Review: 40th Anniversary Conference - Futures of Justice - The Next 40 Years

Review: 40th Anniversary Conference - Futures of Justice - The Next 40 Years

Howard League Scotland in association with Edinburgh Futures Institute
Wednesday, May 22, 2019 - 09:00
Adam Lecture Theatre, Old College, South Bridge, Edinburgh EH8 9YL

Our 40th Anniversary Conference exploring new ideas and new directions for the future of criminal justice in Scotland was a great success. We brought together people from leading penal reform groups from across UK and Ireland, with our speakers sharing their bold ideas for penal reform, their vision of how we could improve our system of criminal justice, and setting out new directions for penal thought. It was a long, but wonderfully inspiring day, summed up by quotes like these: "“[A] hugely stimulating and provocative event. Well balanced with a broad range of perspectives. An interesting blend of optimism and realism. Close to 5 stars” and “Really, one of the best conferences I’ve ever attended in terms of the knowledge, ideas and passion brought by the speakers. The future of Scottish justice is in great hands!”

Here's a summary of the presentations from each of our speakers:

Dr. Sarah Armstrong (Director of the Scottish Centre for Crime and Justice Research and Senior Research Fellow in Criminology, University of Glasgow) talked about new territories of intrusion during a prison visit. She highlighted that Scotland is positioned outwardly as progressive, but in reality that’s not the case. We have more people taking their own lives, there’s more in-cell time and more deaths by overdose than in England & Wales, but we package it well. She questioned our use of punishment in disguise, where the reach of the prison extends into the community; and the notion that the prison environment’s waiting spaces inappropriately encourage behaviour change from its visitors as consumers, introducing differentiation based on class and status. This was contrasted with visitors’ treatment in similar waiting spaces in airport and train stations. She urged us not to “pour old wine into new bottles”, but to break the bottles instead. She likened Scotland to the Texas of Europe – not a good place to be - and called on us all to be much more imaginative, rethinking new lines of approach to our penal system.

Dr. Cara Jardine (Leverhulme Early Career Fellow, based at the University of Strathclyde) challenged the cult of the individual, evoking a post-punk, more hopeful, utopian, positive perspective. She suggested that we should move away from looking at individuals as autonomous and rational agents, reminding us that we currently look at individual theories of crime and justice like desistance; and that we then only look at specific types of individuals - usually young men. She urged us to look at legal problems in other ways and from other perspectives, stressing the importance of taking much more account of how people beyond the individual are affected by punishment. She willed us to look beyond the prison to the poverty that lies behind it, and is exacerbated by it; and implored us to look at the time and the opportunity costs that it imposes on families. She suggested that there are small ways, but vitally important ways in which we can reduce these exacerbations: in cell telephony; requiring courts to consider and report on the children affected by their decisions; more research on how families experience community sentences; and more understanding of the challenges of compliance. But more broadly she asked “why are we asking the Criminal Justice System to resolve social justice problems?”. She argued that the goal should be financial security for all, with accessible services for those that want or need support, rather than the imposition of supervision; concluding that what we need is institutions that are on the side of families.

Mairi Clare Rodgers (Head of Communications, Community Justice Scotland) imagined a future where the prison population was less than 1,000, where offending rates were low and national well-being was at an all-time high. She suggested that the route to this was rebalancing the narrative around crime. Crime is currently described in headlines and first paragraphs, where an evidence-led position that prison is only required for ‘serious’ offenders is demoted to the final 25 words of any article. She asked us how we expected that to challenge and change minds, stating that the problem was one of balance, where our position is couched as mere opinion set against other equally valid opinions. She challenged the notion that the article is therefore balanced – when in fact, we’re only included as the fringe voice – on the margins, despite the evidence. We are therefore not the dominant discourse. She reminded us that the public say that they want prevention more than punishment, reparation more than retribution, but that we need to be smarter in order to reflect this. Her position was clear: let’s stop feeding the beast. Let’s abandon balance – it should be rational versus irrational.  Use your own language. Not the other side’s. Interrogate media requests. Refuse some. Offer something better. Meet the editors. Create a movement. Let them lead.

Tom Jackson (Head of Community Justice Service, Glasgow City Council) shared some disconcerting figures, contrasting reactive and preventative spends in the criminal justice system, and urging us to think in terms of overall costs: the £3billion we currently spend on offending; the 70% of the volume processed in courts in reoffending; the £587million cost of reoffending in Glasgow, or rather the price of failure to support, include and integrate. He argued that our spending does not reflect our knowledge, where we spend only £14million on prevention; and questioned why our stated policy commitments are still reflected in 8,240 people in prison. He urged us to think in the long-term, using big picture strategy instead of short-term tactics. We should be asking ourselves: how do we get our resources into prevention and out of reaction? What sorts of nudges could change the penal trajectory? We know that reaction is more expensive and less effective than prevention, and we should therefore be using robust, collaborative commissioning strategies – which is not the same as a procurement led approach. He argued that the challenge lay in redistribution through jointly-planned investment, which should be accompanied by setting ourselves a goal of a target prison population within a 10 - 20 year timeframe.

Colin McConnell (Chief Executive, SPS) asked us if things are better than they were in 1979, and if 2019 was what we expected? He asked if we were in the sunny uplands of a socially just society, positing that social injustice and inequality were the context of our current prison system. He asked us to think another 40 years ahead to see if we will we heed the lessons, or repeat the mistakes? Asking: what is the public image of the prison? Porridge or soft justice easy street? He suggested that in some senses 19th century thinking endures, admitting that we have made progress by humanising our philosophy of punishment, but that our broad approach had stayed the same. He was convinced that something wasn’t working, so that things had to change, but pondered: what is it that gets in the way. He saw one of the major challenges as political short-termism, reminding us of the Russian proverb that everything can change in 5 years, but nothing changes in 200. His goal was to make as little use of prison as possible, but considered abolitionism to be unrealistic. He worried what technological development and rampant social inequality might do to our society. He dismissed the potential oxymoron of good and just prisons, believing that if they must exist, they must be as good and as just as they can be. He argued that public leniency can, and must, be harnessed to support reform; and that prisons need to be seen as a civic enterprise. There was therefore a requirement to humanise communities, as well as prisons, but admitting that a radical overhaul of the penal system was also required. He argued against looking at budgets as a binary project of prison vs community, urging us to see prisons as playing an integral part in social justice where there’s a need to inject emotion, as well as evidence.

Wendy Sinclair-Gieben (HM Chief Inspector of Prisons for Scotland) outlined the current situation of huge over-crowding and an increasingly complex population. She encouraged us to devote more time to exploring the nature and needs of that population, without departing from the view that ‘serious offenders’ should be imprisoned. She argued for the need for a clear strategy for population management and learn from the approach that has stemmed the flow of young people into custody. She welcomed the extension of the Presumption Against Short Sentences, but noted that its effects will be offset by ending Automatic Early Release and the decline in numbers of those released on Home Detention Curfew. She saw the potential for two futures: one which was austere, but ‘humane’ containment at reduced cost. Or the other: a progressive system with fully individualised support, taking into account the wider context of offending and incorporating reimagined, restorative justice. She concluded that thought would therefore need to be given to capping the prison population, along with consideration of alternative sentencing strategies.

Professor Cyrus Tata (Professor of Law and Criminal Justice, Strathclyde University Law School) asked us to focus our energies on scrapping the notion of prison as a last resort and ending the default to prison. He argued that we need to find a way to end the daily reality of people who ended up in prison, not because their offending required it, but because there was no other course of action or there was nowhere else that seemed able to take them. He believed it self evident that people often end up in prison because of the chronic needs of poor mental and physical health, addictions and homelessness, with which only prison was thought to be able to handle. He saw prison not as a progressive ‘last resort’, but as a default setting when nothing else seemed to work, thus its place in our arsenal was guaranteed as the back-stop and safety valve. Successive Governments had been let off the hook, where every other approach (such as community sentences) were judged by their effects, whilst prison maintained its iconic and unquestioned status – even in the face of evidence that it does not work. He asked why we did not feel the need to justify the use of prison, as we do with every other form of punishment. He saw sentencers as being left with impossible choices, challenging the logic of the Presumption Against Short Sentences, where sentencers would be asked to take the decision to send someone to prison, only if they deemed it appropriate. When do sentencers see themselves making inappropriate sentencing decisions, he pondered ironically. He concluded that rehabilitation intended to address an individual’s personal and social needs should be excluded as grounds for passing a sentence of imprisonment and that only the seriousness of offending should ever justify imprisonment.

Professor Tony Platt (Distinguished Affiliated Scholar, Center for the Study of Law & Society, University of California, Berkeley) asked us to consider the past, present and future. He stated that as state and federal prisons decline, county jails grow. He spoke of the growing criminalisation of immigrants, noting that President Obama deported more immigrants than all previous presidents combined; and of the degradation of women on welfare. He described policing practices and the increasing voice of the Black Lives Matter movement. He highlighted the new ruthlessness demonstrated under the Trump presidency and its new authoritarianism, noting that the legitimacy of criminal justice does not matter to Trump - unlike previous liberal progressive reformers who did not necessarily equate this with their own power. He illustrated examples of the dumping of formerly incarcerated people in desperate circumstances, against a backdrop of such low expectations of reform. He painted a picture of privileging the religious over the secular, and charity over welfare. He believed that incarceration was being domesticated via electronic shackling outwith prisons and that life without parole could only be seen as a kind of death sentence. He posited that there are examples of welfarism and apparent benevolence, justifying expansive social control and thus some types of reform – from the top down – can be dangerous. He saw grassroots reform as different, quoting Malcolm X, the Black Panthers and Attica, pointing out that earlier generations of political prisoners were the ones who had become penal reformers or abolitionists and thus that the prison as we know it must end. Restorative justice, voting rights and employment rights, he argued, must all play a part in this.

He explained why policy reforms had failed in the USA, namely that there was no history (or historical memory) of social democratic opposition at national level, compounded by bi-partisan reactionary law and order politics; the centrality of the criminal justice and prison system in US politics and history, tended to maintain and reproduce inequality and injustice; local reform efforts were profoundly shaped and limited by national pressures; and a history of racialized injustice, had been remediated through criminal justice, with professionals (including progressives) being complicit in these processes.

His big ideas included: bringing things into the light - a responsibility that should be borne by both academics and intellectuals in a broadening of our imaginations . He suggested that the ‘sorrows of the disconnected’ (Baldwin) could be a source of solidarity amongst social movements campaigning for change. He urged us to learn from the civil rights movement, seeing prison abolition and reform as part of a much wider struggle, which does not circumscribe labels of villians or victims. He issued a plea for us not to give up on big ideas and structural reforms, because we never know which spark it is that will light the fire; and that we must learn from the right’s effectiveness in promotion a dystopian vision of the future from which we must be defended. He concluded that instead, together, we should develop a vision of social justice that speaks to people’s hopes and fears.

Kevin Neary (Co-Founder, Aid & Abet) talked of having spent 30 years in the criminal justice system. He had seen first-hand the power of rehabilitation and restorative justice. He knew the importance of aftercare plans and that enormous efforts had to be made in terms of the organisation of accommodation, health, food and benefits upon release. He asked us to think about why people really end up in prison, stressing that the need for rehabilitation is even more important in the outside community than it is in prison. He had learnt from bitter experience Einstein’s definition of insanity as doing the same thing over and over again and expecting different results repeated – in his case with multiple rounds of failed imprisonments. He told us that the key to unlocking this lay in relationships, sharing his vision about modes of imprisonment that address the causes of offending. He believed that there were lessons to be learnt from how drug rehabilitation is managed holistically, stressing that aftercare was more important than institutional experience; and making a strong case for better practices being prevented by systemic flaws and misplaced insight.

Sheriff David Mackie (resident Sheriff in Alloa) spoke of the power of restorative justice with his (and his fellow Sheriff wife’s) interest heightened by an inspirational trip they made to New Zealand and to Porirua Youth Court which was reviewing family group conference decision compliance. He reminded us of the evidence which shows that Restorative Justice produces good results - including in relation to desistance. As importantly, he advised that it had also been shown to be effective in reducing the post-traumatic stress symptoms of victims and reducing victims’ desire for revenge, citing work from Professor Ivo Aertsen and others, where restorative justice could also be an important element of support towards destistence. He advised us that the Scottish Government had produced statutory guidance on Restorative Justice which was not yet in force and which stopped short of offering a vehicle for delivery. He acknowledged, however, that there was an implementation gap and even where it was institutionalised, it was under-used, marginal, and not part of the mainstream. He was aware that Community Justice Scotland had been tasked with the responsibility of developing an action plan and that experience had shown that bottom-up implementation works best, starting with pilot projects and building experience and knowledge over time, rather than trying to establish fully blown Restorative Justice systems from scratch. He advised that the Scottish guidance envisaged the use of an ‘after conviction but before sentence’ model, as used in New Zealand and Northern Ireland, and helped us to imagine how that might work in practice with the potential use of deferred sentences – an approach which could generate greater compliance with its credible legitimacy preserved. He concluded by setting out his vision of Restorative Justice being a normal, integrated aspect of criminal justice in Scotland and a valuable tool in our armoury to achieve satisfactory outcomes for victims of crime and support for offenders towards desistence.

Rania Hamad (Senior Practitioner for Hate Crime and Restorative Justice, City of Edinburgh Council’s Criminal Justice Social Work service) shared her experience of a bottom-up Restorative Justice pilot within Criminal Justice Social Work in Edinburgh. She reminded us that Restorative Justice was not mediation, since the person who committed the offence had to take responsibility for it and be prepared to make amends, acknowledging the power imbalance in play. She highlighted its use in diversion from prosecution and that it was currently being offered in Edinburgh post-conviction and sentencing, after the offence has been dealt with by the Criminal Justice System. She reminded us that its use was not always confined to the formal Criminal Justice System and could be used outwith this in our communities and schools for example. She stressed the significant differences between a retributive and restorative system of justice – an active, rather than passive role; and suggested that Restorative Justice could complement, rather than replace, traditional systems of justice. She therefore urged us to consider adding restoration to Criminal Justice Social Work’s aims of rehabilitation, reintegration, reparation and restriction. She challenged us to think of Edinburgh as ‘a restorative city’, where Restorative Justice should be seen as a brave and difficult thing to do, not as a soft option. She was clear that its implementation contained a number of challenges, but was passionate that it should become an integrated part of our overall approach.

Professor Nicola Lacey (School Professor of Law, Gender and Social Policy at the London School of Economics) praised Scotland’s capacity to work cross-agency, whilst stressing that penal reform could not be achieved via justice reform alone. She acknowledged that there was a significant amount of literature on the philosophy of punishment, but noted that until recently, there was little granular detail on what forms punishment should take in order to be humane, moderate, and just. She drew upon Braithwaite, Von Hirsch and Duff - who had much closer engagement with the detail of institutional practices – observing that these accounts still didn’t answer the question of “what creates the conditions for change?”.

She spoke of working with Hannah Pickard, a philosopher and group therapist, to take up this challenge, in pursuing a paradigm of responsibility without blame. She saw this a part of a project of change, where it was impossible to support change whilst projecting hostility via blame. She believed Duff’s theories, and those of just deserts, contained the requisite subtlety and sophistication until they were translated into the political sphere. She made the point that the abstract ideas of proportionality don’t come with a “number attached”, and thus we were prone to continue to ratchet it up. She surmised that we therefore needed a distinction between affective blaming (of the person) and detached blaming (blameworthiness associated with the harm and responsibility for it), being clear that we needed to keep demonising and ‘othering’ out of the discourse. In order to do this, we would need to find an institutionalised form of forgiveness – orienting the whole system to wiping the slate clean.

She understood that there would still be requirement of justice for victims and that the state’s duty to victims needed to be met. However, she didn’t see this as meaning that the victim is owed the punishment of ‘their’ offender. She saw the victim as being owed proper provision, suggesting then that there should be twin track provision – for offenders and for victims – which may be more realistic than even Restorative Justice, which still sits within a single track provision. She stressed the need to avoid the degradation and stigmatisation attendant on affective blaming, reiterating that we can’t support change in a justice system that institutionalises the projection of hostility.

The penal reform panel of Dr.Katrina Morrison, Professor Andrew Coyle, Frances Crook, Fiona Ni Chinneide and Richard Garside painted a balanced view of realism and optimism, neatly summing up the last 40 years as an elliptical, rather than circular process, where some progress was made within each ‘loop’.

There were calls for a winding down of prison capacity; moves towards abolition; coalition and mobilisation around shared values from Richard Garside (Director of the Centre for Crime and Justice Studies).

Frances Crook (Chief Executive of the Howard League for Penal Reform) took the view that we should shrink the criminal justice system itself, influencing sentencing policy, prison conditions and the future of probation through legal action, lobbying, and public education. She gave examples of success, but found it hard to point to real change, suggesting that the answer lay in big ideas, not just use of prison; and suggested that the biggest idea of all is do it all less, since less was better. She believed that small organisations could have a big impact, but that we must focus our attention on key, achievable targets like ‘stemming the flow’ by reducing child arrests.

Fiona Ni Chinneide (Executive Director, Irish Penal Reform Trust (IPRT)) reminded us that there has been a return to more punitive approaches, despite a decade of progress. She talked about the previously unsuccessful national conversation in Ireland, which focused too narrowly on influencing policymakers and practitioners, and how change on topics such as abortion was driven via public conversation at a local level. She made a strong case for a Citizens Assembly which could put a wedge between public engagement and media misrepresentation of public opinion.

Dr. Katrina Morrison (Lecturer in Criminology, Edinburgh Napier University and HLS Committee Member) prompted us to be more ambitious and to “seek a different measuring rod” than simply comparing ourselves with England and Wales. Applauding our ‘successes’, such as the Whole System Approach, the fact that probation services are delivered by qualified social workers and commitments for a new prison estate for women in custody, she reminded us too of our ‘failures’ such as our bloated prison population, its overuse amongst the most disadvantaged and our very high rates of life sentences. She reminded us of our contradictory plans, where we base reforms of the women’s estate on much smaller prison population than currently exists; where we raise the minimum age of criminal responsibility to only 12; and where the SPS aspires to ‘citizenship recovery’, yet we refuse to grant people in custody the right to vote. She urged us to stimulate more bottom-up deliberative conversations, not just allowing it to remain “a conversation between [converted] friends”. She asserted that cross-party political courage and a bolder vision was required, acknowledging that however welfarist it could be, punishment was still coercive and thus requires  ‘better’ and ‘less’ criminal justice. She challenged us to shift the conversation towards “Who should not be in custody?” and consider a commitment not to imprison any parent without better regard given to those affected. She concluded that we need to look more deeply at the social and cultural basis of jurisdictions where prison is used far less than it is in Scotland and the structural reasons why we have the approach to justice that we do.

And finally, Professor Andrew Coyle (Emeritus Professor of Prison Studies, Kings College London and Honorary President of HLS) questioned the progress made in Scotland between 1979 and 2019, where prisoner numbers had risen from 4,500 to 8,200, citing the words of John Kleinig who wondered “whether [prison] is not too convenient a device for dealing with the complexities of human failure”. He reminded us that individual freedom and social influences needed to be considered in tandem; and of the United Nations Development Goals. He advocated for the principles of Justice Reinvestment, which felt like a fitting end to the day’s programme:

  • dealing with men and women who are in prison as human beings and as citizens; as people who should not be indentified solely by their offences, but also by the fact that they are parents, children and partners; that they have many other positive characteristics
  • moving the focus from the individual person to community and locality by asking the   question as to what it is that communities and the people who make them up really want. The answer is often that they want to be safe, to feel safe and to have a greater sense of social inclusion
  • “Justice Reinvestment is not about finding alternatives within the criminal justice process; it is about finding alternatives outside of it.   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” (Report of the Commission on English Prisons Today 2009).