Ian Loader is Professor of Criminology at the University of Oxford and a Fellow of All Souls College.
This week, the Commission on English Prisons Today published its final report, following two years of enquiry. The report - Do Better, Do Less - argues that the English penal system has over the last decade morphed into a bloated, incoherent mess – bursting with record numbers and lacking any coherent rationale. It is this mess that a Conservative government may soon inherit.
The Commission – on which I was proud to serve – argues for a change of direction. It is time, its report says, for English society to stop bingeing on prisons, to radically scale back its dependence on incarceration as the path to social order. To this end, the report suggests breaking with national government interference and targets in favour of localism in criminal justice policy. It makes a powerful case for re-directing the prison budget towards non-penal, community-based methods of reducing crime and re-offending – an approach known as ‘justice reinvestment’. It argues for expanding the use of restorative justice – a justice innovation that is a proven success.
All this is underpinned by the new public philosophy of punishment that our society pressingly requires – what we call penal moderation. This urges restraint in how English society talks about and delivers punishment; calls upon us to recognize and reap the benefits of a minimum necessary penal system, and demands a criminal justice system which treats all whose lives are caught within it with human dignity. Moderation, we argue, is an idea whose time has come - one that fits a dawning era of regulated responsibility in economic and social policy.
But why should these proposals for penal change appeal to those of a conservative disposition, or inform the policies of any future Conservative government? Several reasons suggest themselves. Two of them are obvious, a further three rather less so.
The obvious connections are these. One can point, firstly, to the fact that recent historical instances of moderating penal reform – in respect of juvenile offenders in the 1980s and cuts in the male adult prison population in the early 1990s – took place under Conservative administrations. Penal reform, and the exercise of political leadership in a bid to reduce the use of imprisonment, is by no means alien to the Conservative political tradition in the UK. The regular public outings for Winston Churchill’s famous remark about prisons being a test of a nation’s civilization are a reminder of that very fact.
Secondly, one can highlight conservative unease about state expenditure and its effects, and an attendant concern to ensure that taxpayers’ money is not needlessly wasted. Given the condition of Britain’s public finances, a future Conservative administration may wish – or simply have – to bring this unease to bear on the question of prisons. It may, in other words, have to find the will and a way to persuade taxpayers of the fact that Britain can no longer afford to make such cavalier and costly use of the prison. The days of carefree penal spending are over.
Yet there also exist other – less immediately apparent - ways in which penal moderation can be reconciled with the conservative political tradition. It appeals first to its anti-utopianism. Conservative writers from Edmund Burke to John Gray have unwaveringly opposed what they see as the misplaced arrogance of any utopian blueprint for re-making the social and political order. But by what other name are we to call the prison experiment of the last 15 years? Prison has, during this time, stood at the heart of a punishment obsessed vision of a society free from crime-risk and been central to governmental efforts to coerce such a world into existence. This political vision has become the ideology of a post-ideological age. Any conservative, properly so called, will stand aghast at the folly of it all.
Penal moderation may connect, further, to those aspects of conservatism that have to do with conservation. I do not mean by this the desire to keep things as they are, to freeze the present in aspic; but, rather, the idea that government has a duty to ‘look after’, and tend prudently, a nation’s natural, social and human resources. For a penal moderate, this is just how we should understand imprisonment, as an institution which we use (up) reluctantly, with sorrow, when there really is no alternative. Re-cast in the language of conservatism, prison becomes a scarce resource that wise political leaders know must be deployed sparingly, with immense care, and with due regard to the inescapable costs of doing so.
The prison is, finally, a standing offence against a key conservative idea on crime – individual responsibility. As those who analyze or campaign against them never tire of pointing out, and those who work or who are detained inside them know from daily experience, prisons are responsibility-free zones. It is also important to point out that prisons free inmates from responsibility not because they lack resources or are badly managed, but because they are prisons. They are institutions that further rob individuals of the very thing that conservatives believe offenders must cultivate if they are not to re-offend.
To be sure, there are programmes prisons can and do put in place to temper this basic fact and help prisoners to address their behaviour and turn round their lives. But these initiatives will maximize the chances of some success – of generating acknowledgment of the harm their actions have caused among those who are incarcerated - when our society makes minimal use of imprisonment, and genuinely strives to make prison a place of last resort. Success requires us, in short, to stop bingeing on prisons.
Penal moderation is not then simply a rallying-call for the usual suspects, of interest only to liberals, defence lawyers and penal reform groups. When we have been governed for over a decade by those who are best described as penal extremists, and now need to navigate away from the mistakes and costs of such excess, penal moderation is a conservative cause.
