Desistance and Deferred Prosecution in the UK

Updated: Dec 7, 2023

Prison in the UK right now is a revolving door when every 3 in 10 convicts who exit, end up reoffending within the next twelve months. This highlights the failure of current carceral systems to address structural factors behind crime that include but are not limited to a lack of economic opportunities, histories of familial neglect and substance abuse. In part, this has led to a trend of the government trying to incorporate desistance (the process of leading those with previous patterns of offence to abstain from crime) as an aiming principle of the criminal justice system.

Current Desistance Strategies

Reforming Carceral Systems

Over the past decade, there seems to have been a two-pronged approach to ensuring desistance: the first is making carceral systems themselves more rehabilitative. This includes programmes offered by the Correctional Services Advice and Accreditation Panel that attempt upskilling, reducing addiction, and providing convicts with cognitive behavioural assistance to understand causes behind crime. Recently in 2022, the Ministry of Justice also updated its White Paper on Prison Strategy which lays out a plan to expand Prison Education Services to give every prisoner basic literacy, vocational skills like coding and construction in addition to preparing them for job interviews. This change to policy was accompanied by an additional 550 million euros to reduce reoffense. While a few of these efforts have shown progress, specifically programmes that prioritise individual personal responsibility and setting up therapeutic communities; unfortunately, rehabilitation overall seems to face limitations due to its implementation. Reviews of prisoner accounts show that this ideal of reflection couldn’t be meaningfully achieved when they were forced to live in extreme confinement due to overcrowding and didn’t receive help from professionals that were actually trained. More intrinsically however, prisons failed to create an environment conducive to desistance by pushing the burden of empowerment onto prisoners themselves, to fight for access to programmes which have limited spots and resources. This is evident by the 62 percent decline in the number of completed rehabilitation courses in 2019. Even for courses that were mandatory under Offender Management Programmes, in the absence of support from structures themselves, they felt superficial and tokenistic, a mere requirement to get through. Carceral structures therefore have a long way to go before they can truly become productive for the people within them.

Community Rehabilitation

Regardless of how transformative prison is for a convict, desistance cannot occur if their integration into the community isn’t efficient. That is where the second prong comes in with its focus on Resettlement. This includes Probation Services which in 2021 were completely nationalized and are responsible for all ex-convicts out on a license or those with community sentencing in terms of providing employment assistance, housing and healthcare services. Right now, based on internal statements from probation officers, services are operating over their maximum capacity with overworked personnel who then have a perverse incentive to decrease risk ratings of convicts so fewer resources have to be directed towards them. Such issues have to an extent prompted additions to current mechanisms of rehabilitation that are independent of probation at this level, such as establishing digital platforms to match prisoners to jobs and employment centres within prisons to help with building networks. Critically, these measures haven’t yet begun operating at scale and therefore have limited impact. However, even if they are successful, they only address challenges to integration that are based on convicts not having required skills or resources which, while important, ignore the role societal perceptions and stigma against convicts play. Employment discrimination and hostility within communities run rampant and inhibit the ability of desistance efforts to work because prison, regardless of reality, is viewed as a ground for further radicalization and distances people from their communities. This locks out any engagement so that when they return, they’re otherized and seen as alien.

Deferred Prosecution

It is in this context of drawbacks faced by the current predominant strategy, we look to the emerging middle ground of deferred prosecution. Test programmes such as Operation Turning Point and Checkpoint Rehabilitation, carried out by individual police departments, aim to reduce reoffending and ancillarily save costs and expedite individual cases by offering first time or low harm offenders (can be randomised or decided through set criterias like scale of harm, victim’s willingness to prosecute) the ability to avoid prosecution on the explicit condition of them having to go through a structured and monitored rehabilitative programme. For instance, within Checkpoint, every offender would be assigned a Navigator who would design a specific plan for them for the next 4 months which could have upto 5 conditions such as volunteer work, making amends with the victims, and of course, not committing further crimes and wearing GPS tags among a few. This is part of a broader attempt of incorporating Offender Desistance Policing within the criminal justice system which is trying to involve even law enforcement departments in the process of reducing recidivism by changing the way cases are pursued and trials occur to be more cognizant of the effects of punishment in furthering the alienation of offenders from the state. There are two parts to the evaluation of such programmes: the efficiency that they have to address offenders’ criminogenic needs and community perceptions that they foster.

Reducing Reoffense

In terms of the first metric of efficiency, this at least in theory incentivises offenders to meaningfully engage with programmes in two ways; the first and perhaps the most effective is the threat of prosecution (often metaphorically referred to as the Sword of Damocles that is when the threat has a greater deterrent effect than the action itself) in the instance of non compliance with the programme which is in direct contrast to prison systems that don’t show a short term difference in life quality if you take up courses or sessions with counsellors. The second is the element of agency, that is offenders have to make the decision themselves to be a part of such operations. While it’s probably true here that this choice isn’t fully free when the alternative is facing criminal charges, the perception of choice can still offer benefits.

Given that, a translation to outcomes then depends on the quality of interventions themselves. The individualised nature of these programmes allow for Offender Managers to actually understand circumstances which led to a person committing the crime. This happens through conversations and self assessment tests that identify three leading causes that over the next few months they’re then asked to focus on. The way this occurs is similar to the way probation services provide support, by their incharge often serving as a role model who provides positive reinforcement, guidance in terms of services they should be accessing and goals to aim for in their rehabilitation process. Case studies have often pointed towards optimistic results with an offender who was referred to an alcohol treatment programme describing Turning Point as life changing for them, others who were referred to drug advice services and employment meetings calling it the sole reason why they’re now clean and can provide for their family in research interviews conducted by Cambridge. It’s also important to note that apart from the benefits the actual program gives one, there are also intrinsic benefits of not having a criminal record or possibly time within prison – being able to stay with your own community, reducing chances of being blacklisted from employment solely based on past actions and not having to pay exorbitant fines that could have harmed your finances even further. Agglomeration of these factors shows results. Within Durham County, recidivism rates within 2 years are down by 15 percent and out of the people who participated within Checkpoint, only 6 percent are found to have reoffended. Obviously, this comes with caution that this was carried out on a limited scale, with often randomised offenders allocated to this programme and haven’t had the ability to see long term follow-ups yet as well as concerns that this programme may also suffer in places of improper implementation because Offender Managers need to trained and dedicated to this process in order for this to be successful but overall, still points to the potential this can have with the right checks and balances.

Community Perceptions

Criticisms of seemingly ‘soft on crime’ programmes like these often seem to revolve around the idea that the absence of prosecution or punishment denies justice to victims and makes communities feel unsafe. Victim interviews from Operating Turning Point show some receptive and even satisfied in the way rehabilitation occurs, but there were also ones angry at the way their case was diverted (a large part of that was directed at the police as well.) It’s important to note here that there cannot be a conclusive trend on victim reactions due to a small sample size during its research but it does point to concerns not being unfounded. Suggestions from the Pilot Program as a result, included expanding measures of Restorative Justice, in conjunction with the focus on reducing reoffense as well as the establishment of a Victim Contact Plan. In the limited instances where contact was made between offenders and victims, it not only reduced chances of the crime occuring again because offenders could confront the harm they had caused but also meant victims had increased faith within the system at the end which is seen by progress being made in victim satisfaction over time. In addition to this, other mechanisms added included following up and clear communication with victims throughout the programme. Current barriers to its implementation include a refusal to meet by the victims and Offender Managers often being untrained in approaching conversations with victims. Further iterations aim to address this by not only at a preliminary level creating scripts that request ideally face to face meetings between victims and offenders but further sensitivity instruction so that this programme actually goes beyond helping offenders but can also show increased rates of victim inclusion within the criminal justice system.

Beyond victims, when it comes to communities, this programme actually in stark contrast to concerns, has the ability to improve community engagement by retaining contact between offenders and their surroundings. Dehumanisation of offenders occurs to a significantly greater extent when courts also treat them as criminals during the process of prosecution and conviction, or if they’re forced to leave communities for years. This programme departing from that norm has the potential of a broader signalling effect that means communities become more accepting of offenders overall. This clearly isn’t a perfect world either and probably a long process before we get to an ideal stage but in the long term could result in a change in attitudes around crime.

Conclusion

For far too long, the purpose of the criminal justice system in balancing rights had ignored offenders. That’s why in the status quo, it’s important to prioritise programmes that also improve their well being and help them disengage with causes of crime. Current strategies as evaluated above have the right aim and direction, what then becomes critical is addressing limitations both within implementation and scope. We also then need to look towards strategies that might deviate from the norm of punishment such as deferred prosecution but possess the capacity to reduce reoffense and better people’s experiences with the criminal justice system. Checkpoint and Turning Point were experiments whose results have prompted discourse around this being expanded to other regions, with individual police stations considering implementing them but even at a broader legislative level, with debates around courts being able to give ‘Detention for Training’ sentences that don’t subject people to carceral systems and prioritise their unique criminogenic needs. This is change that could change the way aims of justice are perceived and it’s vital to scrutinise it every step along the way. That is when we ensure translation of well-intentioned policies to on-ground lives.

References

Balancing Rights

Desistance and Deferred Prosecution in the UK

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