Given the dire circumstances of the present penal crisis in England and Wales, last autumn’s announcement of a short, sharp Sentencing Review by the new Labour government was inevitable.
Suspiciously, given the Review’s aspiration to reduce pressure on prison places by means of tough alternative sentences and new, “earlier” forms of early release - the Probation Service, whose preserve this has traditionally been, is not within its remit. Rather, the Review is looking for new technological means of creating “prisons outside prisons” (as its press release put it) and “community-based custody” (as I heard one Ministry of Justice official describe it).
My submission to the Review addressed putative connections between punishment and technology and outline Labour’s emerging penal agenda. Cues as to what is meant here by technology – specifically digital technology – come from an article that David Gauke, former Conservative Minister of Justice, and chair of the Sentencing Review, wrote in the New Statesman (25th October 2024) at the time of his appointment:
Specifically, does it [technology] provide an opportunity to punish offenders, protect society and rehabilitate people outside of prison in a much more effective way than previously possible? Electronic tagging, for example, is increasingly used, but we need to understand whether more could be done. The same can be said of drink and drug monitoring. We need to understand the potential for current and future technologies to keep offenders out of prison in the first place, or to release some prisoners safely at an earlier stage than is currently the case. There may well be lessons to be learned from other jurisdictions to ensure sentencing policy is properly able to exploit all these technologies.
This is both a very open-ended view of digital technology’s potential as a substantive form of control and an article of faith in it as a many-sided solution. It is highly speculative; there is no evidence-base (as yet – if ever) which actually supports it. The best available evidence-base for working with offenders points in the opposite direction, emphasizing desistance, rehabilitation, recovery and reintegration. There is a modest place for various types of electronic monitoring (EM) in this, but compared to many European countries, England and Wales have never used EM well. It has preferred delivery by the private sector, and opted more for stand-alone than integrated uses. To look to EM now for specifically punitive innovation when such potential as it had to support desistance and rehabilitation was never properly tried is suggestive of an alarming penal turn.
At its inception in the late 1980s, EM-curfews were presented by the then government as something obviously superior to “soft” probation practice, a modern means of delivering robust “punishment in the community” (thereby reducing the prison population!). Reality proved otherwise, but Gauke’s new technological gambit reiterates an old political ambition to replace probation with “tech”. The Probation Service, it seems, is finally passé, unable to supervise offenders effectively, no longer even worth mentioning. This could be the Labour Government’s view too.
The Probation Service, of course, may well be failing. It was severely weakened by its failed part-privatisation in 2014, and has not been restored to its former (imperfect) glory by its reunification as a national state agency in 2021, becoming a junior partner of the prison service soon afterwards. This rolling upheaval saw the departure of many experienced staff and left behind a serious retention problem with the newly trained, underskilled and easily demoralized staff who replaced them.
Part-automating an underperforming human/public service with intrusive digital controls seems to be what is being canvassed by stealth in the Review. Such a “move fast and break things” approach clearly falls within the public sector remit of the government’s AI Opportunities for Action Plan, which in turn draws on the messianic enthusiasm of the Tony Blair Institute for Global Change for “re-imagining government” using AI and other digital tools. (At least one meeting of the Sentencing Review has taken place at the Blair Institute headquarters, with AI experts much in evidence).
It is inevitable that the Review’s reflections on new punitive uses of EM will shade into the emerging uses of AI in criminal justice, because that is beginning to happen across Europe. Presciently, in October 2024. the Council of Europe issued an important Recommendation to its member states on the “the ethical and organisational aspects of the use of artificial intelligence and related digital technologies by prison and probation services” (CM/Rec(2024)5), of which the Review would do well to take note. The Recommendation is still, in my view, over-enthusiastic about the efficiency gains that AI will bestow on Probation Services, but it at least places limits on the legitimate and proportional uses of digital tools on offender supervision, and it not afraid to mention the term “rehabilitation” – or probation – approvingly. It contains a slender hope – missing in the Sentencing Review – that punitiveness should not rule and that Probation Services, however much they adapt in the age of AI, are worth preserving.
This article is part of our ‘Ideas for sentencing reform’ series, discussing sentencing reforms against the background of the Independent Sentencing Review under the former Lord Chancellor, Rt Hon David Gauke.
If you would like to suggest an article for this series, get in touch.
