Texas is not soft on crime. It has seen the execution of 600 prisoners in the past 40 years, including two so far this year – more than any other state in the US. Some 173 more are waiting on death row. It is decidedly not the sort of place you’d expect a left-winger to search for ideas for penal reform.
Yet last week, Shabana Mahmood, who as the Justice Secretary is responsible for prisons across England and Wales, went to visit the Estelle Supermax Penitentiary in Huntsville, Texas, to see what she could learn there. She brought along one of her Conservative predecessors, David Gauke, who is leading a sentencing review on her behalf.
The big idea in Texas is that prisoners earn early release for ‘good behaviour’ as a positive requirement – by engaging in work, education, training and treatment programmes. They earn ‘credits’ toward early parole eligibility which can mean inmates serve as little as 25% of their sentence. But if they refuse to work, they get no reduction at all.
Over here, reduced sentences for good behaviour usually apply automatically. There simply needs to be an absence of bad behaviour. They need to obey the prison rules and avoid acts of violence, insubordination, smuggling and so on. The ‘positive’ aspects are rather more vague beyond ‘engaging’ in whatever rehabilitation might be offered. They have supposedly demonstrated remorse for their crimes – although some of the triumphalist scenes of prison releases in England last year cast doubt on that.
Most of the 86,000 prisoners in England and Wales serve fixed-length sentences – up to 70% of inmates will be released automatically, sometimes having served only 40% of their sentence.
The incentives approach is well established in Texas prisons. It was introduced in 2007 due to overcrowding. A 2021 report from the Texas Department of Criminal Justice showed a three-year recidivism rate of 20.3%, one of the lowest rates in the country. The crime rate in Texas has fallen by 29% to the lowest level since 1968, and the rate of re-imprisonment is now 17% compared with a nationwide average of 68%. Employment rates for ex-convicts increased by 50%.
It is hardly surprising, is it? Of course, there should be no excuse for crime. Man has free will. Personal responsibility is fundamental. But incentives and penalties are also central to the human condition. It is not viable for all convicted criminals to be incarcerated for life, or executed – even in Texas. So simply shrugging that they are ‘bad people’ beyond redemption and destined to reoffend is hopelessly defeatist.
Looking to Texas helps avoid the confusion that equates reducing reoffending with leniency. Earned rather than unearned early release is a tougher policy. The extent of the incentive should also be seen in the context of how severe the scheduled punishment is. In England and Wales, we have 134 prisoners per 100,000 people. In Texas, the incarceration rate is much higher – 751 per 100,000. The average sentence length for prisoners in Texas is four and a half years – with the average time served being just over two years. In England and Wales the average sentence is a year and a half, with the average time served about a year.
The UK Government is concerned about the cost of building new prisons to cope with overcrowding – as well as great delays due to the planning system. But solutions could be found to this, such as the use of prison space abroad which could offer considerable savings to the taxpayer.
Offering incentivisation for prisoners comes under the category of ‘tough love’. It avoids both the indulgence of the ‘society is to blame’ soft on crime cohort who want prison to be like staying in a hotel. But also the ‘lock them up and throw away the key’ element who feel that as the convicts are ‘scum’ they deserve to ‘rot’ inside. Both approaches result in inmates slouching in front of the TV all day – perhaps with the monotony interrupted by a drone delivery of a favoured narcotic. Mahmood and Gauke are right to seek reform in this area and work with the grain of human nature.
Will they succeed? One irony is that the Justice Secretary could be thwarted by human rights laws. Both the European Convention on Human Rights, under article four, and the 1998 Human Rights Act have provisions about people not being required to work or to be unduly discriminated against for refusing to do so. This was not intended to apply in the same way to prisoners. But we all know how judges can decide to interpret these legal ‘living instruments’ in bizarre ways. Mahmood says she hopes to ‘find a way’ to ensure human rights legislation and other ‘obstacles’ don’t block this initiative. I wish her well.
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