Justice system Britain gets the penal policy wrong

Ian Loader

In a speech to the Royal Society of Arts in London on Monday, the justice secretary for England and Wales, Jack Straw, took us on a tour of his world. In that world, although the UK government has invested wisely in punishment, with England spending more of its output on law and order than any other OECD country, the penal system lacks public confidence. And there’s a simple explanation for this — it’s all because of the “criminal justice lobby” that has forgotten about victims, shrouded the system in a “fog of platitudes” and lost the ability to communicate in plain language. We must, Straw said, refocus the system on “punishment” and “reform”.

In a parallel universe the justice system is not run by penal reform groups, but by New Labour - a government responsible for most of the complexity and jargon Straw bemoans. The money spent has resulted in overcrowded prisons whose record numbers undermine their capacity to reform offenders and cut re-offending. That government also seldom wearies of repeating the tired and lazy mantra that speaking up for victims must mean getting tough on offenders - often for electorally expedient reasons. One wonders what lesson sentencers will draw from Straw’s decision to repeat it now. Straw is right about one thing, though. The crisis of the penal system in England and Wales is testament to the fact that it lacks a coherent public philosophy, a story about why and whom, what way and how much, we punish that can really connect with public thinking about crime in society.

Such a philosophy starts from where “public opinion” recognisably is. But it need not end there. Given the condition and failings of prisons, society needs to find a rationale for radically reducing the scale and harshness of the penal system — and for that milder and smaller system. Penal moderation is the best candidate we have for such a philosophy, and it has more to offer than Straw would have people believe.

Penal moderation brings together three ideas: restraint, parsimony and dignity. It seeks, first, to instill a sense of caution in how society talks about and delivers punishment in ways that reflect the ambivalence that most people feel towards it. It reminds us, second, that prison is perennially failing, and punishment is destined to disappoint, because the levers that lead individuals to conform lie mainly beyond its control.

Third, penal moderation requires a penal system that treats with dignity all those who are brought under its control, recognising that offenders are and remain citizens and must be treated accordingly. To speak about punishment like this is not a counsel of despair. Nor is it to “forget victims”. It is, however, to challenge the reckless and costly fantasy that there exists a penal solution to crime problems and to recognise there are better ways in which to protect the rights and dignity of victims than getting, or sounding, tough with offenders.

The opposite of moderation is not simply expansion, but excess — an accurate description of how our society responds to crime today. Historians can be left to puzzle over why a government that inherited and sustained falling crime levels has behaved with such counterproductive hyperactivity in this field. The penal crisis is, however, a legacy of that restless excess. Penal moderation assists here by reminding us that it doesn’t have to be this way. Since 1995, prison numbers in England and Wales have risen by 60%. In France over that period they rose by 1%, in Canada they fell by 11%. In Straw’s world, there is a government proud of its record on law and order. In the rest of the world, England and Wales are regarded - like the US - as a global punitive outlier.

Over the last decade penal policy has been driven by the most strident voices from polls, focus groups or the press. Yet this rests on a partial reading of what is known about public sentiment towards crime and punishment. There are victims whose lives are blighted by crime or whose experience makes them angry enthusiasts for “tough” punishment. But there is also evidence that the majority of people have little experience of crime, rarely think about it and, when prompted to do so, express ambivalent feelings about the proper response to it.

Political moderation means speaking for this ambivalence about punishment, for those who understand England and Wales as tolerant, forgiving, pragmatic nations - not as lands of thoughtless penal excess conducted in their name. Twice in his speech Straw invoked Winston Churchill’s remark about punishment being an “unfailing” test of the civilisation of any country. Yet I doubt Churchill intended that a society could pass this test with the levels

of law and order spending of which Straw seems so proud, or by investing more money in prisons in the last five years than in the state-funded health service. In a civilised society, punishment should a matter for sorrow and regret, not a badge of political pride.