Our 40th Anniversary conference in Edinburgh on Wednesday 22 May 2019, will ask “what should the next 40 years of criminal justice in Scotland look like?”. We want to explore new ideas and new directions for the future of criminal justice in Scotland - to stimulate new thinking about how we can work towards a better future.

The conference will be organised round twelve brief presentations. Each speaker will have ten minutes in which to present a new proposal for penal reform, a new idea about how we could improve our system of criminal justice, or a new direction for penal thought. We will also encourage questions about, and comments on, the proposals from other participants in the conference.

We now invite submissions for these presentation slots from a wide spectrum of participants, and would particularly welcome submissions from early career researchers, from practitioners, and from those with lived experience of the criminal justice system.

All we need is a half-page proposal and a brief biography by the end of February 2019. (Although links to previous presentations would also be very welcome.) We will confirm attendance with you by the end of March 2019, and where it is not possible to accommodate a presentation, we will endeavour to include your contribution in some other format during the conference. Please email: emma@howardleague.scot

This week HLS has invited a selected group of experts to reflect upon critical issues in Scottish penal policy. Today, our post is from SPARC (Scottish Prisoner Advocacy and Research Collective), an exciting new voice in Scottish penal reform. They advocate that rather than refining the prison, making it more caring, we must remain committed, first and foremost, to reducing the prison – we cannot lose sight that prison is inherently damaging for those imprisoned there, their families and wider society. 

Why penal reductionism must be at the centre of prison reform 

Once you are in it is difficult to get out.

It is well established that prisons do not reduce re-offending. For individuals released from custody in 2014-15 (the last year where detailed statistics were published by the Scottish Government) 60% of those serving a sentence of less than three months were reconvicted. While reconviction rates for longer sentences are lower, almost a quarter of those serving between 2 and 4 years were reconvicted (Scottish Government 2017). So what effect does the prison have?

The prison of course makes a massive impact on individuals, families, communities and society. Counter to current prison policy, we suggest that it is crucial to examine the effect of prison itself, rather than continuing to pathologise those within it as “bad” or “anti-social”, constantly positioning the prison as a site where these people can be repaired and from which good can flow. Indeed, there is strong evidence that criminal justice system contact can be criminogenic, with young people who are drawn into the justice system less likely to desist than those who engage in the same behaviours, but do not experience an intervention from the criminal justice system (McAra and McVie 2005).  

Similarly, in 2008 the Prisons Commission highlighted that even short periods in custody disrupts positive and supportive relationships in the community and, notably, that the physical geography and institutional regimes of prisons discourage independence and personal responsibility, institutionalising (and we would add traumatising) many of the people who are sentenced to this form of punishment. Imprisonment can also create or exacerbate problems relating to housing, child care, employment and discriminatory public attitudes[1].  For instance, a 2016 YouGov survey commissioned by DWP found that that 50% of employers would not consider employing an offender or ex-offender (House of Commons Work and Pensions Committee 2016).  Thus, for many people, imprisonment reinforces barriers to paid work, secure housing and personal and family wellbeing; all of which are factors supportive of desistance.  

Progression – a game of snakes and ladders

An issue of particular concern to SPARC is that for those serving long or life sentences it can be incredibly difficult to progress through the system.  Progression is central to how lifers and long termers are managed. Prisoners are meant to incrementally graduate to lower levels of security, ultimately as a means to test and monitor their levels of responsibility and safety, ultimately achieving parole – a process that we have elsewhere likened to a game of snakes and laddersas many prisoners are downgraded and held back. While we know that the average tariff a person on a life sentence serves has almost doubled between 2000-2012 (Howard League Scotland, forthcoming), the number of “lifers” in Scotland who are serving time over their tariff is not routinely made publically available.

Our own advocacy/research work suggests that those who are most likely to experience delayed progression through the system are those who are already the most disadvantaged: those with addictions, poor mental health, difficulty building relationships with officers, those who are less able to advocate for themselves.  Yet, even when people in custody do face these barriers, the availability of places on courses which are required to reduce risk or move on to the next “stage” of their sentence can create considerable delays. 

This raises fundamental questions about justice, fairness and what are people in prison being punished for?  We contend that it is unacceptable for people to be held in custody solely for reasons relating to poor mental health, addictions or a lack of resources. 

This issue takes on a particular urgency and salience in Scotland because the number of sentences imposed is disproportionality high here. Speaking at the Howard League Scotland in March 2018, Professor Dirk Van Zyl Smit noted that the number of people serving life sentences has steadily risen over the last 15 years, with “lifers” accounting for 19% of the prison population.  The comparable figure across European countries is 3%, with lifers accounting for 0.9% of the prison population in France and 6% in Turkey. Indeed, Scotland has more than double the number of lifers than France (1,083 vs 489).  Together, the UK and Turkey have more lifers than the rest of Europe combined, including Russia[2].  

This is troubling for a country which, ten years ago, sought to position itself as in line with the apparently more progressive approach of the Nordic/Scandinavian jurisdictions. Professor Van Zyl Smit concluded that this raises questions about how Scotland responds to serious crimes and the utility of mandatory life sentences. These must be used only in circumstances where no other sentence will do, as the effects of being of life licence retain a person permanently within the criminal justice system, undermining their ability to return to “full” citizenship.   

Within a custodial environment instruments of care become tools of punishment 

The Prisons Commission was also critical of what it termed Scotland’s “warehousing problem”, or the unnecessary use of prison to hold people suffering from trauma, abuse, victimisation, addictions and poor mental health. 

We would agree that this is an unnecessary and unproductive use of custody which must be curtailed. However, we also want to build on this point to suggest that very often when a “care” or personal development need is identified in prison, the response is framed in terms of addressing offending behaviours e.g. expressing frustration, distress or anger may lead to a referral to anger management course; or a desire for more contact with children may lead to a parenting course. 

This is problematic because it has the effect of re-framing what are often structural problems such as poverty, or genuine health needs such as mental illness, as personal choices and failings (Kendall 2002); which can in turn warrant an additional criminal justice response.  This is perhaps seen most clearly in the response to addictions.  While we would argue this should be seen as a health issue, not least because the prison environment can exacerbate or shape drug use in particularly harmful ways[3]failing to manage or overcome an addiction can delay progress towards release, effectively imposing additional punishment on those with addictions.    

Prison harms 

Finally, and most importantly, our reliance on prison must be reduced because prison harms.

Reviews of research suggest that time in prison is itself damaging to cognitive function (Meijers et al 2015). Research on Scotland by Prof Lesley Graham has further established that those who are in prison have higher mortality rates, of two to more nearly six times higher, than those in the general population, even when controlling for social deprivation. Such work establishes, unsurprisingly, that confinement of human beings is deeply damaging, and this damage should be carefully considered.

This is reflected in the higher than average rates of drug and alcohol use and poor mental health identified by the Prisons Commission.  While detailed data on the prevalence of mental health problems in Scottish prisons has been argued to be lacking, research suggests that mental health is one of the most important health issues in prisons, with the majority of prisoners having at least one mental health problem[i](Gillies, Knifton and Dougall 2012). While areas of good practice have been identified, mental health services in prisons have been argued to be under-resourced, leading to significant unmet need[4](ibid). 

Mental health problems can be fatal.  When we look back to deaths in custody in 2013, which is the first year in which at least some of the families in question are not still awaiting the outcome of a fatal accident inquiry, seven men committed suicide and a further two died in an “Event of Undetermined Intent/Overdose”.  The deaths of these men equate to over a third of fatalities in custody in that year. 

Finally, prison also harms families and communities. Supporting a person in custody requires a considerable investment of time, money and emotional labour from families. Concerning, it can also create or exacerbate poor relationships between families and the criminal justice system, undermining both feelings of citizenship and penal legitimacy (Jardine, forthcoming).  

When we recognise this harm, we are compelled to scrutinise even the best intentioned use of imprisonment. The best way to reduce these harms is to reduce our reliance on this damaging form of punishment. 

This post is based on SPARC’s presentation at the 10thAnniversary of the Scottish Prisons Commission 

Author Information: SPARC is a research and advocacy collective who campaign for reform in the use of imprisonment in Scotland, comprising researchers at all stage of career and many with long-term, personal experience of imprisonment. 

References 

Gillies, M., Knifton, L. & Dougall, R. (2013) Prison Health in NHS Greater Glasgow & Clyde: A health needs assessment. Glasgow: NHS Greater Glasgow and Clyde. Accessible here: https://strathprints.strath.ac.uk/42745/1/FINAL_PRISON_HNA_REPORT_2012.pdf

Graham, L. (2012) Justice Committee, Transfer of prison healthcare to the NHS Written, submission from Dr Lesley Graham: http://www.parliament.scot/S4_JusticeCommittee/Inquiries/Dr_Lesley_Graham.pdf

House of Commons Work and Pensions Committee (2016) Support for ex-offenders: Fifth Report of Session 2016–17, London: House of Commons. https://publications.parliament.uk/pa/cm201617/cmselect/cmworpen/58/58.pdf

Jardine, C. (In press) “Eroding legitimacy? The impact of imprisonment on relationships between families, communities and the criminal justice system”, in Condry, R. and Scharff-Smith, P (eds.) Prisons, Punishment and the Family: Towards a New Sociology of Punishment, Oxford: Oxford University Press.  

Kendall, K (2002) ‘Time to think again about cognitive behavioural programmes’ in Women and Punishment: The Struggle for Justice, Carlen, P (ed), Willan: Devon

McAra, L., & McVie, S. (2005). The Usual Suspects? Street-life, Young People and the Police. Criminal Justice, 5(1), 5-36. DOI: 10.1177/1466802505050977

Meijers J, Harte JM, Jonker FA and Meynen G (2015). Prison brain? Executive dysfunction in prisoners. Front. Psychol. 6:43. doi: 10.3389/fpsyg.2015.00043

Scottish Government (2017) Reconviction Rates in Scotland: 2014-15 Offender Cohort Edinburgh, Scottish Government.  Accessible here: http://www.gov.scot/Resource/0051/00517255.pdf

Van Zyl Smit, D. (2018) Life imprisonment: an appropriate ultimate penalty in Scotland?, Lecture hosted by Howard League Scotland, 12 March 2018.