U3A Understanding
Imprisonment Study Group
Session 9 (revised) Issues of
imprisonment: living with
indeterminacy
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• The nature of an indeterminate sentence.
• The main indeterminate sentences in E&W
available for adults: Life Imprisonment and
Imprisonment for Public Protection (IPP)
• Doing life.
What is an indeterminate
sentence?
• Simply put an indeterminate sentence is a
sentence of imprisonment that is not fixed at the
time of sentence by the court.
• But …given early release etc. all determinate
prison sentences have some degree of
indeterminacy with the exact term, never
exceeding the court sentence (maxima), being
actually fixed by the prison authorities according
to the behaviour of the prisoner whilst in prison.
• And… both IPP and Life Sentences do have
fixed terms, but these are minima not maxima .
Mandatory Life Sentences
• Imprisonment for Life - this is the only sentence that can
be imposed on anyone over the age of 21 who is
convicted of murder.
• Detention during Her Majesty's Pleasure - this is the
mandatory sentence for a person convicted of murder
who was aged 10 or over but under 18 at the time of the
offence.
• Custody for Life - this is the mandatory sentence for a
person aged 18 or over but under 21 at the time of the
offence who is convicted of murder and sentenced while
under 21.
Discretionary life sentences
• Imprisonment for Life - this is the maximum sentence for
those over 21 convicted of a serious offence, e.g.
manslaughter, attempted murder, rape, armed robbery,
arson etc.
• Detention for Life - this is the maximum sentence for a
person aged 10 or over but under 18, who is convicted of
offences other than murder for which a discretionary life
sentence may be passed on a person over 21.
• Custody for Life - this sentence may also be imposed
where a person aged 18 or over but under 21 at the time
of the offence is convicted of any other offence for which
a discretionary life sentence may be passed on an adult.
Life sentences
• It is now established that the trial judge (in
Crown Court) when imposing the life
sentence also determines the ‘tariff’.
• The tariff is the period that must be served
before parole can be sought.
• Parole can only be obtained by application
to the Parole Board.
Life sentence prisoners: numbers
• MoJ: On 31 March 2008, there were 6740
prisoners serving a life sentence in prisons
in England and Wales.
• Approximately 96% men and 4% women
and 7% young offenders.
• The figure had increased to 8100 by
March, 2011 (MoJ)
• The average length of time spent in prison
by a lifer is about 14 years.
Whole life prisoners
• Where the trial judge has decided that the requirements
of retribution and deterrence can be satisfied only by
prisoners remaining in prison for the rest of their lives,
s/he will not set a minimum term of imprisonment and
these prisoners are not eligible for a Parole Board review
or release.
• Although a whole life order applies only in mandatory
lifer cases, it is open to a trial judge in non-murder cases
to decline to set a minimum period of imprisonment
which has the same effect. In either case the prisoner
can appeal.
• There are 41 whole life prisoners in prisons in E&W in
2011 (MoJ).
The Parole Board for E&W(see
www.parolebaord.co.uk )
• The PB was first established in 1968 and
became a QUANGO in 1996.
• Parole Board structure and procedures are
determined by a variety of rules and
directives issue by various bodies
including Ministers.
• Parole Boards sit on a regional basis.
Parole Boards
• They comprise of volunteers supported by
a paid staff.
• Their primary task is to make decisions
about the release of prisoners, serving
both determinate and indeterminate
sentences.
Key issues regarding Parole
Boards
•
•
•
•
•
1. Speed with which they hear cases
2. Speed with which they resolve cases.
3. Legal representation at PB hearings
4. Risk aversion on the part of PB.
5. Problems of defining, measuring and
predicting dangerousness.
Lifers and Release
• The Parole Board has the power to direct the release of
life sentence prisoners.
• Release can only take place once the minimum period of
imprisonment has been served, unless in exceptional
compassionate circumstances, and the Parole Board is
satisfied that the risk of harm the prisoner poses to the
public is acceptable.
• All indeterminate sentence prisoners are released on a
licence and are supervised by the Probation Service.
• The release licence contains a number of standard
conditions that the released prisoner must adhere to.
Lifers and Release
•
On the recommendation of the Parole Board the licence
may also contain additional conditions that are specific
to the individual prisoner such as the requirement to
undertake further offending behaviour work in the
community or conditions to exclude the individual from
certain places in order to protect the victim or victim's
family.
• In particular released lifers:
1. are subject to a life licence which remains in force for
the duration of their natural life;
2. may be recalled to prison at any time to continue
serving their life sentence if it is considered necessary
to protect the public
Imprisonment for Public
Protection(IPP)
• This sentence is relatively new having been introduced by 2003 CJA
and implemented in 2005, apparently to cope with the increase(?) in
violent or sexual offenders who having received determinate
sentences still exhibit signs of dangerousness at the end of this
term, but still had to be released under then existing powers.
• But the Act proved to include too wide a range of offenders and was
thus amended by the Criminal Justice and Immigration Act 2008 to
narrow the range of offences to which it applied.
• IPP’s differ from the life sentence because they cover a wider range
of offences (all violent/sexual offences) and do not require life-long
supervision after release from prison.
• Like the life sentence, judges when using the IPP, have to determine
a minimum tariff for each sentence.
IPP
• The tariff is the point in the sentence when an
application to the Parole Board can be made for
release (See above).
• The IPP was supposed to protect the public
preventing the release of offenders who still
remained ‘dangerous’ (see Holmes and Soothill
in Jewkes 2007) and encouraging their
rehabilitation by enabling them to work towards
release.
• It was supposed to the clearly linked to sentence
planning.
IPP
• Prisons were expected to make a variety of
course available so that prisoners could fulfil the
specifications set out in the sentence plan and
thus work towards their release.
• By 2010 there were 6,000 people who had
received an IPP, 2500 of whom had been kept in
prison beyond their tariff (Jacobson and Hough
2010; Minister for Prisons).
IPP
• The steady, even if now more restricted use of the sentence (even
so still much greater than expected), together with the difficulties of
getting release has meant a build up of IPP prisoners in the prison
population (they represented 10% of the prison population in 2010
(Jacobson and Hough 2010)
• The difficulties of getting release are in part connected to the Parole
Board itself (long waits for Parole Board hearings, risk aversion on
the part of the Parole Board).,
• In practice, amongst budget cuts and changes in staff conditions of
service, appropriate courses have not been made available, many
offenders are unsuitable because of limited educational attainment
or mental illness or because the courses are not fit for purpose and,
even, that courses alone are not the way forward.
IPP
• This situation has been described by the
Inspectors of Prisons and Probation as
‘unsustainable’ (Jacobson and Hough 2010) and
leaves offenders unable to obtain release and
likely to remain in prison indefinitely.
• Clearly there are more fundamental questions
about this sentence concerning the ineptness
with which IPP’s were introduced (particularly
that they were badly targeted) as well as
concerning the whole concept of
dangerousness.
Released IPPs:
• are subject to an IPP licence ;
• can apply to the Parole Board to have their
licence cancelled after 10 years (and if
unsuccessful at yearly intervals thereafter);
• may be recalled to prison while the licence
remains in force to continue serving their
sentence if it is considered necessary to protect
the public
IPP - Jacobson and Hough (2010)
suggested that there were 3 alternatives
facing government
1. ‘To abolish the IPP sentence, and revert to the use of the
discretionary life sentence to deal with those who
genuinely pose a grave risk to society.
2. To retain the IPP sentence but further narrow its criteria,
to ensure that it is used less often, and targeted more
carefully on those representing a real risk of serious reoffending.
3. To leave the current arrangements in place, but locate
sufficient resources to enable the Prison Service and
Parole Board to operate release from the sentence in an
effective, humane and fair way.’
They recommended that an urgent review be set up.
IPP: since 2010
• But events took over, the Labour Government
was not re-elected and the Coalition replaced
them.
• Ken Clarke the then Minister for Justice quickly
began to talk about the ‘rehabilitation
revolution’(RR).
• Part of his RR concerned the IPP – in that the
Ministry of Justice had planned to change the
"serious risk" test to reduce the number serving
IPPs and cut prison numbers (BBC News)
• But by June, 2011 this proposal was, itself, to be
‘reviewed’ (BBC June 2011).
IPP
• In October, 2011 (BBC News) Clive Coleman reported that the
government had proposed that IPP’s be scrapped.
• The Government also proposed mandatory life sentences for repeat
serious offences and, to deal with the problem of still dangerous
violent and sexual offenders being released, that such offenders
would not obtain early release until they had served at least 2/3 (as
opposed to one half )of their sentence.
• Coleman suggested that this did not deal with the original problem,
except in so far as it allowed for a reversion to the use of
discretionary life sentences for those offences that fell into this
category.
• According to House of Commons papers (www.parliament.uk
accessed 01/08/12) some of these proposals were incorporated in
the Legal Aid, Sentencing Act and Punishment of Offenders Act
(some by later amendment) that got royal assent on 01/05/12 but
the provisions have not yet come into force.
IPP
• The latest briefing from the House of Commons (June 2012)
indicates that the new Act makes the following provisions:
• 1. Abolition of IPP’s
• 2. New ‘mandatory’(see Guardian 19/03.2012) life sentences for
repeat serious offenders.
• 3. Extended sentences: provision is made in the case of serious
sexual and violent offences for an extended period of supervision on
license.
• Such provisions had not been implemented by September, 2012.
• They still do not fully address the central issue: what to do with the
small number of sexual or violent offenders who receive a
determinate sentence but at its end, remain dangerous, Some may
be taken out by new ‘mandatory’ life sentences (assuming they can
be identified at sentencing and were repeat offenders); others will
end up being placed on extended sentences i.e. being released but
subject to longer supervision and recall. But…
Adaptations to life imprisonment
• Keeping your head down. Don’t do the
crime if you can’t do the time
• Body building
• Mind building
• Prisonisation as a ‘learned helplessness’
or a way of making sense of being inside.
Books
• Cavadino, P and Dignan, M (2007) The Penal
System, London: Sage.
• Jacobson, S and Hough, M (2010) Unjust
Deserts, London: Prison Reform Trust
(prisonreformtrust.org.uk )
• James, E (2003) A Life Inside, London:
Guardian Books.
• Parker, N (2006) Life After Life, London: Blake
Publishing.
• Parker, Tony (1990) Life After Life, London:
Secker and Warburg.