines – prisoners have very little contact with staff. Any sensible prison manager will tell you that this is no way to run a jail – what little scope there might have been for rehabilitation becomes eroded, and mechanisation naturally results in dehumanisation. Other technological innovations in this sector have been even more sinister – from the gas chamber and the electric chair to modern day taser devices which are often used for torturing prisoners and suspects.

However, other technological innovations, when used IN COMBINATION with appropriate systemic innovations, have a powerful role to play in the cause of reform. I have visited, and worked with, many prisons, and have never encountered one which was completely free from drugs. However, the practice of searching all staff and visitors on entry, using both technology, and properly trained gate staff can play a major role in reducing the stream of drugs entering an establishment. This only works if those doing the searching are efficient, well-informed, courteous and attend regular training in order to keep their abilities up to date. Moreover, shift patterns must be arranged in such a way as to make the system resistant to corruption and avoid conditioning. There must be no exceptions – all staff, governors, even visiting dignitaries must undergo this process. This approach could never completely remove drugs and mobile phones from an establishment but has a significant part to play in reducing corruption and smuggling.

Other reforms are not necessarily innovative, but indeed can be a way of improving outcomes by returning to tried and tested methods. Opportunities for this often result from ill-considered policy trends. The systematic destruction of the Probation Service in England & Wales over the past twenty years or so by successive Conservative and Labour governments is an interesting case study. Currently most experts, practitioners and policy makers acknowledge that resettlement from English and Welsh prisons is rarely successful (despite the excellent and hard work of individual people in some areas). Huge reconviction levels demonstrate this. A popular notion at the moment is that comprehensive support to those coming out of prison, from meeting them at the prison gate to assisting them with obtaining employment and accommodation is a good idea which it is. There are projects underway to make this happen in some areas, from the great work of the Tower Hamlets Council to the heavily police-focussed Diamond Districts initiative whose effectiveness is yet to be demonstrated. What few policymakers and practitioners have pointed out is that this used to be the function of the Probation Service which it used to execute well. An excellent reform would be to re-empower the Probation Service to be able to perform this function once again – this may not be innovative but it would be effective and have the result of things getting better.

So, not all innovation results in reform, and not all reform is innovative. Where do the two meet?

This is where it gets interesting. Some reforms of course ARE pure innovation, at its best. These include introducing harm reduction methods such as needle exchanges and condom distribution to prison to help reduce the risk of the spread of HIV and other blood-borne viruses through intravenous drug use and sexual contact. These may need to be accompanied with appropriate legislation reform in some countries, as well as the right normative documents, staff training, information campaigns within establishments and new systems to ensure effectiveness and confidentiality. The intervention itself is a necessary innovation (usually prisoners are 10-20 times more likely to be HIV+). But all the other aspects which I described have an enormous potential for innovation too – system design, staff training, delivery methods for the information and so on.

Even more interesting is the idea that even if a reform itself may not be innovative, the process for bringing it about can and often should be. This process needs to have robust enquiry and design components. In the case of a needle exchange for example you need to know who is injecting, when, where, why, how often, what the patterns are, how people respond to searches, are there any incentives not to inject, how needles are shared, what the supply routes and patterns are, how distribution works, what other drugs and risky activities are about in your establishment and in what volumes, what the prisoners and staff think about how injection works, how much of it is myth, what the geography of the establishment is, how injecting and supply patterns fit in with the regime, timetables, and staff shifts, and so on. Given what a closed setting prison is, the enquiry phase has no choice BUT to be innovative – to ensure confidence and anonymity whilst obtaining the best results. A mixture of techniques needs to be used form fairly edgy ethnography through to persuading the authorities to share intelligence data. The design element too needs to involve staff, prisoners, medical professionals, and possibly even drug dealers (it’s bad for business if all your customers are dying from AIDS) – i.e. not just the people who will have to deliver the programme but also those who have the potential to hinder it. The process of design and involvement of those who have to deliver the programme is innovation – no two ways about it.

Here in Turkmenistan we are some distance away from coming up with radical innovations such as involving prisoners and basic grade staff in helping improve the service and perhaps re-designing some elements of it which need to change. However, my argument stays – in this setting the most important role which innovation has to play is in the process of bringing about reform. How much innovation is needed is a separate discussion, but the fact that it is needed is hard to dispute.

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