discussion 6

The revolving door at the prison gate: Exploring the dramatic increase in recalls to prison

N I C O L A PA D F I E L D A N D S H A D D M A R U N A

University of Cambridge, UK and Queen’s

University Belfast, UK

Abstract

In this article we draw attention to the recent and extraordinary increase in the number of people in England and Wales recalled to prison during the licence period of their sentence (by examining the published Parole Board and prison statistics). This is followed by a description of the existing law and the recent changes to it, which we suggest will exacerbate the current trend. We seek then to explain the increase by looking primarily at the US experience (which reveals a system which is costly, discriminatory and apparently ineffective at reducing crime) and at recent judicial review cases (which reveal a system which is increasingly acknowledged to be unfair), concluding that current sentencing law and practice puts inappropriate emphasis on ‘front door’ sentencing practices rather than the equally important ‘back door’ practices of release, supervision and recall. Unsurprisingly, the article ends with a call for much more research in this area.

Key Words

new penology • parole • recall • re-entry • resettlement

329

Criminology & Criminal Justice © 2006 SAGE Publications

(London, Thousand Oaks & New Delhi) and the British Society of Criminology.

www.sagepublications.com ISSN 1748–8958; Vol: 6(3): 329–352

DOI: 10.1177/1748895806065534

Introduction

The current trend in England and Wales is towards a sentencing framework based on a detailed analysis of different levels of offence seriousness.1 Yet this discussion largely ignores the reality of a flexible early release system for prisoners. As a result, despite a carefully calculated initial sentence, an offender will actually serve a very different amount of time in prison. This is sometimes referred to as the difference between ‘front door’ and ‘back door’ practices in corrections, and ‘back door’ release decisions can have as much influence as ‘front door’ sentencing practices in terms of sentence length and maintaining overall prison populations (Tonry, 2003).

This article focuses on an additional ‘door’ of concern to observers of correctional trends: the so-called ‘revolving door’ involving released prisoners who are recalled to prison during the ‘licence’ period of their sentence. On licence, former prisoners need not commit a new criminal offence in order to be returned to prison, but instead can find themselves back inside when there is evidence that they have violated the terms of their licence (for example, failed to turn up at specified meetings). This process of prison ‘recalls’ has received very little scholarly or public attention in England and Wales. Yet, in the last four years, the number of such recalls in England and Wales has increased three or fourfold. More- over, the body responsible for releasing all such recalled prisoners, the Parole Board, rightly anticipates that this trend ‘can only increase’ with the release provisions of the Criminal Justice Act 2003.2 This dramatic rise seems to necessitate a discussion regarding the theoretical, legal and practical issues related to recalls, which we hope to initiate with the following discussion.

Some statistics on prison recalls

The population in custody in England and Wales stood at 77,421 on 25 November 2005.3 In 2002, the average prison population was 70,860, which itself represented an increase of 16 per cent compared to 1997 and 55 per cent compared to 1992.4 While there has been much concern about this increase, little comment has been made about the fact that a growing number of this population are there not only because they have been sentenced by a court, but because they have been recalled to custody after a period on licence.

The public body that first highlighted this concern was the Parole Board; from its perspective the concern is primarily one of workload. Table 1, which is taken from tables in Annual Reports of the Parole Board, shows the extraordinary increase in the overall workload for the Board in recent years.

These figures show the total number of cases, which slightly overstates

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the position in terms of individual offenders since the same prisoner may challenge his recall more than once: see Table 2.

Table 3 provides a summary of DCR5 recall cases. The Prison Statistics 2002 and the Offender Management Caseload

Statistics 2004 confirm the number of DCR recalls, but not the overall figures. We are told that in 2004–5, 710 parolees were recalled, represent- ing 17 per cent of those on licence; in 2002–3, 420 paroles (13 per cent of those on licence) were recalled, of which under 6 per cent were recalled for committing a further offence. This does not include the numbers recalled who were released under Home Detention Curfew.6 More details are offered on these prisoners (perhaps because the Prison Service/National Offender Management Service (NOMS) make the decision to release?). Some 19,310 offenders were released early from prison on home detention curfew (HDC) in 2004, and a total of 3000 (16 per cent) were recalled to prison. (In 2002, 20,525 offenders were released on HDC, and only 7 per

Table 1. Parole Board workload (2000–5)

2000/1 2001/2 2002/3 2003/4 2004/5

Recalls 2457 4885 7246 9031 9320 Oral hearings 272 466 495 1018 1341 Mandatory lifer prisoners 531 513 915 1060 625 Determinate sentence prisoners 5576 5514 6012 6038 7297 Total caseload 8836 11,378 14,668 17,147 18,583

Source: Parole Board (2003: 4, 2005: 7)

Table 2. Summary of total recall cases 2004/5

ACRa (short-term) prisoners

DCRa (long-term) prisonersb Total

Recall requests 6378 1884 8262 Reps after recall 749 309 1058 Total cases 7127 2193 9320

Source: Sentence Enforcement Unit (from Parole Board (2005: 53) a Under the pre-Criminal Justice Act 2003 regime, which applied to those sentenced before 4 April 2005, those sentenced to less than 12 months’ imprisonment were subject to Automatic Unconditional Release at the halfway point in their sentence. Prisoners were then at risk of being returned to serve the rest of their sentence if they were convicted of further imprisonable offences before their sentence had fully expired, but are not subject to compulsory supervision. On the other hand, those sentenced to between 12 months and under 4 years were released at the halfway point on Automatic Conditional Release (ACR). They were supervised on licence until the three-quarter point in their sentence. Those sentenced to four years or more could be granted Discretionary Conditional Release (DCR) by the Parole Board from the halfway point of their sentence. If early release is not granted, these prisoners are released automatically at the two-thirds point in the sentence. They remain under supervision until the three-quarter point in their sentence b Includes both prisoners recalled from parole licence and those recalled from non-parole licence after automatic release at the two-thirds point of their sentence

Padfield & Maruna—The revolving door at the prison gate 331

cent were recalled to prison.) The most common reason for recall, which accounted for 57 per cent of all recalls (54 per cent in 2002), was breaching HDC conditions. This includes being absent from the curfew address during curfew hours, threatening monitoring staff, damaging the monitor- ing equipment or failing to be present for the installation of a new telephone line or equipment. Others were recalled on the grounds that it is not possible to monitor them: ‘change of circumstances’ (for example, where a subject has involuntarily lost their curfew address or has with- drawn consent to be monitored), which account for 26 per cent of all recalls in 2002; ‘installation failure (where it is not possible to install the monitoring equipment or make the monitoring equipment fully opera- tional); or ‘monitoring failure’ (where it becomes impossible to continue monitoring, for technical or other reasons). These last two accounted together for less than 1 per cent of recalls. In 2002, there was one HDC recall on the grounds that the subject posed a risk of serious harm to the public. The key point for our purposes is that only 16 per cent of recalls in both 2002 and 2004 were on the grounds of being charged with a new offence.7

The small number of life sentence prisoners, who make up an increasing proportion of the prison population, who are recalled is also growing,8 as Table 4 shows.

Thus, both Prison Service and Parole Board data show very significant numbers (and an increasing number) of prisoners recalled to prison, whether these are short-term or longer-term prisoners.

Table 3. Summary of DCR recall cases

Year

Total no. of prisoners recalled for further offence

% of those recalled for further offence

Overall number recalled

Recalls as % of average number of parole

1997/8 79 3.4 190 8.2 1998/9 94 4.0 233 11.1 1999/0 93 3.8 250 10.1 2000/1 106 3.8 267 9.6 2001/2 90 3.0 329 10.9 2002/3 188 5.8 420 13.1 2003/4 252 7 601 16.6 2004/5 265 6.5 712 17.4

Source: Parole Board (2003, 2004, 2005)

Table 4. Life licensees recalled to prison

1999/0 2000/1 2001/2 2002/3 2003/4 2004/5

48 35 26 30 52 90

Source: Parole Board (2005: 59)

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The law on prison recalls

The current law: 1991–2005

Parole was first introduced in England and Wales in the Criminal Justice Act 1967. It had two main objectives at that time: reducing the prison population and aiding in the rehabilitation of offenders by releasing them into the community at the ‘right’ time and with the support and supervision of a probation officer to whom they were required to report regularly. Recall was always a part of this system. A new system of early release was introduced by Part II of the Criminal Justice Act 1991 and, until the provisions of Part 12, Chapter 6 of the Criminal Justice Act 2003 were brought into force, the law on recalls to prison was governed by the 1991 Act, as amended by the Crime (Sentences) Act 1997, and, more im- portantly, by the Crime and Disorder Act 1998 as well as by the Powers of the Criminal Courts (Sentencing) Act 2000, Schedule 9, para. 137.

We have already noted the system of Automatic Unconditional Release, Automatic Conditional release and Discretionary Conditional release.9

However, the apparent simplicity of the early release scheme was compli- cated by the fact that judges had a variety of sentencing options. For instance, some offenders received longer than commensurate sentences. Some sex offenders remained on licence until the end of their sentence on the recommendation of the trial judge. There were complex rules applying to such ‘extended sentences’, and, as demonstrated in the last section, an increasing number received life sentences. The key provision on recall was s. 39 of the Criminal Justice Act 1991,10 which provided that:

(1) If recommended to do so by the Board in the case of a [short-term or]11

long-term prisoner who has been released on licence under this Part, the Secretary of State may revoke his licence and recall him to prison.

(2) The Secretary of State may revoke the licence of any such person and recall him to prison without a recommendation by the Board, where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable.

(3) A person recalled to prison under subsection (1) or (2) above—

(a) may make representations in writing with respect to his recall; and

(b) on his return to prison, shall be informed of the reasons for his recall and of his right to make representations.

(4) The Secretary of State shall refer to the Board—

(a) the case of a person recalled under subsection (1) above who makes representations under subsection (3) above; and

(b) the case of a person recalled under subsection (2) above.

(5) Where on a reference under subsection (4) above the Board—

(a) . . .

Padfield & Maruna—The revolving door at the prison gate 333

(b) recommends in the case of any person,

his immediate release on licence under this section, the Secretary of State shall give effect to the recommendation.

. . .

(6) On the revocation of the licence of any person under this section, he shall be liable to be detained in pursuance of his sentence and, if at large, shall be deemed to be unlawfully at large.

It was not long before the framework of the Criminal Justice Act 1991 was amended. The Criminal Justice and Public Order Act 1994 made the Parole Board a non-Departmental public body (see s. 149) and at the same time took away the Board’s power to recall ex-prisoners (see s. 150). Recall became an executive decision, subject to reconfirmation (or otherwise) by the Parole Board. The Crime (Sentences) Act 1997 which then followed was a rather desperate attempt by a flagging Conservative government to bolster confidence in the criminal justice system by ensuring that offenders served the whole of their sentences. As the White Paper Protecting the Public stated, ‘offenders sentenced to custody should serve the full term ordered by the court’ (Home Office, 1996: para. 9.1). But ss. 8–27 were never implemented. The provisions, which would have given an un- structured power to prison officers to decide how many days’ early release a prisoner might earn, were unworkable in practice. There was, of course, also a general election and the Conservative government’s 18 years in power were over.

The Crime and Disorder Act 1998, ‘New’ Labour’s first attempt (of many) at criminal justice legislation then introduced extended sentences with longer periods of supervision (s. 58). These were available for a variety of violent offences, but clearly targeted sex offenders (Padfield, 1998: 62). Sections 99–100 inserted new s. 34A, s. 37A, s. 38A into the Criminal Justice Act 1991 to provide the power to release short-term prisoners on a ‘home detention’ curfew licence (enforced by electronic monitoring) for up to two months before their normal date of release. This was first introduced in January 1999, governed by PSO 6700.

Since then, the rules have been changed more than once: since 14 July 2003 home detention curfew (HDC) eligibility has been increased from 90 days to 135 days.12 It is beyond the scope of this article to explore in detail the way HDC works, but it should be noted that there are inconsistent views on its purpose (reducing the prison population or rehabilitation/ resettlement?), and wide variations in its use between prisons (local prisons have a surprisingly low release rate, given their overcrowding) (Dodgson and Mortimer, 2000; Dodgson et al., 2001). Section 103 transferred responsibility for recalling short-term prisoners from the courts to the Parole Board. Section 104 provides for offenders who are recalled to prison while on licence to be subject to a period of supervision until the end of their sentence following their second release from prison at the three- quarters point of sentence.

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The Criminal Justice Act 2003

Part 2 of the Criminal Justice Act 1991 on the early release of prisoners is repealed by s. 303 of the Criminal Justice Act 2003, which largely came into force on 4 April 2005, when Part 12, Chapter 6 of the Act (Release and recall of fixed term prisoners (prison sentences over 12 months)) came into force.13 The number of prisoners who will be recalled is likely to grow significantly once these provisions begin to bite.

Sections 237–68 deal with the arrangements for prisoners’ early release on licence, recall to prison following breach of licence requirements and further re-release. There are also provisions for calculating (pre-trial) remand time, calculating how sentences should be served and drug testing requirements on licence. Thus under s. 238, a court may recommend licence conditions for those sentenced to more than 12 months. Sections 244 to 253 provide for the release of offenders from custody: offenders serving sentences of 12 months or more will be released automatically on licence at the halfway point of their sentence (subject to early release on home detention curfew (HDC) which will be extended to the vast majority of fixed-term prisoners (see s. 246)). Upon release, the second half of their sentence will be subject to standard licence conditions and any combination of the additional prescribed conditions that the Secretary of State may determine by order. For new custodial sentences of 12 months or more, licence conditions may be imposed right up to the end of the sentence. Offenders will be liable to recall up until the end of their sentence. The Sentencing Guidelines Council suggest that sentence lengths imposed by sentencers from this time should be reduced ‘by in the region of 15 per cent’ to take account of the increased demands that sentences will make on offenders. Time will tell whether they heed this advice. It seems likely that not only will the number of recalls increase; so will, in effect, sentence lengths.

Under ss. 254 and 255 recall becomes more clearly an executive decision—by the prison and probation services—rather than by the Parole Board, as at present. The offender will have the right of appeal to the Parole Board, and even if the offender chooses not to exercise this right the Parole Board will none the less scrutinize all recall decisions. This removes the anomaly by which the Parole Board currently both advises on recalls and acts as an appeal body against those same recalls.

Section 257 confirms the Secretary of State’s controversial power to add days to prison sentences, under prison rules, where disciplinary offences are committed while in custody. Sections 259 to 262 then provides for a new early removal scheme from prison for foreign national prisoners liable to removal from the UK. Sections 263 and 264 set out the principles for calculating the time offenders must spend in custody and on licence where several sentences are passed on the same or different occasions, and are ordered to be served concurrently (at the same time) or consecutively (one after the other).

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These changes to the rules on recall need to be seen in the wider context of the very different sentencing framework, which came into force on 4 April 2005. Courts will be imposing ‘imprisonment for public protection’, an indeterminate sentence, on a much wider category of ‘dangerous offender’ than would previously have been sentenced to a discretionary life sentence: see ss. 224–36 of the Act. Thus, if there are many more people sentenced to indeterminate sentences, the number of them released and the numbers recalled will also increase. It is here that the Parole Board anticipates another major increase in its workload.14

Recalls in practice

A prisoner who is eligible to be released under HDC will be subject to either ‘Presumptive HDC’, or will be subject to an ‘Enhanced assessment’. Either way, if he or she is recommended for release early on HDC, they will be released subject to standard licence terms, plus any specific ones the Board or Governor decide to impose. Similarly, a DCR prisoner released early by the Parole Board may also have their licence conditions ‘tailored’ to their particular case.

A standard licence includes the following conditions:

. . . While under supervision you must:

(i) keep in touch with your supervising officer in accordance with any reasonable instructions that you may from time to time be given;

(ii) if required, receive visits from your supervising officer at your home at reasonable hours and for reasonable periods;

(iii) live where reasonably approved by your supervising officer and notify him or her in advance of any proposed change of address;

(iv) undertake only such employment as your supervising officer reasonably approves and notify him or her in advance of any proposed change in employment or occupation;

(v) not travel outside the United Kingdom without obtaining the prior permission of your supervising officer (which will be given in exceptional circumstances only);

(vi) be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of your supervision, namely to protect the public, prevent you from re-offending and secure your successful reintegration into the community; . . .

Additional licence conditions may include:

• attendance at appointments with a named psychiatrist/psychologist/medical practitioner and co-operation with recommended care or treatment;

• not to take work or organized activities with people under a certain age; • a residence condition;

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• a requirement not to reside in the same household as children under a specified age;

• a requirement not to approach or communicate with named people; • a requirement to avoid a particular area; • a requirement to address alcohol/drug/sexual/gambling/solvent abuse/anger/

debt/offending behaviour problems at a specified centre; • a drug testing condition.15

While the focus of this article is those who are recalled without having been charged with another offence, it is worth pointing out the complexity of the law on the re-sentencing of those whose parole licence had been revoked administratively and who then appear for sentencing for an offence committed during the second half of the sentence. There have been a number of successful appeals when offenders have essentially been ordered to serve a part of their sentence twice over.16 In these cases, a sentencing court has failed to make an appropriate allowance for the time spent in custody following revocation in determining the period for which the individual is ordered to return to custody under s. 116 of the Powers of Criminal Courts (Sentencing) Act 2000.

Explaining the increase

There is a variety of factors that probably contributed to the sudden increase in recalls to prison in the last few years.17 One possible explana- tion, however, can be fairly safely ruled out: it is probably not the case that the behaviours of ex-prisoners have changed substantially over the last few years.

Despite dozens of calls for reform of the release/resettlement process over the last century,18 the process of prisoner reintegration remains a fraught, complicated and near-impossible ideal to realize. The system removes already vulnerable citizens from their spouses, homes and families of origin;19 takes away their legal means of employment (if they had any prior to incarceration) and sends a clear signal of suspicion to any future employers;20 puts them in an environment in which they are surrounded by others in similar circumstances; then, releases them back into the commun- ity with little more than a bus pass, £50 in gate money and a colossal stigma (see Petersilia, 2003 for a US-based analysis of this issue; for the British experience of prison release, see Maruna, 2001). Yet, all the while, they are expected to avoid any temptation to improve their lot through illegal means. It is an almost impossible situation for many, but what is important for the present argument is that it is nothing new. According to Verne McArthur, in his book Coming Out Cold: Community Reentry from a State Reformatory, ‘the released offender confronts a situation at release that virtually ensures his failure’ (1974: 1). That was written in 1974. In the book After Prison—What? Maud Booth writes,

Padfield & Maruna—The revolving door at the prison gate 337

when one thinks that this prejudice and marking of discharged prisoners robs them of any chance of gaining a living, and in many instances forces them back against their will into a dishonest career, one can realize how truly tragic the situation is.

(1903: 119)

That was written in 1903. There is no reason to suspect that the dramatic rise in recalls over the last three years has anything to do with a dramatic change for the worse in these release conditions.

Likewise, it would be difficult to blame the increase on a worsening of ex-prisoners’ actual behaviour. In his account of changes in recall rates in various US states like California, Kevin Reitz is particularly insistent on this point:

Simply put, it is a serious error to equate failure rates on post release supervision with the actual behavior of prison releasees. . . . In any jurisdic- tion, the number and rate of revocations depends to some degree on the good or bad conduct of parolees, to be sure, but it also depends at least as much on what might be called the ‘sensitivity’ of the supervision system to violations. Sensitivity varies with formal definitions of what constitutes a violation, the intensity of surveillance employed by parole field officers, the institutional culture of field services from place to place, and the severity of sanctions typically used upon findings of violations.

(Reitz, 2004: 215)

Similarly, in the British context, the source of the change in recall rates is likely to be found in enforcement practices rather than releasee behav- iour. Most obviously, the change from a court-based process to an exec- utive function has made prison recalls much easier to administer, saving the State the time and trouble of due process considerations. In addition, the State has greater surveillance technologies, like urine testing and electronic monitoring, at its disposal for the detection of violations. Likewise, the increase in multi-agency work, in particular partnership work with the police, has sharply improved the surveillance capabilities of traditional aftercare (Nellis and Chui, 2003).

The most substantial change, however, has probably been the centrally led and politically driven transformation of the culture and practice of probation from a social service orientation to a surveillance-led focus on public protection. First, in recent years, there has been a sharp increase in the number and stringency of licence conditions. Obviously, the more conditions, the more likely that someone will be found to be in breach of those conditions.21 At the same time, there has been an explicit de-emphasis of the agent–client interpersonal relationship and social work methodology, and a decrease in the flexibility in case management (Nellis, 1999: 302–23). In a recent press statement, for instance, a representative of the National Association of Probation Officers blamed the growth in recalls to prison in the UK on the introduction of strict enforcement rules by the Home Office since 1999:

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For the last four years, Probation staff have been obliged to follow strict national standards on enforcement. Previously, there was greater pro- fessional discretion. The clear consequence of the change in policy has been a huge rise in the number of recalls and breaches, and, therefore, the prison population.

(Fletcher, 2003: 1)

As indicated by Fletcher’s remarks these changes are being imposed from above rather than emerging from above. Changes in practice are the result of a growing climate of managerialism in the service alongside a more politically motivated attempt to present a ‘tough’ image to the public (Nellis, 1999). In times of increasing individual and departmental account- ability, probation naturally becomes a more risk-averse enterprise. Better to err on the side of over-caution than to risk the media attention that might surround a probationer who is released from prison early and commits a heinous crime while allegedly under state supervision. Indeed, risk assess- ment and risk management have been said to replace the traditional case management model in probation. In fact, some have argued that the increased use of actuarial risk prediction instruments, facilitated by a system-wide computer network, has encouraged probation staff to view persons on licence less as individuals and more as members of un- differentiated risk groups (see Lynch, 1998). Those deemed ‘high’ risks are immediately suspect and allowed little leniency in behaviour.

In his history of parole in California, Jonathan Simon describes many of these trends as a move towards a ‘waste management model’ of penality or the ‘New Penology’ (Simon, 1993). According to this model, a dangerous class of ‘lifetime correctional clients’ with ‘no realistic potential’ to reform is ‘treated as a kind of toxic waste’ to be contained. In addition to this institutional cynicism about the redeemability of this criminal class, the ‘New Penology’ is also thought to be characterized by three primary features:

1 discourse emphasizing risk rather than reformation or justice; 2 objectives of offender management and classification rather than punishment

or rehabilitation; 3 new techniques of classifying and managing risks from widespread drug

testing to the use of statistical/actuarial risk prediction instruments.

Central to the ‘New Penology’ is the assumption that there is ‘a special subpopulation of dangerous offenders whose identification and neutral- isation would result in dramatic reductions in the overall crime rate without resulting in a massive increase in the [prison population]’ (Simon, 1996: 26).

Importantly, the New Penology concept originated in California, which is unique even in terms of the United States and is most certainly an imperfect theoretical framework for understanding the contemporary scene in the United Kingdom. In particular, the renewed focus on rehabilitation and reducing re-offending in the UK makes the situation here almost the

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opposite of what has been happening in California over the last three decades. That said, certain echoes can be heard in the criminal justice system of England and Wales with the move to a National Offender Management Service. Indeed, in the key Home Office report behind this move, Managing Offenders, Reducing Crime, Patrick Carter cites with only somewhat guarded enthusiasm (and no research evidence) the idea that 100,000 persistent offenders commit 50 per cent of all crime and ‘if we could identify and incapacitate the 100,000 persistent offenders, crime could fall dramatically’ (Carter, 2003: 15).

Why recall matters: lessons from the USA

How far could the rise in the use of recalls in England and Wales conceivably go in a climate such as this? As with many trends in criminal justice and elsewhere, one can answer this question partially by looking to the experience of the United States where the use of prison recalls has reached remarkable new heights. In 1985, around 70 per cent of parolees successfully completed their term of supervision following prison; however, by 1997, that number had dropped to 44 per cent. As a result, by the late 1990s parole violators constituted nearly two-fifths of prison admissions across the country (compared to around 18 per cent in 1980) (Travis and Petersilia, 2001: 291–313). Fewer than one in three of these recalls involved the commission of a new crime, and three out of five admissions were reported as ‘technical violations’ of parole conditions (usually a ‘dirty’ urine test) (Sabol et al., 2001).

As with most such discussions, it is important to distinguish between different states within the United States. In this case, California is the extreme outlier. In 1997, two-thirds of the individuals admitted to prison in California were parole violators, compared to less than 15 per cent of admissions in many other comparable states (Petersilia, 1999). The state of Massachusetts, for instance, had a parolee ‘success’ rate of over 80 per cent, whereas in California only one in five parolees avoided being sent back to prison during their time on parole supervision (Glaze, 2002). Of these California recalls, the majority (around 57 per cent) were for technical parole violations and only 12 per cent for new felony convictions (Travis and Lawrence, 2002). Because California has such a large popula- tion, these numbers can skew the overall US averages masking the fact that the rest of the country has not undergone anything like the experiment taking place in the Golden State, where Simon based his original examina- tion of the ‘New Penology’.

This substantial diversity in practice across states provides an ideal opportunity for comparative research on the effects of differential super- vision practices. Although this research is only beginning, early results suggest that the usage of high rates of prison recalls as a strategy for crime control in states like California has been highly costly, discriminatory and

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apparently ineffective as a strategy for crime reduction (see especially Re- Entry Policy Council, 2005).

Costly

There has been considerable discussion about the way that the excessive use of incarceration in the United States over the past 25 years has overloaded parole departments. When over 2 million citizens are in- carcerated at any given time, one should not be surprised when 600,000 or more prisoners are released each year into the care of badly stretched probation and parole offices (Petersilia, 1999). Because of severe budget tightening at the state level, the systems of probation and parole have not been able to expand to meet this increasing need. As a result, the average parole officer’s caseload has swelled from around 45 parolees in the 1970s to around 70 per parole officer in the current climate, making older casework models a near impossibility (Travis and Petersilia, 2001).

However, the parole system in states like California has not simply been a helpless victim to the growth in prisoner numbers, but has itself been one of the main drivers of this growth. Indeed, the number of new prison admissions (i.e. those sentenced by the courts) largely levelled off in California as it did across the country (even declining in several states) during the 1990s. The growth in prisoner numbers, then, is a product of longer sentences, tighter release policies and, of course, the explosion in recalls to prison. More than one-third of California’s prison population now consists of parolees who have been returned to prison, with nearly 29,000 beds occupied by the technical parole violators alone. Unsurpris- ingly, then, high rates of prison recall have been hugely expensive. Research in California revealed that the State paid almost $900 million to re- incarcerate parole violators. The study’s authors estimated that reducing the share of parole violators by half to one-third of all admissions would save California $500 million a year (Travis and Lawrence, 2002).

Discriminatory

As in the current practice in England and Wales, in most US states the recall process is administrative and non-judicial. Parole officers typically have the power to remand an individual to prison almost immediately on suspicion of a rule violation. Although this flexibility allows the State to avoid the delays of the court system, a substantial cost is being paid in civil liberties. Parole revocation in many US states essentially involves a parallel system of criminal adjudication with lower burdens of proof and lesser adversarial process.

Unsurprisingly, research has demonstrated a class and racial bias in these ‘technical violations’ of probation and parole. For instance, in a large-scale examination of probation violations, M. Kevin Gray and his colleagues found that although race was not a significant predictor of whether a probationer would commit a new crime, it was highly significant in

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predicting which probationers would be technically violated (Gray et al., 2001: 537–57). Minority probationers and those with low educational attainment were more likely to be found in violation of probation orders than other probationers, and this relationship was disproportionate to the relationship between actual recidivism and these characteristics (see also Irish, 1989; Whitehead, 1991).

Ineffective

Despite these costs (in resources and fairness), one could argue that a high rate of prison recalls could be an effective tool for reducing the re-offending rates of prisoners. Like ‘broken windows’ policing, premised on the symbolic value of prosecuting minor crimes of disorder (vandalism, vagrancy), the high use of recalls sends a clear message of zero tolerance to those released from prison that might also impact recidivism (Wilson and Kelling, 1982, but note that the evidence in support of this theory of policing is mixed at best: Taylor, 2001). In a ‘broken windows’ probation model, the recall process might allow the State to identify and incapacitate those persons who, by virtue of engaging in high-risk behaviours, are most likely to commit a new crime (Kleiman, 1999).

Yet, there is very little empirical evidence in support of this hypothesis. According to the recently released, 650-page Report of the Re-Entry Policy Council: ‘Notably, there is currently no conclusive research indicating that noncompliance with technical conditions of release signals a person’s likelihood of criminal behaviour or that returning such individuals to incarceration might prevent future crime’ (Re-Entry Policy Council, 2005: 391). In their essay ‘Does Supervision Matter?’, Piehl and LoBuglio explain why this is:

Ideally, to test this proposition, researchers would randomly assign a pool of soon-to-be released prisoners to either a treatment group that would provide post-release supervision or to a control group that would have no super- vision, and compare the rates of criminal activity across the two groups. Unfortunately, there is an inherent problem with this design: the outcome— recidivism—is intrinsically linked with supervision. In practice, increased supervision will likely lead to greater detection of rule violations and of new criminal offences.

(2005: 115–16)

The best existing evidence to test a ‘broken windows’-type hypothesis, however, is not at all encouraging for the theory’s advocates. Petersilia and Turner’s nine-state random-assignment evaluation of intensive supervision probation found considerable evidence that increased surveillance leads to greater numbers of technical violations. However, the authors found no evidence that this higher rate of violations led to a decrease in recidivism or an increase in public safety. For instance, states like Washington that used far fewer technical violations to send parolees back to prison did not see an

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increase in parolee dangerousness as a result (Petersilia and Turner, 1993: 281–335).

Why recall matters: prisoners’ rights

The current system applied in England and Wales can be profoundly unfair. Offenders are recalled to prison, of course, without notice. We have noted some of the reasons, which range from a failure to keep appointments with probation officers to committing a serious crime. But what then happens? They are taken back to their local prison, from where they may seek to challenge the lawfulness of their detention, although this is not an easy task for someone now back inside. Insight into the complexity and protracted nature of these attempts to challenge is provided by a reading of recent judicial review cases. We’ll look at three.

Justin West22 was sentenced in October 2000 to three years’ imprison- ment for affray. He was therefore a short-term prisoner, subject to ACR, and was released at the halfway stage in his sentence on 6 August 2001 (he had presumably been remanded in custody for some 8 months prior to sentence). The licence conditions (largely in the standard form) required him to:

• keep in touch with his supervising officer in accordance with any reasonable instructions;

• live where reasonably approved by his supervising officer; • be of good behaviour, not to commit any offence and not to take any action

which would jeopardize the objectives of his supervision, namely to protect the public, prevent him from re-offending and secure his successful re- integration into the community.

Ten days after his release a senior probation officer reported that Mr West had allegedly assaulted his former partner, but the victim would not confirm the incident. He then failed to keep his appointment with his supervising officer, and on 22 August 2001, the Home Secretary revoked his licence under s. 39(2). He was arrested on 24 August and returned to prison. The Home Secretary referred the case to the Parole Board under s. 39(4)(b). On 27 September his solicitors made written representations to the Board under s. 39(3) urging the Board to hold an urgent oral hearing to be attended by witnesses whose evidence should be heard on oath. The Parole Board rejected these representations in writing dated 2 October 2001. He was therefore detained in prison for another eight-and-a-half months, until 9 May 2002.

The Parole Board’s decision was unsuccessfully challenged by way of judicial review before Turner J (26 April 2002) and then the Court of Appeal (October 2002). The majority concluded that Article 6 (the right to a fair trial) had no application because of,

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the critical fact that when a parole licence is revoked and its revocation is subsequently confirmed this is solely with a view to the prevention of risk and the protection of the public and not at all by way of punishment.

(Simon Brown LJ, at para. 23)

Only Hale LJ recognized, in her dissenting judgment, that ‘to the person concerned it is experienced as punishment, whatever the authorities may say’ (at para. 52). But even the majority recognized the dangers of the process and the need for fairness: Simon Brown LJ stated, for example, that the Parole Board ‘should be altogether readier than presently they are to hold oral hearings if in truth their determination is likely to turn upon the resolution of important issues of fact’ (at para. 40).

Finally, on 27 January 2005, in R v. Parole Board, ex parte West [2005] UKHL 1, the House of Lords decided unanimously that he should have been allowed an oral hearing:

In his representations against revocation the appellant West offered the Board explanations, which he said he could substantiate, of his failure to keep an appointment with his probation officer and of the incident at his ex- partner’s hostel. The Board could not properly reject these explanations on the materials before it without hearing him. He admitted spending one night away from his approved address, staying (he said) with a cousin. While this was a breach of his licence conditions, it is not clear what risk was thereby posed to the public which called for eight months’ detention. His challenge could not be fairly resolved without an oral hearing and he was not treated with that degree of fairness which his challenge required.

(per Lord Bingham, at para. 45)

Our second example is the case of Trevor Smith,23 who was convicted in May 1998 of rape and of making threats to kill. He was sentenced to eight years’ imprisonment, reduced on appeal to six-and-a-half years, and he was made subject to an extended licence under s. 44 of the 1991 Act. He was not granted parole, but was released on licence after serving two-thirds of his sentence on 7 November 2001. He tested positive for cocaine in a number of tests while living in a probation hostel, and on 25 January 2002 his supervising probation officer recommended revocation of his licence on the basis of his drug use. That recommendation was supported by the district manager of the probation service, and the case was referred to the Parole Board to decide whether to make a recommendation under section 39(1). On 4 February the Parole Board recommended revocation, and on 6 February Smith was recalled by the Home Secretary to prison.

Smith made written representations under s. 39(3) on 20 March, and on 3 April these were rejected by letter from the Parole Board. His original application for judicial review was turned down by Hooper J. However, at an oral renewal of the application before Silber J, he was granted permis- sion to seek judicial review, but only in relation to Article 6 (right to a fair trial) and the common law. The case was listed on 24 June 2003 before Goldring J who refused to allow him to rely also on Article 5 (right to

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liberty). He appealed against that refusal, and on 30 June 2003 the Court of Appeal (led by Lord Woolf CJ) ordered that he be permitted to rely on Article 5 (right to liberty) as well as Article 6 (right to a fair trial) and common law. The Court also ordered that the case be heard in the Court of Appeal. The case was then heard by Kennedy, Brooke LJJ, Holman J on 29 July, who held that Mr Smith had no right to an oral hearing. Here too the House of Lords on 27 January 2005 allowed his appeal:

The resort to class A drugs by the appellant Smith clearly raised serious questions, and it may well be that his challenge would have been rejected whatever procedure had been followed. But it may also be that the hostels in which he was required to live were a very bad environment for a man seeking to avoid addiction. It may be that the Board would have been assisted by evidence from his psychiatrist. The Board might have concluded that the community would be better protected by encouraging his self- motivated endeavours to conquer addiction, if satisfied these were genuine, than by returning him to prison for 2 years with the prospect that, at the end of that time, he would be released without the benefit of any supervision. Whatever the outcome, he was in my opinion entitled to put these points at an oral hearing. Procedural fairness called for more than consideration of his representations, on paper, as one of some 24 such applications routinely considered by a panel at a morning session.

(per Lord Bingham, at para. 46)

Finally, we have the case of Mr Sim who was convicted of two offences of indecent assault and an offence of indecency with a chid under 14, the victim of all 3 offences being the 7-year-old daughter of a friend. He was sentenced on 17 February 2000 to an extended sentence24 of two-and-a- half years and an extension period of five years. He was released on 11 January 2001, but his supervising officer requested his recall on 17 July 2001 because of two warnings about his use of alcohol and because of an arrest for alleged indecent exposure to teenage girls. His licence was revoked and he was recalled on 20 July.

Mr Sim made representations to the Parole Board, who granted him an oral hearing on 15 April 2002. They refused to direct his release, despite the fact that it was agreed by then that he was no longer suspected of the indecent exposure. He challenged this decision before Elias J,25 who held that there was no ground for quashing the Parole Board’s decision. However, he also made two declarations, which the Home Secretary appealed to the Court of Appeal:

1 The decision to continue to detain a prisoner who has been subject to recall during an extended licence period is a decision which attracts the safeguards of Article 5; accordingly, the detention must be consistent with the aims and objectives of the original sentence and must be subject to regular supervision by reviews which are compliant with Article 5.4.

2 Section 44A(4) of the Criminal Justice Act 1991 must be construed so that the Parole Board is obliged to conclude that it is no longer necessary to

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detain the recalled prisoner unless the Board is positively satisfied that the interests of the public require that he should be confined.

The Court of Appeal26 (unanimously) dismissed the appeal, agreeing with Elias J on the first issue (‘detention during the extension period must be supervised by a judicial body’) and on the second (‘the Board has to be positively satisfied that continued detention is necessary in the public interest if it is to avoid concluding that it is no longer necessary’). However, it also dismissed a cross-appeal: the admission of hearsay evidence does not render proceedings unfair or in breach of the prisoner’s Convention rights.

These cases are described at some length here, not only to expose the reasoning of the courts in this developing area of administrative law, but as examples of the ‘stories’ of those who have been recalled to prison. It is of course only a partial story. Further research might reveal, for example, whether the provision of legal advice to prisoners is declining in quality and/or quantity. Tables 2 and 3, for instance, indicate that although the overall workload of the Parole Board is increasing, the number of ‘repre- sentations after recall’ has fallen in recent years. It is beyond the scope of this article to explore this further: we seek simply to initiate debate and research into this important area.

Conclusions and future directions

There is a growing interest in the United Kingdom and in the European Union in sentencing law and practice. Thus, although it has long been accepted that judges and magistrates may have a number of purposes when imposing a sentence, and that these purposes may indeed conflict, Parlia- ment in section 142 of the Criminal Justice Act 2003 legislated the ‘Purposes of sentencing’:

(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing—

(a) the punishment of offenders,

(b) the reduction of crime (including its reduction by deterrence),

(c) the reform and rehabilitation of offenders,

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences.

We would argue that this list serves little practical function. The different purposes are not prioritized and judges will continue to choose from the menu of options. More importantly, this focuses yet again on ‘front end’ sentencing decisions. Different purposes may be applied by those who decide to recall prisoners, and it is these later decisions which need more openness and transparency.

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In the European Union there is much movement towards the approxima- tion of the rules on criminal law and sentencing.27 Thus, the Commission of the European Communities published a Green Paper on ‘the approxima- tion, mutual recognition and enforcement of criminal sanctions in the EU’ in 2004 in which the key question was ‘whether national differences regarding criminal penalties are an obstacle to attaining a high level of protection in an area of freedom, security and justice’ (Commission of the European Communities, 2004: 2). We still know far too little about these national differences to be able to attempt to answer the questions raised. The Green Paper sets out reasons why the approximation of criminal penalties may be desirable: to help give the public a shared sense of justice, for example, or to enhance mutual trust. These are valuable ambitions, of course, but as the Paper also acknowledges ‘the formula used to harmonise penalties has not been so much to determine effective, proportionate and dissuasive penalties as to set minimum penalties’ (2004: 15). Increasing sentence levels are not likely to reduce levels of crime. Indeed, such increases bring with them serious fairness, justice, cost and effectiveness concerns. Finally, for our purposes, there is little recognition that harmon- ization will only make sense if early release and recall rules are also brought into line.

Little is known about best practices in prisoner recalls worldwide. Because of the costs and perceived inefficiencies of the recall process, most international observers recommend (and indeed most jurisdictions claim to utilize) a system of graduated, community-based sanctions for probation violators, culminating in a return to prison in only the most extreme cases (Carter, 2001). The US state of Georgia has had some success with the implementation of a systematic and consistent policy for graduated sanc- tions, increasing the percentage of successful parole completions from 61 per cent in 1998 to 72 per cent in 2002 (Re-Entry Policy Council, 2005: 392). Much more research is still needed in order to design these escalating sanctions in ways that are the most effective at encouraging compliance.

Some have suggested, for instance, that responses to rule breaking should be therapeutically directed (Gendreau et al., 1994: 173–84). For instance, a probationer who is found to have a dirty urine sample might be ordered to attend some form of addiction counselling rather than returned to prison. Another probationer who regularly misses scheduled meetings might be referred to a structured day programme or life-skills course designed to encourage responsible time-management. In the most serious cases, probationers could be remanded to halfway houses or probation hostels where counselling is available. More research is needed on the effectiveness of all such programmes, and care would be needed to ensure that the deployment of these additional options actually reduced the number of recalls, and did not merely widen the net for the sanctioning of those on licence.

Finally, much more research is needed into the decision to recall and in particular the role of the supervising probation officer. Richard McCleary’s

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now almost 30-year-old ethnographic field observations of parole officer decision making in a Midwestern US city, would be an ideal model for such research (McCleary, 1978). While there is a growing literature (e.g. Gendreau et al., 1994: 173–84) on the use of discretion within the criminal justice system, the sociology of prisoner recall remains a badly under- researched area.

Notes

1 See Sentencing Guidelines Council (2004), or Sentencing Advisory Panel (2004) which suggests 13 degrees of seriousness for offences of sexual assault!

2 See their evidence to Home Affairs Committee, House of Commons (2005: 236). The Criminal Justice Act 2003 release provisions came into force in April 2005.

3 Population in Custody, November 2005 (London: Home Office, RDS NOMS, 2005).

4 Prison Statistics 2002 (Home Office, 2003: 3). 5 See note (a) to Table 2. 6 Early release before the ‘normal’ release date, first introduced in January

1999 (see later). 7 Since this can only be used in respect of curfewees whose original offences

were committed on or after 1 January 1999, the figure may well grow in future years.

8 The reason that relatively few lifers are recalled may well be explained by their low reconviction rates: Kershaw et al. (1997) indicate that of those released between 1972 and 1994, less than a tenth (9%) were reconvicted of a standard list offence within 2 years; this group includes 1 per cent who were reconvicted for a grave offence. A smaller proportion of mandatory life sentence prisoners (8%) than discretionary life sentence prisoners (11%) were reconvicted within 2 years. The low numbers recalled should not disguise the injustice that many individuals may suffer (Padfield, 2002).

9 See note (a) to Table 2. 10 Section 40 was repealed by the Powers of Criminal Courts (Sentencing) Act

2000, Sch. 12(I) para. 1. 11 Words inserted by Crime and Disorder Act 1998, s. 103(3). 12 See the Release of Short-Term Prisoners on Licence (Amendment of Requis-

ite Period) Order 2003 SI 2003 No. 1602. 13 For a review of the changing role of the Parole Board, see Padfield

(2006: 4). 14 See Padfield (2006). 15 See Probation Circular No. 28/2004. The Management of Offenders and

Sentencing Bill 2005, lost with the calling of the general election in April 2005, would have added a polygraph condition (see clauses 47–50).

16 Stocker [2003] Crim LR 293; Teasdale [2003] Crim LR 657. 17 The authors posed the question of how to explain the dramatic increase in

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the use of prison recalls to a group of Cambridge University graduate students, all of whom hold senior positions in either probation or the prison service. This group was able to list over two dozen possible causes, several of which informed our own analysis.

18 Some of the most recent include Morgan and Owers (2001) and Social Exclusion Unit (2001).

19 The Public Accounts Committee, House of Commons, reported that four out of ten prisoners were homeless on release, and that over 40 per cent lose contact with families in the course of a prison sentence (Public Accounts Committee, 2002: paras 2 and 31).

20 The Home Affairs Committee, House of Commons (2005) reports that 66.6 per cent of prisoners have no job on release and only 16 per cent receive any advice or guidance about finding a job.

21 For a parallel literature on the increasing use of conditional bail, see Hucklesby (1994, 2002).

22 R (West) v. Parole Board [2003] 1 WLR 705; R v. Parole Board ex parte West [2005] UKHL 1. See also Padfield, N., ‘Back Door Sentencing’: Is Recall to Prison a Penal Process? [2005] Camb LJ 276.

23 R (Smith) v. Parole Board [2004] 1 WLR 421; R v. Parole Board ex parte Smith [2005] UKHL 1.

24 Under what was then s. 58 of the Crime and Disorder Act 1998 and now s. 85 of the PCC(S)A 2000.

25 [2003] 1 WLR 2548. 26 [2004] EWCA Civ 1845 (distinguishes R (Giles) v. Parole Board [2003]

UKHL 42; [2004] 1 AC 1; cf. [2003] PL 813). 27 Under Article 29 (ex Article K.1) of the Treaty of European Union.

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Statutes

Crime and Disorder Act 1998. Crime (Sentences) Act 1997. Criminal Justice Act 1967. Criminal Justice Act 1991. Criminal Justice Act 2003. Criminal Justice and Public Order Act 1994. Powers of the Criminal Courts (Sentencing) Act 2000.

Cases

R v. Parole Board ex parte Smith [2005] UKHL 1. R v. Parole Board ex parte West [2005] UKHL 1. R (Giles) v. Parole Board [2003] UKHL 42. R (Smith) v. Parole Board [2004] 1 WLR 421. R (West) v. Parole Board [2003] 1 WLR 705. Stocker [2003] Crim LR 293. Teasdale [2003] Crim LR 657.

NICOLA PADFIELD is a senior lecturer in the Law Faculty, University of Cambridge. A barrister by training, she has written widely on criminal law and sentencing, and sits as a recorder in the Crown Court.

SHADD MARUNA is a reader in Criminology at Queen’s University Belfast. His book Making Good: How Ex-Convicts Reform and Rebuild Their Lives was named Outstanding Contribution to Criminology by the American Society of Criminology in 2001.

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