Alternatives to Prison

Anthony Bottoms, Sue Rex, Gwen Robinson, Anthony Bottoms, Sue Rex, Gwen Robinson

• Publisher: Willan
• Year: 2013
• ISBN:
  9781134036547
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

As the UK and many other western societies face up to the consequences of a rapidly increasing prison population, so the search for alternative approaches to punishment and dealing with offenders has become an increasingly urgent priority for government policy and society as a whole.

This book reports the results of the research programme commissioned by the Coulsfield Inquiry into Alternatives to Prison, which was funded by the Esmée Fairbairn 'Rethinking Crime and Punishment' initiative. It is written by leading authorities in the field, and provides a comprehensive, authoritative and wide-ranging review of the range of issues associated with the use of noncustodial sanctions, examining experiences in Scotland and Northern Ireland as well as England and Wales.

Chapter 1

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How did we get here?

The editors

This chapter outlines the policy-related history of ‘alternatives to prison’, particularly community penalties — by which we mean personally restrictive sanctions structurally located between custody and nominal or financial penalties (see Bottoms et al. 2001). Together with Chapter 2, it provides an essential contextual background for the discussions that follow in the remaining chapters in this volume. As in those chapters, there is a special (though not exclusive) focus on England and Wales, the largest of the three UK jurisdictions.

To tell the story properly, it has been necessary to go back to the 1960s, but particular attention has been paid to developments in the last 15 years. We have also included some possible implications of the important provisions in the Criminal Justice Act 2003 for new forms of custody and a customised community sentence, which are likely to have a significant impact when they are implemented in the near future; and we have briefly noted the arrival in 2004 of the National Offender Management Service, which brings together the prison and probation services under a single umbrella. Finally, we have summarised recent developments in the jurisdictions of Scotland and Northern Ireland.

Non-custodial options: the impact of successive ‘eras’

It is no overstatement to assert that what we now know as community penalties are the product of a turbulent history during which they have gone through a number of permutations. The wide range of community orders now available to the courts represents a relatively recent innovation. Indeed, until almost 1970, the main ‘alternative to prison’ for adult courts was the probation order, a welfare-oriented ‘alternative to sentencing’.¹ However, since then there has been a proliferation of orders, shaped by the different ‘eras’ in which they were introduced. Thus, the probation order held sway during the ‘penal-welfare’ era, which started with the dawn of the twentieth century and also saw the introduction of the juvenile court and borstal training. This was succeeded by the era of ‘alternatives to custody’, starting in the late 1960s, which gave us the Suspended Sentence and the Community Service Order (CSO), as well as probation with special conditions (e.g. attendance at specified activities or day centres). The late 1980s heralded in ‘punishment in the community’, with the introduction of the Combination Order and the Curfew Order with electronic monitoring. The punishment theme has since blended with a focus on public protection in what we will argue is a ‘new generation’ of orders: the Drug Treatment and Testing Order; the Exclusion Order; the Drug Abstinence Order; and for young offenders the Reparation Order and the Action Plan Order. The customised Community Order, introduced by the Criminal Justice Act 2003, is perhaps the culmination of this latest trend.²

Below, we look at each of these eras in turn, considering what caused the shifts in thinking, and with what consequences.

The era of ‘penal welfarism’

The historical origins of ‘penal welfarism’ in England in the early twentieth century have been fully analysed by David Garland (1985). Garland has provided persuasive evidence that the birth of measures such as probation and borstal can best be understood against the background of other social changes of the period, such as the development of compulsory school education and the creation of the national insurance system. All these developments were aimed at the ‘inclusion’ of the working class within the dominant social structures of the time; however, this took place within a normative framework that required educative, re-educative, or corrective measures to provide an appropriate discipline for the individual. In the administration of the probation order, penal welfarism moved during the first half of the twentieth century from a dominantly religious and ‘common sense practical’ supervisory system to a version of psychoanalytically-based ‘social casework’.³ However, the underlying rationale remained the same: in the case of individuals for whom there was some reasonable hope of reclamation and also some need for individualised treatment, a penal-welfare sanction should be used instead of a tariff ‘punishment’ to meet their treatment needs, and to help reintegrate them into mainstream society.

The end of the penal welfare era came with the decline of the so-called ‘rehabilitative ideal’ (Allen 1981), which arose from three related crises. Perhaps the best known is the ‘empirical’ crisis surrounding the effectiveness of treatment, closely associated with the research review led by Robert Martinson (1974; see also Lipton et al. 1975). However, this was coupled with a ‘resources’ crisis surrounding the continued rise in the prison population;⁴ and an ‘ideological’ crisis surrounding the wide discretion often granted in the name of treatment, with its scope for misuse and injustice (see Bottoms 1980, Cavadino and Dignan 1992). The dramatic implications for probation work, captured in the infamous phrase ‘Nothing Works’, have been well-documented (see e.g. Raynor and Vanstone 2002). Of more immediate relevance to the present discussion, the ‘resources’ and the ‘empirical’ crises together contributed to the ‘alternatives to custody’ movement that succeeded penal welfarism. The ideological critique prompted a ‘return to justice’ (Bottomley 1980, Hudson 1987) originating in the United States but destined to have a major impact on the English jurisdiction, as we shall see below.

The era of ‘alternatives to custody’

When rehabilitation seemed to have been thoroughly discredited, the key aim of the diversion from custody movement became to offer judges and magistrates options that might avoid the damage and expense of a custodial sentence. However, the first real manifestation of ‘alternatives to custody’ actually preceded the full ‘collapse of the rehabilitative ideal’. This development occurred in the Criminal Justice Act 1967, which allowed for shorter sentences of imprisonment to be suspended. This was followed soon afterwards by the introduction of a new ‘intermediate’ sanction, the community service order, in the Criminal Justice Act 1972. A certain amount of confusion was undoubtedly created by the fact that the community service order lacked the explicit status of an ‘alternative to custody’ that the statutory framework had conferred upon the suspended sentence (see McIvor 1990a).

In the event, however, ‘alternatives to custody’ clearly failed to have the desired impact on the prison population, which continued an upward trend (see Bottoms 1987). McWilliams (1987) suggests that one reason for this was that, in the absence of the kind of ‘transcendent justification’ provided by penal-welfarism, diversion carried insufficient conviction to sustain itself as an aim. Empirical research suggested that both suspended sentences and community service orders replaced terms of imprisonment in only about half the cases in which they were imposed (see Bottoms 1981, Pease 1985). It was widely accepted that ‘alternatives’ sometimes led to ‘net widening’ and ‘mesh thinning’ (Cohen 1985) — that is, the bringing of greater numbers of less serious offenders into the penal net than might otherwise have been the case, and the imposition upon them of more severe sanctions.⁵ To take one possible scenario, although suspended sentences were intended to be passed only where an offender would otherwise receive an immediate prison sentence, it is clear from research evidence that some offenders were given a suspended sentence where previously they would have received probation. Suppose such a person re-offended in a minor way. At the subsequent court hearing, he might more or less automatically receive imprisonment for the second offence, in view of the apparently ‘alternative to custody’ nature of the earlier sentence. He would also normally have the suspended sentence activated consecutively with the sentence of imprisonment for the new offence. Thus, on reoffending, he might actually receive two consecutive sentences of imprisonment where, prior to the enactment of ‘alternative to custody’ legislation, he might credibly have received none. McIvor (1990) found that similar kinds of mechanisms were operating in relation to community service.

Faced with a rising prison population in the late 1980s, the Government realised that it was time for a rethink.⁶ For this, it turned to the ‘justice model’ widely associated with the renaissance of ‘human rights’ as well as with the ideological doubts mentioned above over the excesses and injustices of ‘treatment’. Thus, the late 1980s and early 1990s brought a new era, to which we turn next.

The era of ‘punishment in the community’

Essentially, the Government considered that judges and magistrates had to be offered sanctions that were credible in their own right if the judiciary were to be persuaded to make less use of custody (Home Office 1988, 1990). As the 1990 White Paper put it:

The Government believes that more offenders should be punished in the community … a new approach is needed if the use of custody is to be reduced. Punishment in the community should be an effective way of dealing with many offenders, particularly those convicted of property crimes and less serious offences of violence, when financial penalties are insufficient. (para 4.1, 4.3)

In a radical step, it was decided to adopt the justice model as a new rationale for community-based sanctions, applying ‘just deserts’ principles developed most fully by von Hirsch (1986, 1993) in which proportionality plays a key role. Based on the idea that the central purpose of any punishment is to convey blame or censure, desert requires punishments to reflect the relative blameworthiness of the offences for which they are imposed. This means that the severity of the sentence should be commensurate with the seriousness of the offence. It will be seen that this rule potentially clashes directly with the approach underlying ‘penal-welfarism’, in that the emphasis is on the offence rather than on the offender's background and treatment needs.

The Criminal Justice Act 1991 established a desert-based sentencing framework for both custodial and non-custodial sentences. Section 6 of the Act coined the term ‘community sentence’ to cover the ‘intermediate’ band of sentences (between custody on the one hand and fines or discharges on the other) which could be used only for offences that were ‘serious enough’ to warrant that level of intrusion, but not sufficiently serious to merit a custodial sentence. In imposing a community sentence, the sentencer was required both to select the most ‘suitable’ community order(s) for the offender (a needs-based approach) and to ensure that the sentence's restrictions on liberty were commensurate with the seriousness of the offence (a desert approach). This sentencing structure appears to have been modelled on proposals by Wasik and von Hirsch (1988) as modified by Bottoms (1989) (see Rex [1998]). The underlying aim was to convince the courts that certain non-custodial options could appropriately carry restrictions sufficient for the kind of offences that might previously have resulted in a custodial sentence; hence, the introduction of new kinds or combinations of restrictions in the shape of the combination order⁷ and the curfew order with electronic tagging. The probation order was also made a sentence of the court to underline its status as a punishment rather than an ‘alternative to sentencing’ (which proved to be a somewhat uncomfortable transformation for what had been the archetypical ‘penal-welfarist’ sentence).

The era of the ‘new generation’ of community penalties

The 1990s brought a new era of community penalties. At the beginning of the decade, it seemed likely that this new era would be dominated by the just deserts model, as the Criminal Justice Act 1991 seemed initially successful in reducing reliance on imprisonment (see Chapter 2). In practice, however, although the proportionality principle remains on the statute book, it seems increasingly to have been sidelined by growing concerns with public safety and the reduction of risk, a point that is highlighted by the greatly increased prominence given to previous convictions in the Criminal Justice Act 2003.⁸ Indeed, many key features of community penalties have changed significantly since the passing of the 1991 Act, and they now appear to revolve around a central theme of public protection. Before considering why this theme has recently become...