THE PRISON CRISIS

There are now more prisoners in England and Wales than the prison estate can accommodate. The prison population stands at 81,454 (NOMS, Prison Population & Accommodation Briefing, 23 November 2007). Total capacity within the prison estate stands at 81,367. As a result 197 prisoners are currently housed in police cells under Operation Safeguard. The average nightly cost of holding a prisoner in a police cell is £385 (Hansard, 25 June 2007, Col. 354W) – more than a Superior King room at the Ritz Hotel, Piccadilly. The total cost of Operation Safeguard since October 2006 has been £28.7million (Hansard, 20 November 2007, Col. 727W) – enough to build a prison for over 250 prisoners (based on an average cost of £110,000 per place confirmed by Jack Straw; speech to the Prison Governors Association, Buxton, 8 October 2007). Even if police cells are included, there is only room to accommodate 313 more prisoners. The Government has pledged to build 9,500 new prison places by 2012. (Home Office, 21 July 2006; Lords Hansard, 19 June 2007, Col. 97). However, the Ministry of Justice predicts that the prison population will rise by 11,268 by the middle of 2012, and possibly by up to 15,568 (NOMS, Prison Population Projections, 2007-2014, 31 August 2007). As many as 1,160 places built in 2002-04 are in temporary units with a life expectancy of between five and ten years, while HMP Kennet, in Merseyside, a new 350 place prison opened in February 2007, is only on a five year lease and may shut in 2012.

Prison population as proportion of prison capacity 101.000% 100.000% 99.000% 98.000% 97.000% 96.000% 95.000% 94.000% 06/01/2006 06/03/2006 06/05/2006 06/07/2006 06/09/2006 06/11/2006 06/01/2007 06/03/2007 06/05/2007 06/07/2007 06/09/2007 06/11/2007

Figure 1: Prison population as proportion of capacity within prison estate (Source: HM Prison Service/NOMS Weekly Population Bulletin, 6 Jan 2006 - 23 November 2007)

The Government has admitted that funding is in place for only 500 of the new places announced in 2007 (Hansard, 22 November 2007, Col. 1103W). There could be a shortfall of over 3000 prison places within five years.

The extent of overcrowding
Over half of prisons are overcrowded. 92 of the 141 prisons in England and Wales currently hold more prisoners than their in-use certified normal accommodation (NOMS, Prison population Monthly Briefing, 31 October 2007). Fourteen prisons are holding 50 per cent more prisoners than they are certified to take (NOMS, Prison population Monthly Briefing, 31 October 2007). 73 per cent of prisoners are housed in overcrowded accommodation (NOMS, Prison Population Monthly Bulletin, 31 October 2007). PRISON
Accommodation Available Operational Capacity Population Overcrowding

24 prisons are now holding more prisoner than their operational capacity, defined as ‘the total number of prisoners that an establishment can hold taking into account control, Table 1: The fourteen most overcrowded prisons (Source: NOMS, Prison security and the Population Monthly Bulletin, October 2007; excludes HMP Kennet) proper operation of the planned regime’ (NOMS, Prison Population Monthly Bulletin, 31 October 2007).

Shrewsbury Swansea Preston Lincoln Leicester Usk Altcourse Durham Northallerton Dorchester Wandsworth Exeter Reading Leeds

181 240 429 436 206 150 794 591 153 147 965 316 182 678

340 422 750 738 385 250 1288 981 252 260 1475 533 287 1000

329 423 733 738 349 248 1293 949 245 226 1485 484 279 1025

182% 176% 171% 169% 169% 165% 163% 161% 160% 154% 154% 153% 153% 151%

The effects of overcrowding
Overcrowding linked to suicide. In July, Ann Owers, HM Chief Inspector of Prisons, linked overcrowding with prison suicides (http://www.guardian.co.uk/prisons/story/0,,2124651,00.html), which have risen from 68 in the whole of 2006 to 81 in 2007 so far. Eighty-four per cent of prison suicides occur in overcrowded prisons (Hansard, 8 October 2007, Col. 204W). Prisoners in overcrowded prisons are twice as likely as other prisoners to take their own lives, suggesting that up to 42 per cent of prison suicides could be avoided if prisons were not overcrowded. Overcrowding linked to prison violence. In January, the Chief Inspector of Prisons, Ann Owers, claimed that some jails had become ‘riskier places to manage’ because of overcrowding (http://news.bbc.co.uk/1/hi/uk_politics/6311629.stm). Between 2002 and 2006, the number of assaults on prisoner officers rose 24 per cent to 3,123. The number of prisoner on prisoner assaults rose 32 per cent to 11,520. (Hansard, 30 October 2007, Col. 1150W). Between 1997 and 2007, the prison population rose by a third (Home Office Research and Statistics Directorate, ‘The Prison Population in 1997: A Statistical Review’; NOMS, Prison Population Weekly Bulletin, 23 November 2007). Between 1997 and 2007, the number of prison officers rose by only 18 per cent from 23,058 to 27,222 (Hansard, 10 September 2007, Col. 1998W). This means that the average number of prisoners guarded by each officer has risen from 2.6 to 3, exposing both individual officers and the prison system to greater risk.

Overcrowding linked to re-offending. In January, the Chief Inspector of Prisons said that overcrowding was undermining attempts at rehabilitation (http://news.bbc.co.uk/1/hi/uk_politics/6311629.stm): ‘local prisons continue to be at the sharp end of overcrowding pressure … they are least likely to be able to provide opportunities for rehabilitation and activity; and are now even less able to move prisoners to places that can provide them’. (HM Chief Inspector of Prisons, Annual Report 2005/06) In 2005, the National Audit Office found that overcrowding disrupts work to prevent re-offending (NAO, National Offender Management Service: Dealing with increased numbers in custody, 2005). The cost of re-offending. In 2002 Tony Blair’s Social Exclusion Unit estimated the cost to the criminal justice system of dealing with the recorded crimes committed by ex-prisoners as at least £11 billion per year (Social Exclusion Unit, 2002). As re-offending rates have since risen, the cost today is likely to be even higher. However, on the basis that crime committed by ex-offenders costs £11 billion per year, reducing re-offending from the current rate of 64.8 per cent for adults released from prison in 2004 (Home Office, Re-offending by Adults: Results from the 2004 cohort, March 2007) to the level of reoffending by prisoners released in 1998 - at the start of this Government - 56.8 per cent, reoffending by ex-prisoners would reduce by 12.4 per cent. This could create a saving of around £1.36 billion every year for the criminal justice system, in addition to the wider benefits for society from reduced crime. More importantly, since re-offenders are, other things being equal, more likely to receive a custodial sentence for a particular crime, breaking the cycle of re-offending would result in fewer criminals being returned to prison for new crimes, and ease future pressure on prisons.

The causes of overcrowding
Overcrowding is not down to large numbers of prisoners serving short sentences. Over 87.5 per cent of sentenced prisoners are serving sentences of over twelve months (including indeterminate sentences) (Ministry of Justice, Population in Custody, September 2007). Only 8.4 per cent of prisoners are serving sentences of six months or less – the maximum custodial sentence in magistrates’ courts. However, these short prison sentences represent the majority of offenders sentenced. Reducing the number of short-term prisoners (those serving less than six months) further would mean weakening 23,000 sentences – or 63 per cent of all custodial sentences (Home Office, Sentencing Statistics 2005, 2007).
Over four years, determinate sentences, 38%

Prison population by sentence

Indeterminate sentences, 15%

6 months or less, 8.40% Over 6 months, up to 12 months, 4.00%

Over 12 months, up to 4 years, 34.50%

Figure 2: Prison population by length of sentence (Source: Ministry of Justice, Population in Custody, September 2007)

Overcrowding is not caused by large numbers of first time offenders. Only 12 per cent of those sentenced to prison have no previous convictions. Over half of those sentenced have five or more previous convictions (Home Office, Sentencing Statistics 2005, March 2007). Since 2000, the proportion of people coming before magistrates for the first time has fallen by a tenth. The number coming before magistrates with more than ten previous convictions has increased by 36 per cent (Home Office, Sentencing Statistics 2005, March 2007).

Pe rs ons s e nte nce d by num be r of pre vious offe nce s 10 or more previous of f ences, 37% First time of f enders, 12%

1-4 previous of f ences, 31%

5-9 previous of f ences, 20%

Figure 3: Offenders sentenced by number of previous offences (Source: Home Office, Sentencing Statistics 2005)

Overcrowding is not caused by a rise in the number of people receiving custodial sentences. The total number of people receiving custodial (and community punishments) dropped between 2004 and 2005. These sentences only increased as a proportion of disposals because minor offences attracting fines – such as low-level anti-social behaviour – are increasingly dealt with by non-judicial fixed penalty notices.
Sentences by disposal type
1800000 1600000 1400000 1200000 1000000 800000 600000 400000 200000 0 1998 1999 Other 2000 Fines 2001 2002 2003 2004 2005

Community sentences

Immediate custody

Figure 4: Offenders sentenced by type of disposal (Source: Home Office, Sentencing Statistics 2005, 2007)

Overcrowding is not caused by increasing numbers of women prisoners. Women prisoners represent only 5.6 per cent of the prison population (NOMS, Prison Population Bulletin, 23 November 2007) – but prisons are currently overcrowded by 13 per cent (NOMS, Prison Population Monthly Bulletin, 31 October 2007). Indeed, HM Chief Inspector of Prisons found women prisoners to be ‘the only part of the prison population that remains stable’ (HM Chief Inspector of Prisons, Annual Report, 2005/06, p. 5). She also found that women’s prisons have been a casualty of the prisons crisis, ‘with women’s prisons being rerolled to hold men, destabilising often vulnerable women and leaving many further from home’ (ibid, p. 6). Overcrowding is not caused by the introduction of Indeterminate Sentences for Public Protection. The Prison Reform Trust has said ‘the reason [that the prison population continues to surge] is very simple … Prison is now being used increasingly not as a place of measured punishment but as a place of containment for public safety’ (Prison Reform Trust, Indefinitely Maybe, July 2007). As of 30 April 2007, 2,405 offenders were being held on IPPs (Hansard, 21 May 2007, Col. 1149W). The Ministry of Justice predicts that in 2010 the number of prisoners held on IPPs will exceed the number of lifers. However, those prisoners who receive IPPs would otherwise have received determinate sentences resulting in the same prison time as the minimum tariff received under the IPP. This means they would have received a sentence of double the IPP tariff they received. It is also possible that in the case of some particularly dangerous criminals, whose crimes could attract a discretionary life sentence, and who posed a strong danger of re-offending, but where the offence committed itself may not on its own have justified a life sentence, judges might now use an IPP in place of a discretionary life sentence. A review of indeterminate sentence tariffs in the first year of IPPs revealed that over 75 per cent of those receiving an IPP had received a minimum tariff equivalent to a fixed term sentence of three years or more (Hansard, 17 July 2007, Col. 272W). Even the Prison Reform Trust’s own case studies suggest that the fact that a short tariff is given does not mean that an offender is not dangerous. They cite only two examples of short tariffs, one of six months, one of eighteen months – but both were cases of arson. The judge in one of those cases made it clear why he believed an indeterminate sentence was necessary: he said the offences the person had committed ‘did no more than cause repeated damage and disruption. However, if you were to do something like that in a hostel, a house or a block of flats you could cause great injury. In fact, you could cause loss of life’ (Prison Reform Trust, Indefinitely Maybe, July 2007). On 8 October 2007, the Justice Secretary indicated that there were now ‘almost 400’ tariff-expired IPP prisoners. It follows, therefore, that tariff expired IPP prisoners account for less than 0.5 per cent of the prison population, and no more than 2 per cent of the increase in prison population since 1997. Justice Secretary admits that the increased pressure on the prison system is being driven by people who should be in prison. In a speech to the Prison Governors Association in October, Jack Straw claimed that the reason the prison population is expanding is that: ‘More offences are being brought to justice’ ‘Enforcement of breaches of community orders and breaches of licence has improved considerably’ ‘There are now 60 per cent more violent and serious offenders in prison than in 1997, representing the bulk of the additional prisoners’ (Jack Straw, Prison Governors Association conference, Brighton, October 2007).

LABOUR – GIVING CRIMINALS A BREAK
Early Release
Since Gordon Brown came to power, at least 8,520 prisoners have been released early on ‘End of Custody Licence’ (ECL) (Ministry of Justice, ‘End of Custody Licence’, data up to 30 September 2007). As of 30 September 2007, 1,544 people convicted of violence against the person had been released (Ministry of Justice, ‘End of Custody Licence’, monthly, data up to 31 September 2007). Those offenders have committed at least 120 crimes while on early release (Ministry of Justice, ‘End of Custody Licence’, 31 October 2007).
Violence against the person, 1,544 Sexual Offences, 2 Robbery, 176 Burglary, 811

Offence not recorded, 163 Other offences, 2,262

Motoring offences, 1,093 Drug offences, 355 Fraud and Forgery, 167 Theft and Handling, 1,947

Figure 5: Releases on ECL by offence type, 29 June 2007 to 30 September 2007 (Source: Ministry of Justice, End of Custody Licence, monthly)

Despite the introduction of early release, the prisons have filled up again within four months.

83000 82000 81000 80000 79000 78000 77000 76000 75000 06/01/2006 06/02/2006 06/03/2006 06/04/2006 06/05/2006 06/06/2006 06/07/2006 06/08/2006 06/09/2006 06/10/2006 06/11/2006 06/12/2006 06/01/2007 06/02/2007 06/03/2007 06/04/2007 06/05/2007 06/06/2007 06/07/2007 06/08/2007 06/09/2007 06/10/2007 06/11/2007 74000 Introduction of early release

Prison Population

Prison Capacity

including police cells

Figure 6: Prison population and capacity (Source: HM Prison Service/NOMS Weekly Population Bulletin, 6 Jan 2006 - 23 November 2007)

Judges and magistrates to be stripped of sentencing powers
Labour is planning to stop judges from imposing open-ended sentences and restrict them to giving 'extended' sentences instead. Legislation has already been prepared for Northern Ireland to implement the new rules on indeterminate sentences (Draft Criminal Justice (Northern Ireland) Order 2007, article 4(3)). Under this legislation judges would only be able to give an indeterminate sentence where the offence would have carried a fixed term sentence of four or more years. Otherwise, judges will only be able to impose an ‘extended sentence’, under which prisoners are automatically released even if they pose a ‘significant risk’ of causing ‘death or serious injury’ by re-offending. Magistrates will also no longer be allowed to give suspended prison sentences to criminals they fear might re-offend or break the terms of their probation (Criminal Justice and Immigration Bill, s. 10). The Magistrates Association has said ‘We see no logical reason for this proposal… We believe this proposal may be driven by the current state of overcrowding in prisons’ (Magistrates Association, briefing on the Criminal Justice and Immigration Bill, September 2007). One magistrate has pointed out that this change will limit magistrates’ options for dealing with offences including domestic violence: ‘How are we supposed to sentence the sixth-time driving while disqualified, or the thirdtime drink driver? Common Assault is the usual charge in Domestic Violence cases, and that too is summary-only. Take away the deterrence and what do we have?’ (‘The Magistrate’s Blog, thelawwestofealingbroadway.blogspot.com). In addition, where prisoners on licence break the terms of their parole, they will only be returned to prison for 28 days – a move described by the Magistrates Association as ‘a licence to reoffend’ (Magistrates Association, Criminal Justice and Immigration Bill, September 2007). And courts’ ability to give custodial sentences will be limited by Jack Straw's plan to punish criminals who currently receive a prison sentence of 12 months or less with community service instead. (Jack Straw, speech to the Howard League, 21 November 2007). Straw told the Howard League that ‘For prisoners sentenced to under twelve months … community sentences will, in many cases, be a better alternative’. But Ministers last week indicated that numbers of probation staff available to supervise offenders serving community sentences will fall due to financial constraints (David Hanson, speech to the National Probation Service, 21 November 2007).

The number of prison places available to dictate sentences
Available prison capacity to dictate prisoners' sentences. Jack Straw has agreed that ‘some method must be found of linking resources to the setting of the sentencing framework’ (Jack Straw, speech to the Howard League, 21 November 2007). What that means is when our prisons are full - as they are now - some offenders would not get custodial sentences. This may also lead to offenders in an area where prisons are full receiving a more lenient sentence than similar offenders in areas where there is spare jail capacity.

PRISONS WITH A PURPOSE
Conservatives have already pledged to: • double magistrates’ sentencing powers by implementing s. 154 of the Criminal Justice Act 2003 – this would allow them the option of handing down custodial sentences of up to twelve months • introduce honesty in sentencing, ensuring that convicted criminals serve at least the minimum sentence handed down by the judge. • scrap early release on end of custody licence by creating 1,200 rapid build prison places to address the immediate crisis. • ensure adequate prison capacity • reform prison regimes to focus on breaking the cycle of re-offending • ensure adequate provision for the mentally ill and offenders with drugs problems (Conservative Party, Crime: It’s Time to Fight Back, September 2007)

The Prison Reform Agenda
In July, David Cameron asked the Shadow Justice Secretary Nick Herbert to lead a review of prisons and sentencing policy. The Prison Reform & Sentencing Review is divided into working groups across four main themes, each led by a shadow justice minister: 1. Sentencing The first working group, led by Lord Kingsland, is looking at sentencing. It is developing policies to restore honesty in sentencing in order to reassure victims – and send a clear message to criminals. It is exploring ways in which judges could hand down minimum as well as maximum sentences, with no possibility of parole until the minimum has been served. This group is also looking at the role, effectiveness and potential of non-custodial and semi-custodial sentences, the role of restorative justice, and the role of the Sentencing Guidelines Council. 2. Prison capacity and the prison estate Working in partnership with the sentencing team, the prison capacity and estate working group, is led by the Shadow Prisons Minister Edward Garnier QC MP. This group is looking into the management of the national prison estate – how many prison places we are going to need, where they should be, and how we will plan for them. It is considering issues of prison redevelopment and redesign with a focus on international examples of best practice. 3. Prison Regimes and Rehabilitation The third working group, led by David Burrowes MP, is looking at ways to reform how prisons are run, with a far greater emphasis on education, training and work to reduce reconviction rates. It is considering the most effective prison regimes and rehabilitative programmes for reducing reoffending – gained from international experience. It is examining the role of community, faith and voluntary organisations within the prison system and investigating the quality and scope of drug, alcohol and mental health provision in custody. 4. Life After Prison – Supervision and Resettlement Henry Bellingham MP is leading the fourth working group looking at life after prison. It is analyzing ways to improve the support networks for released offenders, enhancing their ability to choose to lead productive lives after release. It is also covering the issues of probation and postrelease supervision and will be recommending ways to improve the monitoring of all, especially dangerous, offenders.

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