A predictable week for law and order


The much-trailed climb-down on policy changes to criminal justice hit the press this week and I expect the Minister of Justice, Ken Clarke to be reconsidering his position given the change of tone and direction  signalled in his response to his own, potentially exciting Green Paper. The ‘rehabilitation revolution’ which reformers hung onto as a slim rallying call for positive  change in the running of an essentially destructive criminal justice system does not even get a mention in the response paper. The revolution appears over,  the cycle broken and the same relentless variant of penal populism reasserted  in the measures proposed. What a missed opportunity and one which was long  overdue in coming at all. For the first time since Thatcher politicised crime policy was some  informed thinking taking place which put the often too nuanced ideas about  offender rehabilitation into the policy frame.

As campaigners for positive change pick over the remnants  looking for crumbs of comfort and ways forward a quick glance reveals the  populist undertones clearly and stridently recycled. Maybe Clarke was only  toying with change and now chastened by the Tory law and order hawks has
reverted to type and produced the kind of language which flies in the face of  evidence and sends policy off in the opposite direction to the evidence about  rehabilitative strategies I would have envisaged being drawn on for this now short-lived  revolution.

Of course political rhetoric demands that the changes are labelled  as evidence-based and in the introduction this is firmly asserted: ‘We must learn from past mistakes. We will  change our whole approach to rehabilitation so that we reward and pay only for  what works in delivering reduced levels of crime. Prisons will be judged on how  effectively they stop their prisoners offending again’  Here lies the over arching contradiction. The  evidence-based approach of the past governments are now dismissed as ‘mistakes’  and yet the assumption is that practices will only be funded if it works,
presumably based on that same evidence which is simultaneously being castigated  and dismissed as a mistake. Tautologies like this abound in policy statements.  All policy makers are desperate to bring evidence to their assertions but new  governments face the irony that the evidence complied is from the immediate past and was also used by previous government policy makers.

If of course you regard policy development as essentially political  and speaking to the mythical populist publics which are also quoted as justifying  the revision of policies in the tabloid papers then it would be less  hypocritical to recognise that the primary motivation for policy development is
not based on  evidence at all, new or  old, but more by the need for Cameron and his Tory cronies to regain the high  ground as the defender of that long, if dishonourable Tory tradition of law and
order.  It should not surprise us even if  it disappoints those of us who have been quietly accumulating useable evidence  to produce a system which is more rehabilitative, less exclusionary and in a  paradox missed by the tabloids actually of equal benefit to offender and victim  alike.  Penal populists prefer to see  these two groups as oppositional and this then leads to responses which demand  more punishment for offenders spuriously regarding this as beneficial for  victims.

When we look at the details of the changes proposed we see  many assertions (not quoting evidence) upon which the changes are predicated.  The following examples illustrate this:

‘Offenders will have  no choice but to confront the consequences of their crimes’.

This first example is related to increased work regimes in  prisons. This it is asserted here will mean that offenders will have to  confront the consequences of their offending. Offering proper work opportunities  linked to continuation on release would certainly help resettlement but does  not of itself confront offenders with their offending nor does current research  around desistance support the contention that accredited programmes alone  designed to confront offending are a complete package for change. It is the  combination of motivating offenders to change, developing social networks  (capital) and programme-based skills development (human capital) which produces
positive changes. A lack of comprehension of practice is illustrated in this next example.

‘Non-custodial  sentences need to be tough and demanding. For too long, they have fallen short
of what is required. Over 10% of community orders contain only a ‘supervision’  requirement (in other words, meetings with a probation officer).’

The lack of understanding of what might go on in that ‘meeting’  is a consequence of charging this intervention as deficient because it is not representing the tough  image they wish to convey. At the same time as the government has loosened the  bureaucratic stranglehold of National Standards, a shameful legacy of a labour  administration who decreased the ability of the probation service to do the job  it is trained to do, we now see the same old uninformed criticism of probation  re-emerging in these suggested changes.

Probation supervision works because it  motivates rather than dictates, because it connects an offender up to the  social networks and social capital they need to reintegrate into society,  because they refer to the right offending behaviour programmes at the right  time to increase the offenders skills (human capital), because they use mentors  and peer mentors to support their work, and because this is brought together as  a holistic whole to deliver a coherent and coordinated package of offender management focused on rehabilitation.  In fact this ‘meeting’ so denigrated by Clarke is at the heart of a whole series  of measures designed to do the job he criticises probation for not doing and  that is reducing re-offending.

With prison populations set to rise given the range of new  sentences which will lengthen prison time and thus inevitably grow the prison population  who, yet again, is to be the fall guy for this policy u-turn and financial shortfall no other than the  usual suspect – the probation trusts. If Cameron thinks this can all be replaced by  the voluntary and private sectors with the rhetoric of Big Society it misunderstands some of the best advances in multi-agency work in recent years of which probation is an important partner – PPOs, IAC and IOM to name just three.

‘We will pioneer a world first – a system where we only pay for results’

But maybe the situation is not so bad and we should not be worrying about all the other u-turns because all crime problems will be solved through payment-by-results. The golden bullet which will produce innovation, creativity, civil society engagement, and results. The pull towards PbR schemes appears to be twofold – chances  to innovate and access to funding. It is argued that outcome-based commissioning, Social Impact Bonds and PbR schemes, predicated as they are on successful outcomes and thus a corresponding easing of scrutiny of input processes, will give the voluntary sector chance to demonstrate its traditional strengths of innovation and creativity. The providers, freed of the bureaucratic yoke of  managerialism, will be able to galvanize local communities into engaging in reintegrative strategies for reducing crime. However, the financial risk accompanying these experimentations will be borne by the private (and may be the public) sector as in the Social Impact Bond example of HMP Peterborough. Other exampleswe can draw on from employment PbR schemes doubt the chance to innovate is even on the agenda. It is equally plausible to postulate that just because the funding formula has changed does not mean a) the outcomes will be any more successful than previously (though getting rid of over bureaucratic targets will certainly help) or b) that investors, will not be so nervous about their investment that they will jump ship quickly if it is perceived as not working or will want to impose tight schedules on their providers to judge on-going performance.

There are still many questions too about the measurements to be used for PbR. Output driven criteria have dominated other models of PbR in health and welfare to work which are easier to measure, though carry other risks of merely ticking the boxes. Outcome measures in the complex arena of re-offending is less easily agreed and prescribed. Existing measures for reducing re-offending are either difficult to set up because of inadequacies in the data available for
assessment, absent because of the cost or viability of robust research methodologies such as randomized control trials or are extrapolated on economic assumptions which have plausible metrics but which are often unable to extrapolate particular effects to single interventions. The government seems also to favour a binary measurement for re-offending over frequency or various
measures of ‘distance-travelled’.  Even if this is trackable and capable of application to individual interventions there are still issues of ‘creaming or cherry-picking’, ‘parking’ and the counter-intuitive findings of much of the recent work on desistance.

All this to take place in the midst of a further cut to core services. It is hard to envisage the rehabilitation revolution at all and another few years of the wasteful over use of custody and exhortations to reductionist policies without  the means or political endorsement which had been so welcome in Clarke’s early announcements.

This is a sad week for penal reform.

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