The revolving door at theprison gate exploring the dramati
1. The revolving door at the
prison gate:
Exploring the dramatic increase in
recalls to prison
N I C O L A PA D F I E L D A N D S H A D D M A R U N A
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’
3. 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
4. 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
Criminology & Criminal Justice 6(3)330
5. 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
6. 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).
7. 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
8. 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
9. 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)
Criminology & Criminal Justice 6(3)332
10. 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
11. 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
12. (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.
13. 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
14. 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
15. 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
16. 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
17. 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
18. ‘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;
19. (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
20. 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
21. 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
22. 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
23. 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-
24. 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
25. 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 attentio n
that might
surround a probationer who is released from prison early and
commits a
26. 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 or justice;
2 objectives of offender management and classification rather
than punishment
27. or rehabilitation;
3 new techniques of classifying and managing risks from
widespread drug
testing to the use of statistical/actuarial risk prediction
instruments.
Central to the ‘New Penology’ is the assumption that there is ‘a
special
subpopulation of dangerous offenders whose identification and
neutral-
isation would result in dramatic reductions in the overall crime
rate
without resulting in a massive increase in the [prison
population]’ (Simon,
1996: 26).
Importantly, the New Penology concept originated in California,
which
is unique even in terms of the United States and is most
certainly an
imperfect theoretical framework for understanding the
contemporary scene
in the United Kingdom. In particular, the renewed focus on
rehabilitation
and reducing re-offending in the UK makes the situation here
almost the
Padfield & Maruna—The revolving door at the prison gate 339
opposite of what has been happening in California over the last
three
decades. That said, …