Simply locking people up and throwing the key away doesn't work.

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There are at least four different reasons why a society might decide to imprison those who break its agreed rules, and the debate about an early release scheme – driven not by any concerns about justice or fairness, but by a lack of places in which to lock up even more offenders – doesn’t really seem to have paid a lot of attention to the balance between them.

The first is as a form of punishment, and this is the one which seems to have attracted all of the attention. Indeed, most demands for ‘justice’ seem to revolve around the length of a prison sentence handed down to an offender, with the degree of ‘justice’ delivered apparently depending mostly on the length of that sentence. And most of the outcry against the early release scheme has related to the idea that the level of punishment is being reduced.

The second reason is about public protection / prevention of re-offending. When it comes to the question of whether or not ‘prison works’, this is the one area in which one can say unequivocally that it does indeed work, because an individual locked in a cell cannot re-offend during the period of incarceration. Whether (s)he would have done so unincarcerated is much harder to answer.

The third reason is about deterrence. The underlying rationale is that if someone commits a crime and gets a lengthy sentence as a result, then it will deter others from committing the same crime. It is far from clear that this actually works, given that it assumes that the criminal is carefully weighing up the odds of being caught and found guilty before taking a rational decision as to whether to offend or not. A lot of crime (admittedly not all) is either opportunistic or committed in the heat of the moment – ‘deterrence’ is unlikely to make much of a difference.

The fourth reason is about rehabilitation / re-education – trying to ensure that offenders are unlikely to re-offend when released and can more easily re-assume their place in society. It’s an area where the UK justice system is notoriously bad – offenders are more likely to learn new ways of offending than new skills for their future.

The biggest problem with the UK government’s early release scheme is that it is primarily based on considering the category of crime committed rather than looking at all the circumstances of the offenders. So when an offender is considered by the public at large to be unsuitable for release, the government resorts to excluding all those who have committed the same or a similar crime. Even leaving aside the question about whether public rage (often whipped up by the tabloid press) is the right basis to determine whether an individual should or should not be released early, treating all those who have committed similar crimes in the way that the public demands one of them should be treated is a bit like abdicating responsibility to a mob.

Instead of debating whether we should really be locking up so many people (more than many other European countries), politicians have chosen to invent more crimes and equate ‘justice’ with longer terms in prison, competing to see who can mandate the longest and harshest sentences (in the belief that it will be popular), during which those imprisoned not only contribute nothing to society but also cost an ever-increasing sum to keep them economically inactive. Without building the extra spaces that such an approach inevitably requires. The result is a panic last minute response to a crisis of their own making which finds them with neither the time nor the resources to make a proper assessment of which prisoners should be released early and which should not. It’s a response which serves the interests of neither the prisoners themselves nor society at large. And there’s still no sign that the problem is really being recognised.

Can Wales learn from Estonia?

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There was some speculation last week about whether the UK government would take up an opportunity to fly criminals to Estonia so that they could serve their time in an Estonian prison rather than an overcrowded British one. The speculation didn’t last long. But the question that I found myself wondering about wasn’t so much whether the UK should seize the opportunity as why the opportunity existed in the first place. Why are there so many unused places in Estonian prisons that renting them out looks like an opportunity?

The numbers aren’t enormous anyway. With a population of less than one and a half million (too small to be a country at all, according to many unionists) Estonia only has around 3000 places, and a majority of those are occupied by people incarcerated by Estonian courts. Any difference it could make to the UK’s current problems would necessarily be marginal. Conditions, though, tend to be better than those in the UK, although that would be an obvious problem for the UK’s tabloids who seem to dictate government policy on the issue.

Asking why Estonia has spare places leads us to a question about why the UK is imprisoning so many people in the first place. Debate on crime has become something of a contest between the two main UK parties to see which can promise to imprison the greatest number of people for the longest periods for the greatest possible range of offences. And demands for ‘justice’, and ‘bringing people to justice’ often sound more like a demand for retribution and punishment; true ‘justice’ is a rather more nuanced concept. Punishing people who have transgressed against the rules which society has laid down (leaving aside here any question as to whether those rules are themselves fair or reasonable) is one reason for imprisoning people, but prison is only one possible means of punishment. Locking up persistent offenders may prevent further offending during their period inside, and that’s a second possible reason for using prisons. Rehabilitation and re-education is a third, but the extent to which that happens in overcrowded, underfunded and understaffed prisons is limited to say the least. Then there’s deterrence, but the extent to which lengthy sentences deter people from committing crimes is debateable. Many crimes are ‘spur-of-the-moment’ rather than preplanned, and deterrent only works if potential criminals are carefully analysing the potential outcomes before deciding to commit a crime. And that analysis would necessarily also include the chances of being caught – when criminals know that understaffed police forces will simply fail to investigate many crimes, the power of deterrence is significantly weakened. We also know that many of those incarcerated have real problems with mental health or substance misuse, for neither of which are there adequate services available, and for neither of which is imprisonment any type of solution.

We know that sending people to prison has a number of consequences for both the individuals and their families. But it also has economic consequences – not just the costs of keeping people in prison, but also the economic loss if people lose their jobs and stop paying tax, an effect which can last long after release, during which time the benefits bill also rises. The impact on families can be severe; absence of a parent coupled with a reduction in household income can seriously affect children’s life chances, even if the family remains together post-prison. Sometimes, there is little alternative to a custodial sentence, but the political trend seems to be increasingly seeing it as a first resort rather than a last resort. Coupled with a reluctance to spend money on buildings or facilities for anyone in need in society – let alone for criminals – the Labour-Tory impetus to be seen to be tougher than the other leads inevitably to the sort of crisis which we now face.

It doesn’t have to be that way, though. Improved mental health and drug abuse services would help to avoid many crimes, and alternatives to imprisonment would not only reduce the costs but also help to maintain cohesive families. Perhaps there’s even a revenue opportunity for Wales opened up by the Estonian approach. If Wales were independent, or even if criminal justice were fully devolved, we could adopt an approach leading to reduced use of prison sentences, maybe even leaving us with spare capacity to rent out to the prison-obsessed English government.