Alternative thinking: Book review
by Richard Garside, Winter 2004
Crime, Courts and Confidence: Report of an Independent Inquiry into Alternatives to Prison. London: Esmee Fairbairn Foundation, November 2004, 124 pp, no price, 0 94769 234 7
Anthony Bottoms, Sue Rex and Gwen Robinson (Eds), Alternatives to Prison: Options for an Insecure Society. Cullompton: Willan, November 2004, 436 pp, #25, 1 84392 104 9
The preoccupation with establishing credible alternatives to prison sentences is such a contemporary one among prison reformers and policy makers that it is easy to forget that it has long and complex history. Indeed the current developments in community sentencing are a culmination of many years of sometimes visionary, often pragmatic, reforms.
Until the late 1960s the main 'alternative' to a prison sentence - apart from the fine - was the probation order. Through the 1970s, 80s and 90s a whole plethora of community-based penalties were developed.
The Community Service Order (CSO) was introduced by the then Conservative government more than thirty years ago, in the 1972 Criminal Justice Act. The hope then was that this new and innovative sentence would offer judges in England and Wales a robust and credible alternative to the prison sentence. Along with the suspended prison sentence, introduced in the 1967 Criminal Justice Act, the CSO would check the inexorable rise in prison sentences.
The hope was a forlorn one. Suspended prison sentences initially proved popular. By the early 1980s close to 40,000 were being dished out annually. But their use declined through the rest of that decade. Legislative changes killed them off, more or less overnight in the early 1990s. In 1992 more than 20,000 suspended sentences were handed out by the courts. The following year this had collapsed to less than 4,000.
The fortunes of the growing number of community sentences were rather different. Through the 1970s and 1980s new sentences were introduced. The Attendance Centre Order was followed, in the late 1980s, by the Combination Order and the Curfew Order. The 1990s has seen the development of, amongst others, the Exclusion Order, the Drug Treatment and Testing Order, the Drug Abstinence Order and, for young offenders, the Reparation Order and the Action Plan Order. One of the appendices to Crime, Courts and Confidence identifies 16 separate community sentencing options currently available to sentencers.
This confusing array of, sometimes overlapping, sometimes contradictory, sentences was ripe for a dash of Peelite rationalisation. The 2003 Criminal Justice Act attempts to do just that, introducing a customised Community Order to replace a the various community sentences that had grown up. In the future sentencers will be able to mix and match sentences from a palette of options. Short prison sentences will be replaced by so-called 'Custody Plus'; a period in custody followed by compulsory supervision in the community.
Whether such innovations will contribute towards a gradual easing of the prisons crisis, or merely add to it, is very much an open question. Critics were warning in the 1970s that, far from diverting convicted offenders from custody, the new community sentences would draw in those who would otherwise have been discharged or fined; so-called 'net-widening. And as Anthony Bottoms and his colleagues point out in their introductory essay to the interesting and useful research volume that accompanies Crime, Courts and Confidence:
In attempting to rectify the perceived deficiencies of the current arrangements for custodial sentences, the new provisions... seem likely to blur the boundaries between custody and community penalties. Fine judgements will be required as to when to select an intensive community sentences, when to give an offender a short taste of custody combined with or followed by community requirements, and when to use the threat of custody to reinforce community requirements.
Examine the sentencing figures in recent years, and this caution appears justified. In 1975 courts in England and Wales handed out 55,900 community sentences, slightly more than the 55,300 prison sentences imposed in the same year. Between then and now the trend in community sentences has been ever upwards, apart from a short period of decline in the late 1980s. By 2002 the number of community sentences imposed, at 187,100, had more than trebled. But they did nothing to reverse the use of prison sentences, which doubled in the same period. Ironically, for all the focus on the rising prison population in recent years, the more significant story is the dramatic expansion of community sentences at the expense not of prison but of the fine. Compared with 1.7 million fines handed out by courts in 1975, in 2002 courts in England and Wales issued less than a million.
This history is an important backdrop to Crime, Courts and Confidence, the report of an independent inquiry into alternatives to custody chaired by the retired Scottish judge Lord Coulsfield.
Coulsfield is rightly sceptical of a number of recent developments in sentencing policy. Short prison sentences, including Custody Plus, should be reviewed, he argues. He doubts the wisdom of progressively increasing the sentences of those repeatedly convicted of offences, thus challenging one of the central planks of the government's preferred sentencing approach.
He also offers a welcome corrective to some of the received wisdom of the penal reform sector, while also firmly showing the New Right to the door. He reminds us, for instance, that community sentences do not on the whole demonstrate better outcomes in terms of reduced reconvictions than prison. The at times lazy assertion by penal reformers that they do has done little to enhance the cause of prison reform. He concedes that the New Right argument that lower crime rates will best be achieved by locking up far more people than we currently do 'is an important viewpoint'. But one gets the feeling he is simply being polite. He devotes a mere half a page of a 124 page report to dismissing such arguments. He is certainly right to do so, but it would have been helpful to read a more developed argument.
The report also comes up with a number of sensible, if modest, proposals. Coulsfield prefers the Scottish model for sentencing decisions 'since it makes the point that it is custody, not the alternative, which requires to be justified'. He calls on the government 'immediately' to 'commission research... into the causes of the disproportionate increase in the numbers of black offenders in custody and develop a strategy to deal with it'. He also appears aware of dangers of the new National Offender Management Service developing into a remote and bureaucratic organisation more focused on performance indicators and spreadsheets than on outcomes.
Moreover, Lord Coulsfield and his inquiry team have done us all a favour by commissioning Anthony Bottoms and his colleagues to undertake research into current knowledge of alternatives to custody. At 436 pages it is an intimidating prospect, but it is a consistently interesting read. For those without the stamina to read the book, or the money to afford Willan's slightly-steep #25 price tag, there is a useful summary of the findings in one of the Coulsfield report appendices.
Left largely unchallenged in the report, however, is the role of community sentences. Indeed, they emerge in Coulsfield as a key driver for reducing prison numbers. 'The only way to bring about a reduction in the prison population in the reasonably near future,' the report argues, 'is to stress the ineffectiveness of prison... [and] to increase confidence in community penalties'.
Given the history of community penalties over the past quarter century - in which rises in prison sentences have closely tracked rises in community sentences - this is at best a questionable assertion. At worst it is highly implausible.
The reasons for this are complex; the policy implications far from simple. Imprisonment and community sentences on the face of it are very different responses to crime. One involves the absolute denial of liberty, in often austere, sometimes brutal, total institutions. The other involves a qualified denial of certain liberties, allowing the individual to continue to live in the community; maintain family ties and friendships; work if they are employed, and so on. Given the choice most convicted offenders would unsurprisingly plump for a spell of community service over a stretch in Wormwood Scrubs.
But these distinctions should not blind us to the fact that both prison and community sentences are quintessentially criminal justice response to crime; responses that assume that punishment is an appropriate response to crime. Specifically, the community sentence is an attempt to resolve a particular criminal justice problem. As the modern state has become more effective in detecting and prosecuting crime, the sheer number of convicted offenders has placed an acute strain on the prison-punishment model. The community sentence may offer an alternative sentencing option to prisons, but it operates within the same underlying criminal justice logic of punishment. The former Home Secretary David Blunkett's description of some forms of community sentence as 'prison without bars' is instructive.
But this only makes sense if we think that criminal justice responses provide an adequate, or desirable, response to crime. The collateral damage created by a system that routinely punishes individuals with profound personal and social problems should require us all to question its desirability. The fact that less than three percent of known crime ends in a caution or conviction should cause us to question its adequacy.
A different approach would start by questioning the assumption that punishment and the denial of liberty is a natural and appropriate response to crime. And it would involve developing a 'constellation of alternative strategies and institutions', as Angela Davis puts it in her book "Are prisons obsolete?". '[R]ather than try to imagine one single alternative to the existing system of incarceration,' she argues, 'we might envision an array of alternatives that will require radical transformation of many aspects of our society.'
A true 'alternatives to prison' strategy would therefore involve a radical reappraisal and development of a host of social and economic provision, from education and health to poverty reduction and economic restructuring. For if the causes of crime are at root social, economic and political in nature, it is here, rather than at the level of the criminal justice system, that debate and policy making needs to be located.
An edited version of this article was published in Criminal Justice Matters, No.58 Winter 2004, by the Centre for Crime and Justice Studies