The problem is not that the public seek protection from criminals. Sometimes this is a rational fear, and sometimes it is an irrational fear. The problem is that certain elements in the media play on the irrational fear, and this leads politicians to rush through irrational legislation in an attempt to calm the irrational fear. " Mr Blunkett was a hard-line, populist New Labour Home Secretary and the problems now besetting indeterminate sentences - which were created by the 2003 Criminal Justice Act to deal with violent and sexual offenders, and came into force in 2005 - are an archetypal Blair-era mess. The Government steamrollered onto the statute book a measure designed to persuade the public that dangerous people would be locked up for longer".
David Blunkett would have been advised at the time that this would not work. However, he gambled on short term gain for long term loss. He misjudged how quickly the shit would hit the fan, he predicted that it would be 10-15 years before the public became aware of the mess. As it transpires, the backlash occurred within 2 years. To my knowledge, in 2004, the Director General of the Prison Service, Phil Wheatley, sent a memo to the Home Office warning what would happen if Ministers did not act. They failed to act. In 2005, the Director of the Prison Reform Trust, Juliet Lyon, and Anne Owers, the Inspector of Prisons, warned the Home Office what would happen, and still there was no action from the Home Office.
Nick Herbert, the shadow justice secretary, said: "The problem is not the principle of indeterminate sentences, which are designed to protect the public, but the Government's culpable failure to provide sufficient prison capacity, which has left the Prison Service unable to provide basic rehabilitation and assessment."
Of course, the principle of indeterminate sentences is the problem. It is based upon incapacitation theory. It starts off with the false assumption of dangerousness. Just because someone commits a crime does not make them dangerous. Then a court sentences for the crime, the judicial element, this is not a problem per se. The problem occurs because the Executive has added the indeterminate element supposedly on the grounds of public protection. In effect, the offender receives a double punishment for one crime. This is an injustice. The situation is made worse because under criminal law the onus is upon the prosecution to provide the burden of proof, whereas with this sentencing by the Executive the offender has to prove innocence of being a risk to the public. With each knee-jerk response to tabloid headlines, the bar is raised and the standard of proof required becomes higher.
It is argued that the risk element attached to the sentence is not punitive but instead it comes under treatment. Such treatment entails undergoing courses within prison. However, the prisoner is still detained in a cell and subject to the punitive regime. Therefore, it is difficult not to claim that the treatment is not a further punishment. Then there is the psychological harm caused by the indeterminate nature of the sentence. This is exacerbated by the judge, say, giving a 15 month minimum tariff, and the prisoner not being able to achieve this minimum period of custody because of the overcrowded prisons and the too few courses being offered and too many prisoners deemed to be requiring this treatment.
The net result is that prisoners suffer from abuse, and public protection is still lacking. The solution is not to build more prisons and to cram more prisoners into them. The way forward is to reduce the size of the prison population, and reduce the size of the penal estate. Send less people to prison for longer periods, and fewer people to prison for shorter periods. This will create a more manageable prison system. It will allow for better resources for rehabilitation. Only then will the public be getting the public protection they are seeking.
UPDATE: For the benefit of David Blunkett who is apparently unaware that open-ended and indeterminate sentences are one and the same even if the latter has more syllables, I provide this from the Guardian "FAQ: IPPs
What are they?
The indeterminate sentence for public protection (IPP), introduced in April 2005, is a new kind of "life" sentence in that it is open-ended. The prisoner has no release date and does not get out until a parole board decides he or she is no longer a risk to the public.
Who gets them?
Offenders convicted of one of 153 specified sexual or violent offences which carry a maximum prison sentence of 10 years or more, and who are considered to be a danger to the public.
How many have been imposed?
IPPs have proved highly popular with courts and, with their number rising by 30% in the last year to 3,010. They are a major driver of the shortage of prison space. Officials say there could be 25,000 people on IPPs by 2012".
A mixture of law, politics, autobiography and humour. Once described as "The Devilish Advocate" (Guardian), I do have the ability to provoke a response. Sometimes it comes from someone who uses a thought process, and sometimes from jerks usually associated with the knee.
Blunkett was on Radio 5 Live yesterday claiming the judiciary are being thick and/or feeble. For this to come home to roost after only 2 years from implementation means judges have been putting these open ended sentences on crims who would normally get about four or five years he argues. Which is not what they were meant for. He says if he had his time over he would spell it out in words of two syllables e.g. open ended instead of indeterminate. His mistake was assuming judges are quite bright.
ReplyDeleteI didn't hear him although I am aware that he is attempting to blame the judges for implementing the law which he is responsible for introducing through Parliament.
ReplyDeleteI think it is a feeble excuse.
However, the whole purpose of having a Separation of Powers is not only just to separate the Executive from Parliament from the Judiciary, but also to provide balance and checks against abuses of power. With the IPPs, the Judiciary believed that the Executive was stepping on its toes. The judges job is to dispense justice, whereas the knee-jerk politician believes he or she has to jump to the whim of the tabloids.
His mistake was not listening to advice in the first place that this Executive interference was a non-starter. In a contest between the Executive and the Judiciary, at least post Charles The First, I would back the Judiciary to win.
Of course you are right that it is a false assumption that anyone who commits a crime is dangerous. But are there not some people for whom indeterminate sentences are applicable? I think the original intention, and the circumstances where the public would assume indeterminate sentences were applicable, was for use in cases of paedophilia where the perpetrator had shown no remorse and there was a high expectation that he would reoffend. Presumably, the alternative to the use of indeterminate sentences in these cases would be simply to lock them up and throw away the key, on the basis that at the time of sentencing one could not be sure whether rehabilitation would be possible, and if so when. That makes the problem not the use of indeterminate sentences, but their use in cases for which they are not appropriate.
ReplyDeletebgprior: The problem is that at the time the legislation was drafted it was designed to catch as many in the net as possible hence "Who gets them?
ReplyDeleteOffenders convicted of one of 153 specified sexual or violent offences which carry a maximum prison sentence of 10 years or more, and who are considered to be a danger to the public". I think 153 specified offences is almost a "catch-all".
The reality is that Blunkett is a prize twat. Nothing has been his fault, nor will it ever be. Therefore it's the judges that are idiots, not him for coming up with the whole botched job in the first place.
ReplyDeletesceptisle: Blunkett was certainly not one of my favourite Home Secretary's. We are told we must take responsibility for our actions, as I recall, we were reminded of this by Blunkett. All of a sudden its don't do as I do, do as I say. He's an out and out hypocrite.
ReplyDeleteBlunkett doesn't think the two words are different he thinks the judiciary are being either stupid or taking the piss by using them for short sentences for which they were clearly not intended. They're supposed to be for 15-20 year wallahs, not the milder muggers.
ReplyDeleteAnd yes Septcisle he is a PT and always has been. He used to stitch up his comrades on SCC also.