More on the scandal of indeterminate sentences

In an uncharacteristically short letter published in today’s Guardian I have compared the outrage of our system of indeterminate sentences with Cuba’s practice of locking people up on the charge of being a “social danger” — a survival from the Napoleonic code, long pre-dating the Castro revolution.  The Guardian made only a very few cuts in my letter as originally submitted, which, for the record, read as originally written:

According to the film-maker Professor Chanan (Cold war myths about Cuban jails, letters, February 21) there are still people in Cuban jails who “ought not to be there”, locked up on a pre-revolutionary Napoleonic charge of “social danger”.  In British prisons there are around 4,500 people serving indeterminate sentences for “Public Protection”, many of whom have served the punitive part of their sentences but must stay in prison, sometimes for years, until they can convince parole boards that they won’t re-offend, often an inherently impossible task.  This is preventive detention or internment, and an outrage: it should have no place in our law, any more than in Cuba’s.

In August 2007 I posted a piece in this blog about the rank injustice of “Indeterminate Sentences for Public Protection” (IPPs) under which people who have been convicted of an offence, and who judges suspect might be inclined to re-offend after their release, may be given an indeterminate sentence, consisting of two parts:  a tariff of a given length of time representing the period required for punishment, deterrence and rehabilitation, or in other words the minimum time to be served in prison; and an indefinite period of continued incarceration after that, during which the onus is on the prisoner to satisfy the parole board that he or she will not re-offend when released.

One way to achieve this challenging task is to complete, successfully, one of the courses available in some (but not all) prisons that are supposed to assist reform and rehabilitation, such as a course in anger management.  The Catch 22 here is that many of the 4,500 or so IPP prisoners now in our jails are in prisons where none of these courses is available.  Judges have ruled, and the government has accepted, that failure to attend a course which is not available can’t be a reason for continuing to detain a prisoner, but without having done a course, how can anyone demonstrate that he is a reformed character and won’t re-offend?

Catch 23 is that there are often long waiting-lists for these courses, and just as an IPP prisoner is getting near the front of the queue, perhaps after waiting for several years, he is liable to be transferred to another prison as part of the constant merry-go-round in our grossly overcrowded prisons, whereupon he goes to the back of the queue again.  A variant — Catch 23a — is the IPP prisoner who has served his tariff but has to wait for years to get a parole board hearing, dates for which are set but then constantly postponed.

Catch 24 penalises the prisoner who has been wrongly convicted.  You’re likelier to persuade the parole board that you have reformed and won’t “re-offend” if you can be shown to have admitted your guilt, recognised the seriousness of your offence, and come to terms with your underlying problems.  If you continue to assert your innocence, that’s rather difficult to do.  But prisons and parole boards are bound to proceed on the basis that all those in prison are guilty of the offences of which they have been convicted, even though in real life we know that people are sometimes wrongfully convicted.  It’s been officially denied that a refusal to confess guilt is a bar to the release of an IPP prisoner, but there seems to be evidence that in practice such a refusal counts heavily against a prisoner in his effort to show that he won’t “re-“offend.  I have been personally assured by a prison governor (one who was writing a thesis on the subject) that in practice anyone continuing to assert his innocence is extremely unlikely to secure his release from a life sentence (see below) or an IPP.

All this is pure Kafka — especially for the truly innocent prisoner.  Much of it applies similarly to those serving life sentences and who have served their ‘tariffs’ but, like the IPP prisoners, can’t be released until they can demonstrate the unlikelihood that they will re-offend.  Within hours of the publication of my letter in today’s Guardian, I had a telephone call from an old friend about the son of her neighbour who is in prison after serving his tariff of 15 years of a sentence for a murder which he almost certainly didn’t commit, but who is still in jail after 19 years.  He and his family are convinced, although it’s impossible to prove it, that this still-young man has failed to win his release after two appearances before the parole board because he continues to insist on his innocence of the original murder.  Part of the problem here is that the mandatory sentence for murder is life, regardless of extenuating circumstances — which may be reflected in a relatively short tariff but which still leave the prisoner with the requirement to demonstrate what it’s often impossible to demonstrate, that he won’t do it again.  Judges have repeatedly condemned the mandatory sentence as inflexible and unjust, but our politicians are too scared of the wrath of the tabloid newspapers to do anything about it.  Kafka again.

Since my blog post of 2007 there have been a couple of dozen ‘comments’ appended to it, some with extremely useful advice, from experienced and authoritative sources, for families of people serving indeterminate sentences: others from people whose spouses or sons are serving IPPs and who feel trapped by their inability to secure their release even years after completing their tariffs.  To be in prison for an indefinite time, with the only prospect of ever being released made conditional on completion of a virtually impossible task, is a form of mental torture, apart from its inherent injustice.  Everyone in prison should be able to look forward to a definite date, however distant, when his incarceration will end.

But the basic point, surely, is that we should not be keeping people in prison because Authority, in whatever form, thinks they might commit an offence in the future.  Any one of us might offend at some time in our lives.  None of us can foresee the future.  Parole boards will always be tempted to play safe and refuse an application for release:  to send out onto the streets someone who has once upon a time committed an offence is to take the risk that he might offend again, and that the board will then be blamed for getting it wrong. Defenders of the system point to the fact that parole boards have an impressive record of success, in that remarkably few of those whom they do agree to release seem to re-offend;  but mightn’t that be a symptom of excessive caution by the boards?  We shall never know how many of those whom they refuse to release would not have re-offended had the decision gone the other way, and that’s the real measure of the success or failure of the system.  Persistent offenders receive longer sentences both to deter others and to keep them out of society for a long time for society’s protection.  But the system of indeterminate sentences is indefensible: a blot on British justice.  It should be swept away.

PS:  On a lighter note, my letter in today’s Guardian is the second from me to be published in four issues (see this).  If I carry on at this rate I’ll be catching up with the legendary and inimitable Keith Flett.

Up-date (2 March 2009): The following from a report in today’s Guardian speaks for itself.  It refers to a prisoner serving a life sentence, but it might equally well have been said of someone on an IPP:

Kevin Lane is what is known in the prison system as a “denier”. More than 12 years after he was convicted of the contract killing of Robert Magill in Hertfordshire, he is still strenuously denying it, and so is not eligible to take the rehabilitation courses that would lead to his release.

New evidence has come to light which may exonerate Mr Lane and cause his case to be reviewed and his conviction to be quashed.  But others who have been wrongly convicted and who refuse to “admit their guilt” may not be lucky enough to benefit from the discovery of new evidence in their favour.  In principle such people face continued incarceration with no end in sight.  Kafka, indeed.

Brian