Cavadino-01.qxd 8/3/2007 5:35 PM Page 10 1 Crisis? What Crisis? 1.1 Is There a Crisis? 1.2 The Orthodox Account of the Crisis The high prison population (the ‘numbers crisis’) Overcrowding Bad conditions Understaffing Staff unrest Security ‘Toxic mix’ of prisoners Riots and disorder Criticisms of the orthodox account 1.3 Improving on the Orthodox Account The crisis of penological resources The crisis of visibility The crisis of legitimacy 1.4 Responses to the Crisis 1.5 A Radical Pluralist Account of the Crisis Cavadino-01.qxd 8/3/2007 5:35 PM Page 11 CRISIS? WHAT CRISIS? 11 Is There a Crisis? On 5 May 2006, Home Secretary Charles Clarke – holder of one of the highest offices in the British government – lost his job. The main rea- 1.1son was the deep political embarrassment caused by the revelation that over 1,000 foreign prisoners had been mistakenly released from prisons in England and Wales without being considered for deportation. His successor, John Reid, took over declaring that the Home Office – the government department with responsi- bility for criminal justice and immigration – was ‘not fit for purpose’ (BBC News Online, 23 May 2006). The penal system for which Dr Reid assumed responsibility contained a record number of prisoners, a figure which continued to grow at an alarming rate and threatened to exceed the upper limits of the prison system’s capacity. The Director of the new and troubled National Offender Management Service (NOMS), Martin Narey, had unexpectedly resigned a few months earlier. A spate of cases came to light in which offenders released on licence from prison or under probation super- vision had committed very serious crimes, including some horrific murders. An outcry against an allegedly lenient sentence passed on a paedophile1 caused an intra-governmental dispute between Dr Reid and the Attorney General Lord Goldsmith. The Lord Chief Justice weighed in with a wide-ranging critique of the penal system and especially of overcrowding in prisons, and the Director of the Prison Reform Trust said that the prison system was facing its worst crisis for 15 years (Guardian, 30 May 2006). The Prison Officers’ Association held a ballot on national strike action. In October, Dr Reid announced that some prisoners would have to be held in police cells, and by January 2007 they were also spilling over into court cells. At times like this, it might not seem controversial to claim that the penal system is in a state of crisis. Nor would most people in Britain imagine that this ‘penal crisis’ is either new or sudden. For many years, media reports have acquainted everyone with the notion that rocketing prison populations, overcrowding, unrest among staff and inmates, escapes and riots and disorder in prisons add up to a severe and deepening penal crisis. The term ‘crisis’ has been common currency in both media and academic accounts of the penal system for well over 20 years; the word recurs in newspaper headlines and in the titles of academic books and articles (for example, Bottoms and Preston, 1980; Rutherford, 1988; see also Ramsbotham, 2005).2 Evidence for the existence of a crisis seems to be constantly in the news. Recent years have seen – to mention just a few out of many possible illustrations – embarrassing escapes from two high-security prisons in 1994 and 1995; the dramatic sacking of Prison Service Director General Derek Lewis by Home Secretary Michael Howard in 1995; the jailing in 2000 and 2001 of six prison offi- cers from Wormwood Scrubs for planned and sustained attacks on inmates; the dis- turbing racist murder of Zahid Mubarek by a fellow inmate in Feltham Young Offender Institution in March 2000; plus the list of scandals and embarrassments with which we commenced this chapter. All this comes against the background of Cavadino-01.qxd 8/3/2007 5:35 PM Page 12 12 THE PENAL SYSTEM a prison population scaling ever higher, all-time record levels and a continuing deep malaise running through the penal system as a whole. Yet is it really a ‘crisis’? A cynic could be forgiven for finding the penal crisis uncan- nily reminiscent of the supposed ‘crisis of capitalism’, which some Marxists used con- stantly to insist was real, severe, ever-worsening and likely to prove terminal in the near future. Yet both capitalism and the penal system seem to keep going somehow, unlike those regimes, parties and theories that were founded on Marxism. Perhaps few would dispute that the penal system has serious problems – but is it really in a state of crisis? Then again, how long can a crisis last while remaining a crisis rather than business as usual? Surely there is something paradoxical in claims that the crisis has lasted for decades, or even that the system has been ‘in a perpetual state of crisis since the Gladstone Committee report of 1895’ (Fitzgerald and Sim, 1982: 3). If to be in crisis means that the whole system is on the brink of total collapse or explosion, then we probably do not have a crisis. (Although it should not be for- gotten that when systems do collapse or explode – like the communist system in Eastern Europe in the late 1980s and early 1990s, or the system of order within Strangeways Prison immediately before the historic riot of April 1990 – they can do so very suddenly.) But it can be validly claimed that there is a crisis in at least two senses, identified by Morris (1989: 125). First, we have ‘a state of affairs that is so acute as to constitute a danger’ – and, we would add, a moral challenge of a scale which makes it one of the most pressing social issues of the day. Second, we may be at a critical juncture, much as a seriously ill person may reach a ‘turning point at which the patient either begins to improve or sinks into a fatal decline’. In other words, either the present situation could be used as an opportunity to reform the system into something more rational and humane, or else it will deteriorate into something much worse even than the present. In this book we will be using the ‘C-word’ in these senses to refer to the present penal situation in England and Wales, albeit with slight embarrassment and the worry that it has been used so often and for so long that there is a danger that it may be losing its dramatic impact. Whether or not we choose to use the word ‘crisis’, what are the causes of the state the penal system is in, and how do its different problems relate to each other? The Orthodox Account of the Crisis The orthodox account of the penal crisis is probably still the kind of analysis most often encountered in the mass media. At least until Lord 1.2 Justice Woolf’s3 1991 report into the Strangeways riot (Woolf and Tumim, 1991), versions of it were also regularly found in official reports purport- ing to explain phenomena such as prison disturbances. It is well summarized by the following extract from a newspaper article entitled ‘Why the Prisons Could Explode’ (Humphry and May, 1977): Explosive problems remain in many of Britain’s prisons – a higher number of lifers … who have nothing left to lose; overcrowding which forces men to sleep three to a cell Cavadino-01.qxd 8/3/2007 5:35 PM Page 13 CRISIS? WHAT CRISIS? 13 and understaffing which weakens security. Prisons, too, are forced to handle men with profound psychiatric problems in conditions which are totally unsuitable. This passage gives us almost all the components of the ‘orthodox account’ of the penal crisis. The crisis is seen as being located very specifically within the prison system – it is not seen as a crisis of the whole penal system, or of the criminal justice system, let alone as a crisis of society as a whole. The immediate cause of the crisis is seen as the combination of different types of difficult prisoners – what has been called the ‘toxic mix’ of prisoners (Home Office, 1984a: para. 124) – in physically poor and insecure conditions which could give rise to an ‘explosion’. The orthodox account points to the following factors as implicated in the crisis: 1 the high prison population (or the ‘numbers crisis’); 2 overcrowding; 3 bad conditions within prison (for both inmates and prison officers); 4 understaffing; 5 unrest among the staff; 6 poor security; 7 the ‘toxic mix’ of long-term and life-sentence prisoners and mentally disturbed inmates; 8 riots and other breakdowns of control over prisoners. These factors are seen as linked, with number 8 – riots and disorder – being the end product that epitomizes the state of crisis. Figure 1.1 shows how the different factors interact according to the orthodox account. The high prison population is held responsible for overcrowding and understaffing in prisons, both of which exacerbate the bad physical conditions within prison. The combination of poor conditions and inadequate staffing have an adverse effect on staff morale, causing unrest which (through industrial action, for example) serves to worsen conditions still further. The four factors of bad conditions, overcrowding, understaffing and staff unrest are blamed for poor security, which is another factor contributing to the unstable prison environment. Finally, the combination of the ‘toxic mix’ of prisoners with these deteriorating conditions within which they are contained is thought to trigger off the periodic riots and disturbances to which the prison system is increasingly prone. We do not believe that the orthodox account provides a satisfactory explanation of the crisis, for reasons we shall be giving shortly.