SPARC response to consultation on whole life custody bill

A member of the Scottish Parliament, unable to gain any support from colleagues outside his party, has launched as an individual member a consultation for a Proposed Whole Life Custody Bill (Scotland): https://www.parliament.scot/gettinginvolved/111685.aspx Along with numerous other groups, we have submitted a response to the consultation strongly opposing this senseless, cynical attempt. A summary of our submission follows, and the full response will be available on the Government’s website in due course.

As a collective who have spent many years bearing witness to and researching the harms which imprisonment causes to individuals, families and communities, the proposed whole life custody bill makes no sense on legal, moral, ethical, political and social policy grounds. There is no evidence presented that this sentence would improve the safety of individuals or communities, and there is strong evidence to suggest that it would be both inhumane and challenging to implement. We would also strongly argue that there is no need for this proposed sentence, as it adds nothing to existing law.

Scotland already has and makes use of extensive powers of “whole life” punishment. One example of this is by ordering punishment parts (the minimum period of a sentence to be sent in prison) that cannot be completed within one’s life span, such as the  recent example of a 69 year old man receiving a 37 year punishment part (Angus Sinclair the so-called World’s End killer). Scotland also allows life sentences for crimes less than murder through its Order for Lifelong Restriction. England abolished its analogous discretionary life sentence, the Imprisonment for Public Protection (IPP), under a Conservative Government on the grounds that it was inhumane and unjust. Let’s stop talking about Scotland as being “soft” on punishment, and start evidencing the impact of Scotland’s use of existing sentencing law.

The proposal aims to resurrect  the death penalty by another name. Whole life custody, without the possibility of parole, has been described as sentencing a person to “death by incarceration”. As researcher Ashley Nellis points out, such a sentence means “the government has decided how and where the individual will die. When looked at from this view, LWOP is not so different from the death penalty.”

A sentence without hope or end is incompatible with human dignity and just society. Hope, and specifically the hope of release, is central to construction of both a sense of self and also human dignity. Denying a person the possibility to reintegrate is incompatible with human dignity. A sentence of this type has no place in Scottish society.

A damaging direction for penal policy, moving Scotland even further out of step with Europe and closer to a US norm of ‘perpetual punishment’. In 2008 the Scottish Government embarked on a major reform effort (via the McLeish Commission) that documented how prison populations are harmful and damaging not just people in prison but for the communities and society outside of them. The proposed sentence would reverse an aspiration of progress, and entrench a worrying regressive trend: Scotland already leads Europe with the highest proportion of its prison population serving life sentences. This is not the result of more crime or a higher homicide rate, but of sentencing and politicisation of crime policy, of which this consultation is a sad example. Overall this proposal reflects a deep ignorance of current sentence and prison trends and a sad opportunism of going after easy targets – the worst of the worst individuals – that provides cover for a broader lack of ideas and willingness to work hard towards safe, inclusive and thriving communities.

Knock on effects of longer sentences and a growing prison population. The consultation reflects an unacceptable level of ignorance about the upward drift in sentence lengths in Scotland trends and their effects. Those sentenced to prison are spending longer periods in custody and this has knock on effects for the overall size of prison populations and the problems related to this. This is because a small number of very long serving prisoners has a huge impact on availability of cells, squeezing space. The US thought they could build their way out of this problem. Even the most confirmed tough on crime lawmakers across the Atlantic have now renounced this approach.

The introduction of whole life sentences would have negative implications for all of those who come into the criminal justice system, for another reason. This rebranding exercise mainly acts to increase a rhetoric of ‘othering’ all those in the criminal justice system, simplifying the world into “us” law abiding citizens and “them” horrible criminals. These labels are not based on a reality of people who are all good or bad, and we believe people in Scotland deserve better than to be distracted by these patronising debates at a time when crime is at an historic low, and there are much more urgent matters at hand to ensure the country’s security, safety and success.

People can and do change; sentences without end undermine this. It is particularly challenging to devise a prison regime that is both constructive and safe for those serving a sentence of life without parole (and those working with them), because this group of prisoners have no incentive of progression and “nothing left to lose”. Moreover, research conducted in the US by Marion Vannier suggests the people serving sentences of life without parole may be considered low priority for employment or other opportunities within the prison, leaving their efforts to change poorly supported and often unacknowledged (Vannier, 2016). Lengthening sentences, with a whole life term being the extreme case, may actually reduce the chances that the sentence will be spent productively and constructively.

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 

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 Justice5(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.

Endnotes

[1]There is a large body or research evidencing the harm and damage caused by imprisonment.  See, for example, Kendall (2002);

[2]http://www.heraldscotland.com/NEWS/16079679.Scotland_told_to_scrap_automatic_life_sentences_for_murderers/

[3]For instance, a desire to avoid detection in MDT’s can encourage the use of more addictive substances or legal highs

[i]The authors note “The most comprehensive and robust data on the prevalence of psychiatric disorder in the prison population in the UK are from a 1998 Office of National Statistics study of 1,250 men and 187 women aged 16 – 64 years imprisoned in England and Wales (Table 3) [29]. The prevalence of mental disorder in the prison population was high; over 90% of prisoners had one or more psychiatric disorder (psychosis, neurosis, personality disorder, drug or alcohol dependence). Dual diagnoses were extremely common; 80% of prisoners had two or more psychiatric disorders (most commonly a major psychiatric illness and substance misuse) and 12 – 15% of prisoners had 4 or 5 co-existing disorders.” (Gillies, Knifton and Dougall 2012: 59)

SPARC Response to Parole Reform Consultation

The Scottish Government ran a consultation in Sept/Oct 2017 on reform of parole. Download SPARC’s response. Among other points, it draws attention to the drastically declining rate of parole release and the increasing rate of parole recalls in Scotland. Did you know that in 1994 nearly one-third of lifers considered for parole received it, but by 2015-16 barely more than 1 in 10 did? Or that the rate of recalling people from parole increased 800% between 1997-98 and 2013-14? Parole is working to keep people in prison for longer and longer periods, in the absence of evidence that prisoners today are worse than those in the past. Instead a system meant to support people’s release to allow for community and family reintegration is doing the opposite. Is a risk paradigm making us safer or encouraging over confinement?

Declining Chances of Parole: Parole Release Recommendations by Sentence Type
The table below shows how sharply use of parole has declined over the past two decades. In 1993/94 prisoners on determinate sentences had a better than 50% chance of earning parole; by 2015/16, they had barely more than a 25% chance. This data comes fromthe Parole Board for Scotland’s own annual reports.

1994200320102015-16
Determinate Sentence
  considered for parole692766483480
  release recommended368345124125
  release rate53%45%26%26%
Life Sentence
  considered for parole119212263366
  release recommended34554844
  release rate29%26%18%12%

Parole Recalls as a Percentage of Total Parole Caseload 2005/6 to 2013/14 [TABLE CORRECTION – written parole response missed out a line of data]: The two tables below combine statistics from Criminal Justice Social Work and Prison Populations to compare the reported parole caseload in a year with the number of people recalled from parole to prison in the same year (receptions). The data should be read very cautiously, and this offers only a rough guide, as receptions are a proxy but not a perfect guide to numbers of people entering prison (one person may be received multiple times in a year) and reporting periods between agencies differ slightly. However, it is remarkable in itself to note the general trend showing that in the mid-2000s the number of parole recalls amounted to less than one-third of the total parole population in the community, but by 2013/14, parole recalls amounted to half of the total parole caseload. ADP means the average daily population of people in prison, and this shows that by 2013/14, the number of people in prison for a parole recall was equivalent to three-quarters of the total caseload of parolees in the community.

2005/062006/072007/082008/09
CJSW  Parole Caseload1325119211031047
Parole Recalls ADP397515611600
Parole Recalls Receptions347467412421
Recalls as % Caseload (Receptions)26%39%37%40%
Recalls as % Caseload (ADP)30%43%55%57%
2009/102010/112011/122012/132013/14
CJSW  Parole Caseload984875917921949
Parole Recalls ADP622682702713693
Parole Recalls Receptions440520491453472
Recalls as % Caseload (Receptions)45%59%54%49%50%
Recalls as % Caseload (ADP)63%78%77%77%73%

Rising Parole Recall

In the 1990s parole recall hardly existed. Latest figures show huge increases in the number of people recalled to prison and the number of people in prison for parole recall. This data comes from official prison statistics for Scotland; 2013-14 is the latest available year.

Parole Recall in Scotland picture

‘Life means life’ call ignores the reality of sentencing

As with most notorious crimes that make the headlines, politicians can’t help but take part in some political point scoring. Ruth Davidson is no exception, and her call for whole- life tariffs after a successful sentence appeal in a harrowing murder case is quite opportunistic. This blog will briefly comment on three issues of this debate – judicial independence and the importance of avoiding undue political influence, how this debate fits in with international norms, and the current position in Scotland concerning life prisoners.

Western democracies consider judicial independence a fundamental and essential element of any free society. Political interventions into sentencing create unnecessary and undesirable interference with the judiciary’s proper consideration of the law and facts of a case. To maintain public confidence and integrity in the legal process, the constitutional guarantee of a fair trial and being treated fairly under the law requires that the judiciary and politics be kept separate. This means that within set legal limits, judges should be left to decide sentence length based on the facts of a case and its compatibility with judicial policy, international norms and convention rights.

The constitutional guarantee of a fair trial and being treated fairly under the law requires that the judiciary and politics be kept separate

Moreover, the debate surrounding ‘life-means-life’ sentences is misleading. Across Europe there are no such sentences without a mandatory review period set by law within each individual state. For example, 16 European countries set this period at approximately 25 years. Most other European countries allow considerably less time in prison before review is required, with 13 EU countries setting this at 15 years or less before the review mechanism kicks in[1]. So even with a ‘life-means-life’ tariff, it is likely Scotland would follow suit and have a review mechanism protected by statute. The only question remaining would be which sentencing policy we would follow. Either way, life still doesn’t particularly mean life.

There are other ways that life sentences are misleading. Prior to 2001[2], life-serving prisoners were not given a minimum sentence in Scotland. This was viewed as being incompatible with the European Convention on Human Rights and has since been rectified so that in Scotland, a judge must always set a minimum term. However, even when a minimum term is set, a life serving prisoner can still spend countless years, sometimes decades, beyond their tariff without ever committing another crime. Simple compliance with the prison regime is now no longer enough to secure progression or release (Crewe 2011)[3]; and our experience suggests that sentence progression is characterised by discretionary, subjective and non-judicial decision-making. For example, progression and release can be denied as a consequence of having a “bad attitude” or around concerns that post-release goals may be unrealistic. The most common reason, however, is the failure to abstain from taking drugs. Not only does this amount to criminalising addiction, but it is not uncommon that the addiction was acquired by the prisoner whilst serving their sentence, often to cope with prison itself.

Even when a minimum term is set, a life serving prisoner can still spend countless years, sometimes decades, beyond their tariff without ever committing another crime

Some might find this fair enough – if you can’t stop taking drugs you should not be allowed in society – except it is now widely accepted that drug addiction should be treated as a health issue and not a criminal justice problem. So effectively in Scotland we appear to be against whole-life tariffs, or at least tariffs without a designated time for sentence review, however we allow people to spend decades in prison for what is effectively a health problem.

The Scottish Conservatives might want to consult some hard data rather than the alternative facts of tabloid headlines about ‘soft touch’ Scotland. There has been a steady decrease in most crimes for years (and a sharp drop in the number of homicides, from 117 in 2011 to 59 in 2016), but sentence lengths are increasing. The average tariff for a life sentenced prisoner in 2000 was 10 years; by 2014, the average tariff had increased 38% to more than 14 years. Sentences are getting longer, and we are beginning to see more and more sentences of two decades or more. Despite Scotland’s sense of itself as less punitive than its neighbour to the south, its sentencing is moving more in the direction of its neighbour to the west, across the Atlantic.

Sentences are getting longer, and we are beginning to see more and more sentences of two decades or more … what social benefit is achieved by doubling or even tripling sentence length?

In addition to asking why sentences are already increasing so much, we should be asking what social benefit is achieved by doubling or even tripling sentence length? After about ten years or so prisoners will have done every programme, taken every course, worked every job in a prison. After that, those faced with another decade or two of incarceration will have very little to engage them, to give them hope and to provide the motivation needed to re-join and participate as positive members of communities.

This blog appeared as a guest post by SPARC for the SCCJR 

[1] (Vinters and Others v The United Kingdom 2003 at 68).

[2] Convention Rights (Compliance) (Scotland) Act 2001

[3] Crewe, B. (2011) ‘Soft power in prison: Implications for staff-prisoner relationships, liberty and legitimacy’, European Journal of Criminology 8(6) 455-468