Punishment and Madness

Governing Prisoners with Mental Health Problems

Toby Seddon

• Publisher: Routledge-Cavendish
• Year: 2007
• ISBN:
  9781135308438
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The focus of this book is on the government of prisoners with mental health problems in England and Wales over the last twenty-five years. The wider context and backdrop to the book is the shift to 'late modernity', which, since the 1970s has seen massive structural change in most Western societies, affecting the social, economic and cultural spheres, as well as the field of crime and punishment. This book investigates whether these profound transformations have also led to a reconfiguring of responses to mentally vulnerable offenders who end up in prison. Specifically, it explores how this group of prisoners has come to be viewed increasingly as sources of 'risk', requiring 'management' or containment, rather than as people suitable for therapeutic responses.

The book draws on primary research carried out by the author, including interviews with key informants involved in the field during this period, such as former cabinet ministers, senior civil servants, campaigners and academics. In conducting this investigation, the author has developed a method of research which combines and synthesizes different forms of analysis to create a novel approach to socio-historical research.

Chapter 1

Introduction

Punishment, prisons and madness

Many of the bridewells are crowded and offensive, because the rooms which were designed for prisoners are occupied by the insane. Where these are not kept separate they disturb and terrify other prisoners. No care is taken of them.

(Howard, 1777)

[Eighteenth century prison reformer John Howard]

I have reason to believe that the proportion of convicts afflicted with mental and bodily diseases and infirmities is greater than would be found in any other section of the community.

(Dr RM Gover, medical director of Millbank Prison and
subsequently national prison medical inspector in the
late nineteenth century, quoted in Wiener, 1990:314)

The stench of the slop out and unwashed humanity hangs in the air. In the first cell there is a naked and contorted body lying on the floor next to a torn mattress, faeces are daubed on the wall and food lies underfoot [. . .] In the next a man in strip conditions paces, mumbling to himself and occasionally shouting at his private demons [. . .] I am simply waiting for a disaster to happen.

(Needham-Bennett, 1995:516 – A doctor working in a
London prison in the 1990s)

1. BACKGROUND AND CONTEXT

The imprisonment of offenders with mental health problems has long been one of the more dismaying and unsettling aspects of penal practice and one which has aroused considerable controversy over the years. Walker (1968:30) observes that when the first prisons started to be built in the thirteenth century, they became an ‘obvious place for the violent lunatic’. Certainly, by the sixteenth and seventeenth centuries there is evidence that the Bridewells and houses of correction were used to confine some of the ‘more dangerous or troublesome lunatics’ (Scull, 1993:16). By the eighteenth and nineteenth centuries, prison reformers like John Howard and Elizabeth Fry noted with disapproval the presence of the insane within penal institutions.

This emergence of institutional responses to insane offenders clearly has a long history. Foucault (1967) famously describes in Madness and Civilization the origin of what he terms the ‘Great Confinement’, the point in the middle of the seventeenth century at which confinement (whether in the Hôpital Général, the workhouse or the prison) came to be designated as the natural abode for madness, criminality, poverty and idleness. He notes that the consequent ‘presence of madmen among the prisoners’ became a source of indignation (1967:225). Walker and McCabe (1973:1) observe that in the eighteenth century, the ‘natural repository for the lunatic who had committed a felony [. . .] was the local gaol or house of correction’. To a lesser extent, they were also to be found in other institutions, like the workhouses and private madhouses (Walker and McCabe, 1973:1). Insane offenders were thus dispersed across these various institutions, although there was a particular reliance on penal establishments.

In the nineteenth century, some ‘special’ provision for this group was established for the first time. Following the Criminal Lunatics Act of 1800 and a House of Commons Select Committee report in 1807, a new wing at Bethlem Hospital was opened in 1816 for what were then called ‘criminal lunatics’. Half a century later, Broadmoor, the first entirely separate institution for ‘criminal lunatics’, was opened in 1863. Despite this separate provision, as both Walker and McCabe (1973) and Murphy (1996) note, only a small number of ‘lunatics’ and the disordered were removed from penal establishments and it remained an acknowledged problem for the prison system (Grounds, 1991a; Sim, 1990; Walker and McCabe, 1973; Garland, 1985:7–8).

Into and throughout the twentieth century, the problem remained (Goring, 1913; Roper, 1951; Epps, 1951, 1954; Woodside, 1962; West, 1963; Robinson et al, 1965; Bluglass, 1966; Gibbens, 1967; Gibbens, 1971; Faulk, 1976; Gunn et al, 1978). Even by the 1990s, offenders with mental health problems could still be found in great numbers in the prison system (Gunn et al, 1991; Singleton et al, 1998). The recently established DSPD (Dangerous and Severe Personality Disorder) units (two of which are sited in prisons, two in Special Hospitals) will add another probable location for some of this group. These questions of how to deal with offenders who are also suffering from mental health problems, of how to decide who should be treated and who should be punished, who should be sent to one form of institution and who should be sent to another, are thus part of a longstanding and controversial debate over ‘dividing practices’.

The focus of this book is on more recent times: specifically, the last quarter of the twentieth century. In general terms, the period from the 1970s to the present has witnessed massive economic and structural change accompanied by the ‘rapid unravelling of the social fabric of the industrialized world’ (Young, 1999:vi). Signifying the enormity of these changes, Hobsbawm (1994) has described the last three decades of the century as the ‘crisis decades’, whilst others have characterised this period as the shift from modernity to late modernity (Young, 1999; Garland, 2001). Fundamental changes in the economy, modes of production, the labour market, women’s employment patterns, the family, communities, patterns of leisure, the role of the state and so on have totally altered the contextual landscape in Britain (and elsewhere). This shift to late modernity has also seen related and equally dramatic changes in crime and ‘incivilities’ as well as in the crime control and penal spheres (Garland, 2001). A ‘crisis of penal modernism’ (Garland, 1990a) has been reached in which the penal-welfare strategies established at the start of the twentieth century have unravelled and to a great extent been sidelined, only to be replaced by a re-configured crime control field characterised by its ‘volatile and contradictory’ nature (O’Malley, 1999). As Rose (2000:183) puts it, a common contemporary view of penal commentators is that ‘current control practices manifest, at most, a hesitant, incomplete, fragmentary, contradictory and contested metamorphosis’.

In a nutshell, the principal and overarching question explored in this book is whether these profound social, economic, cultural and penal transformations have also led to a re-configuring of the ‘dividing practices’ applied to offenders with mental health problems. To put it another way, the question is whether and how these ‘dividing practices’ have been shaped by the shift from modernity to late modernity. Focusing on the 1980s and 1990s – the decades in which the impact of this shift has been most apparent in other areas – the book looks specifically at the government of prisoners with mental health problems. The ‘problem’ for investigation is how this group of prisoners, who had since the 1930s been seen as at least potentially suitable for treatment or therapeutic responses, came to be viewed increasingly as sources of ‘risk’ requiring ‘management’, containment or control.

Such a project inevitably involves making some assumptions. Above all, it presumes that the categories of ‘madness’, ‘badness’, ‘dangerousness’, ‘risk’ and so on are not the fixed, transparent and self-evident ones that they are sometimes taken to be. Were that the case, this investigation would be unnecessary and surplus to requirements. In fact, as will be shown, these categories are historically contingent, deeply problematic and not well understood aspects of the social and penal realms. Although not directly explored here, it should also be noted that they are culturally contingent too, as Downes (1988:88–99) illustrates, for example, in contrasting the extent of psychiatrisation in penal policy between the Netherlands and England and Wales in the 1950s and 1960s.

As with many other areas of social life, over time these categories, and the institutional responses to the people who fall within them, manage to create a certain self-evident and ‘taken-for-granted’ status which tends to limit and inhibit thinking. The difficult and deep questions about these categories and about the ‘dividing practices’ in which they are implicated are rarely raised. The critical project of this book is to tackle some of these questions by ‘shaking this false self-evidence’ as Foucault puts it (1991a:75).

This idea – that there is a ‘false self-evidence’ to contemporary arrangements and practices that are in fact historically contingent – is an underpinning assumption of this book. Chapter 2 explores this in much more detail, by tracing the historical context from the eighteenth century onwards. For present purposes, a brief overview here of some of the key strategic phases in this field during the twentieth century provides some useful introductory scene-setting by focusing on the changing contours of penal-welfare strategies. The major policy measures and reports of the century are set out in Table 1.1.

Table 1.1 Major policy measures and reports 1895–1999

There are, broadly speaking, four discernible phases of strategic development in this area in the twentieth century:

• The establishment of penal-welfarism (the first two decades of the century);
• The ‘mentally disordered offender’ as the paradigm for all offenders (the 1920s and 1930s);
• The era of rehabilitation (the post-war period up to the 1960s);
• The unravelling of penal-welfarism (from the 1970s to the 1990s).

The main features of these four phases are summarised in Table 1.2. This summary is inevitably crude – as the subsequent chapters will show, the ‘phases’ are actually more complex and less discrete than it suggests – but it is used here as a presentational device to aid the textual exposition below and in Chapter 2.

Table 1.2 ‘Master’ changes in twentieth-century strategy

The first phase, during the first two decades of the century, which was set in train by the Gladstone report on prisons in 1895, was focused on the ‘clearing out’ of various categories of mentally abnormal offenders from the prison system in order to enable it to operate more effectively on ‘responsible’ criminals (Gunn et al, 1978:10–14; Garland, 1985). Hence, the Inebriates Act of 1898 and the Mental Deficiency Act of 1913 sought to facilitate the removal of ‘inebriates’, ‘idiots’, ‘imbeciles’, the ‘feeble-minded’ and ‘moral imbeciles’ out of prisons and into specialist institutions. Whilst the implementation of this policy suffered mixed fortunes – for example, the reformatory system for ‘inebriates’ had been totally abandoned by 1921 (Gunn et al, 1978:13; Radzinowicz and Hood, 1986:307–15) – the aspiration to focus the prisons on dealing solely with ‘fully responsible’ criminals was clear. Much of the debate in this period was closely linked to concerns with the ‘problem’ of national degeneracy posed by the defective, unfit and weak-minded (Garland, 1985:142–52; Wiener, 1990:351–8). Indeed, the unravelling of Victorian penal policy, which was built on the central notion of deterrence, in the last few decades of the nineteenth century was partly linked to emerging tensions between the deterrent requirements of prison discipline and the growing anxiety that not all prisoners were mentally fit enough to withstand such discipline (Wiener, 1990:313–18). According to Garland’s influential account (1985), this phase marks the establishment of modern penal-welfare strategies in place of the Victorian penal complex which had been dominant since the 1860s.

In the second phase of development, in the 1920s and 1930s, ideas about the psychological and psychoanalytical treatment of offenders began to flourish on a broader front. Indeed, the ‘mentally disordered offender’ arguably became the paradigm for all offenders in this period, as the claims of psychological medicine as a ‘cure’ for crime reached a high point. The most enthusiastic supporters of this position, such as Grace Pailthorpe and Maurice Hamblin-Smith, argued that all crime had ‘mental’ origins and hence could be ‘cured’ by psychological or psychoanalytical techniques (Pailthorpe, 1932; Garland, 1997a:39). Other influential figures of the time, like Norwood East, Medical Director on the Prison Commission in the 1930s, also supported a psychological approach to crime but believed that it was properly applicable only to a minority of offenders, roughly 20 per cent of the prison population (East and Hubert, 1939). This period thus saw a continuation and development of penal-welfarism.

In the third phase, the post-war decades saw the consolidation and expansion of psychiatric work in prisons, with a particular focus on diagnosis rather than treatment (Gunn et al, 1978:23–4). The establishment of a psychiatric prison, originally recommended in an important report by East and Hubert (1939) on their work in Wormwood Scrubs in the mid-1930s, finally happened in 1962 with the opening of Grendon Underwood prison. During the 1950s and 1960s, it thus became accepted that treatment or therapeutic responses to offenders could be effectively implemented within prisons, a marked contrast with the position at the start of the century. Indeed, more broadly, in many accounts the post-war period is defined as the era of rehabilitation (Bean, 1976). The period from 1945 to the mid-1960s thus saw the high water-mark of penal-welfarism and correctionalist crime control, in which its framework of assumptions, logics and objectives provided the underlying structure and pattern of the system, fixing the contours of the penal and welfare complexes. Outside the penal system, from the 1950s, a series of developments in mental health policy marked a significant shift away from institutional responses to mental illness, with the long decline in the population of the mental hospitals in England and Wales beginning in 1955 (Barham, 1992). There was also considerable optimism at this time in many quarters about the future scope and achievement of psychiatry, driven in part by the apparent therapeutic potential of emerging new drug treatments (Barham, 1992:11–12).

Bringing this picture up to date, the fourth phase of development is, in essence, the focus of this book, but a brief sketch here of some of its main features may be useful. By the 1970s, some of the premises and practices of the post-war decades were starting to come under critical scrutiny. One of the most explicit and trenchant critiques was Martinson’s (1974) infamous claim about rehabilitative interventions that ‘Nothing Works’ (see also Brody, 1976). By the 1980s and 1990s, some novel elements within policy and strategy, falling outside the penal-welfare framework, had started to emerge. These included a strong focus on the ‘administration of risk’ and the management of exclusion (Rose, 1996a), as well as a concern for increasing the efficiency and effectiveness of systems and processes by utilising tools and techniques borrowed from the private sector. Other elements apparent in this phase, however, pointed to a more confused picture. For example, the revived humanitarianism in the Woolf report on prison disturbances (and the Reed Review of services for mentally disordered offenders), a new emphasis on human rights and a general concern with identifying mentally disordered offenders and routing them into treatment were also all part of the picture in the 1990s. Thus, whilst penal-welfarism was clearly unravelling from the mid- 1970s, the re-configuring field was unsettled, fragmentary and inconsistent in the last two decades of the century.

More recent policy developments in the field illustrate well this complex picture of a re-configuring field. The ongoing pilot programme concerning Dangerous and Severe Personality Disorders, for example, exemplifies the new ‘risk thinking’. Indeed, within this programme, the trigger for intervention is when an individual, because of their personality disorder, poses a significant risk of serious harm to others. On the other hand, the phased transfer between 2004 and 2006 of responsibility for commissioning mental health services from prisons to local Primary Care Trusts embodies a mixture of progressive humanitarianism with neo-liberal managerialism (Prison Service/NHSE, 1999; Department of Health/Prison Service/Welsh Assembly, 2001). These developments also raise the question of whether we are now seeing the start of a new fifth ‘phase’ of strategy in which ‘advanced liberal’ forms of government are becoming predominant (see Rose, 2000) or, alternatively, in which a ‘culture of control’ has become the new strategic paradigm (Garland, 2001). This important question will be returned to in Chapters 6 and 7.

What this brief overview of twentieth century policy and strategy shows is that the apparently ‘self-evident’ responses to prisoners with mental health problems, rather than being fixed and constant, are actually subject to shifts and change over time. Putting it in the most concrete way, exactly which mentally vulnerable offenders are considered as most suitable for prison rather than other institutions can and does change from one period to the next. As an official in the Home Office Mental Health Unit put it in an interview conducted in 1999 in the early stages of the research on which this book is based:

I know for a fact there are a lot of prisoners who in 1984 would have been categorised as psychopaths but aren’t now because the psychiatric profession doesn’t want them.

This then marks the sphere of inquiry for the book and introduces some of the background context. By choosing this area for study, it was hoped to achieve a number of objectives. First, as will become evident from Chapter 2, this subject area has been dominated in the twentieth century by research from within what Nikolas Rose has termed the ‘psy’ disciplines (Rose, 1985). Consequently, there are a whole series of questions and issues that are relatively unexplored from a broader social science perspective. The book can therefore make a significant contribution to substantive knowledge in this area.

Second, it can contribute to the broader project of attempting to understand the nature of the emerging new penality in late modernity which is one of the major challenges for contemporary criminology (see, for example: Sparks, 1996; Garland, 1995, 2001; Young, 1999; O’Malley, 1999; Rose, 2000; Pratt, 2000a). The ‘dividing practices’ examined in the book run across the fault lines between the penal and welfare complexes and, consequently, it provides a particular insight into the changing relationship between these domains. It throws into sharp relief questions of the appropriate balance between punishment, treatment, management and control, all of which underpin the penal-welfare nexus. The book aims to inject some empirically based and specific findings into this rich and fertile criminological debate.

Third, at the most general level, this study should reveal something about the social world in the late twentieth and early twenty-first centuries and about how social order is constructed today. As Garland (1990a; Garland and Young, 1983) has argued, the penal and social realms are interdependent and shape each other, so investigating penal issues inevitably sheds some light on broader social ones. Specifically, this study can help illuminate the linkages ‘between the penal realm and problems of state sovereignty and legitimation’ (Sparks, 2000a:141; Garland, 1996), advancing our understanding of the ‘place of the penal realm within contemporary statecraft’ (Sparks, 2000a:141).

Set in this context, it should be apparent that the book seeks to address a series of research questions at different levels, ranging from the general, abstract and theoretical to the specific, concrete and substantive. The research attempts to tackle all these questions by direct and close reference to empirical material. Its closest ‘cousin’ in terms of research intent and analytical approach is perhaps Garland’s (1985) Punishment and Welfare, although this book has a much narrower focus, in terms of both subject area and time period covered. The empirical nature of the research is an important feature. It is, in Cohen’s (1985:9) words, a study which ‘uses theory rather than being about theory’.

2. RESEARCH QUESTIONS AND KEY THEMES

Research questions

As described above, the central and overarching research question is whether and how the ‘dividing practices’ applied to offenders with mental health problems have been shaped by the shift in the last quarter of the twentieth century from modernity to late modernity. Addressing this involves posing two major questions, one historical and the other sociological. The historical question asks how change in this field came about during this period and why this change took the form it did. It seeks to understand the transformative forces that shaped and reconstituted this field during these decades. The sociological question as...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Tables
• Acknowledgements
• Chapter 1 Introduction
• Chapter 2 A Brief History of Imprisoning the ‘Mad’
• Chapter 3 The New Right and Managerialism, 1980–1990
• Chapter 4 The Woolf Report and Prison Reform, 1990–1993
• Chapter 5 Penal Populism and Austere Institutions, 1993–1997
• Chapter 6 New Labour and Risk Management, 1997–2005
• Chapter 7 Conclusions
• Appendix
• References