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Tracing the Gordian Knot: Indeterminate-Sentenced Prisoners and the Pathologies of English Penal Politics

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Abstract

This article explores some of the key pathologies of English penal politics by applying an interpretive political analysis perspective to the specific issue of the plight of the ‘prisoners left behind’, the thousands of indeterminate-sentenced IPP (imprisonment for public protection) prisoners who remain incarcerated, notwithstanding the abolition in 2012 of this sentencing option targeted at ‘dangerous offenders’. The article draws on research findings from an ESRC funded study of penal policymaking to examine why the Gordian knot of the prisoners left behind has proved to be so hard to untangle. The broader lessons of this specific story are then set out. In particular, it is argued that the public and political debate around criminal justice has become damagingly narrow over recent years.
Tracing the Gordian Knot: Indeterminate-
Sentenced Prisoners and the Pathologies of
English Penal Politics
1
HARRY ANNISON
Abstract
This article explores some of the key pathologies of English penal politics by applying
an interpretive political analysis perspective to the specic issue of the plight of the
prisoners left behind, the thousands of indeterminate-sentenced IPP (imprisonment for
public protection) prisoners who remain incarcerated, notwithstanding the abolition in
2012 of this sentencing option targeted at dangerous offenders.Thearticledrawson
research ndings from an ESRC funded study of penal policymaking to examine why
the Gordian knot of the prisoners left behind has proved to be so hard to untangle.
The broader lessons of this specic story are then set out. In particular, it is argued that
the public and political debate around criminal justice has become damagingly narrow
over recent years.
Keywords: penal policy, indeterminate sentencing, risk, penological imagination
THE ENGLISH and Welsh criminal justice sys-
tem is in crisis. The prison population of
England and Wales continues to rise, while
staff numbers and available resources
remain heavily constrained following dra-
matic cuts. Self-harm, assaults and suicides
are worryingly high and increasing. Distur-
bancesand incidentsin prisons (what
might previously have been referred to as
riots) have occurred with increasing fre-
quency. In the community, probation ser-
vices are still reeling from the reckless
marketisation imposed by the 20102015
ConservativeLiberal Democrat coalition
government.
Within this troubling context exist 3,100
indeterminate-sentenced prisoners, serving
sentences of imprisonment for public protec-
tion (IPP). The vast majority of IPP prisoners
are male (98 per cent). One-third of IPP pris-
oners are aged 3039; four-fths are aged
1849. Over two-thirds of unreleased prison-
ers received an IPP for offences of violence
against the person or sexual offences. As of
March 2016 there were 110 unreleased pris-
oners serving Detention for Public Protection
(DPP)the IPP equivalent for children aged
under 18.
These individuals will only be released
from prison when the Parole Board is satis-
ed that it is no longer necessary for the pro-
tection of the public that the prisoner should
be conned. This typically requires an IPP
prisoner to progress through the penal estate
towards open conditions, along the way
completing various offender behaviour pro-
grammes (OBPs) deemed to be required in
order for them to address their risk. Work-
ing in prison, maintaining family relations
and having a supportive structure in place
for (eventual) release all tend to be of assis-
tance to the prisoner.
However, the general problems facing the
penal system are felt particularly acutely by
this group. The historic under-resourcing of
the Parole Board has led to signicant delays
in parole hearings; six months is not uncom-
mon. This is compounded by the delays
encountered in accessing offending beha-
viour programmes (OBPs), other interven-
tions, and movement through the penal
estate towards open conditions.
The justiable grievances felt by this
group of prisoners is exacerbated by the fact
that this sentence was abolished over ve
years ago. Since 2012, no further IPP
The Political Quarterly, Vol. 89, No. 2, AprilJune 2018
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Political Quarterly Publishing Co (PQPC).
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197
sentences could be imposed. Over 3,100 pris-
oners are therefore serving indeterminate
sentences, notwithstanding their repudiation
on the basis that they were unjust and
impractical. Further, from 2008 an IPP sen-
tence could only be imposed if the tariff was
at least two years (equivalent to a four-year
determinate sentence). Currently 470 prison-
ers (15 per cent of the total) therefore nd
themselves still in prison, at least eight years
beyond their tariff, serving a de facto life sen-
tence due to the date on which they commit-
ted the relevant offence.
Drawing on ndings from an empirical
study of these developments, I will briey
set out the history of the IPP story, before
exploring the post-abolition landscape and
its broader lessons regarding the penal poli-
tics of England and Wales. The research pro-
ject involved the reconstruction of the IPP
story, from the initial sightings in 2001
through to its abolition in 2012 and beyond.
The research involved more than sixty in-
depth interviews with a wide range of
senior, national-level policy participants. I
sought to understand what happened; what
actors thought they were doing (not neces-
sarily the same thing); and the lessons for
broader penal theory that could be drawn
from this study underpinned by interpretive
political analysis.
In this article, I will consider in particular
why the Gordian knot of the prisoners left
behind has proved to be so hard to unravel.
I will trace the threadsof this particular
Gordian knot, of which there are many, often
relating to the political dynamics in play.
There are also deeper, what we might term
cultural, factors. I will focus in particular on
two such issues. First, the impact of the
otheringof these individuals as dangerous
offenders, excluded by denition from mak-
ing moral demands on society or, indeed,
policymakers. Second, the ongoing grip of a
public protection paradigm on penal policy,
and indeed the narrow boundaries of this
perspective (not least that continued, lengthy
imprisonment necessarily equals increased
public safety). I will suggest that the intersec-
tions of these two dynamics pose consider-
able difculties for remaining IPP prisoners.
They also point to the broader lessons pro-
vided by a sentence that, while abolished,
continues to have signicant effects.
The Imprisonment for Public
Protection story
In 2003, an indeterminate sentence targeted
at dangerous offendersthe IPP (Imprison-
ment for Public Protection)was introduced
by the Labour governments Criminal Justice
Act 2003. To simplify a more complex tale,
2
this was driven primarily by Home Secretary
David Blunketts concern with several high-
prole cases at the time, where determinate-
sentenced prisoners went on to commit seri-
ous crimes on release; offences which it was
considered, in hindsight, could have been
prevented. In a context of rising media and
professional attention being trained on issues
of risk and public protection, and with a
fusion of ideological preferences and elec-
toral concerns, policies targeted at danger-
ous offenderswere highly appealing to the
then Labour government.
The dangerous offender envisaged by the
IPP sentence is a repeat offender, one who
has and is likely to commit serious violent
or sexual offences. It stands apart from
other preventive measures targeted at, for
example, terrorism suspects or those (poten-
tially) engaging in anti-social behaviour.It
was targeted at offenders who, at the point
of sentencing for one of the 153 specied
offences, were considered by the sentencing
judge to pose a signicant risk to members
of the public of serious harm occasioned by
the commission by him of further specied
offences. The sentence as originally enacted
did not provide for a minimum tariff: while
the average tariff length for a standard
lifer was at that time approximately thir-
teen years, the tariff period of an IPP pris-
oner could be measured in months, if not
weeks (and indeed sometimes this was
the case).
The structure of the IPP sentence mirrored
that of a life sentence: the trial judge states
the minimum term commensurate with the
seriousness of the offence (the tariff). After
expiry of the tariff, the offender is released
on licence only if the Parole Board is satis-
ed that he or she no longer poses a risk to
the public. A particularly controversial ele-
ment of the sentence was the lack of judicial
discretion. If the requirements of the sen-
tence were met, then an IPP sentence had to
be imposed.
198 H ARRY ANNISON
The Political Quarterly, Vol. 89, No. 2 ©2018 The Authors. The Political Quarterly published by John Wiley & Sons Ltd on behalf of
Political Quarterly Publishing Co (PQPC).
An IPP prisonersrst opportunity for a
parole hearing comes, in theory, at the end of
their tariff period. In practice, they must rely
on the smooth working of the penal system in
affording them the opportunity to engage in
appropriate courses, move to lower security
category prisons at appropriate intervals, and
for the probation service, prison service and
Parole Board to be in a position to enable a
swift and meaningful parole hearing.
The wording of the IPP sentencecoupled
with the febrile tough on crimepolitical cli-
mate of the timeled to the imposition of
over 8,000 IPP sentences in total. The average
tariff length was three years and ve months
(it was two years six months before the
amendments of 2008: on which, see below).
When standardlife sentences are taken into
account, by 2010 the number of indetermi-
nate-sentenced prisoners in England and
Wales had tripled from 1998 (4,000 to 13,000)
and doubled as a proportion of the overall
prison population from 1995 (9 per cent to 18
per cent). Nearly 1,000 people were going into
prison every year on IPP sentences (as pre-
dicted by the Home Ofces own internal pro-
jections); very few were coming out.
In 2008, the IPP sentence was amended so
as to introduce a minimum tariff of two
years (that is, four-year determinate sentence
equivalent), while the number of eligible
specied offenceswas reduced. Most
importantly for many, the limits on judicial
discretion were removed. This reduced the
number of IPP sentences being imposed, but
by no means to a sustainable level.
In 2012, the IPP sentence was abolished by
Justice Secretary Kenneth Clarke. The rheto-
ric surrounding the sentence, previously cast
by the Labour government as a crucial
means of protecting the public from danger-
ous offenders, changed dramatically. It was
derided as an unjust and illiberal tool of
oppression, based on the awed assumption
that criminal justice practitionersrelying on
the various risk technologies that have pro-
liferated over recent yearscould effectively
predict the future.
The 2012 (and 2008) legislative measures
were prospective; they had no effect on this
existing population. Therefore while the IPP
population has reduced (from approximately
6,000 in 2012), we have seen that a consider-
able number of prisoners remain. Over 80
per cent of these prisoners are beyond their
tariff expiry date.
Under the legislation as it now stands, all
those sentenced to IPP remain on licence for
the rest of their life once released from
prison. (Prisoners can apply for the licence to
be ended after ten years, post-release.) By
June 2017, over 760 of the approximately
3,300 IPP prisoners released from custody
had been recalled to prison. This represents
over 20 per cent of all released IPP prisoners,
a rate which the Prisons Inspectorate
recently described as concerningand which
could not have been the intention when the
sentences were passed.
The IPP sentence has been forcefully criti-
cisedin principle and on the basis of its
practical effectssince its inception, and calls
for reform have become ever more pressing.
Concerns include the under-resourcing of the
systems intended to help prisoners to pro-
gress towards release; the awed assump-
tions underpinning the sentence itself; the
stigma attaching to the dangerouslabel; the
difculties of proving a reduction in risk to
the parole board through participation in
offending behaviour programmes; and the
iatrogenicthe harmful and counter-produc-
tiveeffects of indeterminate detention.
A recent thematic report by the Chief
Inspector of Prisons has joined two earlier
thematic reports and publications by many
reform groups and researchers in pointing to
the problems at the heart of the sentence.
3
Some limited progress is being made, but
this is uneven and painfully slow.
Notwithstanding the increasing release
rate for IPP prisoners, many prisoners and
their family members continue to feel con-
siderable despair. Many prisoners have
found themselves imprisoned years beyond
their tariff (the average is four years, but
ve to ten years is not uncommon). They
have found themselves trapped in a Kafka-
esque system of delays, setbacks, rules and,
fundamentally, the requirement to prove a
negative: that it is no longer necessary for
the protection of the public that they should
be conned. In 2015, the Prison Reform
Trust reported that the incidence of self-
harm per 1,000 IPP prisoners had perhaps
unsurprisingly risen to 550, almost three
times that of prisoners serving a life sen-
tence.
TRACING THE GORDIAN KNOT 199
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Political Quarterly Publishing Co (PQPC).
The Political Quarterly, Vol. 89, No. 2
This situation is occurring within, and
starkly highlights, the broader prisons crisis
in England and Wales. Though an over-used
term, it is hard to describe the present situa-
tion otherwise. Two-thirds of prisons are
overcrowded. Safety in prisons is declining
rapidly; serious assaults in prison have more
than doubled in the last three years; rates of
self-harm are at the highest levels ever
recorded; and self-inicted deaths have risen
to near-record levels. Between 2010 and 2015,
the budget for prisons and probation was
reduced by a quarter. Sustained staff cuts
have seen the number of operational frontline
staff also fall by a quarter: 6,500 fewer staff
without a reduction (indeed a small increase)
in prisoner numbers. While some limited
improvements in numbers are now being
achieved, the ongoing departures of long-ser-
ving prison ofcersat a rate of nearly 10
per cent per yearmeans that the service is
becoming increasingly inexperienced.
It is also clear that rather than sparking a
rehabilitation revolution, the then Justice
Secretary Chris Graylings part-privatisation
of probation servicesand the organisational
ssures that this was deemed to require
has led to a serious deterioration in the
supervisory and rehabilitative work carried
out by probation staff. With sentencers los-
ing faith in community sentences, their use
has halved since 2006. Over-stretched proba-
tion staff are struggling to full their duties,
including producing offender manager
reports for parole hearings, developing ade-
quate release plans and providing supervi-
sion upon release. The very high rate of
recalls of IPP prisoners to custody for techni-
cal breaches of licence requirements raises
serious questions about current practice.
A small chink of light is provided by the
successful efforts of the Parole Board to
grasp the problems that had bedevilled it for
years. Approximately 100 additional Parole
Board panel members have been recruited;
processes are being simplied with a view to
favouring release wherever possible; other
criminal justice agencies are being encour-
aged to play their part in resolving the
delays and challenges facing indeterminate-
sentenced prisoners. Visible, consistent lead-
ership is being provided.
However, this visible leadership stands as
something of an exception; senior individuals
in other relevant organisationsincluding
ministers in the departmentare notable for
their low prole. Part of this may be
explained by the fact that the current Parole
Board chair was previously Chief Inspector
of Prisons, adding a heft to his comments
and efforts to engage with other elements of
the systemthat may otherwise be absent.
The prisoners left behind
The abolition of the IPP sentence was a sig-
nicant achievement. But this is of little com-
fort to the IPP prisoners left behind; worse,
it only accentuates their sense of injustice.
The situation at present is bleak.
Under-resourcing and delays
Parole Board hearings for IPP prisoners have
often been signicantly delayed. This is com-
pounded by the delays encountered in
accessing offending behaviour programmes
(OBPs), other interventions, and movement
through the penal estate towards open con-
ditions. These delays have been subject to
judicial review in a series of cases that
reached the European Court of Human
Rights. Successive governments have faced
severe criticism by the senior judiciary for
their failings in relation to the IPP; albeit
while the practical failings have resulted in
successful claims for damages, any chal-
lenges to the lawfulness of the sentence itself
have been swiftly rebuffed.
It appears that the tide is nally turning
and the Parole Board is successfully address-
ing the long-standing backlog of hearings
that have particularly affected IPP prisoners.
The Parole Board is strengthened by the
addition of its new members and changes to
their rules should allow for greater exibility
and speed, especially in relation to recalls.
The number of outstanding cases stood at
over 2,500 in 20142015, but has now fallen
signicantly, to under 1,300. In 20102011,
11.5 per cent of IPP cases reviewed resulted
in prisoner release; in 20152016, 35 per cent
of the cases reviewed led to release. Given
these changes, the Parole Board hopes to
reduce the number of IPP prisoners in prison
to 1,5002,000 by 2020.
However, signicant problems remain.
Notwithstanding the clear identication by
200 H ARRY ANNISON
The Political Quarterly, Vol. 89, No. 2 ©2018 The Authors. The Political Quarterly published by John Wiley & Sons Ltd on behalf of
Political Quarterly Publishing Co (PQPC).
multiple bodiesincluding the Ministry of
Justice itselfof the need for substantial
additional resourcing for over a decade now,
the recent Prisons Inspectorate Thematic
Report reported that the funding of systems
and staff still does not sufce. In fact, they
are being stretched increasingly thinly and
there are risks that prisoners will struggle to
access the support they need and that delays
will increase still further. It is therefore per-
haps not surprising that despite years of ac-
tion, the Inspectorate found that many
prisons did not provide good quality offend-
er managementincluding timely assess-
ment and ongoing contact with their
offender supervisorsto support IPP prison-
ers in their progression.
Resulting injustice
A loose coalition of campaignersincluding
penal reform groups, members of the House
of Lords, a small number of MPs, and fami-
lies of IPP prisonershave argued since
2012 that a deep injustice was being perpet-
uated by the continued detention of the
post-tariff population notwithstanding the
abolition of the sentence. This was particu-
larly the case for those who had received
tariffs of less than two years, before the
amendments of 2008 were introduced. A
number of senior judges, and retired judges
in the House of Lords, have criticised the
IPP sentence in strident terms on this basis.
More prosaically, the Prison Governors
Association (PGA) has argued that the situa-
tion post the Legal Aid, Sentencing and Pun-
ishment of Offenders Act 2012 (LASPO) is
causing resentment and frustration among
both IPP and other prisoners, that the per-
ceived unfairness resulted in increased disci-
pline problems and security threatsand
there was frequently ... a negative impact
on the health and wellbeing of those serving
the sentence.
4
Resulting harms
Confronted with a ninety-nine yearsen-
tence upon arrival from court into prison (a
workaround for systems that were not
designed for indeterminate sentences), little
information was provided to IPP prisoners
to explain the nature and implications of the
sentence. Notwithstanding the centrality of
offending behaviour programmes (OBPs) to
progress through, and release from, an IPP
sentence, there were severe shortages in such
programmes and reports of basic administra-
tive failings were commonplace. Prisoners
would nd themselves sent to prisons to
complete a programme that was, in fact, no
longer provided at that establishment, or
they would nd themselves required to com-
plete courses for which they were not suit-
able (due to disability, or maintaining
innocence, for example). Remarkably, these
issues, which were apparent within months
of the sentences implementation, continue to
undermine the IPP system over a decade
after its introduction.
IPP prisoners have found themselves
assailed on both sides: determinate-sen-
tenced prisoners are perceived to behave as
they pleased in prison, including being able
to goad, bully or implicate in unlawful activ-
ity IPP prisoners, safe in the knowledge of
their own denite release. On the other side,
life sentence prisoners blamed IPP prisoners
for their own difculties in making progres-
sion towards release (with IPP prisoners per-
ceived to be taking their courses).
5
It was envisaged by those driving the cre-
ation of the IPP sentence that its indetermi-
nate nature would motivate dangerous
prisoners, supported by appropriate mecha-
nisms, to turn their lives around. However,
the sentence has proved rather to engender
uncertainty, anxiety and a loss of hope
among serving prisoners and their families.
The lack of a release date eroded any sense
of hope that IPP prisoners had attempted to
foster and was damaging relationships with
family and friends. In light of the recent
Farmer review
6
into the importance of
strengthening prisonersfamily ties, warmly
welcomed by the Ministry of Justice, this
concern becomes only more acute.
The effects on family members
Research I am currently conducting with
Rachel Condry of Oxford University explores
the secondary pains of imprisonment experi-
enced by family members of IPP prisoners.
Our emerging ndings, based on interviews
and surveys of family members, suggest that
family members nd themselves suffering an
TRACING THE GORDIAN KNOT 201
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Political Quarterly Publishing Co (PQPC).
The Political Quarterly, Vol. 89, No. 2
open-ended bereavement. One family mem-
ber movingly described how her experience
of her prisoners indeterminate imprison-
ment was more painful than the earlier
death of a young family member; any level
of closure was impossible to achieve. The
emotional and practical burdens placed on
family members are considerablerequired
not only to provide ongoing emotional sup-
port, but also to act as amateur lawyers and
advocates for their imprisoned relative.
These burdens, coupled with the usual dif-
culties experienced by prisoner family
members generallylong travel to prisons
and associated costs, opaque and unhelpful
prison rules, stigmatisation, and so on
grind IPP family members down. Births,
marriages and deaths occur; life goes on.
Release (where it comes) brings only added
uncertainty, with fear of a knock on the door
signalling recall to prison always in the back
of the mind.
We have further been informed of the dra-
matic negative health impacts on relatives
and others supporting IPP prisoners.
Accounts of chronic insomnia and an array
of stress-related illnesses were commonplace.
The pain caused by the uncertainty of the
indeterminate sentence is exacerbated for
many by exasperation at the inaction by pol-
icymakers. Relatives cannot understand how
apparently full agreement amongst policy-
makers that the IPP is a discredited sentence
with unacceptable practical effects does not
translate to substantive policy change.
Addressing the problem of the
prisoners left behind
A number of proposals to address the prob-
lems of the IPP prisoners left behindthat
go beyond existing legislative structures
have been made. These include:
1 Conversion of IPP sentences to determi-
nate sentences (likely extended periods
with an additional licence period). This
could be effected through a system of re-
sentencing prisoners against current avail-
able sentencing provisions.
2 Introduction of a sunset clause. This
would ensure that IPP prisoners cannot be
imprisoned for longer than the maximum
possible sentence length for the offence
committed. This proposal provides little
assistance to those sentenced for offences
whose maximum sentence is life imprison-
ment (robbery is a pertinent example). In
such cases alternative principles would be
required in order to establish the appropri-
ate maximum length of imprisonment.
3 Reversal of the risk test. Section 128 of
LASPO enables the Justice Secretary to
alter the release test for indeterminately-
sentenced prisoners, but it has not cur-
rently been utilised. This could be used to
reverse the test, placing the burden on
the Secretary of State to demonstrate that
IPP prisoners remain dangerous and
require to remain incarcerated.
4 Executive release of some IPP prisoners.
Most obviously, this could be applied to
short tariff prisoners, that is, those serving
tariffs of less than two years, who could
not have received IPP sentences after the
2008 amendments. This could be effected
utilising the compassionate release provi-
sions of the Crime (Sentences) Act 1997, as
interpreted recently by the cases of Newell
and McLaughlin and Hutchinson v UK in
relation to whole life tariffs.
5 Shorten licence periods. There is a grow-
ing consensus that the automatic life
licence for released IPP prisoners is inap-
propriate in principle and undesirable in
practice. It has been suggested that licence
periods of two to ve years would be
more appropriate.
6 End the IPP on release. Parole Board chair
Nick Hardwick has suggested that
breaches of licence conditions, or further
offending, should be dealt with on their
merits and not result in a return to prison
on the indeterminate sentence.
Views reasonably differ on which of these
options should be taken up. The fth and
sixth proposals are rightly gaining increasing
traction amongst parliamentarians. And
while the rst proposal appears implausible,
any of the remaining proposals should be
considered by a responsible government that
takes seriously its responsibilities to those
detained in its prisons (and on licence).
However, since the abolition of the sentence
in 2012, successive Justice Secretaries have
202 H ARRY ANNISON
The Political Quarterly, Vol. 89, No. 2 ©2018 The Authors. The Political Quarterly published by John Wiley & Sons Ltd on behalf of
Political Quarterly Publishing Co (PQPC).
resisted calls to take action. They have
depicted as inappropriate the notion of ret-
rospectively altering lawfully imposed IPP
sentences, notwithstanding senior judges
assurances that they would be comfortable
with such a course of action. The emphasis
has repeatedly been placed on administrative
efforts to hasten release, in spite of the very
poor track record of such efforts over the
decade since they were rst initiated.
We may have been reaching a better place
with former Justice Secretary David Liding-
ton, but his being replaced in the latest Cabi-
net reshufe will slow, if not potentially alter,
the direction of travel. The lack of a parlia-
mentary majority and the domination by
Brexit of the legislative agenda puts further
considerable barriers in the departments
path. In any case, the course taken by penal
policy since the return of Conservative Justice
Secretaries in 2010 would lead observers
rightly to remain sceptical until clear, sub-
stantive action is observed.
Tracing the Gordian knot: the
persistence of indeterminate
sentences and the pathologies of
English penal politics
We can now consider why there has been
such resistance to addressing more swiftly
the ethical and practical problems faced by
the prisoners left behind. Why has this
become such a knotty problem? And what
threads make up this particular Gordian
knot? And nally, what insights does it pro-
vide into the broader dynamics underpin-
ning British penal policy?
First, as Nicola Lacey and others have
observed, UK politicians generally remain
trapped within a prisonersdilemmawhere
they feel compelled, for electoral considera-
tions, to argue for ever-tougher measures on
crime and criminal justice.
7
While there are
indications that the ratcheting up of rhetoric
and policy has reached its zenith, not least
given the nancial considerations in play
there is no sign of a signicant re-orientation
of public debates on criminal justice.
Second, the IPP story is a tale of continued
and substantial inuence on penal policy-
making of a very small number of tabloid
newspaper editors. While such secretive
interventions are by denition obscured, the
sustained campaign by the News of the World
on the issue of sexual predators (that in part
propelled the development of the IPP sen-
tence) was all too clear to see. What has
occurred is not so much a democratising shift
of power towards the public, but a reshaping
of elitism in penal policymaking away from
the traditional OxbridgeWhitehall nexus
(and we could add to this an observation on
the growing inuence of multinational corpo-
rations engaged in criminal justice roles).
Third, and particularly under these condi-
tions, policy change requires a Secretary of
State with the political standing, robustness,
and to an extent good fortune of circum-
stances, to take bravesteps in addressing
issues such as the IPP. The past seven years
have seen a string of Justice Secretaries of
mixed quality and status, often considered to
be more focussed on nurturing their political
ambitions than addressing urgently the severe
problems facing the criminal justice system.
Fourth, we must note the importance of
political ideology. It may simply, if not neces-
sarily satisfactorily, be that politicians mean
what they say. Many, perhaps even most,
from across all main parties, believe that pro-
tecting the public from dangerous people is a
wholly good thing. This is not to uncritically
accept such arguments, but it is to recognise
the heavy pull exerted by commonsensical
notions of crime, law and order, and the role
of the criminal justice system in serving what
is perceived to be the public good.
Fifth is the issue of policymaking dynam-
ics. Prosaically, students of policymaking
have long observed that, for policy change
to occur, there needs to be a windowof
opportunity, and (ideally) a hookonto
which reforms can be attached. In 2010, the
change of government focus on expenditure
reduction, and on the potential for penal
reform offered by coalition, provided such a
window. This opportunity was squandered.
Now, with the government politically paral-
ysed and administratively overwhelmed by
the dilemmas of Brexit, it is difcult to see
how a further opportunity will emerge in
the near future.
The issues relating to the IPP prisoners left
behind may be particularly acute, but they
are not unique. In fact, they throw into sharp
relief the more general failings of penal
TRACING THE GORDIAN KNOT 203
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Political Quarterly Publishing Co (PQPC).
The Political Quarterly, Vol. 89, No. 2
policymaking of recent years, made only
more severe by the spending reductions
imposed by the Treasury over the past dec-
ade. A crucial, deeper, issue to which this
case study and the above observations relate
is that of what we might term the penologi-
cal imagination. What is considered to be
thinkable, and sayable, in this policy eld?
Upon what logics does penal policymaking
operate? I wish here to point to two inter-
related matters: the othering of those sen-
tenced to imprisonment and the dominance
of a narrow, risk-averse, public protection
paradigm.
As regards the former, I have argued else-
where that the IPP story can usefully be
viewed through the lens of the late sociologist
Zygmunt Baumans conceptualisation of
modern society as a garden culture.
8
It seeks
defence against weeds: those who are
viewedthrough a specic cultural and polit-
ical lensas being useless, irrelevant or harm-
ful. From this perspective, those dened as
dangerous offendersindividuals apparently
prone to repeat sexual or violent offending
are othered. Their political categorisation,
propelled by underlying cultural trends, sees
them subject to administrative processes and
quotidian discourse that signicantly limits
their ability persuasively to make moral
demands upon society. Labelled as danger-
ous, these prisonersand their families
struggle to interject on the policymaking pro-
cess, or to have their voices heard.
Indeed, policy participants seeking to
tackle the IPP issues discussed above have
persistently complained that the explicit
labelling of the measures as being targeted at
particularly dangerous offendershas cre-
ated a rod for the governments back that
makes efforts to address the sentence acutely
difcult. Similarly, while a range of policy
participants are aware of the need to involve
what are often termed service usersin pol-
icy development, reform proposals, and so
on, relevant policymakers have only recently
begun to pay serious attention to the voices
of IPP prisoners and their families.
A second crucial dynamic is the grip of a
public protection paradigm on penal policy,
and indeed, the narrow boundaries of this
perspective. Implicit in the IPP policy, and
indeterminate sentencing more generally, is
a belief in the need for risk aversion in
the name of public protection. This was
exemplied by the initial IPP provisions,
which on their face excluded sentencing
goals other than public protection from con-
sideration.
Giving primacy to public safetyin the pre-
sent age is generally taken to mean embracing
a risk paradigm that sees the identication of
the dangerousas taking a robust, scientic
and objective form. The notion that risk tools
be that forms of actuarial risk assessment or
expert judgmentcan bear this weight was
taken by the political creators of the IPP as a
given. However, this view of the state of the
artof risk assessment has also faced signi-
cant challenge.
Alongside a number of compelling aca-
demic critiques in the UK, Australia, Canada
and elsewhere, the Ministry of Justice itself
asserted in its consultation paper preceding
the abolition of the IPP sentence that: The
limitations in our ability to predict future
serious offending also calls into question the
whole basis on which many offenders are
sentenced to IPPs and, among those who are
already serving these sentences, which of
them are suitable for release.
Further, policies that equate continued
imprisonment with public safety fail to recog-
nise the centrality of family relationships,
employment and, put simply, hope to the
likelihood that prisoners will successfully
construct a crime-free life for themselves.
Related to this is the conation, within such
systems, of indicators of vulnerability (mental
illness, drug dependence, educational prob-
lems) as signs of dangerousness (of being
high risk). Promisingly, the counter-produc-
tive effects of long-term indeterminate impris-
onmentnot least in the context of IPPsare
beginning to be recognised. For example in
the recent case of Roberts, the former Lord
Chief Justice Lord Thomas made the welcome
observation that there is some evidence that
the effect of long periods of imprisonment or
the recall to prison of those sentenced to IPP
under their licence requirements may be
either impeding their rehabilitation or
increasing the risk they pose. Further, the
Parole Board has encouraged its members to
be courageous, to be proactive rather than
risk averse in considering how indeterminate-
sentenced prisoners can best be supported in
their transition to the community.
204 H ARRY ANNISON
The Political Quarterly, Vol. 89, No. 2 ©2018 The Authors. The Political Quarterly published by John Wiley & Sons Ltd on behalf of
Political Quarterly Publishing Co (PQPC).
However, efforts to address this longstand-
ing risk aversion in relation to IPPsinclud-
ing by the former Lord Chief Justice, and the
leadership of the Parole Board and National
Probation Servicewill inevitably fail to
have immediately transformational effects on
organisational practice. Indeed, IPP prisoners
and family members continue to report their
exasperation at a system that seems inca-
pable of recognising its own role in the fail-
ures of IPP prisoners to obtain release.
Conclusion
The IPP story has become a saga. Prisoners are
losing hope, as are their families and friends.
For all prisoners and staff, the penal estate is
becoming increasingly dangerous. The prison
population is outstripping growth estimates
produced only one year ago. The pressures
imposed by prisoner numbers are increasing,
not to mention the complexity of needs exhib-
ited by prisoners, while staff numbers and
available resources continue to decline (albeit
somewhat checked by efforts to cope with the
dramatic previous reductions).
Signicantly, this situation points to the
ever-narrowing boundaries of the penologi-
cal imagination demonstrated in political
and public debate: reluctance by government
to lead and facilitate a serious debate about
the role and valueand signicant disbene-
tsof prison. Prisoners are also sons,
daughters, (future) workers and (future) par-
ents. We face a Ministry of Justice attempt-
ing to pursue a form of what Professor
Andrew Rutherford once termed a standstill
policy. It seeks to avoid penal expansionism
(unaffordable in the current context, even if
desired), while avoiding policy positions that
might be regarded as denoting penal reduc-
tionism (let alone abolitionism), which could
leave it open to attacks by right-wing oppo-
sition and the tabloid press.
The Chief Inspector of Prisons has repeat-
edly reported on the startling deterioration
in prison conditions that have resulted from
policy decisions taken by the 201015
ConservativeLiberal Democrat coalition
government and subsequent Conservative
governments. The latest Prisons Inspectorate
Annual Report has made clear that a
vigorous response is urgently required. Sub-
stantive action, however, is slow in coming.
Despite tentative indications, further away
still is the willingness to broach in a serious
and sustained manner the broader underly-
ing question of whether the dynamics and
assumptions that have been allowed to drive
penal policy since the early 1990s remain
appropriate.
Notes
1 An earlier version of this article was presented
as part of the Oxford University All Souls Crim-
inology Seminar Series in April 2017. I am
grateful to those who attended for the helpful
comments and questions. The research project
from which ndings are drawn was supported
by Economic and Social Research Council grant
ES/G010307/1.
2 See H. Annison, Dangerous Politics: Risk, Political
Vulnerability and Penal Policy, Oxford, Oxford
University Press, 2015.
3 HM Chief Inspector of Prisons, Unintended Con-
sequences: Finding a Way Forward for Prisoners
Serving Sentences of Imprisonment for Public Pro-
tection, 2016; https://www.justiceinspectorates.
gov.uk/hmiprisons/wp-content/uploads/sites/
4/2016/11/Unintended-consequences-Web-2016.
pdf (accessed 8 December 2017).
4 Howard League for Penal Reform and Prison
GovernorsAssociation, The Never-Ending Story:
Indeterminate Sentencing and the Prison Regime,
2013; http://howardleague.org/publications/
the-never-ending-story/ (accessed 8 December
2017).
5 Sainsbury Centre for Mental Health, In The Dark:
The Mental Health Implications of Imprisonment for
Public Protection, 2008; https://www.bl.uk/bri
tishlibrary/~/media/bl/global/social-welfare/
pdfs/non-secure/i/n/t/in-the-dark-the-mental-
health-implications-of-imprisonment-for-public-
protection.pdf (accessed 8 December 2017).
6 Ministry of Justice, The Importance of Strengthen-
ing PrisonersFamily Ties to Prevent Reoffending
and Reduce Intergenerational Crime, August 2017;
https://www.gov.uk/government/uploads/sys
tem/uploads/attachment_data/file/642244/far
mer-review-report.pdf (accessed 8 December
2017).
7 N. Lacey, The PrisonersDilemma, Cambridge,
Cambridge University Press, 2008.
8 See H. Annison, Weeding the Garden: The
Third Way, the Westminster tradition and
Imprisonment for Public Protection,Theoretical
Criminology, vol. 18, no. 1, 2014, pp. 3855.
TRACING THE GORDIAN KNOT 205
©2018 The Authors. The Political Quarterly published by John Wiley & Sons Ltd on behalf of
Political Quarterly Publishing Co (PQPC).
The Political Quarterly, Vol. 89, No. 2
... Similarly to a life sentence, the IPP sentence is composed of a determinate period of detention for the purposes of punishment (the ' tariff ' ), followed by an indeterminate period of detention for the purposes of public protection, during which the prisoner may apply to the Parole Board for release. For its proponents in the British Government, the IPP was an effort at ensuring that those who were highly likely to commit further serious offences were detained in prison long enough to receive appropriate rehabilitative interventions (Annison 2015: chapter 3). For its critics, it was an example of ' tough ' political posturing on crime and an effort to warehouse troubled individuals (Prison Reform Trust 2007: 6). ...
... This infl ux of ' life ' -sentenced prisoners with short tariffs was the logical result of a governmental effort to exert greater powers of control over offenders thought to be dangerous. For the key politicians involved, it was an opportunity to overcome the unwillingness of what they perceived to be an unduly liberal judiciary to suffi ciently protect the public (Annison 2014a(Annison , 2014b. ...
... This infl ux of ' life ' -sentenced prisoners with short tariffs was the logical result of a governmental effort to exert greater powers of control over offenders thought to be dangerous. For the key politicians involved, it was an opportunity to overcome the unwillingness of what they perceived to be an unduly liberal judiciary to suffi ciently protect the public (Annison 2014a(Annison , 2014b. ...
Chapter
The legal position of convicted offenders is complex, as are the social consequences that can result from a criminal conviction. After they have served their sentences, custodial or not, convicted offenders often continue to be subject to numerous restrictions, in many cases indefinitely, due to their criminal conviction. In short, criminal convictions can have adverse legal consequences that may affect convicted offenders in several aspects of their lives. In turn, these legal consequences can have broader social consequences. Legal consequences are often not formally part of the criminal law, but are regulated by different areas of law, such as administrative law, constitutional law, labour law, civil law, and immigration law. For this reason, they are often obscured from judges as well as from defendants and their legal representatives in the courtroom. The breadth, severity and longevity and often hidden nature of these restrictions raises the question of whether offenders' fundamental rights are sufficiently protected. This book explores the nature and extent of the legal consequences of criminal convictions in Europe, Australia and the USA. It addresses the following questions: What legal consequences can a criminal conviction have? How do these consequences affect convicted offenders? And how can and should these consequences be limited by law?
... Similarly to a life sentence, the IPP sentence is composed of a determinate period of detention for the purposes of punishment (the ' tariff ' ), followed by an indeterminate period of detention for the purposes of public protection, during which the prisoner may apply to the Parole Board for release. For its proponents in the British Government, the IPP was an effort at ensuring that those who were highly likely to commit further serious offences were detained in prison long enough to receive appropriate rehabilitative interventions (Annison 2015: chapter 3). For its critics, it was an example of ' tough ' political posturing on crime and an effort to warehouse troubled individuals (Prison Reform Trust 2007: 6). ...
... This infl ux of ' life ' -sentenced prisoners with short tariffs was the logical result of a governmental effort to exert greater powers of control over offenders thought to be dangerous. For the key politicians involved, it was an opportunity to overcome the unwillingness of what they perceived to be an unduly liberal judiciary to suffi ciently protect the public (Annison 2014a(Annison , 2014b. ...
... This infl ux of ' life ' -sentenced prisoners with short tariffs was the logical result of a governmental effort to exert greater powers of control over offenders thought to be dangerous. For the key politicians involved, it was an opportunity to overcome the unwillingness of what they perceived to be an unduly liberal judiciary to suffi ciently protect the public (Annison 2014a(Annison , 2014b. ...
Book
The legal position of convicted offenders is complex, as are the social consequences that can result from a criminal conviction. After they have served their sentences, custodial or not, convicted offenders often continue to be subject to numerous restrictions, in many cases indefinitely, due to their criminal conviction. In short, criminal convictions can have adverse legal consequences that may affect convicted offenders in several aspects of their lives. In turn, these legal consequences can have broader social consequences. Legal consequences are often not formally part of the criminal law, but are regulated by different areas of law, such as administrative law, constitutional law, labour law, civil law, and immigration law. For this reason, they are often obscured from judges as well as from defendants and their legal representatives in the courtroom. The breadth, severity and longevity and often hidden nature of these restrictions raises the question of whether offenders' fundamental rights are sufficiently protected. This book explores the nature and extent of the legal consequences of criminal convictions in Europe, Australia and the USA. It addresses the following questions: What legal consequences can a criminal conviction have? How do these consequences affect convicted offenders? And how can and should these consequences be limited by law?
... Both Carlen (2008) and Sim (2008) argue that in contemporary penal systems the coupling of this disciplinary lens with bureaucratic systems of control results in prisoners becoming imagined simulacra -representations of the prisoner based upon multiple symbolically laden disciplinary labels which transmute the prisoner from a person to a bureaucratic entity. As Smith (2010: 50) notes any 'normal human animal rejects being a something and drives mightily to be a someone', yet for IDS prisoners in England and Wales this drive is intentionally constrained in the interests of the institution, the wider criminal justice system, and even the body politic (Annison, 2018). Clifford (2010) argues that for IDS prisoners in England and Wales, this collision of an officially ascribed identity with personal perceptions of self-evinces a dissonance as the prisoner tries to reconcile the denial of their former self, the imposition of a simulacrum, and the need to perform identity in the constraining environment of the prison. ...
... This paper will argue that narrative labour is a particular burden for indeterminately sentenced prisoners (see Honeywell, 2015). For it is this population, above and beyond that of other prisoners, who need to address the implications of an imposed carceral identity in both navigating the day-to-day life of the prison and securing release via the parole process (Annison, 2018;Rose, 2012). The nature and forms of indeterminate sentences imposed by the courts in England and Wales have changed significantly and often since the advent of the Criminal Justice Act of 2003 (Roberts and Ashworth, 2016). ...
... Of these, 67% (7275) are serving a mandatory life sentence and the rest either an Indeterminate Sentence for Public Protection or either of the iterations of the Two-Strike life sentence. What makes these sentences unique is that they have no determinate ending -the sentence is fundamentally 99 years in length with a recommended minimum period of incarceration being set by the sentencing judge and the Lord Chief Justice (Annison, 2018). Prisoners are not released from these sentences until such a time that their minimum period of incarceration has expired and the Parole Board deem that their risk to the public has been so diminished that they are safe to release (Nichol, 2007). ...
Article
All prisoners have their identity stripped from them and, ultimately, reconstructed by the institutions in which they are incarcerated. However, for life and indeterminately sentenced prisoners the effects of this process, reinforced over extended periods, creates a particular set of burdens. For it is this population, above and beyond that of other prisoners, who need to address the implications of an imposed carceral identity in both navigating the day-to-day life of the prison and securing release. The four core burdens are firstly, an ambiguity on what identity indeterminately sentenced prisoners were supposed to have. Secondly, reconciling an imposed identity that they did not necessarily feel adhered to their pre-established sense of self. Thirdly, recognition that in order to operate or perform within the prison they needed to adopt an institutionally acceptable form of their self. Fourthly, that they had to manage how their performance of self was judged and recorded by the prison. This article aims to contribute to the growing body of work on Narrative Criminology by arguing that these burdens results in what I define as narrative labour.
... Germany, New Zealand and France [see Künzli et al., 2016, p. 9]), few studies explicitly and exclusively focus on this form of sanction, and those that do are mostly law and policy related (see e.g. Annison, 2018;Drenkhahn, 2013;Jacobson & Hough, 2010;Kinzig, 2008). This is no doubt due to the fact that this particular population (still) represents a minority within prisons. ...
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In Switzerland, as in most Western countries in recent decades, public pressure and changing demands for security have led to a shift towards a more punitive and hard-line approach to crime. As a consequence, there are now more people serving longer sentences or held preventively in indefinite incarceration. Based on ethnographic data generated in two high-security prisons, this book provides insights into the everyday lives of long-term prisoners in Switzerland who are labelled as ‘dangerous’ and preventively held in indefinite incarceration after completing their regular prison sentence. This chapter provides the background for the study on which this book is based. It presents information on the research context and in-depth reflections on how to conduct ethnographic research in a constrained context with heavily stigmatized people.
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This paper explores conceptualisations of ‘ success’ by men on Imprisonment for Public Protection (IPP) sentence licence screened into the Offender Personality Disorder Pathway. ‘ Success’ was defined as a process of having ‘ survived’ the perceived injustices associated with the IPP sentence. Participants’ discussed ‘ internal factors’ enabling them to make use of ‘ external facilitators’ of self-change; ‘ success’ was embedded in the development of interpersonal relationships with professionals. We propose a model of reciprocal anxiety existing within the criminal justice system in relation to the management of individuals on IPP sentence.
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We examine in particular the role and weight of the parole process experience, and its potential mental and physiological health impact on families of IPP prisoners. We show that the IPP parole process exerts specific weight & mental strains on family members occupying the negative end of the stress spectrum. We argue that these mental health impacts on families may represent a public health risk in need of practical & policy mitigation. We argue there is a pressing need for recognition of what are often hidden symbiotic harms experienced by families of people sentenced to IPP. Families require more information as well as considerably greater practical & emotional support on an institutional & communal level.
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This chapter considers the lessons that high-profile controversies in parole in England and Wales might provide for our understanding of dominant conceptions of risk and populism in the sociology of punishment. Sparks’ (Dangerous Offenders: Punishment and Social Order. Routledge, London, 2000) earlier examination of risk and blame in a series of scandals facing English prisons in the mid-1990s is utilized as a point of comparison and a methodological sensitizing device: the former in that this provides us with a means by which to consider what might have changed in the two decades separating these high-profile episodes; the latter in that I seek, as Sparks did, to consider what insights these ‘sorry stories’ might provide for penal theory. I thus discuss broader cultural trends regarding the recognition and involvement of ‘publics’—including victims, families, prisoners and others—in penal policy. I suggest that these developments have implications for our understanding of risk and populism, and the dominant theoretical narratives that have tended to accompany conceptions of these terms.
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This article engages with the Imprisonment for Public Protection (IPP) sentence of the UK Criminal Justice Act 2003, a prominent measure against ‘dangerous offenders’, in a ‘substantively political light’ (O’Malley, 1999). It provides an interpretation based on policymakers’ beliefs and traditions. I argue that the perceived need for the IPP sentence and its ultimate form was the result of New Labour ministers’ reliance on the Third Way political ideology and its implications for criminal justice policy. In addition, in terms of the policymaking process, I suggest that the ‘Westminster tradition’ conditioned policymakers’ actions in relation to the IPP sentence, in ways that were crucial to its outcome. The article concludes with an examination of the moral significance of these beliefs and traditions by reference to Bauman’s discussion of the dangers of a modern ‘garden culture’.
The Importance of Strengthening Prisoners' Family Ties to Prevent Reoffending and Reduce Intergenerational Crime
  • Ministry Of Justice
Ministry of Justice, The Importance of Strengthening Prisoners' Family Ties to Prevent Reoffending and Reduce Intergenerational Crime, August 2017;