Do Better Do Less: The report of the Commission on English Prisons Today advocates a new approach of penal moderation and a number of fundamental reforms, including:

  • A significant reduction in the prison population and the closure of establishments
  • The replacement of short prison sentences with community-based responses
  • The dismantling of the National Offender Management Service (NOMS), including the break up of the centrally managed prison service

With local authorities as lead partners, we suggest local strategic partnerships should be formed that bring together representatives from the criminal justice, health and education sectors, with local prison and probation budgets fully devolved and made available for justice reinvestment initiatives

A penal crisis and the case for change

Crisis now defines the core of the English and Welsh penal system. Despite a 42% decline in the amount of crime reported to the British Crime Survey since 1995 the prison population has soared to an all time high of almost 84,000 in 2008 (83,810 on 1 August 2008 - more than doubling since 1992) and overcrowding has reached record levels.

Penal policy and the criminal justice system as a whole have been primarily responsible for driving up numbers. We have experienced over 15 years of intense criminal justice hyperactivity. This intense and punitive political activity has had the effect of encouraging a more fearful and insecure population. It has raised unrealistic expectations about the role prison can play in securing a safer society.

Prisons have become the stand-in for a health and welfare system which is also failing. Prisons have become vast warehouses for the dumping of people with problems society has failed to deal with - those with mental health needs, with histories of neglect and abuse, with drug and alcohol addictions.

The penal system is a huge drain on the public purse. Between 1997 and 2005 there was a five per cent average annual real terms increase in spending on public order and safety. In 2008 the criminal justice system as a whole in England and Wales received £22.7 billion, over a third more than it received ten years ago.

In order to counter this crisis of penal excess, the Commission advocates radical and transformational change: a significant reduction in the prison population and the closure of establishments; the replacement of short prison sentences with community-based responses; and a clear acknowledgement that criminal justice is a blunt tool which cannot in itself provide lasting solutions to the problem of crime.

Lessons from abroad

The post war history of a number of liberal democracies, including our own, demonstrates that penal moderation is not only possible but can be successfully sustained in periods of increasing, as well as decreasing, crime rates.

New York City illustrates that it is possible at city level - in the midst of national mass incarceration - to reduce the prison population, to reduce crime and to create safer communities. This remarkable achievement appears to be the product of a concerted investment in mental health and drug treatments and housing and social support; specialist drug and community courts organized around problem solving and diversion from prison and the intellectual direction offered by two powerful research institutes.

In England and Wales a large, complex, obtuse system riddled with linguistic confusions creates barriers to public understanding and thereby excludes the wider public. By contrast, in Scandinavia there are clear, simple systems with few alternatives and the level of understanding and the clarity with which prison is perceived is correspondingly greater. It is acknowledged in policy and practice that the problems which bring most people to Norwegian and Finnish prisons cannot be resolved in the prison setting. Increased community safety is emphasised by ensuring that prisoners and those subject to community penalties have full access to the community’s social and health resources.

Scotland has made explicit the connections between penal policy, the prison population and national well being. It is thus able to step outside the confines of criminal justice and to examine prison holistically in the context of other forms of civic and social investment.

Penal moderation - the intellectual foundation

Lessons from around the democratic world reveal that if we want to make our system of punishment more effective, more humane and more meaningful, we must develop a public philosophy which is grounded in first principles and which places the humanity of victims and prisoners at centre stage.

Restraint needs to be clearly enunciated as an ideal in penal discourse and incorporated at every level of our thinking on punishment if we are seriously to halt the current expansionist trajectory.

Penal moderation invites us to think of the benefits of a minimum necessary penal system and of prison as an institution of last resort. To sentence an offender to imprisonment should be a difficult action and one which requires the most rigorous of justifications when all other options of social control have been exhausted. Its use must even then be administered only in strict proportion to the harm done and with the aim of reducing the likelihood of exacerbating that harm.

The approach for policymakers should be three-fold. Firstly, the public fears about crime and disorder must be challenged with evidence and narratives from the real world of prisons and prisoners. Secondly, a public philosophy of punishment must be developed that substitutes moderation for excess. Finally, this public philosophy must be made real through a framework for delivering change.

A framework for change - making justice local

Localism confronts public alienation from the criminal justice system and offers communities the real democratic possibility of contributing to debate and policy on issues which sometimes define those communities.

Devolution of spending and an opening up of policy choices should lead to less money spent on process and more money spent on actions which produce beneficial outcomes for the whole community.

The Commission’s proposals to enhance community safety are predicated upon the ability of local areas to shift resources from the funding of prison places to the funding of community needs.

Properly ‘local’, community-facing prisons should have access to mainstream health and social services rather than running their own specialised, yet largely ineffective, ‘offender programmes’.

Localism will only succeed alongside the fundamental review of the use of custody that penal moderation requires.

Delivering change through justice reinvestment

Justice reinvestment seeks to re-balance the criminal justice spend by deploying funding that would otherwise be spent on custody into community based initiatives which tackle the underlying causes of much crime. Justice reinvestment is not about alternatives within the criminal justice process, it is about alternatives outside of it.

Policy decisions in criminal justice tend to be driven by direct financial costs and short term savings. The wider social and economic costs are rarely taken into account. In the meantime, criminal justice costs have increased dramatically and without tangible success.

Prisons must be closed in order to reinvest capital and revenue funding into the communities which suffer most from deprivation and victimisation. Such moves would readily encourage public support and cooperation particularly if achieved and delivered through local democratic mechanisms.

In England and Wales it is time to revisit the ethical and operation concerns about private prisons and an exit strategy from current PFI contracts should be explored as a matter of urgency.

The current National Offender Management Service (NOMS) model is unwieldy, over-complex and ineffective. A truly local approach would require the breaking up not just of NOMS but the traditionally centralised management of the prison service.

The Commission would suggest that the example of the Scottish Community Justice Authorities (CJAs) provides the most promising basis of delivery. With local authorities as lead partners, we suggest local strategic partnerships similar to the CJAs should be formed that bring together representatives from the criminal justice, health and education sectors, with local prison and probation budgets fully devolved and made available for justice reinvestment initiatives.

The Ministry of Justice would retain the lead on policy issues and would set minimum standards. A criminal justice equivalent of the National Institute for Clinical Excellence (NICE) would ideally provide an assessment of social outcomes for sentencing disposals in order to better inform sentencers and local strategy partnerships in their decision-making. The high security estate would also remain managed on a national basis.

Delivering change through restorative justice

While restorative justice has been mostly used to deal with conflicts in schools, community and neighbourhoods, and with anti-social behaviour to some considerable effect, the Commission agrees that there is still considerable potential for development in dealing with crime.

The Commission is supportive of restorative justice for more serious offences and offenders in the context of a pared down criminal justice system, in which restorative justice is used in conjunction with a reduced custodial sentence.

Low victim involvement in UK restorative justice schemes is attributed to organisational failings. Unless resources are shifted towards improved contact, training and support in relation to victims, restorative justice will remain a tool for the rehabilitation of offenders rather than a process that also brings a greater sense of justice to victims.

Restorative justice has an important function to play, but only if restorative processes are protected by legal and ethical safeguards which ensure that the very real risks of secondary victimisation for victims and disproportionate sentencing and net-widening for offenders are controlled.

Choosing the future

The Commission on English Prisons Today has spent two years reviewing the current penal crisis, and during this time we have seen tumultuous events on the world stage. In particular, the sense we are at a crossroads as a society, and that decisions taken now would be truly momentous in all fields of public life, was felt strongly.

In choosing the future, we must seek to do less and by doing less we can do better. Far from this being a counsel of despair, this is a call for hope. There is now an opportunity to refashion our penal system so that it reflects, and gives effect to, the society we wish to become. We must not let this opportunity slip away.