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Wednesday, June 30, 2010 

Unconnected events, Ken Clarke and the breaking of an orthodoxy.

Very occasionally, a series of otherwise unconnected events lead to something which would otherwise almost certainly not have happened. For all the explanations so far put forward for the very sudden rejection by the Tories of the past 17 years' orthodoxy on prison policy, none on their own are really satisfying. Even with the cuts which are going to have to be made across all departments outside of those "ring-fenced", it's hard to imagine if Chris Grayling had become home secretary, as most presumed he would, that we'd now hear him (or his colleague as justice secretary) expressing his doubts about whether the constant increase in the prison population had actually reduced crime or saved money in the long run.

There was after all nothing in the Tory manifesto about doing away with short-term sentences, and indeed, David Cameron during the leader debates argued against Nick Clegg when he called for them to be abolished in favour of punishment within the community, citing his mother's work as a magistrate for how they worked. If anything, the plans in their manifesto would have almost certainly meant the need for even more prison places, dedicated as they were to ending the early release scheme without explaining how they were going to provide the extra places necessary to do so. In any event, Labour ended it just before the election, claiming there was now available capacity to do so; the "operational capacity" as of now is 88,000, with 3,000 supposed places currently available (DOC), although that almost certainly involves overcrowding to the point of inciting protests and riots if maintained for long.

Undoubtedly then there has been that otherwise difficult to detect Liberal Democrat influence, although the major credit has to be given to Ken Clarke himself. If the Tories had won a overall majority, it's difficult to see him as doing any job other than than the one he was in the shadow cabinet, as business secretary. Instead Vince Cable has taken that, and with Chris Grayling apparently punished for his comments on gays and bed and breakfasts, the more liberal pairing of Theresa May and Clarke as home secretary and justice secretary have taken control. We're told that Downing Street is "concerned" by Clarke's eagerness to break with the past, yet Clarke has apparently won Cameron's tentative backing.

Again, this is no mean feat. As the Heresiarch argues, the cutting of your department's budget by anything between a quarter and a third concentrates the mind wonderfully, but with the head-banging right-wing of the Tory party already making its voice heard, and the tabloid press that Clarke even takes a swipe at in his speech such a major influence over law and order policy, it would have been all to easy to make another exception for the prison estate in order to "protect the public". Instead we've had the first, somewhat cautious, but nonetheless important break with the "prison works!" orthodoxy from a government of either of the two main parties for 17 years.

By any measure, Labour should be ashamed of its record in so vastly expanding the size of the prison estate. Clarke himself claims to be "amazed" and "astonished" at how the number currently in prison has doubled since he was home secretary back in the early 90s, before the murder of James Bulger had such a mesmerising influence on his successor Michael Howard, the opposition, the fourth estate and apparently also public opinion. Where both Clarke and before him Douglas Hurd had attempted to look at the alternatives to prison, suddenly the prime minister himself declared that we ought to "condemn a little more and understand a little less". David Cameron was after all mocked and ridiculed when he suggested something approaching the opposite of that just a few short years ago, calling for teenagers in trouble with the law to be "shown a lot more love", crudely translated by both the tabloids and Labour as "hug-a-hoody".

It's no surprise then that both Howard and his spiritual successor, Jack Straw, have been out defending their record in the face of Clarke's heresy. Clarke cuts straight to the point in his speech, attacking the "numbers game" which political debate on law and order had become:

The measure of success has been solely about whether a Government has spent more public money and locked up more people for longer than its predecessor in the previous years.

In fact, it had become even more debased than this. During the election campaign Labour attacked the Tories for being "soft on crime" over their almost indistinguishable policies on DNA retention, claiming they would be the "burglar's friend". Jack Straw had even suggested, despite all the evidence to the contrary, that the "criminal justice lobby" had an undue influence over policy.

Clarke's heresy doesn't end there however: he goes on to argue that in our "worst prisons" our policies on crime and punishment produce "tougher criminals", coming out drug dependent or making new "hardened criminal friends". Moreover, re-offending rates have been rising in recent years, and nearly half of offenders sent to prison are re-convicted within a year. As Clarke said:

"It is virtually impossible to do anything productive with prisoners on short sentences. And many of them end up losing their jobs, their homes and their families during their short term inside"

The problem with all this fine talk, welcome as it is, is that the solutions, away from "rigorously enforced community sentences", are so familiar. As with everything else that the coalition seems to be doing, much of the leg work will be left with the "voluntary and private sectors", who'll be paid by their results in reducing re-offending. As Dave Semple points out, if the private sector doesn't see a profit, and recidivism is a notoriously difficult thing to correct, it isn't interested. Moreover, as with the welfare system, are there really going to be savings at the end of the process even if everything goes well, considering the extra costs of helping former prisoners once they're on the outside and the paying of the third sector for their success? It certainly isn't clear that there will be. And besides, what of the prisons that presumably will be left empty if the numbers are actually cut? Will it be the old buildings in the estate sold or the new, often PFI-built prisons by private companies closed, with all the costs that will entail?

There's the same problems inherent with Clarke's suggestions on reforming sentencing. He's right that sentencing at the moment is not properly understood, with most only serving half of the sentence they are actually given with the rest spent out on probation, yet his proposed solution is equally full of holes. He brings up the possibility of judges giving a minimum term which must be served before there is any possibility of release, and a maximum which will be served unless the prisoner "earns" their release prior to that. This is almost to a point the current system which it comes to indeterminate sentencing, which is becoming such a strain on the prison system. The judge passes a minimum term which has to be served, but after that it's up to the prisoner to prove that they are no longer a risk to the public. This has resulted in the press screaming blue murder at the mere thought that the likes of notorious criminals such as the mother of Baby Peter could be released in "just 3 years", even when there's next to no chance that they will be. The media, or at least the tabloid half would all but ignore the "maximum" term and instead focus on the minimum as it does now, and the apparent laxity of the judge in such serious cases.

Clarke does however deserve praise for this paragraph, which it's impossible to fault:

I think it’s fair to say I’ve got rather more confidence in judicial discretion than my predecessors. The difference between a judge and a member of the public or a politician is that judges listen to hours and hours of evidence before they make a decision. They know far more about the detail of a case and the evil of the particular offender than we ever could just by reading the red tops.

And for this as well:

I want to hear the views of the judiciary and the citizen JPs who dispense justice in our magistrates’ courts.

When you have handed out community penalties, have you found them to be effective? If so, which ones? If not, why not? What was wrong with them?

Are all the orders you would like to impose available in your area? Which ones would you like to see more of? And which have you found to be most effective?


Actually asking the judiciary themselves for what works?! How novel and controversial!

It remains to be seen whether Clarke will continue to win the battle against the tabloids, the backbenchers and the knuckleheads in Labour, yet even making this first step is more than the latter ever dared to try. Much as there is already to condemn the coalition for, the truly perverse thing is that it's the Labour party that remains wedded to the failures of the past while the supposed authoritarians and throwbacks in the Conservatives are prepared to challenge what seemed like the unshakeable status quo we were stuck with. The ultimate test will be whether the prison population drops below that figure of 80,000, and then even further; only then might Clarke deserve plaudits to go with the praise.

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are there really going to be savings at the end of the process even if everything goes well

Well, maybe not. But reading Dave's post, the clinching argument that there won't be savings seems to rest on some very dodgy arguments about reoffending, which I took issue with here.

This is almost to a point the current system which it comes to indeterminate sentencing

No it's not. Indeterminate sentences are, well, indeterminate - no maximum; people can be (and are being) detained for years on end after getting a relatively short sentence. The maximum makes a big difference.

This is still a Tory government, God knows, but in penal policy the big question isn't so much "left or right" as "vindictive authoritarian who likes demonising powerless people, or not" - and sadly that one cuts right across the main political parties.

Well yes, you're right on the point about indeterminate sentencing but my point was more on how the sentences would still be perceived: when the media already ignores the fact that they're indeterminate and instead focuses on the minimum, they're hardly going to bother dwelling on the "softer" maximum they'll have to serve. In fact, they'll most likely be outraged about how short that is as well.

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