Prisons and the Process of Justice 
by Andrew Rutherford.
Oxford, 217 pp., £5.95, June 1986, 0 19 281932 1
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Growing out of Crime: Society and Young People in Trouble 
by Andrew Rutherford.
Penguin, 189 pp., £3.95, January 1986, 0 14 022383 5
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Crime is entertainment, and criminals are as much entertainers as villains. The star of London Weekend Television’s new Once a thief? is 22-year-old Michael Baillie, who began his criminal career as a burglar at the age of eight, and served his first borstal sentence at the age of 15. According to the Sunday Times, he originally wanted to play football for Aston Villa, but now he’s thinking of taking acting lessons. Perhaps he had been inspired by the careers of Jimmy Boyle, John McVicar, ‘Dirty Den’ of EastEnders, and Paul Barber, one of the ‘Brothers McGregor’ who also spent some time inside, and who recently claimed in the Sun: ‘Jailed turned me into a star.’ Burglary, theft, blackmail, arson, extortion, violence – including rape – have become socially acceptable, at least within the confines of our television sets, and as a result perhaps beyond. Arthur Daley and his ‘Minder’, for example, are commonly regarded as harmless, comic, lovable folk heroes, who can be forgiven even if they do sometimes wander onto the wrong side of the law, and get in trouble with ‘the Bill’. Indeed, both George Cole and Dennis Waterman in their Minder roles are now thought suitable characters to help encourage young people to stay off drugs in a series of commercials sponsored by the DHSS. The thought of dear old Arthur ending up inside for some of his misdeeds would be almost unthinkable, had it not been for Ronnie Barker and his alter ego Norman Stanley Fletcher. Porridge made even prison appear as warm and cosy as the front sitting-room.

Prison has proved almost as attractive to the courts. Great Britain continues to imprison more of its population, and for longer periods of time, than almost any other country in Europe. Our prison population exceeded 48,000 for the first time ever in July 1985, although the prison system itself can cater for only 39,666 prisoners without overcrowding. Since 1984 the prison population has risen by over 3000, despite the introduction of measures, such as the reduction of the minimum qualifying period for parole, aimed at decreasing it. Some local prisons such as Oxford, Bedford and Lincoln are vastly overcrowded, holding in Oxford’s case more than double the number of prisoners it should. The Home Office itself believed that the prison population wouldn’t reach 48,000 until 1991, but continues to hope that the current building programme, which has seen three new prisons opened in the last eighteen months, will reduce or end the overcrowding by the end of the decade.

Andrew Rutherford, chairman of the Howard League for Penal Reform, advocates a vastly different approach to imprisonment and the prison system as a whole. In both Prisons and the Process of Justice and Growing out of Crime he argues against the ever-expanding prison systems of Britain and the United States, believing not only that the experience of imprisonment is damaging in itself, but also that such expansion will inevitably conflict with society’s democratic values. In marked contrast to Prison Department thinking on these matters, Rutherford condemns the policy of expansion, which he labels the new ‘Gaol Fever’, for failing to reduce overcrowding or replace any of the old, dilapidated, Victorian gaols – the problems it set out to combat. Consequently he maintains that imprisonment and the expanding penal system have to be tackled by a set of alternative policy options, which he names the ‘Reductionist Agenda’, and which includes amongst its nine items the widening of the range of non-imprisonable offences. In Growing out of Crime he extends this latter principle to embrace the cause of young people in trouble, by arguing against the ‘cul de sac’ of incarceration in favour of a community-based approach centred on the home and the school.

Rutherford is certainly accurate in his identification of the young as a group who pose problems for the criminal justice process as a whole. Why do young people, like Michael Baillie, turn to crime often before they reach puberty? Why are young people arrested more often than adults? Should they be imprisoned or not? If they are imprisoned, is it for their rehabilitation, training, punishment or containment? The statistical extent of the problem can be gauged by the fact that in 1983 slightly more than half of all indictable offenders were under 21, and a third were under 17. Between 1973 and 1983 the number of young people below the age of 21 sentenced to imprisonment almost doubled, a rate not comparable with the adult system, and that increase is sharpest for those aged under 17. As Rutherford rightly remarks, this trend ‘has little to do with violent crime and largely reflects more severe sentencing of young people convicted of property offences’. Indeed he finds it ironic that at a time when the population of young people is declining, and schools are closing as a consequence, 2000 additional cells, for young offenders, have been planned as part of the Prison Department’s building programme. As a ‘born again’ assistant governor, with experience in a range of borstals, Rutherford rejects the popular belief that borstals – now known as Youth Custody Centres – offer a constructive training: instead they ‘obstruct and retard essential areas of growth from child to adult’, and as a result of thwarting this development are ‘lamentably unsuccessful with young people’, often only providing them with more sophisticated criminal skills. As many juveniles will grow out of crime by their early twenties, a process that used to be known as ‘settling down’, Rutherford argues that young people have to be saved from the damaging experience of imprisonment, and given a chance to mature.

Rutherford gains much of the inspiration for his analysis from his experiences as an assistant governor, but more particularly from the lessons he learned from Jerome Miller, after resigning from the Prison Service in 1973. Jerome Miller became Head of the Massachusetts Department of Youth Services in 1969, and found that most of his efforts to introduce reforms were frustrated by one group or another. Almost by accident he hit upon a more radical solution, a ‘deep-end strategy’, and simply began to close down one institution after another in a process of ‘decarceration’. His first target was the Bridgewater Correctional Institution, a State facility for the criminally insane. Appalled by the conditions he encountered, and frustrated in his attempts to do anything about them, he gained the support of several key politicians and simply closed it down, paroling most of its inmates and only transferring about fifteen of the rest to other institutions. Rutherford recognises that this process of decarceration cannot be replicated here, but it nonetheless provides an example of what can be achieved if certain circumstances prevail. Miller, for example, was helped in Massachusetts by widespread public criticism of the State’s correctional facilities, and by political support for radical change after a series of damning State and Federal inquiries. In this country one wonders how many members of the public know or care about the reality of imprisonment, or what support exists for radical change, as opposed to the expansion of the penal system. The United States also seems to offer wider and more varied alternatives to custody, although it has to be questioned how far these alternatives actually help those in its care. The widespread acceptance of private medical insurance in the United States, and the growing provision in that insurance for help with psychiatric and dependency problems, has meant, for example, that fewer young people in trouble get sent to prison, but more get sent to psychiatric hospitals. The result is not decarceration – merely imprisonment with a change of venue.

Throughout Growing out of Crime Rutherford, like Norman Tebbit in the recent Fulham by-election, returns to the home and the school as the appropriate settings for dealing with young people. He compares favourably the Woodlands Centre in Basingstoke with HMYCC Everthorpe, where he had worked as an assistant governor during its days as a borstal. The Woodlands Centre is an upmarket attendance centre offering programmes aimed at combating offending behaviour over a period of twelve months for those most at risk of being ‘sent down’. The essence of this approach, as Rutherford points out, is not to send the young person away, but to ‘bind him/her with the locality’. Thereafter the normalising experiences of home, school, and presumably parents, family and peer group, will be more effective, or at least less damaging, than imprisonment, in helping the young person to grow out of crime. This seems admirable as far as it goes, but is also totally dependent on that young person being a regular, or at least non-truanting, school attender, and/or living within something approaching a recognisable and stable family unit. Indeed, the American example Rutherford provides of such a structure at work involves some concerned, thoroughly middle-class parents attempting to deal with their son’s offending behaviour through psychological testing, private tutors, the possibility of boarding-schools, and a good lawyer to get him off an assault charge. Even a casual glance at the Social Enquiry Reports on the young people coming into custody here and Rutherford is obviously aware of this – suggests a vastly different picture of chronic family disruption or abandonment, and school suspensions or non-attendance. Overwhelmingly working-class and increasingly black, lacking formal educational qualifications, often with severe dependency problems, and largely unskilled, the young people who fill our youth custody centres come from social and economic environments where neither the resources nor sometimes the will exist to ‘hang onto them’ in the community. The community has already rejected them, and perhaps it is only fair to argue on behalf of some families, schools and communities that sanctions have to exist whereby an individual, young or old, can be removed from that family, school or community when he or she transgresses acceptable norms of behaviour. There would be few who would be prepared to accept that car theft, assault or burglary should go unpunished, even if they do find these entertaining in their newspapers or on TV.

Prison and the Process of Justice is a marvellous polemic. At a time of immovable expansion, it has an irresistible force. It documents the historical process which not only brought us to today’s overcrowded system, but also resulted in the Prison Officers Association’s withdrawing their voluntary agreement to work overtime. Unlike many similar critical works, it also offers in its ‘Reductionist Agenda’ a means of escape from continued expansion. Such an agenda deserves serious thought from all who work within the criminal justice process. Rutherford’s nine items include provision for the reduction of the physical capacity of the prison system; a precise statement of minimum standards for prisoners; the implementation of the optimal staff-to-prisoners ratio; the use of early release mechanisms to avoid overcrowding; certain categories of sentenced offenders remaining in the community until prison space is available; the structuring of sentencing discretion towards the least restrictive sanction; imprisonment used only in exceptional circumstances for breach or default of non-custodial sanctions; the widening of the range of non-imprisonable offences; and the narrowing of the scope of the criminal law.

Of these nine items only three directly involve or affect those living or working inside prisons. Early release mechanisms, such as parole and terminal home leave, already exist, and Rutherford would certainly find support among many prison staff for a statement on minimum standards and the implementation of the optimal staff-to-prisoners ratio. The latter item has indeed been highlighted by the events of April this year. Nonetheless the reduction in the minimum qualifying period for parole did not significantly reduce the prison population. Rutherford is right to claim that the prison is the ‘ultimate expression of the criminal justice process’, but overemphasises its role in that process. This is best reflected in his own ‘Reductionist Agenda’, where the majority of the items involve, not the prison, the Prison Department or conditions for prisoners, but the Police, the magistracy, the courts, Parliament and the public. To use a favourite Prison Department cliché, prisons only receive those who are sent, and why they are sent and for how long is the business of others. Rutherford might find support for his contention that prisons should be seen merely as a detestable solution restricted ‘to the business of serious crime’, but this suggests that there exists, or can exist, a proper level of imprisonment, that we have already exceeded it, and also that ‘serious crime’ does not involve theft or burglary.

It is well-known that the size of prison populations varies from one country to another, and that it often varies from region to region within the same country: the Northern Territory in Australia imprisons almost four times as many people as the state of Victoria. These differences are used by penal reformers as a means of criticising sentencing policy, especially in countries where there are high inmate populations. Prison reformers see ‘policy options’ such as the ‘Reductionist Agenda’ as a means of reducing the prison population. However, those parts of the ‘Reductionist Agenda’ which already operate either here or elsewhere have not resulted in a lowering of the prison population. What this surely reveals is how difficult it is to predict the size of the prison population, and that we do not yet adequately understand the means by which inmate populations either rise or fall. The implementation of any ‘Reductionist Agenda’ would not necessarily guarantee a fall in prison numbers. Nor has it been proved that sentencing policy is necessarily influenced by ‘deterministic’ factors such as unemployment or a rising crime rate. Research in this area has so far proved confusing, local in character and largely inconsistent.

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