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She sells sanctuary

05 Oct 2018 / Law reform Print

She sells sanctuary

According to the Scottish Prisons Commission, “prison may sometimes do good, but it always does harm”. The essence of this statement is undoubtedly true.

However, if prison administrations were committed to providing meaningful strengths-based sentence planning that is responsive to childhood trauma and its devastating impacts, the capacity of prison to ‘do good’ in the lives of the people in its care might be enhanced.

The focus of strengths-based sentence planning should be on identifying and building on the strengths or protective factors in a prisoner’s life and:

  • Start immediately upon committal,
  • Be developed in collaboration with the prisoner,
  • Be cross-disciplinary and trauma-responsive,
  • Be subject to periodic review,
  • Support the person in maintaining positive relationships with family and significant others,
  • Ensure that basic needs are met when transitioning from custody to freedom, and
  • Take steps to arrange that the person is linked in with services and supports in the community, so that safety, structure, and a sense of belonging can be fostered and sustained over time.

The goal of all criminal justice agencies, including prison, should be to maximise what Maruna and Toch (2005) refer to as ‘desistance-enhancing’ opportunities for the benefit of offenders and the community at large (p140).

‘Desistance’ is a technical term to describe a process of positive change; a long, slow, complex process by which offenders reduce/deescalate and ultimately stop offending, and then endeavour to maintain a law-abiding lifestyle.

Sweet salvation

The boom years of the ‘Celtic Tiger’ was an era characterised by penal expansion and poor physical conditions, including the degrading practice of ‘slopping out’ – which was compounded by overcrowding and high levels of inter-prisoner violence.

Little focus

There was little focus on rehabilitation or sentence planning, and temporary release was primarily used as a safety valve to reduce overcrowding, rather than as a tool to promote rehabilitation, desistance or facilitate resettlement.

‘Integrated sentence management’ (ISM) remained essentially a paper exercise until at least 2012.

It was a class of criminal justice fantasy belonging to Carlen’s ‘penal imaginaries’ (a term that includes the problematic and malleable concept of rehabilitation itself), in the sense that it was routinely discussed by the Irish Prison Service (IPS) as if it meant a lot more than it actually did.

Operational problems

ISM has never meant more in practice than in does today, yet there are still problems with its effective operation.

Persistent staff shortages result in frequent redeployment of ISM officers from their core sentence-planning duties to attend to security functions. Moreover, issues relating to feuding, rivalry, and gang violence in the community are imported into prison, with a knock-on effect on regimes.

For example, in Mountjoy prison, roughly 40% of prisoners are on protection, and colour-coded to reflect which groups can mix with each other (according to the census of restricted regime prisoners, April 2018). ISM in this context is impossible.

Anyone with a sentence of over one year should have a sentence plan developed upon committal or as soon as possible thereafter.

The sentence plan should be developed collaboratively with the individual prisoner, in which they may undertake to work on certain issues (such as addiction or anger management) closely associated with their offending.

As well as identifying the person’s criminogenic risks and needs using an actuarial risk assessment tool, the plan should highlight their particular strengths (such as positive family relationships, motivation, and education/training goals) and interests (for example, woodwork, drama, boxing, creative writing, animal welfare).

Lil’ devil

Criminal justice agencies need to become informed about trauma and be responsive to it as a matter of urgency.

If the IPS is serious about the fact that rehabilitation is one of its core goals, then all staff need to receive training on the impact of childhood trauma, and prison-based interventions should be trauma-responsive.

Since 1998, epidemiological studies by Felitti, Anda and colleagues, and neuroscience evidence from the Centre on the Developing Child at Harvard University, have established that adverse childhood experiences (ACEs) damage the structures of a child’s developing brain, leading to long-term impairment of the brain’s structure and function.

Infancy

This brain injury – acquired in infancy or adolescence – has individual and societal costs in terms of damage to the person’s health over the life course, in addition to a variety of behavioural and social problems, including involvement in drug-taking and criminality.

According to Van der Kolk (2014), trauma is “arguably the greatest threat” to our well-being and the “greatest public health issue of our time” (p350).

He states that the ACE study has shown that “child abuse and neglect is the single most preventable cause of mental illness, the single most common cause of drug and alcohol abuse, and a significant contributor to leading causes of death such as diabetes, heart disease, cancer, stroke and suicide” (p353).

Nonetheless, mainstream society is completely blinkered to the huge costs of ACEs and “too embarrassed or discouraged to mount a massive effort to help children and adults to deal with the fear, rage, and collapse, the predictable consequences of having been traumatised”.

‘Fight/flight/freeze’

Becoming trauma-informed means learning about ACEs and their devastating impact on human lives. It means, instead of asking a distressed person ‘what’s wrong with you?’ we instead dare to ask ‘what happened to you?’

The ‘fight/flight/freeze’ response that is triggered in stressful situations, if understood properly by police officers, lawyers, judges, probation officers and multidisciplinary prison teams, should lead to superior strategies for interacting with “unrecovered trauma survivors” (Whitfield, p362), some of whom are extremely hard to reach and demonstrate oppositional or aggressive behaviours when fearful.

In terms of managing the safe transition of prisoners back to the community, the organs of State responsible for the delivery of core social services must stop shirking their duties in respect of those whose problematic behaviour entangles them in the criminal justice system. Having lost their liberty following conviction, a person’s basic human needs must be met by the prison service during their incarceration.

For many prisoners, however, their basic needs will once again require the prompt and efficient engagement of non-criminal justice, so that their immediate health, housing, and financial needs are met.

Love removal machine

When a man is released to a homeless shelter after several years in prison and has only a three-day supply of his anti-psychotic medications, it is a virtual certainty that he will reoffend before long.

The social conditions to which he returns set him up to fail. Feeling an overwhelming, visceral sense of being unsafe, he will do what it takes to survive. Committing offences is often a means to this existential end.

In 2012, at the ACJRD conference on resettlement, the director general of the IPS Michael Donnellan stated that “through focusing on the ways in which we can improve cooperation within the criminal justice system and between State agencies, we can certainly create the conditions which are needed to bring about better outcomes for offenders.

In so doing, we can also go some way towards achieving our collective objective of improving public safety”.

Transition management

The staff of criminal justice agencies must act in concert with other government agencies to ensure that the basic needs of returning prisoners are met, especially regarding their immediate health, housing, and finance requirements.

Recent developments in Ireland have meant that the IPS, the Probation Service, members of the Penal Policy Review Group, and officials from the Department of Justice have held meetings with relevant departments (such as Health, Housing and Social Protection) to discuss the desirability and logistics of a ‘whole of government’ approach to prisoner resettlement.

In a system that takes the return of prisoners back to society seriously and wishes to enhance their post-release reintegration prospects, non-criminal-justice actors must accept their role in the process and be involved in release planning and transition management so as to improve outcomes for the prisoners and society as a whole.

Be free

According to article 40.3.2 of the Irish Constitution: “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

An applicant with experience of childhood trauma and imprisonment could, I suggest, invoke Sean Lemass’ vision of a “more progressive Ireland” to successfully claim that there is a constitutional right to rehabilitation/reparation and reintegration in Ireland, by drawing on the unenumerated rights doctrine in constitutional juris-prudence since the seminal case of Ryan v Attorney General.

A recognition by the courts in Ireland that people with offending behaviour enjoy a positive constitutional right to rehabilitation/reparation and reintegration as an unenumerated right would go a long way to creating the legal backdrop for a shift in the focus and operation of punishment and would provide the legal basis for demanding a multi-agency response to re-entry and reintegration.

Transition

The safe transition of prisoners back to the community is a matter requiring the attention and concerted efforts of local authorities, the Departments of Health, Housing, Social Protection, Education and Employment, as much as Justice.

Jane Mulcahy
Jane Mulcahy is a PHD student in law at UCC