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The politics of the ‘prisoners left behind’

At the time of its creation, the Imprisonment for Public Protection (IPP) sentence, targeted at ‘dangerous offenders’ considered likely to commit further serious offences, elicited little parliamentary debate and even less public interest. Created by the Labour government’s Criminal Justice Act 2003, the sentence was subsequently abolished by the Conservative-led coalition government in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Why should we be concerned with this extinct sentence? Why, indeed, might we reasonably describe it as one of the most important developments in British sentencing law and penal policy in recent decades? We can do so, first, because of what it represents: the dramatic rise of preventive sentencing and risk-oriented penal policy. Second, because its effects have been dramatic: over 8,200 IPP sentences having been imposed from April 2005 to September 2012. This has contributed to the dramatic rise of the indeterminate prison population in England and Wales, which heavily outstrips those of its European neighbours.

Further, 12 years on from its creation, this preventive sentence has proved to have a very long tail. As of June 2015, over 4,600 of those sentenced to IPP remain in custody. Over 3,500 are still in prison despite having passed their tariff expiry date, the minimum period they must spend in custody before release. Campaigners have argued that delays to their release are inherently unfair; Parliament recognized this when abolishing the sentence, but did nothing to address the position of those imprisoned under the original legislation. Delays to release are often caused by prisons’ failure to provide the necessary training and treatment programmes, and delayed Parole Board hearings. The continued detention of these prisoners also presents substantial control problems for the prison governors and staff charged with their management. David Blunkett, the Home Secretary who had introduced the sentence, has publicly regretted the injustices that it had caused.

All of this might lead to us viewing the IPP sentence – its creation and its subsequent effects – as being a clear demonstration of the inability of politicians to pursue penal policies that are both reasoned and responsible. Take the politics out of penal policy: bring back the Royal Commission; imitate the Monetary Policy Committee. There is clearly something in this diagnosis. However, there are three points which we might usefully make.

 As of June 2015, over 4,600 of those sentenced to IPP remain in custody. Over 3,500 are still in prison despite having passed their tariff expiry date, the minimum period they must spend in custody before release.

First, while ministers formally bear the responsibility for policy decisions, any critic must recognise that policy outputs are the result of interactions between a range of politicians, civil servants, and many other participants. The working relationship between these participants can differ greatly, and importantly, influence policy formation. As regards to ‘prisoners left behind’, while the political risk associated with releasing ‘dangerous’ offenders is clear, key civil servants also supported (and still support) this position as being entirely responsible.

Second, we must be careful in our understanding of ‘populist’ policies. For example, Lisa Miller argues that increased state interest in crime control has tended to track actual levels of violent crime. In this sense, state response to public concern is not in itself necessarily problematic, even if specific measure might be. If governments contain in their manifesto various criminal justice policy commitments, it is hard to argue that their election does not confer some level of legitimacy on future measures they may take.

Third, this does not necessarily mean that a misguided public, providing knee-jerk reactions to exceptional crimes, are part of the problem. An equally, if not more, compelling case might be made that developments such as the IPP sentence result from a deficit in meaningful public engagement. Policymakers currently operate in a realm of what I have come to term ‘illusory democratization’ – the public are a constant reference point, the idea of ‘the public’ as a driver of hasty reforms and often a perceived constraint on progressive policy change, but meaningful engagement with specific publics is an exception to the general rule. Many have convincingly argued that involving the public much more centrally in deliberations relating to crime policy is not only appropriate in a democratic society, but may lead to better outcomes in the short and longer term.

As regards to the IPP ‘prisoners left behind’, it seems unlikely that further action will be taken, notwithstanding the huge costs – financial and human – of this situation. This battle has been waged, resolution has been reached, and there is little prospect of it moving up the policy agenda once again. However, we may be approaching a fork in the road for penal policymaking more generally, with there being potential for a less punitive, more progressive path being taken. Talk is not necessarily action: how the government’s penal policy agenda unfolds in the coming months, what position the Labour opposition decides to adopt, and to what extent the localism agenda opens up space for public deliberation, remains to be seen.

Featured image credit: Barbed wire fence by Stokpic. CC-BY-2.0 via Pixabay.

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