Penal Policy

Achieving Social Justice in 2018: Prisoner Voting Rights

The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and personhood. Quite literally, it says that everybody counts.

  • South African Constitutional Court rules on prisoners' right to vote (1999)

 

Howard League Scotland calls on the government to take this occasion of newly devolved powers to extend the franchise to all prisoners. The issue of prisoners voting should be central to the Electoral Reform Consultation. Extending the vote to prisoners is not primarily about criminal justice, penal reform or rehabilitation. This is about human rights, creating universal franchise in Scotland, and ensuring democratic rights for all citizens. Ultimately, this is about improving the health of our democracy and building a better Scotland.

The centenary of women’s right to vote has been a powerful and timely reminder that citizenship is not automatic, even in democratic societies. We are reminded also that when people are reduced to second class citizenship, and thus socially excluded, it is all too often the result of government policy and legislation. Democracy is about inclusion, political engagement and civic participation. When we disenfranchise specific groups of people, however, we curtail their citizenship and socially marginalise them, but we also degrade the quality of the democracy across our entire society. 

In terms of measuring the strength of our democracy and social equality, universal franchise is seen as an important proxy. Using that measure, Scotland’s democracy is worryingly limited. Of the 47 Council of Europe nations, Scotland is an outlier; having restrictions on prisoner voting we are in line only with Westminster, Armenia, Bulgaria, Estonia and Russia. 

There is also something particularly punitive and arbitrary about denying prisoners the right to vote as opposed to all people with a conviction. This is most likely due to the belief that prison is for the most heinous criminals, but we know in fact large numbers of prisoners are not sentenced for serious or violent offences. In 2011-12, 28 per cent of shoplifting convictions, 54 per cent of housebreaking convictions, and 61 per cent of convictions for serious assault and attempted murder ended in a custodial sentence (Source: Criminal Proceedings in Scotland 2011-12). There is not a straightforward divide between the types of offences that attract imprisonment and those that do not. Therefore, HLS advocate that a custodial sentence by itself sets too low and arbitrary a threshold for the loss of such an important right as the right to vote.

Imprisonment is intended as the deprivation of liberty but in contemporary Scotland it also causes “civic death”, an archaic nineteenth century penal idea that should be resigned to history. Civic death was intended to strip a person not just of their freedom, but of many other basic rights, reducing them to a ‘non-person’. This sits at odds with the Scottish political commitment to reintegration and social justice.

Instead, by expanding the franchise the prison can be used to inculcate and encourage civic identity. This is particularly important given that the current voting ban also disproportionately impacts the most deprived and vulnerable. Prisoners tend to be the most marginalized members of our communities and by denying them a vote further ostracizes them from mainstream society. Strengthening people’s connection to society and motivating their sense of wider civic responsibility is an important aim of democracy, one that can be supported by giving prisoners the vote.

Since the devolution of electoral matters to Holyrood in the Scotland Act 2016, however, Scotland has gained the opportunity to be a leader and become the first polity in the United Kingdom to extend the franchise to convicted prisoners. England and Wales continue to deny prisoners the right to vote, despite the European Court ruling that it is unlawful. By extending the vote to all prisoners, the Scottish government can buck this trend, sending the clearest signal yet about its commitment to justice, fairness and inclusion.

HLS believes that the franchise is too limited in Scotland and calls on the Scottish government to remove this uncivilised and anti-democratic ban. Following the Irish model, voting should be extended to all prisoners, regardless of crime and sentence length and using a postal vote system. Prisons are public institutions, their character reflects the political and social values of society at large. However, from civil rights to eliminating the death penalty, history has shown us that governments can shape and encourage progressive public opinion by showing leadership on even the most divisive issues. By giving voting rights to prisoners, Scotland will make a bold statement on the international stage about the democratic character of our society. Prisoner voting is not a criminal justice matter, it is an electoral issue: in its current form it exposes a serious inequality that currently undermines Scottish democracy.

 

 

 

Proposed Advances in Electronic Monitoring

The Scottish government recently introduced the Managment of Offenders (Scotland) Bill. HLS cautiously welcomes the proposed changes to electronic monitoring as a means to directly and assertively reduce Scotland’s troublingly high imprisonment rate. Our wariness, however, is rooted in our concerns about criminal justice net-widening. As we recently wrote, an increase in community sentences over the last decade has not impacted the rate at which Scottish courts give prison sentences. Moreover, the expansion and refinement of electronic monitoring (EM) poses other potential issues for social justice, desistance and citizenship, which HLS remains apprehensive about.

Part of the appeal of EM is that it is considerably cheaper than prison. However, there needs to be sound penological reasons underpinning its use and development. The Scottish government have made it clear that they are interested in reducing re-offending. As a tracking technology EM has no inherent rehabilitative capacities, however, and we are concerned that expanding its use may in fact undermine criminal justice social work. EM cannot replace the human contact and the positive relationship between a social worker and their supervisee. The encouragement and guidance provided by probation can be vital in supporting a person’s rehabilitation, this includes helping someone access education and employment, secure housing and address addiction. Moreover, EM cannot counter the other issues that often underlie offending, namely, socially inequality and lack of opportunities. Monitoring should not be misrepresented as centrally a tool for rehabilitation. Its use, therefore, should be only one among a suite of community supervision and rehabilitation measures.

If that becomes the case, and EM is but one tactic in an integrated programme of community supervision and surveillance, then the severity of punishment for breaching EM should remain in question. If a person who is tagged is generally succeeding in meeting the broader demands of supervision and desistance, we need to seriously consider if breach of EM curfews and exclusion areas should automatically cause a recall to prison.

HLS are also particularly concerned about the proposed creation of exclusion zones that could range "from a house, to specific street patterns, to a neighbourhood, to a whole city. GPS also allows more than one exclusion zone to be set. Using GPS technology to set exclusion zones can help create safe spaces for victims of crime", according to the Scottish government. We worry that a desire for effective and cheaper forms of criminal justice and community protection are superseding more ethical and social concerns about citizenship and reintegration. When people are denied access to large areas of public space, like city centres, it sends a clear statement that they do not belong here, that they do not deserve equal membership of Scottish society. When we block people from full social and civic association we degrade their citizenship as we make people criminal for moving through public spaces. We also blur the lines between the community and the prison. We strongly resist any suggestion that cities and neighbourhoods should be carved up into permitted territories and no-go zones. This has the long-term potential to create a community justice culture of security and exclusion in Scotland, rather than a culture of reintegration and social inclusion.

Relatedly, we know that in Scotland, like elsewhere, people sentenced to prison are largely drawn from the most disadvantaged communities. If the use of EM follows this pattern – and those being tagged and GPS tracked are concentrated in the most marginalised areas – the Scottish government risks converting neighbourhoods that are already hindered by social exclusion into prison-like places, where large sections of the population have restricted movement and liberty. Any attempt to reduce prison numbers and achieve the aims of social justice is seriously undermined if EM inadvertently creates communities of confinement across Scotland.

Any form of tagging and monitoring should be developed with these concerns in mind. EM can support rehabilitation, offer community protection and keep people within their families. But achieving the goals of community justice while mitigating the serious social and civic risks will require a delicate and critical balance. To begin to address some of these issues, and emphasise EM’s potential strengths, longer periods of supervision could be organised on a graded system, becoming increasingly less onerous, with stipulations and exclusions reduced, as time passes. As the Council of Europe wrote, ‘EM can certainly be used in ways which make an offender feel trusted, an important ingredient in the rehabilitation process’. Finally, long-term research is needed to carefully monitor the economic, rehabilitative and qualitative impact of EM on individuals, communities and Scottish civic life.

Read More:

The Scotsman: Scottish criminals ‘could be barred from entire cities’
BBC News: Use of electronic tags to be extended
Iriss (2017) Electronic monitoring in the criminal justice system

 

 

2016 HOLYROOD ELECTIONS: REVIEW OF PARTY MANIFESTOS

We have reviewed the manifestos of the five parties currently represented at Holyrood, comparing the various pledges and commitments against five key issues where Howard League Scotland would most like to see action in the next Parliamentary session:

  • Reducing the prison population
  • Reducing the use of remand
  • Better use of community sentences
  • Reducing the female prison population
  • Increasing the minimum age of criminal responsibility

We have focussed on the section of the manifestos that relates specifically to justice issues. However, we recognise that it is important to consider the party manifesto commitments on justice in a wider context. Many of the solutions to the issues above lie outside the criminal justice system and in health, education, housing and employment policy. (Links to the party manifestos can be found at the end of this document.)

USE OF IMPRISONMENT

Howard League Scotland says:

There are still too many people prison in Scotland.

Scotland’s imprisonment rate is one of the highest in western Europe. There are currently 7,937 people in Scottish prisons today. The Scottish Prisons Commission (2008) recommended that the Scottish Government pursue a target of reducing the prison population to an average daily population of 5,000.  The current set of prison population projections suggest that prison population levels in Scotland will remain at an annual average of 7,800 between now and 2022/23.

What do the party manifestos say?

Scottish Conservatives want to

  • end automatic early release for all prisoners
  • abolish parole for the “worst offenders”
  • send anyone in breach of a Community Payback Order to prison for 24 or 48 hours
  • introduce payment-by-results schemes to tackle reoffending

Scottish Greens want to

  • encourage greater use of diversion from prosecution
  • abolish short prison sentences of less than 12 months
  • ensure custodial sentences are only used for those who pose a threat to the public
  • decriminalise the cultivation and possession of cannabis for personal use, and decriminalise the possession of drugs that grow wild in the UK

Scottish Labour want to

  • introduce a presumption against prison sentences of less than six months

Scottish Liberal Democrats want to

  • reduce overall prisoner numbers
  • introduce a new presumption against short prison sentences of less than 12 months
  • work with the Sentencing Council to change prosecution and sentencing guidelines to refer those arrested for possession of drugs for personal use for treatment, education or civil penalties, ending the use of imprisonment

Scottish National Party wants to

  • support new efforts to deliver effective alternatives to custody

USE OF REMAND

Howard League Scotland says:

Too many people are remanded into custody.

The numbers of individuals on remand have increased by 65% since 2000 (from 951 in 2000 to 1565 in 2015). Around a fifth of those in prison in Scotland are there on remand and our remand imprisonment rate is the highest of the three UK jurisdictions. In 2012/13 more people went to prison to await a trial or sentencing than to be punished. In November 2015, Scottish Legal News reported that the 140-day rule (for High Court trials) is being regularly breached.

None of the party manifestos make reference to the issue of remand.

COMMUNITY SENTENCES

Howard League Scotland says:

We want to see better use of community sentences.

A number of studies have have found that community sentences are more effective in reducing reoffending than short-term prison sentences. For instance, someone serving a prison sentence of six months or less is more likely than not to be reconvicted within a year of release. Community sentences allow individuals to address the causes of their offending behavior, maintain family relationships, tenancies and employment – all of which increase the likelihood of desisting from further criminal activity in the future.

What do the party manifestos say?

Scottish Conservatives want to

  • introduce a presumption into Community Payback Order legislation, where the courts would have to justify not imposing a work element
  • introduce “swift and certain” schemes which where those breaching community sentences are sent to prison for 24 or 48 hours

Scottish Greens want to

  • increase the use of non-custodial sentences and educational disposals

Scottish Labour want to

  • see more alternatives to custody and an increase in community-based sentencing

Scottish Liberal Democrats want to

  • support the further transfer of resources from ineffective short prison sentences to robust and effective community justice options
  • make sure Community Justice Scotland is able to oversee the establishment of many more alternative sentences

Scottish National Party wants to

  • see Community Justice Scotland providing leadership and strategic direction in the planning and delivery of community sentences
  • improve community-based alternatives to short-term prison sentences, including restricting liberty through the increased use of electronic monitoring, combined with support in the community
  • support new efforts to deliver effective alternatives to custody (e.g. Fiscal Work Orders)

FEMALE PRISON POPULATION

Howard League Scotland says:

There are too many women in prison in Scotland today.

The female prison population has risen by 120% since 2000. Research carried out 2011 showed that the rise in numbers has not been driven by an increase in criminal activity by women, by women committing more serious crimes or the increased prosecution of women. The Commission on Women Offenders (2012) stated that ‘there is an urgent need for action to reduce the number of women reoffending and going to prison.’ There are just over 400 women in prison in Scotland today.

What do the party manifestos say?

Scottish Conservatives

No specific reference in manifesto.

Scottish Greens

No specific reference in manifesto.

Scottish Labour wants to

  • halve the population of women prisoners and will implement the recommendations of the Angiolini Commission on Women Offenders

Scottish Liberal Democrats want to

  • support the Angiolini reforms on women offenders and apply the same principles to our response to male offending

Scottish National Party wants to

  • enhance access to community sentencing and support and the development of a new model for the female custodial estate, with a smaller national women’s prison and local community-based custody units

MINIMUM AGE OF CRIMINAL RESPONSIBILITY

Howard League Scotland says:

The minimum age of criminal responsibility in Scotland must be increased.

In 2015, the United Nations Human Rights Committee criticised the fact that Scotland has – at aged eight – one of the lowest minimum ages of criminal responsibility in the world. Although a child under the age of 12 cannot be prosecuted for an offence, they can still be referred to a Children’s Hearing and may ultimately carry a criminal record from the age of eight.

What do the party manifestos say?

Scottish Conservatives

No specific reference in manifesto.

Scottish Greens

No specific reference in manifesto.

Scottish Labour

No specific reference in manifesto.

Scottish Liberal Democrats want to

  • raise the age of criminal responsibility to 12

Scottish National Party

No specific reference in manifesto.

Howard League Scotland

29 April 2016

Guest blog: Restructuring Community Justice in Scotland

As the Scottish Parliament's Justice Committee commences its Stage 1 considerations of the Community Justice Bill, Jamie Buchan considers reform of community justice in Scotland.

Under legislation recently introduced by the Scottish Government, community justice in Scotland is to be reorganised for the second time in about a decade, after the previous reorganisation left it with serious structural flaws – but even if these problems are removed, challenges old and new will remain.

Scottish criminal justice has seen some interesting developments recently; most encouraging was the January decision not to build a new women’s prison at Inverclyde and instead to pursue a model of small local centres, as recommended by Howard League Scotland and the Commission on Women Offenders (the Angiolini Report).

Less well-known are the Angiolini Report’s recommendations on community justice. This is an important part of Scotland’s criminal justice system – in 2013-14, over 20,000 offenders received a community sentence. These sentences combine punishment and rehabilitation – they can include unpaid work requirements, probation supervision delivered by criminal justice social work (CJSW), and interventions aimed at the offenders’ ‘criminogenic needs’ (such as mental health, housing or employment). This vital work goes beyond community sentences – these same structures contribute to the reintegration of offenders released from long prison sentences.

Community punishments are cheaper, less disruptive and overall more effective at tackling reoffending than imprisonment, and the Scottish Government has accepted this for some time. Nonetheless, community justice features only rarely in media and public discussions. As Rob C. Mawby and Anne Worrall wrote in Doing Probation Work (2013), community justice doesn’t have the pop-culture prominence that novels, news media, TV and films have imparted to the police, prisons and the courts. Notwithstanding the reality of sentencing, we tend to think of prison bars when we think of punishment – and to think of community punishments as ‘alternatives to imprisonment’ rather than punishments in their own right.

The distinctive structure of the Scottish system was developed almost fifty years ago, following the Kilbrandon report into youth offending. That report, which famously led to the creation of the Children’s Hearings System, also made recommendations about adult social work and criminal justice. Scotland’s probation service was abolished, and its functions were folded into new generic social work departments within local authorities.

The position of CJSW as a local authority social work institution, rather than a national criminal justice institution, has shaped its development in Scotland – but community justice issues don’t stay neatly within the institutional boundaries of social work departments. They involve police, courts, prisons, the NHS, social housing and the many charities that work with offenders. That makes community justice a matter of partnership, and the current system aims to reflect this. It’s structured around eight Community Justice Authorities (CJAs) – regional bodies established in 2006 after hurried compromise between local government, social workers and the Scottish Executive.

CJAs were set up to reduce reoffending in their regions by allocating CJSW funding, promoting partnership and holding social work departments to account for meeting reoffending targets. The members of each CJA are councillors from the constituent local authorities, who vote on area plans which detail how resources will be allocated. In practice, these plans are prepared by CJA employees – the Chief Officer and their small support staff – and rarely come to a vote. CJA Chief Officers also coordinate activity between various partners: local authority CJSW, the Scottish Prison Service, the NHS, the Crown Office, Police Scotland, Victim Support Scotland and various charities.

Despite the efforts of CJA employees, the current model has serious structural flaws. A CJA has no operational control and only limited strategic control, and it can’t hold the NHS or the courts accountable in the same way it can social work departments. My own ongoing research suggests that CJA staff feel a conflict of aims – reporting a failing social work department to the Government would hinder partnership working, so this power has never once been used. With no control over non-CJSW partners, the success of a CJA partnership has often come down to personality, not policy.

Despite being restricted by these structural factors, CJA staff have often played important roles in developing innovative approaches to rehabilitation. Reoffending has fallen and partnership working has improved since CJAs were established. The system has not been a total failure, but by the time of the Angiolini report it was clear it had to change.

The consultation for redesigning the system was unusually long (about two years), which suggests the Scottish Government wished to avoid the rushed decision-making and implementation that produced the CJA system. Initially the consultation presented three options: keeping CJAs but enhancing their power, handing responsibility to local authorities, or setting up a single national Community Justice Service (the latter recommended both by the Angiolini report and by Howard League Scotland).

None of these options was accepted – instead a compromise between local and national was agreed, but not a regional middle way like the CJAs. Instead the Community Justice (Scotland) Bill, recently published and now in its first stage, will replace CJAs with a new two-tier system.

Local Community Planning Partnerships (CPPs) will be responsible for coordinating partnerships and developing local plans for reducing reoffending – as they already are in many areas outside justice. Alongside these a new national body, Community Justice Scotland, which will be responsible for promoting knowledge exchange and public awareness of community justice.

It’s likely to be a turbulent time for CPPs as they assume these new responsibilities. The upcoming Community Empowerment (Scotland) Bill is intended to strengthen CPPs in light of criticisms of their performance; the Scottish Government is also requiring local authorities to integrate health and social care provision structures, and there’s a growing division within the local authority umbrella group COSLA.

Promoting public awareness and developing public interest could be an even greater challenge for Community Justice Scotland. The Inverclyde decision suggests Scotland could forge a path to a more effective and humane criminal justice system, centred on rehabilitation and reintegration. Getting there requires us to challenge the narrow conception of community punishments as ‘alternatives to prison’, and to develop locally engaged structures which can deal in a multifaceted way with the complex problem of rehabilitation.

*****
Jamie Buchan is a third-year PhD student in criminology at the University of Edinburgh. His research focuses on the development and effects of the restructuring of the community justice systems of England and Wales and Scotland, with particular reference to practitioner opinions, experiences and adaptation in Scotland. He writes here in a personal capacity.

Prisoner Voting

That Scotland denied prisoners the right to vote during the independence referendum undermined the fabric of our democracy and the principle of universal suffrage. In this essay Albie Sachs and HLS President Andrew Coyle review the current ban on prisoner voting in Scotland, England and Wales. How can the Scottish Government make real its social justice mantra when it denied such a large population a right to be counted as a member of a democratic Scottish society during the independence referendum?

Read the essay here: The Right to Vote | Scottish Justice Matters | Vol 3 | Number 1 | March 2015

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