16 October 2023

Chalk should go back to the drawing board if he wants to solve the overcrowding crisis in our prisons


Our criminal justice system is caught in a paradox. We have effectively run out of space to put criminals in a place that often make them worse. The parallel that occurred to me when I read about the government’s plans for emergency measures to tackle overcrowding in our prisons was an inmate who once complained, ‘the food’s shit and there’s not enough of it.’

Last Friday 13th saw the publication of the latest prison population data. It was unlucky for everyone living and working in prisons. The difference between the number of prisoners locked up and the total useable space stood at 557 beds – or a few wings worth of one of our biggest jails. Justice Secretary Alex Chalk has inherited a problem that has been years in the making, but demand for cells today is closer to exceeding supply than it has been since the early noughties. So he has had to act, spurred on by awful headlines for the party of law and order. Just last week judges were being told to delay sending serious convicted offenders to custody, not in the interests of justice, but because there was nowhere to bang them up. 

There are four main planks in Mr Chalk’s rickety footbridge out of this mess. First, there will be a presumption that non-violent offenders are diverted from short-term custody. There’s nothing wrong with short custody per se – it is the norm in many European countries, we just happen to be uniquely bad at it. We send more people to prison per capita with higher rates of recidivism than any other western European country. Stuffing people endlessly into places where insufficient numbers of frightened and demoralised staff are not in control is no recipe for a rehabilitative culture. 

The second solution is to expand the use of punishments like cleaning up graffiti and planting trees. Mr Chalk is right that community service should be better for those who are not a threat to public safety. But these penalties are inconsistently applied, of greatly varying quality and put in the hands of a Probation Service that is in dire straits. Moreover, magistrates are actually very good at giving repeat offenders multiple opportunities to avoid prison. The think tank Civitas estimates that only 8% of first time offenders go to prison – 59% of that number had committed 11 previous offences or cautions before they were finally sent down. If we want community penalties to work, we need a probation service that works. On average workers in the London Probation office had 16.8 days sickness in the last year, much of this attributed to stress. Repeated ideological vandalism of the service by this administration – witless reconfigurations and eye-watering waste in doing and undoing privatisation have hollowed out capability. Where are the committed people who need to see a career in probation as a vocation? Magistrates complain about the quality of pre-sentence reports. Officers complain about draconian recall to prison policies that see thousands of supervised people sent back to teeming prisons not because they are any more dangerous, but because they failed to attend an appointment. If I had a pound for every time a minister announced ‘beefed up community penalties’ I could retire. 

The third solution is an accelerated building programme of ‘pop up’ cellular accommodation in existing prisons. It is rather dispiriting to note that prison exercise yards, fallen into disuse, are going to be the prime sites for these stop gap solutions. A purposeful, humane regime could surely make better use of outdoor space. Moreover, pop-up prisons need pop-up officers to run them. While there has been a modest reduction in attrition rates, large numbers of new recruits are still leaving barely a year after their training throws them, inadequately prepared, into the maw of our human warehouses. 

Chalk is also keen on repatriating foreign national offenders. And this again is groundhog day for Lord Chancellors. Would this guarantee offenders served a full sentence elsewhere? How would this survive the enormous legal and diplomatic logjam that makes it so hard to deport anyone, let alone convicted offenders.

With so little space left in our jails, it is not at all clear if these arrangements will be enough to stop governors pulling the shutters down and courts to grind to a halt. I like Alex Chalk. He is a decent, capable minister who has a professional understanding of his brief. But he has been given a hospital pass thanks to a history of failed investment and institutional incompetence. So it is bold of him, as a Conservative minister with an election on the horizon, to have acknowledged that the obvious answer to this emergency – for that is what it is –  is the most unpalatable. In order to guarantee space for those who need to be imprisoned immediately to protect the public and the rule of law, he has agreed that some less serious offenders can be moved out of prison on licence up to 18 days before their official release date.

Executive release of prisoners to deal with overcrowding has been done before. In 2007, Tony Blair was tormented by the then Conservative leader David Cameron over such a dramatic move when significant numbers of prisoners serving under four years were released under curfew for the remainder of their sentences. It worked. The reasons that made this action necessary were almost identical to today. Less obvious but still controversial alternatives to today’s package would be release of non-violent female offenders (nearly 70% of them) to free up jails that could be easily repurposed for males. Also, a resentencing exercise for the 3,000 prisoners locked in a Kafkaesque nightmare of indefinite detention long after their minimum period is finished might yield significant space. But these are hard choices with an election in the wings. 

Prisons cannot fulfil their function to punish and rehabilitate in their current condition. My experience of managing tough jails tells me that if you brutalise people, you tend to turn out brutes. That brutality extends to the working lives of staff too. Above all, we need order and control back in these places. That is the foundation of hopeful custody. It is unclear in many of our jails who is in charge, a consequence in part of dreadful corporate appeasement of unacceptable behaviour from low level incivility to terrorism.

If Mr Chalk’s prescription for reducing the prison population works then it will merely gain a few months respite from a chronic affliction caused by decades of mismanagement and underfunding. The patient is still on life support. 

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Professor Ian Acheson is Senior Advisor to the Counter Extremism Project.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.