Justice and Fairness in Prisons · 22 May 2020
Prison punishment: the everyday unfairness of prison adjudications
The programme on justice and fairness will look at everyday injustice as well as procedural justice in prisons. Prison regimes are rife with everyday injustices: inconsistent processes, arbitrary decisions, bureaucratic delays, ignored complaints, poor living conditions and the lack of privacy afforded by a shared cell. Procedural justice is about the fairness of specific processes. Even when prison processes are procedurally fair, everyday injustice is built into prison regimes.
With that in mind, let us step back in time to a period just before the current pandemic.
Prior to the coronavirus lockdown, I visited a prison with a Howard League solicitor and witnessed a prison adjudication that was procedurally and essentially unfair. Adjudications are a key part of the prison disciplinary system. When a prisoner is accused of breaking a prison rule, they will face an adjudication and if found guilty, a range of punishments can be imposed – from removal of privileges to the imposition of up to 42 days of additional punishment.
Although it was a sunny autumn day outside, inside the imposing Victorian prison it was freezing. The segregation unit (the ‘Seg’) where the adjudications took place had been recently decorated. The cell doors had been painted bright green and huge posters of waterfalls and tropical sunsets dotted the stone walls, vivid images of faraway places. The prison had also put up enormous word cloud posters which had the word HOPE in the centre. HOPE was surrounded by smaller words like ‘grow’, ‘learn’, ‘reflect’, ‘rebuild’ and ‘trust’. Around 40 adjudications were being heard that day and we were told to expect a wait.
Before the hearing took place, we met the teenager that the Howard League was representing in an interview cell to discuss the incident which had led to this adjudication – a fight involving a number of other young people. Our client, like many of the young people in the prison, was black. The teenager was pleading guilty to the charge and had made the effort to organise legal representation for himself (many adjudications take place without legal representation), but he told us that he ‘couldn’t be bothered’ with adjudications. I asked him if he thought that adjudications were an effective way of deterring people from breaking prison rules, and his answer was to shrug. He said that he had got into the fight because his friends were involved, and he had joined in out of loyalty. In prison, those loyalties become crucially important, for reasons of self-protection, and to provide a sense of belonging.
There was a real shift in atmosphere between the interview cell and the rigid formality of the adjudications room. We went in through one door, and our client was brought in through another by a prison officer. The teenager’s chair and table were both bolted to the floor in the middle of the room, in front of the independent adjudicator or judge who sat behind a desk with a prison officer to one side. The solicitor sat to the other side of the judge, and the other escorting officer sat just behind our client, who was effectively surrounded. Apart from answering ‘yes’ to the judge’s question ‘have you had the nicking sheet for at least two hours’, the teenager said nothing throughout the hearing. His lack of agency was tangible. Without our solicitor in the room, he would have had no advocacy at all.
The judge asked to watch the CCTV of the incident and everyone in the room except for the person being adjudicated – the prison officer, the solicitor, myself and the judge – craned around a small screen on the judge’s desk to see what had taken place. The judge asked ‘which one is he’ and the prison officer identified him as ‘the one in the Nike t-shirt’ – scarcely a distinguishing feature in a prison for young people like Aylesbury. Our client was not asked to identify himself. He sat and waited while the judge replayed the clip several times. Excluding the defendant in this way is procedurally unfair because it denies them a voice in the proceedings. The adjudication was something that was being done to our client, rather than with him.
Our client had spent the last two years of his childhood in violent and chaotic environments
The adjudication was over quickly. Our solicitor raised mitigating circumstances and told the judge that our client had kept clear of trouble for a while, providing context which otherwise would not have been available during the hearing. The judge swiftly came to the decision to add 12 days to the teenager’s sentence – fewer days than we had been expecting, due to a reduction in light of the client’s guilty plea – and the hearing was at an end.
In this case, the judge’s decision was not overly punitive. Yet the situation of our client was deeply unfair, in several ways. Firstly, our client had spent the last two years of his life – the last, highly formative years of his childhood – in violent and chaotic environments. He had been in prison since September 2017, and had spent time in Cookham Wood, a children’s prison, before moving to Aylesbury. The most recent prison inspectorate report was extremely critical of Cookham Wood prison, its high levels of violence and its ‘culture of fighting’. Children in the prison told inspectors that there were ‘rules to the game’ such as an obligation for children to fight with other children from a different postcode, gang or wing. Contra the word clouds on the wall, prison is not a place where children and young people learn to ‘grow’, ‘learn’, and ‘reflect’.
Secondly, our solicitor discovered that the teenager had no sentence plan. A sentence plan is an action plan which sets goals around behaviour, skills and learning and advises which courses or interventions a prisoner should aim to complete before the end of their sentence. It is important because it motivates people in prison to address the behaviour that led to their offending. If a prisoner’s sentence plan is delayed, it means they have less time to complete courses or interventions (which are often in short supply) before their parole hearing, which can negatively affect their chances of getting parole. In addition, the longer someone goes without supportive interventions, the more likely they are to keep getting in trouble in prison, and this will also have a negative impact on their chances of release. This is an example of how prisons punish bad behaviour, rather than seeking to prevent it.
Thirdly, the adjudication process itself did nothing to address the teenager’s adverse experiences or his lack of sentence plan, and neither did it support him to engage proactively in changing his behaviours. One of the ‘desired outcomes’ outlined in the Prison Rule on adjudications is that ‘prisoners understand the consequences of their behaviour – they also consider and address the negative aspects of their behaviour as a result’ (PSI on Prison Discipline Procedures 1.9). This is a laudable goal but there is no space in adjudication processes like this for a reflective, reparative approach that addresses the underlying causes of conflict. Those underlying causes are the injustices that are part of everyday life in prison.