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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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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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