The crisis of overcrowding in our prisons has led to some drastic and potentially unsafe changes to sentencing practices. So far there has been less attention to preventing people being in prison when they shouldn’t be there. There is extreme unfairness, injustice, and indeed cruelty in our system of punishment, with prisons full of inadequate, vulnerable, mentally ill and addicted people, largely from poorer social backgrounds. These incarcerations need to be prevented, and alternative methods of support, and fair punishment, needs to be found. The gross inequalities in sentencing suggest it really is a crime to be poor.
In the health field, we have become acutely aware of inequalities in health outcomes, and in access to health care. Our efforts to overcome these inequalities have been hampered by 13 years of austerity policies which have seen inequalities in life expectancy worsen. In the environment field, the concept of environmental justice has become an important policy goal in seeking to secure for people in poor environments, equal treatment under the law. In the world of law enforcement, enlightened police forces are pursuing trauma-informed processes when dealing with some of the most vulnerable and disadvantaged people in our society, recognising the complex life experiences which disable people physically, mentally and socially , leaving them simply, unable to cope. Court diversion, crisis intervention teams and mental health training for police forces, harm reduction approaches to drugs and other problems, give hope that alternative models of policing are possible. It seems only in the world of criminal justice, that there is little appreciation or allowance for the problems individuals acquire through a lifetime of poverty and disadvantage. In the eyes of the law, when a crime is committed, a due process and judgement must be reached, a sentence must be passed. But these processes of justice are not dispensed even-handedly. Unconscious biases are applied. The most defenceless individuals are victimised the most severely, and unable to recover from the consequences; the costs fall not only on the individual, the societal costs of incarceration and the health and care consequences are amplified.
Disparities in sentencing operated by the courts, apply adversely to the poor, the ill and the addicted. Epstein and Hunter reported on breaches of Anti-Social Behaviour Injunctions (ASBIs) and other injunctions found on the official site of judgments. There were 307 cases in all, with 33 in which the judgment of the court mentions mental health issues and/or addiction. The judgements came from 52 different county courts out of the 170 in England and Wales. Two thirds of cases were men, one third women. 46% resulted in immediate sentences; 32% suspended sentences. The convicted people were frequently unaware of their rights, and many were unrepresented.
One example, the case of Floyd Carruthers, illustrates the problem, in the most extreme way, as sadly, it resulted in Mr Carruthers’ collapse in prison, neglect by prison staff (the coroner’s conclusion) and then death shortly afterwards in hospital.
Floyd Carruthers was diagnosed with schizophrenia in 2003. In April 2021, the Court found he had breached his ASBI by banging twice on his neighbour’s door; he was remanded in custody. When the case was again before the Birmingham County Court on 6 May 2021, he was committed to prison for 66 days. He had an infected heart valve and did not eat in the prison for four days. No medical personnel were called. When prison officers entered his cell, they found he had collapsed. He died in hospital on 14.6.2021. The sentencing remarks show that Mr Carruthers did not understand the court proceedings, including his right to appeal. Mr Carruthers should not have been in prison custody when he died as he had completed the custodial part of his sentence on 7 June. He was in hospital by this time, but his family would have been able to visit him without the presence of prison officers if he had been released when he should have been.
Imprisonment is not the solution to the problems posed by anti-social behaviour. Imprisonment contravenes the basic legal principle of proportionality. The Civil Justice Council reported on this subject in July 2020, pointing out the disproportionate punishments imposed and their finding that half the defendants had no legal representation, and that many were extremely vulnerable. They made 15 recommendations to improve the system; none have been implemented.
Contempt of Court imprisonment raises basic questions of social justice. The rich get sent to rehab: the poor go to prison. It is an anomaly that people are given a criminal sanction of imprisonment for behaviour that is not criminal. This is in contradiction to the law as set out in S.230 (2) of the Sentencing Act 2020: imprisonment is a last resort to be used only when ‘an offence was so serious that neither a fine alone nor a community sentence can be justified for the offence’. In the criminal law there are protections for the defendant: pre-sentence reports, referral to probation service for support, for example. Furthermore, in criminal cases there are out-of-court disposals, diversion, and pre-court measures available to the police to deal with less serious low-level crime. There is evidence that these measures have been largely successful and have kept people subject to them out of the criminal justice system, for example, in the West Midlands New Chance scheme. Help with drug and alcohol problems, housing and employment issues, and mental health problems have proven effective in curbing criminal activity and lessening the harm to communities. These approaches which have been found to be effective in the criminal system should be applied to anti-social behaviour, which although not criminal, may lead to custody.
We require a more just approach to the problems posed when mental illness and addiction leads to anti-social behaviour, one that respects human rights, with a welfare, not a punitive approach to social problems. Prison sentences for ASBIs are not appropriate treatments and they are not effective in preventing the behaviours they are applied to. Consequently, they are not cost-effective in delivering improvement for money spent on the penal system, and they only perpetuate misery, ill health and injustice for the victims, and the misery for victims of their antisocial behaviour. In the present overcrowding crisis, there is no room for them in prison. Alternative approaches are long overdue.
Rona Epstein, Honorary Research Fellow, Coventry Law School, Coventry University
John Middleton, Honorary Professor of Public Health, Wolverhampton University
Postscript: There are many other examples of the unfair system of criminal justice we have in the UK and the criminalisation of poverty. Many of these are covered on the website: https://crimetobepoor.org. There is also a group of researchers who come together to look at these issues. The UK Faculty of Public Health Special Interest Groups, especially those for mental health, drugs, alcohol and poverty should find this work of relevance to their agendas. Surprisingly, perhaps we do not yet have a UKFPH special interest group for prisons? Criminal justice? Or Policing?
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