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Critical Issues in Scottish Penal Policy: Prison Officers

This week, HLS has invited a group of leading experts to reflect upon critical issues in Scottish penal policy. Below, Dr Katrina Morrison argues that we can make prisons more humane by professionally evolving the role of the prison officer, who can and should be someone who is trained to support people in custody. 

 

Why penal reform should care about prison officers

In efforts to reduce the carceral net, and to make prisons better places for those held in custody, I want to argue that those interested in penal reform should also pay attention to the staff who work within prisons. If we want to minimise the harms of imprisonment as much as is possible within an institution that is coercive and inflicts pain, we must not forget those who give shape to the practices and experiences within the organisation. This may be especially important in an organisation in which its objectives are so conflicted, and the emotional dimensions of the work so heightened. 

It is therefore important that penal reform should also include those who work within prisons within their remit, as well as on those who are in custody. Supporting staff in prisons, whether this be through better education, training or improved working cultures, may not initially seem like it should be high on the list of priorities for penal reform. However, progressive penal reform must also celebrate and support an investment in prison officers, in order that they be better placed to support the aspirations of imprisonment to care for those in custody and not be solely attentive to managing risk and ensuring less eligibility within prisons. Ultimately, it is prison officers who can support a return to citizenship, and the importance of this role has tended to be overlooked in the Scottish context.

Investing in better prisons – putting lipstick on a pig? 

Arguing that penal reform should include attention on prison staff (implying investment of time and financial resources), may be difficult for some to agree with. This perhaps reflects a wider debate between penal reductionism and penal abolitionism, and whether it is possible to accept that there could ever be such a thing as a ‘good’ prison. Some may argue that investing in prisons, whether the buildings, conditions, or staff, is like ‘putting lipstick on a pig’. Whether prisons can ever be ‘normalised’ is long debated within criminology, but I take the view that, while prisons exist, they must be supported to do what positive work they can. This is within the boundaries of an institution which is fundamentally organised to inflict psychological, if no longer physical, harm (Crewe, 2011). 

There is of course a danger in investing in prisons to improve the conditions therein. Investing in prisons leads to prisons being recast as places of care, respite and rehabilitation, with a real danger that the judiciary will send people there forrespite and care, when other non-custodial sanctions would be more suitable. Traditionally, this has particularly been an issue for the female population, and this is a delicate balance which must not be forgotten as the women’s estate is reconfigured and the Community Custody Unitsare built. Prison should never be an option where people are sent for rehabilitation

The aims of imprisonment will always be multiple and complex, but prisons must also be able to support desistance by building hope, as well as providing access to services which support improved health, employability etc. both within and after prison. While care canand shouldbe provided in prison, it must nonetheless never be forgotten that prisons will also always be places of punishment, dislocation, and separation. The deprivation of liberty, control over movement, removal of key tenets of citizenship (ability to work, to vote, limit of family life and relationships), will always be the imposition of pain, no matter how positive the penal regime. 

Prison Officers – from Turnkey to Professional Prison Officers

Officers perform tasks underpinned by conflicting rationales, in a demanding environment with some of the most vulnerable and challenging individuals in our society. Officers are required to monitor risk and security and to maintain order, whilst at the same time empathising, supporting, building hope, and demonstrating personal resilience (Crawley, 2004Bennett et al., 2008Liebling et al, 2010). The balance between ‘custody’ and ‘order’ with ‘care’ and ‘opportunity’ requires officers who can think critically about imprisonment and who can care in the most challenging contexts. 

Following the publication of the Organisational Review in 2013, it is now recognised that staff must have the right knowledge, understanding and skills so that they too can support the positive change of those in custody (SPS, 2013). Since then, reforms aimed at professionalising the service are underway in order to create a degree of skill and professionalism that has not before existed in the prison setting’ (SPS, 2016:1). In the future, prison officers are expected to play a central role in helping to ‘unlock the potential’ of those in custody, by taking a greater role as: ‘counsellors, role models, coaches and advocates of the people in their care’ (SPS, 2016).

Professionalising prison officers is not a new agenda for the Scottish Prison Service. In 1991, Andrew Coyleclaimed that ‘we may now be at the beginning of a fundamental reassessment of how the prison officer carries out this task. In the not too distant future the prison officer might properly be described as a professional worker’ (p242). Over 25 years later, the inclusion in the 2017 Programme for Government of professionalization within the SPS, has put it firmly at the centre of Scottish prisons policy again. 

There is no single definition of professionalism, but two key aspects of ‘professional practice’ are the ability to make ‘complex decisions’ drawing on ‘technical knowledge, skills and informed judgement’ (Sullivan, 2005), adherence to an ethical code which can be enshrined in a (regulated) code of practice, and engage in specialised formal learning throughout their career (Sparks et al, unpublished).

Within a prisons setting, professionalization can mean different things. According to Crawley, professional prison officers do their job in a ‘fair, legal, confident and neutral manner’ with the ability to ‘relate to, and deal with difficult, truculent people’ (2004: 112). Liebling et alcite Gilbert’s definition of ‘the professional’ prison officer as ‘open and non-defensive, makes exceptions when warranted, prefers to gain cooperation and compliance through communication, but is willing to use coercive power or force as a last resort’ (1997, in 2010). For Sparks et al (unpublished), professional prison officers are able to form the right sorts of relationships and to work in and through these relationships to support desistance, which require both the right ‘personal qualities and values’, and a ‘wider body of knowledge’ relating to crime and desistance. 

What is clear, is that the ambitious aspirations for the SPS contained in the Organisational Review, have to place staff at the core of organisational change. Supporting staff within prisons to do their job to the best of their abilities, is compatible with an associated concern with people in custody. For those who want to reduce Scotland’s extensive penal state and radically improve penal outcomes, these concerns are symbiotic.

 

Author bio: Dr Katrina Morrison is a lecturer in Criminology at Napier University and was a part-time Learning and Development Researcher with the Scottish Prison Service, developing prison officer professionalization.

Remand: A life or death crisis in Scotland

In Scotland, remand prisoners make up 18.7% of our prison population yet, it has been revealed, they count for 27% of the deaths in custody. The most common cause of death is suicide. Scotland’s use of remand seriously undermines the integrity and equality of our justice system. The large majority of those people were not found guilty of any offence, but remanded awaiting trial. In fact, 15% of the Scottish prison population are remanded into custody without conviction. The high rates of remand are one of the causes of Scotland's staggeringly high prison population, and therefore remand contributes to Scotland’s reputation as one of Western Europe’s most punitive nations. In England and Wales the use of remand is dropping (where 11% of the prison population is on remand),[1] but in Scotland the remand population has been steadily increasing for decades, with an increase of over 60% since 1998. Furthermore, the Scottish courts use of alternatives to remand custody, such as supervised bail, have been falling.[2] That, as it has now been reported, being on remand disproportionately increases a person’s chance of dying while in custody should give the Scottish government greater impetus to severely restrict the court’s use of remand. 

Read more:

 

[1] http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Autumn%202017%20factfile.pdf
[2] http://www.gov.scot/Publications/2017/02/2907/12

 

Phones in Prisons: Reconnect or Rehabilitate?

Yesterday’s headlines carried the good news that prisons in England and Wales will have in-cell phones installed this year. This is an important penal reform that will improve the quality of life for prisoners in England and Wales, but it also casts a critical light on Scottish prison policy and how and why we might now wish to emulate this development.

 

Scotland – an Outlier

The possibility of in-cell phones was tentatively proposed in Scotland in 2013, but received little public and political backing. It seems that this issue has not been explored any further since then. Until recently Northern Ireland was the only UK jurisdiction to provide people in prison with in-cell landlines. Now, however, as England and Wales move forward with this prison reform Scotland will be left behind, soon to become the only prison system in the UK that does not provide prisoners with landline access inside their cells. The dominant and prevailing argument given in support of providing prisoners greater access to private and affordable phones is that it will increase rehabilitation and therefore reduce crime. This is because there is a great deal of research suggesting that family contact helps reduce recidivism.[1] However, should our prison reform aspirations be limited to rehabilitation and desistance? 

 

Family Contact

We know that prisons are isolating for prisoners. Prisons have restrictions on when and how often prisoners can receive visitors; and in Scotland, where prisons are often widely dispersed across this vast nation, actual family contact can be more difficult to maintain than it might immediately appear.[2] This makes phone contact all the more important. For the time being, however, in Scotland prisoners’ calls will continue to be made on public phones on public landings – where private conversations, family matters, and any and all news will still be received in full view and within earshot of other people. At the very least, this makes maintaining genuine and meaningful conversation with those outside the prison much more difficult. Insufficient family contact is part of what causes suffering for prisoners beyond the deprivation of liberty, and therefore the justification for more landlines in prison cells runs deeper than reducing crime.

In addition, we should never treat families merely as a tool to be used to support prisoner rehabilitation, particularly given the corrosive impact the prison can have on their lives. While they themselves are not imprisoned, the prison usually comes to dominate their family life. Having a family member in prison can cause anxiety, shame and stigma, deepen social and economic marginality, and having a parent imprisoned can yield particularly devastating consequences (Wakefield and Wildeman 2014). As one of Scotland’s leading experts on imprisonment and its wider impact on families, Dr Cara Jardine, has written, given their ‘potential difficulties and vulnerabilities, these families should be offered support as individuals in their own right and not simply viewed as a potential resource for reducing reoffending’. 

 

Communication and Well-Being or Rehabilitation?

There is a strong general argument for phones in cells. If the Scottish Government, and our New Cabinet Secretary, Humza Yousaf, decide to reconsider the position on prison phones, then they will need to think seriously about why we do it: how the policy works in practice will depend on whether its main rationale is reducing reoffending or to help improve family contact. If a phones policy is to help maintain as normal as possible family relations, then phones in cells will be able to receive incoming calls as well as make out-going calls. In addition, if the Justice Department and SPS are motivated by reducing the problems caused by imprisonment and not merely rehabilitation, then they will need to address how phones are paid for. If we want to lessen the destructive impact of the prison on family life, mental health, and reintegration, then the Scottish Government and the Prison Service must foot the bill for this increased phone contact.

As Jas, someone who is currently serving a sentence in a Scottish prison, recently wrote, managing a weekly budget in prison is a careful balancing act, challanged by the same demands of low wages and increased cost of living. But what his account also reveals is the already existing stress for prisoners and their friends and families in financially managing continued contact in Scotland. This is exacerbated by the fact that many of the people in prison are from communities that experience the most acute financial deprivation. As Jas writes, ‘I believe that high phone call costs and low prison wages is a double-edged sword that makes the SPS’s literature of ‘encouraging positive relationships’, less achievable’. Therefore, the current cost of phones in prison means people are already limiting their family contact, and thus undermining the health and welfare of the entire family.

Now, add into this existing situation the possibility of increased family contact and what the penal system will also inadvertently create is additional anxiety about not being able to afford to maintain contact: it would cost £1.30 per day for a prisoner calling home every day for just ten minutes to a mobile, multiply this by 7 days and it would cost £9.10 per week (which is more than some prisoners wages). Therefore, if this policy is about maintaining family contact and lessening the harm caused by imprisonment, then HLS advocate that in practice phones will need to be affordable and flexible.

 

Time to Reconnect Prisoners? 

The Scottish Government, should they now decide to also follow the present progressive trend and install phones in prison cells, should do so because it helps make prisons more humane, softening the sense of isolation a prisoner feels and may make reintegration less difficult. Secondly, the government should also consider this a worthy and vitally important venture because of the wider social impact of improved prisoner contact. The Scottish government already acknowledges that the families of prisoners suffer collaterally in ways that can cause lasting damage. If we wish to limit the unintended injustices of the Scottish criminal justice system, then increasing the opportunities for normal family contact must be made a priority for prison policy in 2018. It is time for Scottish prisons to reconsider the issue of phones in cells, but we should also do so for the right reasons. Rehabilitation is an important aim for prison policy, but we need not narrow the rationale behind progressive reforms to reducing reoffending. Instead, prison policy makes its most progressive and socially just impact when it attempts to transform the prison by reducing the detrimental effects of imprisonment on prisoners and society alike.

 

Footnotes:

[1]Mills A. and Codd, H. (2008) ‘Prisoners’ Families and Offender Management: Mobilizing Social Capital’, Probation journal, 55(1): 9-24. 

[2]In 2015, 61% of Scottish prisoners reported that the cost involved in getting to the prison was prohibitive and 57% stated that the distance of the prison from their home also made arranging visits difficult. Scottish Prisoner Survey 2015: http://www.sps.gov.uk/Corporate/Publications/Publication-4565.aspx

Raising the bar of youth justice: the minimum age of criminal responsibility

Last Friday the 6th of July, the Equalities and Human Rights Committee closed its consultation on its proposal to raise the minimum age of criminal responsibility (MACR) in Scotland from 8 to 12. HLS welcomes this and recognises it is an important advance, however, this will still leave us lagging behind other more progressive European justice systems. HLS urge the government to not limit our aspirations to merely have the highest MACR within the UK, but to take this opportunity - as crime continues to fall and fewer young people are in the justice system - to firmly establish Scotland as one of the most progressive youth justice systems within Europe.

The Scottish government suggest that 12 is the age of criminal responsibility suggested by the UN Committee on the Rights of the Child. However, this misrepresents the UN Committee’s position, which in General Comment 10[1], said the following:

“Rule 4 of the Beijing Rules recommends that the beginning of MACR shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual maturity. In line with this rule the Committee has recommended States parties not to set a MACR at a too low level and to increase the existing low MACR to an internationally acceptable level. From these recommendations, it can be concluded that a minimum age of criminal responsibility below the age of 12 years is considered by the Committee not to be internationally acceptable. States parties are encouraged to increase their lower MACR to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level. 

33. At the same time, the Committee urges States parties not to lower their MACR to the age of 12. A higher MACR, for instance 14 or 16 years of age, contributes to a juvenile justice system which, in accordance with article 40 (3) (b) of CRC, deals with children in conflict with the law without resorting to judicial proceedings, providing that the child’s human rights and legal safeguards are fully respected.”

Therefore, a correct interpretation of the UN Committee position is not that it recommends that 12 should be the minimum age, but rather that the minimum age should never be below 12 - as such, 12 is the bare minimum of acceptability proposed by the Committee. Indeed, the UN Committee makes the case that a MACR of 14 or 16 sits well with the UNCRC. While HLS welcomes the introduction of legislation to raise the minimum age in line with the current minimum age for prosecution, we urge the Scottish Parliament to adopt the higher age of at least 16, in the interests of promoting a forward-thinking and fair system of justice for young people in Scotland. 

This would also build on the success of the Whole System Approach, which recognises the hugely detrimental and destructive impact contact with the criminal justice system has on children and young people [2]. Those young people who come into contact with the criminal justice system are as troubled as they have been troublesome. How the state responds to them can significantly change the course of their life. Being drawn into the justice system can stigmatise and label young peopleand therefore socially marginalise them as they find it more difficult to re-enter life with their peers. Moreover, contact with the criminal justice system at an early age can actually reduce the likelihood that a young person will desist, making future criminal transgressions more likely [3]. As such, by increasing the minimum age of criminal responsibility we will increase the health, wealth and happiness of Scotland’s young people and contribute to reducing crime.

This is a serious issue for our justice system that we must get right, particularly as Scotland currently has the lowest age of criminal responsibility in Europe – but we now have the opportunity to transform Scotland into a more progressive and just nation. However, merely raising the age of minimum criminal responsibility to 12 will mean Scotland has not gone far enough to align our justice system with those countries whose aspirations for social justice we otherwise share. Following HLS’s recommendation, and adopting a minimum age between 14-16, would bring Scotland into line with, for example, Norway (15 years), Finland (15 years), Portugal (16 years), and Sweden (15 years).

The proposed Bill also suggests a number of changes relating to the disclosure of offences and provides that any conduct by a child below the age of 12 that would previously have been recorded as a conviction will no longer be recorded as such. However, the Bill does will allow for disclosure of ‘other relevant information’ held by the police about pre-12 behaviour. If the MACR is raised, then there will in fact be no legal responsibility under this age and thus there can be no such thing as ‘offending behaviour’ by anyone below the minimum age. In logic and in law this demand should become redundant. Moreover, disclosure hinders people’s prospects, if children are to be protected from the legal barriers of disclosure as they become adults then there can be no loophole which permits young people to forever to labelled as ‘ex-offenders’. Therefore, HLS advocates that there should be no suggestion that the police can hold or disclose information about ‘behaviour.’ 

Any recorded information that it was felt necessary to retain about a child or indeed any person should only be recorded and retained with judicial consent and with full transparency to the child and parent. Further, it should only be shared with judicial consent and not disclosed routinely in relation to employment, education etc. during enhanced disclosure provisions. The impact of retained records on children may be more likely to trap a child in offending rather than protect the community.

Finally, the Government suggests that raising the minimum age of criminal responsibility would necessitate changes in relation to information that can be provided to victims. HLS argue that the balance to be had should accord with the right to privacy of the child accused of committing an offence. The UN Committee (footnote 1) considers that:

“the right to privacy also means that the records of child offenders should be kept strictly confidential and closed to third parties except for those directly involved in the investigation and adjudication of, and the ruling on, the case.”

The provision of information to victims appears to contravene this right to privacy. The needs of victims can be met through other means, however. For example, in Ireland restorative justice conferencing is used with the voluntary participation of the victim (or their parent if the victim is a very young child) and that of the child or young person. These meetings can offer information and an opportunity for restitution and research and evaluation consistently demonstrates that restorative justice can provide a better experience of justice by both parties [4].

In conclusion, HLS welcomes the move to raise the minimum age of criminal responsibility. However, we urge the Scottish Parliament to ensure that the age is set at 16, so that the proposed legislation will advance Scotland towards full compliance with the recommendations of the United Nations Committee, and to take the utmost care not to create powers that will infringe the rights of children and young people or inhibit their future opportunities.    

Read more:
HLS Consultation response MACR     

ENDS

 

[1]http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf(Accessed 1st July 2018)

[2]McAra, L., & McVie, S. (2005). The Usual Suspects? Street-life, Young People and the Police. Criminal Justice, 5(1), 5-36.

 [3] ibid.

[4] Quigley, Martinowicz and Gardiner (2015) Building Bridges: An Independent Evaluationof Le Chéile’s Restorative Justice Project, Research Findings, IRISH PROBATION JOURNAL Volume 12.

 

 

Justice Committee Remand Report

Yesterday the Justice Committee published its report on remand. This is an important and timely review. We know that in 2017 18.7% of the daily average prison population was made up of people on remand, and the large majority of those people were not found guilty of any offence, but remanded awaiting trial. In fact, 15% of the Scottish prison population are remanded into custody without conviction. The high rates of remand are one of the causes of Scotland's staggeringly high prison population, and therefore remand contributes to Scotland’s reputation as one of Western Europe’s most punitive nations. In England and Wales the use of remand is dropping (where 11% of the prison population is on remand), but in Scotland the remand population has been steadily increasing for decades. [1] Furthermore, the Scottish courts use of alternatives to remand custody, such as supervised bail, have been falling.[2]

Remand is incredibly damaging, it disrupts people's lives (interrupting or even cancelling work contracts, rent or benefits, for example), can undermine their prospects and impact detrimentally upon their family. In addition, the remand prison regime is most often bereft of the education, work and support services and purposeful activities that other prisoners engage in. Moreover, remand prisoners are given less post-prison support than convicted prisoners.

The key issues the report highlighted include:

  •  Scotland’s courts frequently rely on remand to detain people, yet a high proportion of these people do not go on to receive a custodial sentence. Therefore, even if found guilty, they likely have not committed a crime whereby imprisonment for public protection or punishment is deemed necessary, undermining justifications for remand.
  • 70% of women on remand will not go onto receive a sentence; 71% of accused people remanded in solemn proceedings will go onto receive a prison sentence; but only 42% of those people remanded before trial in summary proceedings will receive a custodial sentence.
  • Instead, it appears remand is being employed as a method to ensure people who are accused turn up for their court appearance. For instance, it seems that a person who is homeless, and thus is already more vulnerable and marginalised, is more likely to receive remand.
  • A period of remand can also cause homelessness. People can lose their tenancy while on remand. While people in custody can register as homeless two months before they leave the prison, this is made more difficult for remand prisoners who have little idea when their release date will be.
  • Currently, there is no consistent database that monitors the reasons prisoners are remanded into custody so frequently in Scotland.
  • Remand is economically, personally and socially costly. It is at least as disruptive as a short term sentence, which Scotland has committed to using as a measure of last resort given that short sentences are recognised to be counterproductive as a deterrent and a desistance intervention. 
  • What are the alternatives to remand? The report suggests electronic monitoring, supervised bail and mentoring as possible routes to divert people out of an unnecessary and destructive period of custody. 
  • Some people feel that remand can be a perverse positive, however. Prison is percieved by some as a place for safety and stability where people can access services not available in the community. 

Remand is a major issue in need of penal reform. In many ways, ending remands and reducing our prison population appears simple, but as the report also reveals, remand is justified not as a punitive tactic but as a coercive social support of last resort. However, the prison should never be used as an alternative to welfare interventions in the community. If this is the case, then solutions that can drastically reduce remand must focus on early intervention, social welfare support and diversion. While the prison may be able to provide some limited forms of support, overuse of the prison is always harmful for social relations, causes stigma for individuals and can severely damage family life. It is the most severe punishment the state can deploy against people who have committed a crime. Therefore, it should never be used (1) as a means to address a gap in welfare and community provision; nor should it be used (2) against citizens who have not been found guilty of a crime.

Read the report here: An Inquiry into the Use of Remand in Scotland

[1] http://www.prisonreformtrust.org.uk/Portals/0/Documents/Bromley%20Briefings/Autumn%202017%20factfile.pdf 
[2} http://www.gov.scot/Publications/2017/02/2907/12

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