If Open Prisons are the answer, what is the question?

With around one in a thousand of us now incarcerated in the prisons of England and Wales it seems very clear that something needs to be done! Imprisonment may be intended to punish, but the collateral damage caused to individuals, families and to society as a whole is simply unacceptable. Prison overcrowding is the current major focus, but in reality it is only one of many ongoing crises within our Criminal Justice System. Do we really feel that the rehabilitation needed to prevent future crimes will be achieved by consigning so many in our population to squalid conditions, routinely high levels of violence and suicide, poor physical and mental health and inadequate access to basic resources?

In a refreshing plea for change, David Gauke, former Justice Secretary and leading voice in the forthcoming Independent Sentencing Review, has flagged the benefits he sees in a model based on Spanish open prisons. Advocating for prison reform is laudable and necessary but, unfortunately, in political terms, it is still rather brave. The predictable backlash has, inevitably, focussed on the accusation that Gauke is being ‘soft’ on crime and has a cavalier attitude to risk which will put the public in danger. How many of us are actually listening to the underlying message that other systems may be working better than ours?

Gauke argues that the Spanish model promotes reintegration, reduces re-offending and saves money. In short, he is flagging that the Spanish prison system achieves goals which in our country remain an unattainable Holy Grail. In making these claims – claims which seem to be justified by the evidence – Gauke has opened a back door to the Pandora’s Box that explains why our system consistently fails to achieve any goal other than punishment.

Prison systems across Europe run along a continuum which can be framed, in media parlance, as running from ‘soft’ to ‘hard’. Looking closely, it can be seen that the way in which these systems operate depends on their concept of what exactly imprisonment is intended to achieve. At the ‘soft’ end, according to a number of different metrics, we have, for example, Norway, Sweden, the Netherlands and Spain. At the ‘hard’ end we have, amongst others, Poland, Czechoslovakia, France and the UK. The same continuum can of course alternatively be labelled as running from ‘rehabilitative’ to ‘punitive’. The interesting point here being that countries operating under a rehabilitative model consistently demonstrate lower rates of recidivism. So, if reducing crime is our goal - and, if we want to protect the public, it has to be - it seems that whilst being ‘hard’ on criminals is a political vote winner, being ‘soft’ on criminals, as some may see it, is what actually works.

At both the ‘soft’ and ‘hard’ end of the scale, prison systems vary significantly, across even those countries operating under the same conceptual model. To simplify an exploration of why ‘soft’ may work better, let’s focus on the Spanish model flagged by Gauke. Although a common penal code and set of prison regulations is adopted across Spain, Catalonia has control over how the regime is implemented within it’s region. It is also widely regarded as the most liberal Spanish model of the prison system. Alongside which, it  has some of the lowest reconviction rates in Europe, ranging between 16%-29% depending on timeframe and metric. Official figures for the rate of recidivism for those prisoners released after serving  time in an open prison in Catalonia are lower still, at around 18%. If we could achieve similar figures in the UK, the public might be justified in assuming, as many seem to do, that our prison system actually works to reduce exposure to crime. As things currently stand, England and Wales report recidivism rates of 48% for released prisoners.

So, what exactly is the system that does achieve these much lower rates? Looking from the top down, the overarching principle is clear. Spain as a whole adheres to the principle set out as follows by Carlos Fernández Gómez, Spanish Prison Governor and Spanish liaison of EuroPris:

Our Constitution is very clear on the objectives of imprisonment. They are re-education and social reintegration… finding the most suitable rehabilitation pathway is at the core of our work.

This is the most fundamental difference between our own criminal justice system and the Spanish system. In the UK, the objectives of imprisonment were first put into legislation via the Criminal Justice Act 2003, which stated that the purposes of sentencing are to “punish, reduce crime, protect the public and rehabilitate offenders”. In that order. In line with the Act, the specific purpose of sentencing an individual to prison is supposed to be set out clearly in the OASys risk assessment which every prisoner is subject to. In practice, this section of the assessment is left blank in many if not most cases, suggesting perhaps that the objectives of imprisoning a particular person are not entirely clear even to those working within the system.

Listening to the rhetoric of politicians and to the tweets of the more vengeful amongst us, putting punishment first and rehabilitation last is very clearly regarded in the UK as the winning strategy. In the words of Lord Timpson “the UK is addicted to punishment”. Quite possibly without much thought given to what we hope punishment will achieve. What it evidently does not achieve are the joint goals of successful rehabilitation and hence protection of the public. The prisons of England and Wales are known not only to fail in their rehabilitative role, but in fact are found to be criminogenic. Prisons in Spain and elsewhere have also been shown to be criminogenic, but rather than simply encouraging despair, this has led other countries to make significant changes to the model of imprisonment they implement.

In an international comparison of recidivism rates, England and Wales had the second highest one-year reconviction rate, with 48% of released prisoners being reconvicted within a year. Comparing recidivism rates across countries is admittedly not straightforward, but, however calculated, England and Wales consistently return a higher rate of reconviction than most countries in Europe and many other countries worldwide. Aside, that is, from the USA, which also persists in following a punitive model. High, and escalating, reoffending rates following imprisonment sit uncomfortably alongside the fact that we retain the dubious privilege of imprisoning many more of our citizens than most countries in Europe.

Beyond the over-arching philosophy of imprisonment, the salient differences between the Catalan system and are own, aside from the recidivism rates, are as follows:

• Around 25% of prisoners in Catalonia are held in open prisons compared to the current 6% in England and Wales

  
  

• In Catalonia some low risk prisoners can begin their sentences in open conditions. In England and Wales all prisoners, regardless of perceived risk, spend at least half and generally more of their sentence in closed conditions and prisoners with short sentences are likely to spend their whole sentence in closed conditions

  
  

• Not all open prisons in Catalonia would even be regarded as prisons in the traditional sense. Some are specialist community units, under the control of the prison system, but otherwise providing close to normal living conditions. In England and Wales this option is as yet barely under consideration, although Scotland has toyed with the model for some women prisoners

• In addition to community units, the Catalan system provides residential rehabilitative centres for prisoners with substance abuse or other identified problems. These are often located in the countryside, away from the pressures and temptations which commonly lead to the persistence of addiction. Their focus is on rehabilitation through engaging with agricultural work and with a healthy and productive lifestyle. In England and Wales, specialist rehabilitation during the course of a sentence is provided largely through over-stretched prison-based services, providing little genuine motivation or opportunity for a change in lifestyle

• All prisoners within the Catalan open regime have their own individual rehabilitation plan, based on the results of RNR (Risk Needs Responsivity) assessment tools. Whether in closed or open conditions, Spanish prisoners are continuously assessed for the first two months of their sentence to establish risk. Regular re-assessment for the whole of the sentence is then carried out routinely and a prisoner’s location and the interventions they receive are based on the risks and needs established. In theory, all prisoners in England and Wales have a similar individualised plan, based around the OASys assessment. However, the reality is that even the requirement of completing an OASys assessment annually is rarely achieved and significant problems with the adequacy of assessments have been consistently flagged for at least the last decade, even in the case of high risk situations.

• In Catalonia a single case manager is assigned to each prisoner to provide continuity and develop a co-operative relationship with the prisoner. Each case manager is in touch with the social and community services required on the basis of individual need. In the prisons of England and Wales there have been attempts to introduce this type of system, but the current reality is that case managers change on a regular basis, rarely have adequate time to spend with an individual prisoner and have limited if any connection with services outside the prison system

• Prisoners living in open prisons in Catalonia are housed near their families and the family is regarded as an integral part of the rehabilitation process. In England and Wales prisoners, whether in open or closed prisons, are frequently located in areas a long way from their families, often in poorly accessible locations. This is notably the case for women prisoners

• The Catalan open prison regime allows, and in fact encourages, prisoners to spend most of their time in the community, either working or attending rehabilitative programmes. Prisoners spend the night within the prison but cannot return to the prison prior to a set time at night. Those prisoners who have family responsibilities may be allowed to stay at their family home over night, monitored via an electronic tag. It is also quite common  for prisoners to be allowed to spend their weekends with their families, staying in the prison only during weekday nights. In England and Wales, the equivalent ‘release on temporary licence’ (ROTL) scheme is under-utilised, difficult for even open prisoners to access and does not allow anywhere near this level of freedom. Nor are child care responsibilities considered a sufficient justification for extending the freedom allowed

No system is perfect and there are many critics of the Catalan system. In the absence of research evidence to support the claim, it is also not possible to establish that any combination of the above differences in prison practice have contributed to the substantially lower recidivism rates in Catalonia. However, Paula Montero, previously Deputy Director General of Rehabilitation Programmes at the Justice Department of Catalonia, believes that the Catalan strategy does work as a direct consequence of these policies. The reasons she gives are based on the evidence for ‘what works’ in reducing reoffending. Specifically, she argues that the strategy is tailored to individual need, explicitly avoiding a ‘one size fits all’ approach. With the ultimate goal of normalisation and social integration, it provides the prisoner with continuity of support and maintains their contact with their community and with the services they need, both during their sentence and upon release. Contact with the community includes ensuring that family ties are maintained, that the prisoner has access to work and education and that they are gradually introduced back into a supportive social network.

Research commissioned by our own Government over the last two decades and more has consistently and explicitly demonstrated that the mechanisms which Montero sets out are the most robust means of reducing reoffending. The difference is that Catalonia, the rest of Spain and other countries within Europe with far lower rates of imprisonment and reoffending than our own, have chosen to follow the evidence.

What’s more, in departing from a punitive model and embracing genuine efforts towards rehabilitation these countries have neither incurred the wrath of their public nor, for the most part, increased their financial burden. As Gauke notes in respect of the financial price Spain pays for reducing it’s reoffending rates, the opposite is true. For the year 2023-2024, the UK Government figure for the average daily cost of keeping a prisoner in England and Wales sat at around £122 (equivalent to around 147 euros). The same estimate for prisoners within the Spanish system is less than 67 euros per day.

Montero’s final comment on the benefits of the Catalan system is perhaps the most insightful. She notes that one important advantage of the system is that, through the gradual reintroduction to society via the open prison regime:

[T]he criminal stigma is also lifted, I think we… influence public opinion towards prison and probation sentences in a positive way. This helps us and the (ex-)offender greatly.

In other words, the Spanish public as well as the Spanish prison system has come to embrace a ‘soft’ model of imprisonment. This represents a move away from holding a similar punitive model to the UK to the recognition that to actually reduce crime we need to think more constructively. It turns out that cultural morés about the purpose of our justice systems and the likelihood of effective rehabilitation and crime reduction are intricately linked.

So, if open prisons are the answer, maybe our question needs to be “can we change our culture of punishment to one of rehabilitation and social reintegration?” This is a big question, demanding substantive answers. It also seems to be the major difference between effective and ineffective criminal justice systems.

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[1] Eurostat Prison Statistics April 2024; Office of National Statistics (2024) Population estimates for the UK, England, Wales, Scotland and Northern Ireland: mid-2023 National mid-year population estimates for the UK and its constituent countries, by age and sex. Census 2021

[2] cf. European Prison Observatory (2019) Prisons in Europe. 2019 report on European prisons and penitentiary systems Published online: www.prisonobservatory.org

[3] Impact Lawyers (2024) International comparison of the harshness of penal systems Published online: https://theimpactlawyers.com/editors/til

[4]  Marti, M. (2019) Prisoners in the community: the open prison model in Catalonia Nordisk Tidsskrift for Kriminalvidenskab 2/2019

[5] Criminal Enforcement Research and Training Area (2023) Prison recidivism rate 2020 Generalitat de Catalunya, Centre d’Estudis Juridics i Formacio Especialitzada

[6] Prison Reform Trust (2015) Prisons can seriously damage your mental health Report published online https://prisonreformtrust.org.uk

[7] Cid, J. (2009) Is Imprisonment Criminogenic? A Comparative Study of Recidivism Rates Associated with Terms of Imprisonment and Suspended Prison Sentences European Journal of Criminology, 6(6): 459-480, 2009 http://dx.doi.org/ 10.1177/1477370809341128

[8] Yukhnenko, D. et al (2020) A systematic review of criminal recidivism rates worldwide: 3-year update Wellcome Open Research 2020, 4:28 Last updated: 01 FEB 2021

[9] These descriptions of the Catalan system are taken from an interview with Paula Montero on the official website of the Catalonian Ministry of Justice Rehabilitation and Prison Services

[10] Marti, M. op cit

[11] HM Inspectorate of Probation (2013) A joint inspection of Life sentence prisoners A Joint Inspection by HMI Probation and HMI Prisons

[12] cf. summary provided in Ministry of Justice (2013) Transforming Rehabilitation: a summary of evidence on reducing reoffending Ministry of Justice Analytical Series 2013

[13] Altobelli et al (2024) Cost analysis of penitentiary systems and comparison between the countries of the Council of Europe  Economies 2024 12 (11) 311 https://doi.org/10.3390/economies1211031, E.