Evidence to Policy
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Indeterminate sentencing, injustice and dangerous politics
Thursday 17 November saw the ongoing issues posed by the indeterminate Imprisonment for Public Protection (IPP) sentence prompting a number of speeches and reports by concerned policymakers. Chief Inspector of Prisons Peter Clarke told the Today Programme that it was "completely unjust" that offenders IPPs were "languishing in jail". Former Justice Secretary Michael Gove stated that “in terms of pure justice and fairness”, many IPP prisoners “should be released”.
The IPP sentence was created by the Labour government in 2003 (and implemented in 2005), intended to target individuals who posed a ‘significant risk of serious harm’ to the public but whose immediate offence did not merit a life sentence. In short, the Home Secretary David Blunkett sought to create a sentence that would only allow those identified as ‘dangerous’ to be released if they were able to demonstrate to the Parole Board that they no longer posed such a risk. If they could not, they would remain imprisoned for the rest of their lives.
Within two years the IPP population had reached 4000; by 2011 it had reached 6000. England and Wales had the dubious honour of holding the most indeterminately-sentenced prisoners of any European nation by a wide margin. Concerns with the IPP sentence mounted, centred upon its contribution to prison overcrowding, the sclerosis in the penal estate (inability of prisoners to access relevant courses, to progress through the estate and so on) and recognition of principled arguments against the sentence.
Having been amended in 2008, the sentence was abolished in 2012. It was accepted by Justice Secretary Ken Clarke that the sentence was fundamentally unfair in principle and unworkable in practice. However, existing IPP prisoners remained: their situation was not addressed by the legislation (the Legal Aid, Sentencing and Punishment of Offenders Act 2012).
The challenges posed by the IPP sentence both reflect, and contribute to, broader problems in the penal estate. It can legitimately be argued that we currently face a significant crisis. Self-harm and deaths in prison (both self-inflicted and otherwise) are increasing at an alarming rate. Overcrowding remains endemic. Prison officer numbers have fallen by 30% between 2010 and 2013. Respected Parole Board chairman Professor Nick Hardwick has described the situation as ‘more serious than ever’.
What is to be done?
It appears that the nettle is firmly being grasped by the Parole Board, who anticipate that improvements to their processes may result in 2500 of the remaining 4000 IPP prisoners being released by 2020. To achieve swifter and deeper effects, legislation and policy change by the Ministry of Justice is required. Professor Hardwick has set out a range of plausible options:
1. CONVERSION: Convert all or some IPP sentences to a fixed term sentence with a definite sentence end date
2. SUNSET CLAUSE: Establish a provision to provide that all or some post tariff prisoners must be released no later than a certain date
3. RISK TEST: Reverse the risk test for some or all IPPs so the Parole Board has to demonstrate the prisoners poses a serious risk rather than the prisoners needing to demonstrate that they do not
4. EXECUTIVE RELEASE: Consider using existing powers to release IPP prisoners who have now served more than the current maximum tariff for their sentence
5. SHORT TARIFF IPPs: Reverse the risk test for IPPs with an original tariff of less than two years
6. RECALLS: End the IPP sentence once the Parole Board has decided release and deal with further offences under normal sentencing provisions and limit license periods
Michael Gove has argued that the Justice Secretary should swiftly adopt a form of option 4, releasing the IPP prisoners who are beyond their tariff period and who have now served longer than the maximum possible sentence length for that offence (if they were serving a determinate sentence). This would certainly tackle the pains of the most acutely affected group of individuals.
It is clear that action must be taken. While many IPP prisoners have committed serious offences, and are certainly not model citizens (who of us are?), one does not need to look far for evidence of the harm caused by the sentence to families, communities and the prisoners themselves (see for example the tireless efforts of the IPP Prisoner Families Campaign). Prisoners justifiably complain of the impossibility of readying themselves for a law-abiding life – and demonstrating this to the Parole Board – within an artificial and damaging prison environment. (This is not to mention the enormous difficulties posed to prison governors, prison officers and the Parole Board, and the significant costs involved).
It is equally clear that penal policy is a politically dangerous business. My book Dangerous Politics explores in detail the beliefs and practices of policymakers involved in the creation, contestation, amendment and abolition of the IPP sentence. Policymakers’ fear of taking ‘soft’ action, such as releasing individuals explicitly labelled as ‘dangerous’, was abundantly clear. Ken Clarke’s abolition of the sentence in 2012 demonstrated what strong political leadership in the face of substantial media attacks can achieve. The current Justice Secretary’s failure to defend adequately the judiciary in the face of their disgraceful labelling as ‘Enemies of the People’ by elements of the press does not bode well.
What broader lessons can we take?
At a practical level, the IPP sentence demonstrates the significant challenges faced by the Ministry of Justice to achieve its goal of making “prisons a place of safety and reform”.
More fundamentally, it points to the significant dangers in the Justice Secretary’s view that, “I am not in favour of an arbitrary reduction in the number of prisoners in our prisons. What I am in favour of is reducing reoffending rates so that we stop people revolving through the system and going in and out of prisons.”
Such a view may be politically convenient (avoiding as it does difficult questions around sentencing policy), but conceiving of prisons as the means of achieving reform and redemption obscures (and indeed risks directly countering) the more important role of families, communities, employment and other broader factors in individual’s journeys towards a good life.
In short, efforts to address the crisis engulfing British prisons is welcome and long overdue. Grasping the IPP nettle must be part of this agenda. However, the IPP story is but one demonstration of the harm and unintended consequences that can result from reforms that are predicated on prisons as a public good, rather than as a necessary measure of last resort, to be used sparingly, reluctantly and with clear-eyed recognition of the harms that prison itself causes.
Dr Harry Annison
Harry researches penal policy and in particular has conducted research into the politics and policymaking relating to indeterminate sentences. His book Dangerous Politics, covering this terrain, was published by Oxford University Press in 2015 as part of the Clarendon Studies in Criminology series. He is a Lecturer in Criminal Law and Criminology, and currently a Visiting Fellow at the Centre for Criminology, Oxford University.