After reading Chapter 6 of the Mosher textbook, discuss how the proces

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

NICOLA PADFIELD AND SHADD MARUNA

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.

Criminology & Criminal Justice 6(3)334

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).

Padfield & Maruna—The revolving door at the prison gate 335

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;

Criminology & Criminal Justice 6(3)336

• 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:

Criminology & Criminal Justice 6(3)338

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

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