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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.
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.
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:
- 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.
- 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.
- 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.
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.
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.
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.