Penology

Theory, Policy and Practice

Karen Harrison

• Publisher: Bloomsbury Academic
• Year: 2019
• ISBN:
  9781350306097
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This textbook considers the full breadth of the criminal justice system, going beyond prisons to cover other punishments such as out-of-court disposals and community penalties, as well as issues around rehabilitation and reintegration. It offers a holistic and contemporary account of the penal system in England and Wales. Helping students to understanding the ever-changing environment of penal policy and practice, this book not only provides a strong foundation in penal theory but also has a strong focus on actual practice. Author Karen Harrison draws on a number of interviews with people who work within or for agencies associated with the penal system, as well as accounts of prison visits that build a picture of current prison life. Packed with helpful features, Penology includes Spotlight profiles of the penal system in countries across the globe. The text also covers a range of specific offenders, examining not just white adult men but women offenders, children and young people and BAME groups. This is essential reading for students in England and Wales studying penology, punishment and prisons at undergraduate or postgraduate level. It's also offers important insights for students of criminology, criminal justice, law and social science.

1 Introduction

DEFINING PENOLOGY

A book which bears the title Penology should really begin with a definition of what its subject matter is and while you might think that this would be a simple task, the definition you use will determine how broad or narrow your understanding of penology is. Looked at in its simplest form, penology is made up of two separate words: the Latin poena (meaning punishment) and the Greek suffix logia (meaning the study of), making it the study of punishment. This is similar to the dictionary definition, which broadens it a little by stating that it is ‘the study of the punishment of crime and of prison management’ (Oxford Dictionaries Online, 2015). Key in both is the word ‘punishment’, which is defined as the ‘infliction or imposition of a penalty as retribution for an offence’ (Oxford Dictionaries Online, 2015). While both of these definitions, from the Oxford Dictionary of English, are useful, they are narrow in coverage. Looking at punishment first, the definition above is fairly simplistic in the sense that it limits its purpose to retribution. There are, however, a number of other reasons why a penalty might be inflicted, including as a way to deter or prevent others from behaving in a similar manner. Penalties may also be imposed for the benefit of the victim; such as compensating them for their losses, to keep the dangerous away from their communities or in order to rehabilitate the offender so that the public are safe. Detailed in Chapter 2, punishment is therefore much more than retribution alone.

Penology is also more than just prison management, with a better definition stating that it is the study of punishment (in all its guises) and the penal system. Part of the wider Criminal Justice System, which is also made up of the Police, the Crown Prosecution Service (CPS) and the Courts (see Sanders, et al., 2010; Harding, et al., 2017), the penal system is the collection of agencies and organisations which carry out the sentence of the court. In England and Wales while this does include the Prison Service, there is also the National Probation Service (NPS), Community Rehabilitation Companies (CRCs) and the Youth Custody Service (YCS). Taken at its broadest definition it could also include those organisations which enforce financial penalties, charities which provide rehabilitative programmes for offenders and supervisors who supervise unpaid work within the community. Furthermore, it could also comprise of those agencies whose task it is to monitor the work of prison and probation. This would include HM Inspectorate of Prisons (HMIP), HM Inspectorate of Probation and Independent Monitoring Boards (IMBs). A more encompassing definition of what penology is, is therefore provided by the Encyclopaedia Britannica:

Penology, also called Penal Science, [is] the division of criminology that concerns itself with the philosophy and practice of society in its efforts to repress criminal activities. As the term signifies (from Latin poena, ‘pain,’ or

‘suffering’), penology has stood in the past and, for the most part, still stands for the policy of inflicting punishment on the offender as a consequence of his wrongdoing; but it may reasonably be extended to cover other policies, not punitive in character, such as probation, medical treatment, and education, aimed at the cure or rehabilitation of the offender; and this is, in fact, the accepted present sense of the term. (Encyclopaedia Britannica, 2019)

SCOPE OF THE BOOK

This ‘present sense of the term’ (Encyclopaedia Britannica, 2019) is the one which is used for this book. Consequently, this isn’t just another prisons book, but is one which encompasses all of the penal system, including penal theory, sentencing policy and the practice of how offenders are managed within both prisons and the community. While it is accepted that financial penalties may not be as thrill-ing as prisons, on the basis that they make up more than three quarters of all of the sentences of the court it is important that they are included and the key issues surrounding their use discussed. This likewise applies to out of court disposals and community penalties. Continuing with this broadness, the book will also cover a range of specific offenders rather than just focusing on White adult men. In addition to sex offenders, the book will also cover women offenders, children and young people, and Black, Asian and minority ethnic (BAME) groups.

It is important to state that the book is generally focused on the penal system in England and Wales. Despite this specificity the broader discussions on penal theory and policy will be relevant to other countries, and to increase interest and allow for comparison, eight spotlight countries have also been included. These are there to provoke discussion about differing practices around the World and provide examples of best and ‘interesting’ practice. There has been an attempt to include a broad representation of countries including Scotland from the United Kingdom, Finland and Spain from Europe, Kenya from Africa, the United States of America (US) and Venezuela from the Americas, New Zealand from Oceania and Bangladesh from Asia. Countries were also chosen based on their penal policies with the spectrum ranging from the most punitive (the US) to the more welfare and restorative justice orientated (Finland and New Zealand). Where appropriate, other countries have also been referred to. Whether England and Wales can learn anything from these jurisdictions is one of the key discussions of the book.

In addition to covering the academic literature, it is essential for a book that purports to be about penology practice, that actual practice is included. This has been largely achieved in two ways: first through speaking to a number of people who currently work either within or for agencies associated with the penal system and second, through prison visits. In total 16 people were interviewed for this book. While the majority of these worked within prisons, including governors, deputy governors, treatment providers and wing officers, two people working for the NPS, two police officers, two restorative justice practitioners and one charity worker were also included. Informal conversations were also had with practitioners that were encountered during the prison visits.

In addition to these interviews, eight prisons were visited. This was so the book could provide an accurate account of current prison life including, the daily regime, available activities and, importantly, the challenges which prisons in England and Wales are currently facing. Similar to the spotlight countries is was thought important to include a broad range of establishments and so the visits included a maximum-security prison (HMP Full Sutton), a local prison (HMP Wandsworth), a training prison (HMP Lindholme) and an open prison (HMP Springhill). To supplement this, visits were also made to a sex offender only prison (HMP Whatton), a prison operating a therapeutic community (HMP Grendon), a private prison (HMP Parc) and a Young Offender Institution (HMYOI Feltham). Each visited prison has been written up as a case study and then dispersed in relevant places throughout the book. Both the interviews and the prison visits have provided rich detail to the book, which is not available in one volume elsewhere. It is therefore appropriate that sincere gratitude is expressed to those who agreed to be interviewed, those who arranged access into the prisons, those who conducted the prison tours and those who were frank about their views and experiences. The book would be nothing without you.

STRUCTURE OF THE BOOK

Following the title, the structure of the book is divided into three main parts: theory, policy and practice. The first section, theory, encompasses Chapters 2 and 3, with Chapter 2 looking at the meaning of punishment and the foundations of penal theory. As outlined above we punish not just for retributivist reasons and so this chapter looks at the penal theories of deterrence, incapacitation and rehabilitation. Furthermore, it attempts to set these theories into some context by looking at some of the criminological schools of thought including the classical school and positivism. Sociological explanations of punishment are also briefly included in an attempt to strengthen this context and to help answer the question of why we punish. Acknowledging that there are problems with all of the theories cited above, Chapter 3 focuses on restorative justice as an alternative to our traditional criminal justice system. Looking at current restorative practices, including practice in Bangladesh, the chapter makes the argument that rather than relying on retribution or rehabilitation alone the new third way of managing offenders and reducing crime would be through a combination of retribution, rehabilitation and restorative justice.

The book then moves on to look at sentencing policy, with this covered in Chapter 4. In addition to looking at the infrastructure of the criminal courts, including an overview of the Magistrates’ Court and the Crown Court the chapter details how sentencing decisions are made and outlines the guidelines which sentencers in England and Wales must follow. With reference to judicial discretion and the use of guidelines, the US is used as an example of a country where judicial discretion has been virtually eroded. The chapter then moves to consider the life sentence and uses this as an example when discussing the tensions between the executive (the government) and the judiciary (the courts) in sentence decisions. While under the legal doctrine known as the separation of powers, the executive should not interfere with judicial decisions, the chapter shows how this is not always the case.

Chapters 5–9 then consider the sentences of the court with Chapter 5 covering out of court disposals and the fine. With these making up a significant proportion of all criminal justice outcomes, it was thought essential that these were included in the book, as they reflect the reality of punishment in England and Wales today. With reference to fines, the chapter considers how we should go about setting the level of the penalty and equally important, what we should do with those who do not pay. In this chapter Finland is used as an example of a country which has a dayfine system. This is then followed by a chapter on community sentencing with coverage of both the community order with requirements and the suspended sentence order. Much of this chapter, however, is focused on the organisation of offender management and the agencies who have been tasked with this role since the introduction of Transforming Rehabilitation. This saw the privatisation of a significant proportion of probation with nigh on disastrous effect. The fundamental question in this chapter is whether probation is dead, dying or just poorly. Scotland is the spotlight country here, with questions asked as to why with similar social and economic factors community sentencing has increased there while it has significantly decreased in England and Wales.

The prisons chapters start with Chapter 7, with this acting as an introduction to Chapters 8 and 9. Focusing on the structure of the prison estate and the different types of prison establishments which exist, five prisons are presented in the form of case studies. The chapter ends with a discussion of prison privatisation and asks the fundamental question of whether companies should make money out of locking people up. Chapter 8 is then devoted to the prison experience. These pains of imprisonment are looked at predominantly from the view of the prisoner, but towards the end the experiences of prison staff and also prison visitors are considered. Relying on information from prison visits, in addition to inspection reports and the academic literature, a worrying picture of prison is presented. One, perhaps tongue-in-cheek, suggestion is presented through the use of Venezuela as the spotlight country, where inmate governance is common in some of its jails. The final prisons chapter, Chapter 9 looks at release, recall and reintegration. Focusing initially on the legislation which governs automatic release, there is then a discussion on the Parole Board and the issues which it currently faces, including its lack of independence from the Ministry of Justice. The comparator country is Spain, where, when compared to England and Wales, significantly more prisoners are held in open regimes and parole and recall decisions are made by prison judges. Current problems with recall and how well offenders are supported when they return to their communities is also evaluated.

Leaving the sentences of the court behind, Chapters 10–12 look at specific groups of offenders with Chapter 10 focusing on those who are assessed as dangerous. While this can include all violent, sexual and terrorist offenders, the chapter deals predominantly with violent and more specifically with high-risk sex offenders. Rather than looking at a spotlight country, the chapter focuses on the prison regimes at HMP Whatton and HMP Grendon, both of which have been found to be useful with dangerous offenders. Acknowledging that most prisoners will one day be released into the community, the chapter also considers how high-risk offenders are managed in the community and assesses treatment programmes based on psychological and pharmacological interventions. Finally, Chapters 11 and 12 look at factors defined as protected characteristics under the Equality Act 2010, with Chapter 11 looking at how the penal system deals with children and young people. This has both a prison case study (HMYOI Feltham) and a spotlight country (New Zealand) with them representing the two ends of the spectrum in terms of how young people could be treated. Focusing on issues such as suicide, self-harm, control and restraint, the serious problems evidenced in the adult custodial estate in Chapter 8 also appear to be present in youth custody. To close is Chapter 12, which continues with the focus on protected characteristics and covers both women offenders and BAME groups. Research is used to show how both women and BAME offenders are discriminated against and suffer additional pains of imprisonment when compared to White men. A consideration of how women in Kenya are punished is included as is a brief discussion of the mass imprisonment of young Black men in the US.

AIMS OF THE BOOK

The book is designed to be used by a variety of audiences. For those new to the penal system in England and Wales it will serve as an introduction and can be used as a bridge to more specific academic and practice based sources. It can also be used as a text to support undergraduate and postgraduate study, whether this is on a criminology or a law programme. Throughout, the fundamental aim of the book is to encourage discussion and thought, with discussion questions being a prominent feature in all chapters. Each chapter additionally contains suggestions for further reading, with links to relevant films, radio programmes, lectures, media reports and presentations included. Finally there are points for you to consider, either on your own or in small groups. Some involve you thinking about designing your own prison and deciding on what regime you would have, others ask you to consider whether current policy and practice is fit for purpose, while others ask you to think about what changes are needed to ensure that our penal system is transparent, just and fair.

Penal policy and practice sits within a fast changing world with there being constant alterations to policy and resulting practice. At the time of writing, this was particularly true for probation practice, with the Ministry of Justice announcing the demise of CRCs just days before this book was completed. It is therefore worth noting that the book is up-to-date to May 2019.

2 Punishment and the Foundations of Penal Theory

INTRODUCTION

The most logical starting point for a book that considers penal policy and practice is penal theory. Penal theory seeks answers to the questions of whether, and if so on what grounds, we are justified in punishing offenders and to what ends, this punishment should be used. When somebody has committed behaviour that breaches the criminal law, there is a belief that that person should suffer something unpleasant. Punishment in this sense is therefore a penalty that is imposed in response to proven criminal behaviour. Duff (1998) argues that it is a communicative act, which informs the offender that what they have done is wrong. In England and Wales, as in other countries, punishment is carried out in a formalised way, a process that is administered through the criminal courts on behalf of the state (although see Chapter 5 for a discussion of out of court disposals and Chapter 11 for a brief consideration of civil orders). This includes ensuring that first, if the defendant pleads not guilty, they have had a fair trial and then second, that published sentencing policies and principles are adhered to (see Chapter 4). Due to the fact that the deliberate infliction of harm can be regarded as an evil and may, out of a sentencing context, be considered to be a breach of the criminal law, for it to be seen as a necessary evil, it must be warranted. To this end, punishment must have a justifying aim or function, because to punish merely because a harm has been committed may be considered by some as reprehensible as the original behaviour.

What that justification should be is the more difficult and controversial question, although in general the main sentencing theories can be divided into those which are forward-looking and those which are backward-looking (Brooks, 2015) (Hudson, 2003). Forward-looking accounts see punishment as a way in which some future benefit can be achieved, usually with the end goal being to limit future crime. Backward-looking approaches, on the other hand, view punishment as a method of correctional justice. People are punished because they are responsible for a moral ...