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The trouble with abolishing prisons Could our justice system cope with the radical reform a new book proposes?

HMP Norwich. Credit: Peter Macdiarmid/Getty

HMP Norwich. Credit: Peter Macdiarmid/Getty


July 27, 2020   5 mins

Criminal barristers speak of being “often asked” how we can defend someone we know is guilty. The answer, we explain with varying degrees of pomposity, is that we never really know: the verdict is for the jury, and the advocate is only concerned with the evidence — and what can or cannot be proved beyond reasonable doubt.

Which is all very well, but actually sort of nonsense. Yes, clients almost never confess while fighting a trial — and when they do the advocate will usually have to step away from the case. But the best answers to many tactical decisions, including how to cross-examine the other parties’ witnesses, vary according to the likelihood of guilt. A wise barrister will keep an eye on it.

And the truth is that defending an almost-certainly-guilty man can sometimes be difficult and unpleasant at first, depending on what he is supposed to have done. The early clouds of moral judgment tend to evaporate, though: feelings can be made to follow action, and there’s nothing quite like going in to bat for someone to make you realise that, deep down, they’re actually not so bad.

This is how criminal barristers of all political stripes come to inhabit, at least while they’re at work, an unusually non-judgmental shared moral landscape. You could argue about whether this tendency is best characterised as enlightened or psychopathic, but either way it’s why there is such limited enthusiasm in Crown Court robing rooms for the latest bit of knee-jerk canting from Home Secretaries and Justice Ministers.

Chris Daw QC is no outlier in this regard. His short new book, Justice on Trial: Radical Solutions for a System at Breaking Point, which is aimed at a general audience, does not suffer moralising lawmakers gladly. Policy announcements with judgmental overtones are variously described as “grandstanding nonsense”, “populist garbage”, “brazen ignorance”, “idiocy”, and so on. Indeed, it’s probably fair to say that there are few things Daw dislikes more than moral judgment. A late chapter draws to a conclusion with the following:

“
I see these men and women, some grey and ashen from decades ‘behind the door’, others fuelled with anger, drugs and resentment, and I just cannot bring myself to judge them evil. I cannot place them in a cage marked ‘outsider’ and draw comfort from my own superiority, just because I am not one of those designated by society as ‘criminal’.”

One might cavil about moralising against moralising, but the sentiment is respectable enough. We are not the architects of our own characters; the extent of our inclination towards criminality is not something we have much — or perhaps any — control over. But even if we go full Sam Harris on Free Will and accept that every choice we make literally could not have been made any differently, we are still left with a lot of rapists and murderers that need locking up. So, what to do?

After a potted history of crime and punishment (the Romans, Magna Carta, witches) Daw embarks on the first proper chapter of four, “Why we should close all prisons”. Last year’s shocking report from the Chief Inspector of Prisons is briefly quoted — “The blood of another prisoner, who had self-harmed two days previously, had not been cleaned from the cell floor
 Rubbish was left lying around in bags and there were problems with fleas, cockroaches and rodents” — but the meat of this part of the book is derived from a visit to a grim County jail in Alabama. While Daw may be right in saying that’s where we’re headed if we’re not careful, he does lay himself open to avoidable accusations of straw-manning, since powerful evidence is available closer to home.

That aside, while apathy towards prison conditions — and even towards its effects — is commonplace, few who take an interest in the subject could claim we are currently in the Goldilocks zone. But the question remains, how should we do things differently? Like the Scandinavian countries perhaps, whose well-funded, non-violent and rehabilitative systems are mentioned with approval? Not quite. The peroration begins as follows.

“I believe that the answer is simple. We should close down all prisons and start again. For the vast majority of inmates, locked up for non-violent crimes, incarceration [
] – without question – increases rates of recidivism.

Non-violent criminals should never be sent to a prison of the kind that we have now. All of the Victorian and other traditional institutions, designed in a bygone age, should be closed down and turned into entertainment complexes or apartment buildings. Or razed to the ground once and for all.”

But does incarceration increase rates of recidivism “without question”? Compared with what? Never arresting anyone for anything? I’d be surprised if a judge could be persuaded to carry out a randomised controlled trial on the point, but I can’t help but suspect that, as Tom Chivers in these pages occasionally observes, it’s a bit more complicated than that.

Daw’s much-trailed “radical solution”, to replace all the closed-down prisons, is then revealed: “Leave those convicted of most crimes in their own homes
we have the technology to monitor every breath, every heartbeat
” A visit to a London security Expo is described, and reference made — with what degree of approbation it’s hard to tell — to “a smiling and enthusiastic Chinese saleswoman, whose technology was by far the most sophisticated on display”.

“There is no doubt”, Daw goes on, “that we have the technology to provide a ‘virtual prison’ environment for every person who has become embroiled in the criminal justice system, which would allow an unlimited variation of restrictions and permissions so as to cater for each individual.”

Quite apart from the fact that a criminal’s home environment will often contain its own collection of crimogenic influences, even if we do find ethically palatable technological solutions to replace some prison sentences we are still left with the problem of the rapists and murderers. Daw finally concedes that something with a “secure perimeter” is required, perhaps containing “shared houses”. “Prisoners would have access to medical care, addiction and mental-health services, counselling, and the opportunity to engage in productive work and education.” A properly funded prison, then. Is this really so radical?

Still, Daw is right to call for something different. Our prison system is a product of tradition and inattention, occasionally buffeted by politicians’ whims and their sometimes well-meaning attempts to appease angry voters. Perhaps the best proof of its current irrationality is its inconsistency.

A great deal of time and care is taken (still, just about) to ensure that a defendant is dealt with fairly and effectively from arrest to sentence, including much ink spilled over precisely how many months the sentence should be. But what he is actually then subjected to — that is, the aim of the whole endeavour — varies wildly according to geography and ever-shifting political expediencies. The newly convicted could get anything from rats and sexual violence to mere books-and-boredom.

Nevertheless, even if the custody bit were to be consistently applied, we still have to decide what prison conditions should be. Which would require us to consider what prisoners are actually for.

There’s incapacitation, of course. Taking criminals off the streets does have some effect, though research suggests you have to lock up an awful lot of people to achieve a relatively modest reduction in crime. Then there’s punishment, which Daw claims is an “illusory notion.” It’s hard to argue with the parents of a child killed by a drink driver — or the children of a pensioner defrauded of life savings — who tend to think the culprit should have at least a slightly hard time. People want criminals to be rehabilitated, yes, but it’s not the only thing they want.

Lockdown may have a lesson to teach us here. Even the substantial minority who opposed it complied with this extremely onerous restriction — not due to the vague possibility of a sixty quid fine, but because of social pressure and the threat of public humiliation. A fresh look at crime reduction could experiment with a bit of this; but ultimately I suspect we’ll stick to the punishments we’re used to.

And yet Daw’s “radical solutions” are offered just as the terms of reference for the first Royal Commission on Criminal Justice since 1993 are being fixed. We can only hope that prisons, and punishment more generally, are within its remit. How radical an overhaul the system needs isn’t obvious, at least not to me, but it’s certainly time that some proper attention were paid.


Adam King is a criminal barrister at QEB Hollis Whiteman.

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Aden Wellsmith
Aden Wellsmith
3 years ago

, though research suggests you have to lock up an awful lot of people to achieve a relatively modest reduction in crime.
========
Research also shows that a relatively small number of people commit a huge number of crimes. It follows a power law distribution.
So I don’t believe that research that says incarcertation doesn’t work. It gives us a break.

What is needed is something like 3 strikes. Now I disagree with the 3 strikes. Instead what should happen is every time you are convicted, the judge gives you a sentence for that crime. Then completely separately, your record is looked up. First offence, sentence stands. Second offence its doubled. Third, tripled etc. However if you are crime free for a decade, then the multiplier is reduced one level.

it’s then the criminal’s choice, and it adjusts so the most prolific are kept away from us

D Glover
D Glover
3 years ago
Reply to  Aden Wellsmith

It’s a great idea, but it depends on there being enough prison capacity to follow through with the doubling and tripling.
Our prisons are so overcrowded that we have to let crims out early just to make space to put some more away.
We can’t run your scheme without lots more prisons, and that would need money and land, which are both short.

Ross McLeod
Ross McLeod
3 years ago
Reply to  Aden Wellsmith

.

Last edited 2 years ago by Ross McLeod
Fraser Bailey
Fraser Bailey
3 years ago

‘Criminals off the streets does have some effect, though research suggests you have to lock up an awful lot of people to achieve a relatively modest reduction in crime.’

I think most people would dispute this. The majority of crime is committed by a small number of people. (Well, small relative to the population – the UK is home to a remarkably high number of criminals due to our demented and dystopian systems of education, welfare, justice and immigration). Anyway, if those people were to be given much longer sentences we would achieve a significant reduction in crime. Moreover, longer sentences might make if possible to educate and ‘reform’ them. I am all for doing this in properly funded, Scandinavian type jails, but we will need a lot of them.

Adrian
Adrian
3 years ago
Reply to  Fraser Bailey

The majority of crime is committed by a small number of people

So, if 20% of the criminals commit 80% of the crime, you may have to lock up 5 people to reduce crime at all.
The problem, is that for every career criminal, there are dozens of non-career criminals, doing something bad and stupid once. I’ve known a few.
Sometimes you lock up one burglar and burglaries in the area drop by 50%. Sometimes you lock up a guy who refused to wear a mask in a shop, and burglaries don’t drop at all.

Michael Dawson
Michael Dawson
3 years ago
Reply to  Adrian

I think you are assuming more randomness than is justified. It’s pretty obvious who the career criminals are. Most of them are (happily) pretty stupid and have limited self-control and understanding of risk, so they get caught a lot and build up a criminal record. At the moment, there are rather pathetic attempts at rehabilitation, then these people are released, with generally predictable results.

Prisons are not effective at rehabilitation, but I’ve not seen much evidence that anything else is any better – this whole area is crying out for some properly conducted, randomised trials. So I think a lot of people would rather pay to lock up the career criminals.

Kirk B
Kirk B
3 years ago
Reply to  Adrian

History shows that even the hardened lawbreakers tend to become more law abiding past the age of forty or so. We just need to adjust the sentencing so that any 3rd conviction gets a sentence that runs at least to that age.

David Barnett
David Barnett
3 years ago

Far more attention needs to be paid to restitution fro the victims. This is especially true as more and more modern crime is in the form of fraud.

Adrian
Adrian
3 years ago

We need to roughly double prison capacity anyway.

The gender jail gap is something like 87000 women. We are going to have to lock up a lot of extra women in order to make the system fair.

Ralph Windsor
Ralph Windsor
3 years ago
Reply to  Adrian

Well, all that prison building would be good news for the construction industry. Pity about the poor bloody taxpayer having to fund it all, not forgetting the subsequent running costs. Better ignore that gender gap though……

Aden Wellsmith
Aden Wellsmith
3 years ago

The real reason for Lawyer’s behaviour is money. It’s how they make their cash

Adrian
Adrian
3 years ago
Reply to  Aden Wellsmith

Rubbish. I know a completely broke criminal lawyer who kept on taking beaten women cases, for the, literally, less than minimum wage amounts he made from the legal aid.

Corporate litigation in civil cases is the way to make money, not the criminal justice system.

Ralph Windsor
Ralph Windsor
3 years ago

Thirty odd years ago the prison population was just north of 40,000. Today it’s more than double, despite significantly lower rates of detection, prosecution and conviction. That tells you a lot about how, law enforcement, criminal justice and, indeed, society, has changed over those three decades. Back then, in the late 1980s, Douglas Hurd was the Home Secretary. Concerned, even then, about rising levels of crime – and the costs of crime, not least that of prisons – he made crime prevention the centre of criminal justice strategy. This strategy was starting to work when Hurd was moved to become Foreign Secretary and was replaced by the long (and justifiably) forgotten David Waddington. Waddington effectively abandoned the Hurd strategy and, to cut a long and depressing story short, it has been downhill at the Home Office – and the DoJ, which inherited the prisons in one of the subsequent ‘reforms’- ever since. There is still a vacancy, unfilled for thirty years, for an effective Home Secretary.

jeremy.laird
jeremy.laird
3 years ago

“But even if we go full Sam Harris on Free Will and accept that every choice we make literally could not have been made any differently, we are still left with a lot of rapists and murderers that need locking up. So, what to do?”

Actually, we’re not. There aren’t a huge number of rapists, even fewer murderers. The prison population isn’t mostly rapists and murderers, as the author well knows. But thus betrays his reactionary tendencies with simplistic nonsense.

In fact this whole article can essentially be boiled down to, “I’m not a reactionary crime and punishment hawk, but…(here’s some lazy, half-arsed analysis that strongly suggests I’m a reactionary a reactionary crime and punishment hawk).”

The author never truly engages with the idea at the core of this piece…should criminals be locked up? This article doesn’t deserve to be on a website that the claims to “push back against the herd mentality with new and bold thinking.” The author’s thinking is plainly reactionary and entirely conventional. It’s the ideas very superficially presented in this piece and not actually addressed that entail new thinking. Should we lock most criminals up? That is a very interesting question that deserves far more thoughtful consideration than that afforded by this frankly piss poor piece.

Garth Buckner
Garth Buckner
3 years ago

Those found guilty and sentenced to prison go there for three reasons; first, as punishment, and, secondly, to keep them safe.

Most people understand the first concept, the idea of “punishing” the guilty, and there is great debate, as there should be, about balance and the punishment fitting the crime.

Few people today consider the safety of the convicted. We are too used to regarding victims as weak. Many are. But not all. In the absence of a system of punishment that the victim is willing to accept as bing proportional many victims will seek their own brand of justice. This invites the Wild West with lynch mobs out to get justice. Putting the guilty in prison ensures they are not strung up in a tree.

The third reason is you would find that the strongest of all work within a civic order provided it protects them. As soon as it stops protecting them they will seek another social order and in the absence of that option will impose their own.

We put criminals in prison so that the strong do not take power for themselves.

Eugene Norman
Eugene Norman
3 years ago

Locking people in their own homes for a decade isn’t much of a punishment for the very rich in huge houses.

Colin Elliott
Colin Elliott
3 years ago
Reply to  Eugene Norman

…with access to encrypted communications.

Adrian
Adrian
3 years ago
Reply to  Eugene Norman

Yeah, but how would YOU feel if you weren’t allowed to use your yacht, OR your helicopter?

Eugene Norman
Eugene Norman
3 years ago
Reply to  Adrian

What kind of moral justice system would lock people in their houses indefinitely without weekends, or vacation time off? Not very woke.

Jon Luisada
Jon Luisada
3 years ago

If there is one thing that has come to prominence during this recent malarkey is the shear stupidity and corruption (moral and fiscal) of much of those that inhabit positions of responsibility in our various institutions.
Also, just possibly, we live in hope, that it will be noticed that there is a marked similarity between a virus in the biological sense and the virus in the ‘acquired skill ‘ sense , and indeed the subset of that, the ‘faith systems’.
I have never understood why if you come back from , currently, Spain, you have to isolate yourself in case you transfer that set of procedures to someone else but….will dump a first time offender with limited and ill formed sets of criminal procedures into a pool of infected ‘old timers’ who have lots of new and more effective criminal procedures and networks that allow them to also become ‘infected’!
It isn’t as though this is a new idea, I did see a judgement from around 1902 where the judge recommended that the young offender was jailed in isolation so he couldn’t be taught and inducted by the old lags.
Now, there seems to be two possibilities here , either I am some ‘out there’ genius and that most average people find this hard to understand or…I’m just an ordinary Joe and the ‘establishment , including the author, are just mind numbingly bloody stupid….

Jon Luisada
Jon Luisada
3 years ago

….and another thing…the economics of all this…
I have noticed that non habitual offenders are usually much more heavily sanctioned than habitual ones.
The latter suffering lower and diminishing sanctions in order to recycle them back on the streets asap so they can generate some more fees, more justification for ‘departments’ that ‘rehabilitate’ and ‘help’…
Which, in a ‘graft’ economics sense , makes sense.
The quicker you can get them back out, the quicker you can run some overtime, lawyer fees, brown envelopes to the people that transport them to the courts…ad nausium..
These individuals that there is going to be a protest about on Saturday are a very good case in point…mass rape ‘punished’ by a (very) few years in jail, let out half way for ‘good behaviour’ , stripped of their UK passports ..but still here, still generating cash for ‘the machine’……

Aden Wellsmith
Aden Wellsmith
3 years ago

Criminals off the streets does have some effect, though research suggests you have to lock up an awful lot of people to achieve a relatively modest reduction in crime.
============
Your link is broken

William Cameron
William Cameron
2 years ago

Does Prison work ?
For a great many of the 80,000 in prison it is probably very expensive and fairly pointless. It would be far better to find a way for criminals to repay society for their crimes.
Some folk need to be locked up for public safety . But I suspect thats quite a small proportion.
Prison is only a deterrent if you think you will get caught. As only 6% of crimes end up with a charge the odds of not getting caught are very high.