Extracts from Prison Reform Trust report on indeterminate sentences: 8 July 2010

Extracts from Unjust Deserts: imprisonment for public protection

First published in 2010 by Prison Reform Trust

http://www.prisonreformtrust.org.uk/uploads/documents/unjustdesertsfinal.pdf

The history of the sentence of imprisonment for public protection (IPP) is an object lesson in how to mismanage  sentencing reform….

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The number of prisoners on indeterminate sentences of all kinds [i.e. including those serving life and extended sentences as well as IPPs] has increased particularly sharply in recent years – more than tripling from 3,934 in June 1998 to 12,520 in June 2009. This increase reflects both the increasing use of the life sentence – a total of 394 life sentences were passed in 1998, compared to 523 in 2008 … – and the introduction of the IPP sentence in 2005. … [O]ver the 11-year period from June 1998 to June 2009, indeterminate prisoners as a percentage of all sentenced prisoners increased from 8% to almost one-fifth (18%).

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By January 2010 there were almost 6,000 IPP prisoners in custody, of whom around 2,500 had already completed their minimum custodial terms; almost 500 post-tariff IPP prisoners were at least two years past tariff expiry. Just 94 had thus far been released, around one quarter of whom were subsequently recalled to custody. Among the IPP prisoners who were held beyond their tariff expiry were many who faced a particular injustice. These are the prisoners who were sentenced before July 2008 and received tariffs of under two years: most of these individuals would have been ineligible for an indeterminate sentence had they been sentenced after July 2008 when the minimum two-year tariff was introduced. By September 2009, more than 1,200 IPP prisoners with tariffs of two years or less were being held in custody beyond tariff expiry; the average amount of time they had been held post-tariff was around 16 months.

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By 2006… the Home Office was predicting that ‘IPP sentences will increase the prison population by around 3,500 places and the effect will saturate by around 2012’…. Prison population projections that have been published subsequently have not put a figure on the likely future impact of the IPP sentence. However, the 2008 and 2009 publications both include a table on ‘assumptions of time served for IPP prisoners’ which gives 54 months as the ‘average time served post-tariff’.    If the reality bears out this alarming prediction of an average of 4.5 years spent in custody after tariff expiry, the repercussions for the prison population over time – not to mention the repercussions for the individuals involved – will be very great indeed.  It was for this reason that the joint report of the inspectorates of Probation and Prisons described the present state of affairs as ‘unsustainable’….

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By definition, to the extent that public protection is seen as an aim of sentencing, the focus of the sentencing exercise shifts from determining appropriate punishment for past act or acts to considering how to prevent people from committing certain acts in the future. This is a major departure from the principle of proportionality in sentencing, whereby the severity of the sentence should reflect the seriousness of the crime that has been committed. The distinction between ‘the backward-looking theory of punishment as just deserts and the forward-looking theory of punishment as crime control’ … is manifest in the two components of the IPP sentence: the tariff reflects the seriousness of the past offence(s), while the indeterminacy of the sentence reflects the future risks posed by the offender.

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In many cases, IPP prisoners’ mental disorders may be pre-existing conditions, and may have contributed to the offending behaviour. At the same time, it seems very likely that the stress created by the uncertainties of indeterminate imprisonment lead directly to poor emotional and mental health. For example, the Sainsbury Centre study found that ‘not having a release date, and not knowing whether their efforts in prison would have any bearing on the Parole Board’s considerations, had a forcible impact on prisoners’ mental health’ …The uncertainties about release over a prolonged period of imprisonment are also likely to contribute to family breakdown, and thus create further pressures on the mental health of IPP prisoners.

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Reflecting the high rates of mental illness and general distress among IPP prisoners, the rate of suicide appears to be higher in this group than among the prison population as a whole. Table 3.9 shows that there have been a total of 13 ‘self-inflicted deaths’ of IPP prisoners since 2005; and that in 2008, IPP prisoners accounted for around 5% of the custodial population but 7% of all self-inflicted deaths in custody.

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The limited availability of programmes is indicated by the data on programme completions (accredited courses only….30  Here we see that around one-third of all IPP prisoners, and just under one-fifth of those who had already passed their tariff dates, had not completed any accredited offending behaviour programme as of mid-January 1010.  One programme only had been completed by a further third, and just under one-third of post-tariff prisoners. Given that IPP prisoners are typically required to undertake more than one programme in order to demonstrate significant risk reduction, these relatively low rates of programme completion have serious implications for their prospects of release.

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Clearly, there is a vicious circle already in operation here: the more IPP prisoners there are, the harder it is for them to access interventions and hence to make a good case for release; and this in turn pushes up the overall number of IPP prisoners. The circle is likely to become ever more vicious as cuts to public expenditure constrain prison budgets, and further erode the availability of interventions across the secure estate. Several of our respondents from within the Prison Service voiced their profound concerns about the implications of forthcoming prison budget cuts for work carried out with IPP prisoners.

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The IPP sentence allows dangerous people to be imprisoned indefinitely on the basis that the need of the public to be protected from them can in some circumstances trump the general principle that the severity of the sentence should match the seriousness of the offence that has been committed. This poses the question: how dangerous does someone need to be to warrant indeterminate imprisonment for the purpose of public protection?  There was no clear rationale for the threshold of dangerousness originally established by the IPP sentence.

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A particularly absurd aspect of the very broad definition of dangerousness was that some of individuals were given IPP tariffs of no more than a few months or even weeks. The absurdity lay in the fact that, first, such short tariffs suggested that the index offences were relatively minor and thus did not warrant indeterminate sentences on grounds of the perpetrators’ supposed dangerousness; and, secondly, the prisoners’ prospects of release on tariff completion were negligible, given the limited time available for addressing offending behaviour and thereby demonstrating reduced dangerousness.  The government response to the evident problem of an overly broad definition of dangerousness was to shift the threshold upwards – by introducing the two-year minimum tariff for most cases and by abolishing the presumption of dangerousness where there was a previous conviction for a specified offence.  However, there is little evidence that this shift reflected a clear-sighted approach to developing meaningful criteria of dangerousness; rather, it appears to have been essentially an attempt to devise a formula that would produce manageable numbers of IPP prisoners (without incurring the significant political cost that would follow from an obvious ‘softening’ of policy on violent and sexual offences).  … [T]he new threshold can still be criticised for being set too low… in the … substantive sense that many of those deemed dangerous, even under the revised definition, arguably have not been convicted of offences that are serious enough to warrant indeterminate sentences.

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…the limitations of risk assessment are so evident that if the courts have extensive powers to lock up individuals to pre-empt violent or sexual offending, these powers will often be used in ways that are neither effective nor just. Again, this viewpoint was expressed by many of our lawyer respondents (as well as some others), such as one who commented, in an email submission, that the IPP  —

requires the sentencing court to engage in a wholly speculative predictive exercise about future dangerousness when there is no reliable measure of such dangerousness …. The task of predicting whether particular types of offending might escalate to cause serious harm and then whether the person might pose a risk of harm in the future is simply too speculative and subjective to form the basis for indefinite detention.

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…the following, voiced by perhaps the only judge who expressed deep discomfort with the concept of the IPP:

At the end of the day you’re making an educated guess as to future risk. You’re punishing somebody, if you go for IPP, for what they might do. And we weren’t used to doing that. So – yes – I think there is a tension between giving a sentence which is proportionate to the crime and giving a sentence based on an assessment of future risk. … I think probably, on balance, I’d prefer not to have the power of IPP.

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…the issue of disproportionality arises in relation to post-tariff detention; and the longer that prisoners are held beyond tariff, the more disproportionate their sentences can be said to be. Unsurprisingly, the bitterest complaints from IPP prisoners and their families are about the injustices of incarceration with seemingly no end in sight. Perhaps it should come as no surprise that large numbers of IPP prisoners are being held in custody beyond tariff expiry. The concept of a minimum term for dangerous prisoners does not imply that they have any entitlement to release upon its expiry: it means simply that they can be considered for release at this point. However, surely few would have predicted that, almost five years after the sentence was introduced, no more than around 4% of almost 2,500 post-tariff IPP prisoners would have been released. The Home Office prediction, cited above, of an additional 900 in the prison population indicates that legislators entirely failed to anticipate the scale of post-tariff detention (to the extent that they gave it any consideration whatsoever).

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Why, then, are the numbers of releases from IPP sentences so very low? There are three key issues here… First, the Parole Board is clearly overstretched and, in addition, its decision-making is highly risk averse, as reflected in its low release rates. Secondly, offending behaviour programmes – completion of which is viewed as essential for people’s readiness for release – are limited in their availability and also, even more importantly, in their scope and effectiveness. Thirdly, it is inherently extremely difficult for someone to demonstrate their reduced dangerousness, given that the converse of the low dangerousness threshold set by the IPP sentence is a high ‘safety’ threshold for release.

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To lower my risk, I have to do ETS [Enhanced Thinking Skills: a course offered in prison] but because I can’t read and write, I can’t lower my [risk]. I’m just stuck. They are saying that until I can read and write I can’t do ETS and I can’t lower my risk. …It’s like when I’m trying to say I can’t learn no more. I’ve been to a special school and I’ve learnt as much as I can but they don’t believe that. But why should I be punished for two things? I’m being punished for the crime and again for not being able to read and write. [Letter to Prison Reform Trust from IPP prisoner]

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Once someone has been defined as ‘dangerous’ by the sentencing court and has been given an IPP sentence on this basis, the onus is on him, once he has completed his minimum term, to demonstrate to the Parole Board that he longer poses a risk to the public. This is made clear by the House of Lords judgment in the cases of James, Lee and Wells. Here it was asserted that although there should not be a presumption of continued dangerousness after tariff expiry, the ‘default position … is that the prisoner is to remain detained unless the Board are satisfied he can be safely released’. (How exactly this ‘default position’ differs from a presumption of continued dangerousness is not clarified.)

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[T]he large numbers of IPP prisoners entering an already over-crowded Prison Service, the overly bureaucratic and rigid system of lifer management, and the lack of understanding of the IPP sentence among many prison staff, all contributed to a severe logjam of IPP prisoners in local prisons, where they had little or no opportunity to embark on interventions [eg behaviour management courses] of any kind (let alone make meaningful progress through their so-called sentence plans)…

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The probability that a heroin-dependent shoplifter with 50 previous convictions will commit further theft offences is very high, but this provides no justification for indeterminate preventative detention. In practice it is generally very hard to predict with any certainty whether someone who has committed a serious sexual or violent offence will go on to commit further grave offences. Any system of prediction, whether clinical or actuarial, will have ‘false positives’ where people are wrongly identified as dangerous, and ‘false negatives’ where they are wrongly identified as low-risk.

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[T]here are the straightforwardly financial costs of imprisoning people beyond the tariff that they would serve under a determinate sentence. We have not been able to quantify this cost, but the ‘order of magnitude’ costs of the extra places in custody that IPP prisoners have absorbed is probably around £100 million. Leaving aside issues of fairness, the investment question to ask is not simply whether the grave crimes prevented are worth £100m to the public purse, but whether preventative detention is the best available strategy for achieving this level of prevention. To our knowledge, no formal analysis of this sort was carried out before the sentence was introduced. …  What can be said with certainty is that the threshold for the use of preventative sentencing was lowered too far and too fast by the 2003 Criminal Justice Act in a way that strikes us as negligent of costs and negligent of rights. The amendments to the sentence that took effect in 2008 went some way to righting this wrong, but in our view the threshold is still set far too low. Even in its amended form, the IPP sentence can be applied to offences which are not, in themselves, serious enough to justify the over-riding of the principle of proportionality.

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The problems of unfairness associated with the sentence are at their most intense for those with tariffs of under two years who were sentenced prior to the 2008 amendments. As the amendments were not retroactive, almost all of this group remain in prison, serving terms well in excess of their tariff in the knowledge that people sentenced for similar offences after the amendments will have already have completed their sentences. It strikes us as fundamentally unfair to have two groups of prisoners with identical criminal histories, one group sentenced prior to July 2008, subject to indeterminate preventative sentences, and the other sentenced thereafter, and serving relatively short determinate sentences. The former group will watch the latter leave prison whilst they remain subject to indeterminate preventative detention – detention that was imposed in relation to offences which, by any measure, were of relatively low levels of seriousness.

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A decision to abolish or further restrict the IPP sentence would require strong political leadership, in a context where public expectations about protection from the risk of serious crimes have become increasingly unrealistic. It will always be a challenge to convey to the public that criminal justice agencies cannot provide complete protection against these risks. The history of the IPP sentence is one of bad trade-offs between protection of the public and basic fairness. We recognise that the task of achieving a better balance between public protection and fairness poses considerable political challenges; but there can be no doubt that a better balance has to be struck.

[Ephems note:  Emphasis added — BLB]