Is the Imprisonment for Public Protection (IPP) sentence turning into the Ministry of Justice’s own Windrush scandal?

Professor Mike Hough, Emeritus Professor and Founder of Birkbeck’s Institute for Crime and Justice Policy Research (ICPR) explains how thousands of prisoners are still facing injustice, ten years after IPPs’ failings were first exposed, and endorses latest demands for action.

Ministry of Justice, Westminster

The Prison Reform Trust (PRT) is to be congratulated on their excellent – but profoundly depressing – report No Freedom, No Life, No Future, which charts how large numbers of prisoners sentenced to the indeterminate sentence Imprisonment for Public Protection (IPP) are still stranded in prison many years after they were sentenced. As the report vividly demonstrates, part of the cause of this is the irrational and grossly unfair way in which the recall system is operating, following prisoners’ breach of their licence after release.

In 2010 Professor Jessica Jacobson and I worked on an ICPR/PRT collaboration which resulted in the report on the IPP sentence, Unjust Deserts. We showed how prisoners were required to demonstrate to the Parole Board that they were no longer a danger to the public, mainly by participating in courses to reduce the risks they posed. However, prisoners were denied means to demonstrate that they no longer posed a high risk to the public. Often courses were simply unavailable. In some cases, prisoners were told that they presented too low a risk for the course on offer, or that their levels of literacy were too low for the course in question. More broadly, the effectiveness of courses as a means of reducing dangerousness was questionable; while, at the same time, there were no obvious alternative ways in which individuals, in a prison setting, could prove the negative proposition that they no longer posed a risk to the public.  Matters were made worse by the originally mandatory nature of the sentence, meaning that many more IPP sentences were passed than originally expected, and many of these were for relatively minor offences. The Parole Board was overwhelmed by cases and delays grew. The net result was that many IPP prisoners were serving much longer sentences than expected – sentences that were, by any yardstick, grossly disproportionate.

Our report was well-received, and the then Justice Secretary, (now Lord) Kenneth Clarke, asked to see a pre-publication draft. We took some satisfaction in the announcement made shortly afterwards that the sentence would be abolished, qualified only by the fact that there were no plans to deal retroactively with those still serving IPPs, for example by converting all IPPs into determinate sentences. However, we thought that it would not take long for solutions to be found to release those prisoners in a fair and sensible way, whether through legislative or executive action.

How wrong we were! I was astonished to learn from PRT’s new report that by mid 2020 almost 2,000 IPP prisoners have never been released, and almost 1,400 have been released but are now back in prison, facing exactly the same intractable problems of proving their reduced risk as we found ten years ago.  The ongoing treatment of IPP prisoners is scandalous, and the scandal is, for the Ministry of Justice, taking on qualities that parallel the Windrush scandal that the Home Office is failing to deal with. The obvious unfairnesses and inhumanity which IPP prisoners face demand rapid attention.  We strongly endorse PRT’s call for action.

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COVID-19 in prisons – a major public health risk

Catherine Heard, Director of the World Prison Research Programme at the Institute for Crime and Justice Policy Research (ICPR) at Birkbeck, discusses the impact of COVID-19 on prison populations.

Prison

The coronavirus pandemic presents formidable challenges for prisons worldwide – challenges they will struggle to meet, with potentially grave consequences for the health of prisoners, prison staff, their families, and all of us.

This is a fast-moving situation: since the outbreak was declared a pandemic on 12 March, prisoners and prison staff have tested positive in several European countries, and prisoners have died in England and France. These cases will only be the tip of the iceberg globally. With prison health systems in so many parts of the world struggling to provide even basic healthcare, many sick prisoners and prison staff will not have been tested. Overcrowded and under-resourced prisons offer the perfect conditions for the rapid spread of any contagious disease, including COVID-19, within and beyond their confines.

Last year, we published a report examining the effects of failed penal policies through the lens of health. We showed that well over 60% of countries have overcrowded prison systems (based on information held on our World Prison Brief database). Our research included evidence from ten diverse jurisdictions across five continents. Prisoners spoke of extreme overcrowding (for example, 60 men sharing cells built for 20 in Brazil); inadequate medical treatment, with too few doctors to deal even with routine health issues let alone serious disease outbreaks; constant hunger; lack of fresh air and exercise; shared buckets instead of toilets; not enough fresh water or soap; having to eat while seated on the toilet due to lack of space in a shared cell.

These are the realities of prisons across the world. They provide important context for the World Health Organisation’s warning that global efforts to tackle the spread of the disease may fail without proper attention to infection control inside prisons.

How have prison systems around the world responded to the pandemic? Many prison authorities – including in England & Wales – have suspended visits to prisoners, and cancelled temporary release schemes. In Columbia, Brazil, India, Italy, Romania and Lebanon, prisoners have rioted at these measures and in protest at the life-threatening conditions in which they are being held. Prisoner deaths, escapes and widespread violence have been reported.

More recently, some governments have responded by releasing prisoners: in Turkey, legislation was passed to release 100,000 of the country’s roughly 286,000 prisoners; similar steps have been taken in Iran and are under consideration in the United States, Canada and Ireland. In England and Wales, the government has so far declined to do this, despite the severe challenges already facing our overcrowded prison estate.

Now, detailed guidance from WHO, running to 32 pages, should leave no government in doubt about the serious risks presented by the virus, and how to tackle them. It states: ‘The risk of rapidly increasing transmission of the disease within prisons or other places of detention is likely to have an amplifying effect on the epidemic, swiftly multiplying the number of people affected.’ It calls for ‘strong infection prevention and control measures, adequate testing, treatment and care’ and provides detail on what this means in practice.

The parlous state in which prisons find themselves throughout the world today will make it difficult for them to follow the guidance, as they lack the resources – human, material, and financial – with which to do so. Even before the pandemic they were struggling to provide basic sanitation and healthcare for those in their care, as our research has shown.

COVID-19 provides the clearest illustration yet that prison health is public health. It is more important than ever for our governments and prison administrations to abide by the principle, enshrined in international law, that prisoners have an equal right to health and healthcare. Realistically, the only way that most countries could afford to meet this obligation is by first reducing their use of incarceration. This means ruling out custody for less serious, non-violent offending; and reversing the recent growth in the length of prison sentences.

It also means cutting substantially the use of pre-trial detention.  In America, thousands of the country’s nearly half a million pre-trial detainees are in jail for no better reason than that they cannot afford bail – although senator Kamala Harris has called for this to end.

No one should be remanded in custody unless absolutely necessary. But, of the more than three million people in pre-trial detention across the world, a large proportion are there purely because they cannot afford bail, or their country’s courts are hopelessly backlogged (a situation that will only worsen as courts around the world are forced to stop hearing all but the most urgent matters because of the current health emergency). On 2 April, we will release the latest global data on pre-trial prisoner numbers. It will reveal a significant upward trend, and should provide a wake-up call for governments the world over.

All news items and other sources referred to in this piece can be accessed via a dedicated COVID-19 page on ICPR’s World Prison Brief database: https://www.prisonstudies.org/news/news-covid-19-and-prisons

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