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Transforming Rehabilitation will improve the Effectiveness, Governance and Legitimacy of Offender Management in England and Wales
The aim of this paper is to examine Transforming Rehabilitation in terms of its effectiveness, governance and legitimacy. Starting out with an explanation of legitimacy and introducing The Carter Report 2003 and its recommendations. Moving on to explain some of the needs for a change in practice, and an insight of some of the views from probation staff themselves and perceptions of negatively withering away of staff. Importantly, there are some explanation of theory, especially regarding desistance and more recently the emergence of The Good Lives Model, as a continuation of The Risk Needs Responsivity model. The explanation regarding some of the outcomes expected by TR, and the need for modernisation. As part of TR a Fee for Service and Payment by Results are explained, with the use of charts for the reader. Managing risk is an important part of the proposed changes and a change in direction to promoting desistance.
Overarching drivers legitimacy and the need to implement change
The term governance is a very old one, but it has been revitalized recently, and has become perhaps one of the most appealing concepts in social science, meaning a new notion reformed, associated with government and public administration. Regarding TR, this may be perceived by many detractors as a case of “new wine in old bottles” Chui and Nellis (2003). Governance has been widely used in local governance. In the case of TR, the popularity of governance may have something to do with distrust about the government. That said, The Social Exclusion Unit posited that, recommendations from The Carter Report (2003) stated that despite recent changes that have brought the management of the services closer together, no front-line organisation ultimately owns the target for reducing re-offending. This can lead to gaps in the system, for example, there is no joint national resettlement strategy and interventions in prison are often not followed up in the community, (Social Exclusion Unit 2002). This in turn leads to reconsideration of the traditional theories of public administration. Self-confidence of traditional public administration has been destroyed and it has faced an ‘identity crisis.’ Public administration, which has been supposed to be a powerful tool for solving social problems, falls down to a serious social problem itself. As a result, many theories have been proposed as alternatives to the traditional public, Ostrom (1986).
The case for an innovative approach to offender management is quite clear cut, as the previous attempts have been deemed costly. It is stated that in the UK more than £3bn is spent every year on prisons, and almost £1bn annually on delivering sentences in the community, MOJ (2013). Despite this, overall reoffending rates have barely changed over the last decade and the same faces are seemingly reappearing back through the system. Almost half of all offenders released from custody in 2010 reoffended within a year. Over 6000 offenders sentenced to short custodial sentences of less than 12 months in the year to June 2012 had previously received more than 10 community sentences, yet gaps in the sentencing framework mean very little can be done to prevent them from returning to crime once they are released back into the community MOJ, (2013). In 2014, under the Transforming Rehabilitation (TR) changes MOJ, (2013), and Probation Trusts were split into the National Probation Service (NPS) which became part of the civil service and 21 Community Rehabilitation Companies (CRCs) which were subject to marketisation and a commercial tendering process, as seen in Fig.1. with their Contract Package Areas (CPA). After the bidding process was completed in 2014, eleven CRCs were owned by private sector companies leading a partnership with third sector organisations, three were joint ventures between the private, public, and third sector, three were a public, private, and third sector partnership; two were owned by the private sector exclusively; and another two were equity joint ventures between the private and third sectors (Deering and Feilzer 2015, p.13).
On 29 October 2014, the MoJ announced its preferred bidders to run the Community Rehabilitation Companies in these areas. Here are the successful bidders and as seen in Fig.2.
- Sodexo and NACRO have been successful in six CRCs
- Interserve who are leading partnerships in five CRCs
- MTCNovo, a Joint Venture between MTC and a number of other organisations, have won London and Thames Valley.
- Working Links are the preferred bidders in three CRCs.
- The Reducing Reoffending Partnership is a Joint Venture between Ingeus, St Giles Trust and CRI, who will run the two large Midlands CRCs , being Staffs & West Midlands and Derby, Leicester, Nottinghamshire & Rutland). Webster (2017)
Clearly the changes imposed because of TR have had the potentia to affect all three types of legitimacy, but perhaps particularly more so upon self- legitimacy. (Robinson, Burke and Millings , 2016)
Around 50% of all crime is committed by individuals who have already known by criminal justice system (CJS). The cost to the taxpayer of reoffending is estimated to be £9.5 to £13 billion per year. There has been little positive change in reconviction rates and almost half of those released from prison go on to reoffend within 12 months. The need to reduce reoffending to reduce both the number of victims and the costs to the taxpayer. To achieve this, there is a need to adopt a tough but intelligent criminal justice system that punishes people properly when they break the law, but also supports them so they don’t commit crime in the future. (MOJ, 2015)
Others are more guarded in the way they anticipate the future of TR, and Canton (2011) in particular, stresses the importance of what the probation service continues to represent and its values, such as belief in the possibility of change and social inclusion. McNeill (2011) characterises probation as a justice agency, with key roles in advocating for probationers in relation to access to social goods that have been denied and mediating between law breakers, their communities and social institutions.
This ideal view contrasts with the reality of delivering community sanctions in a tough penal climate dominated by public protection, which is one of Liz Truss’s key priorities, with a reduction of violence to staff currently running at 40% and a spotlight on education as the 3rd priority, especially English and Maths, MOJ (2017). McNeill also argues that it is critical for the long-term legitimacy and credibility of probation. At this point in time, it may be uncertain as to whether a doom-ridden or a phoenix-rising vision of the probation future is more likely to come about, although some truths may be gathered from empirical evidence gathered from probation officers and trainees.
There seems to be a great deal of optimism on one side of the camp for TR, as to how the recent changes will be implemented, but on the other side, a great deal of pessimism regarding the implementation of TR. NAPO (National Association of Probation Officers) and UNISON, (Public Sector Trade Union), collectively had made their feelings known. They both stated that a large majority of the 17,000 probation staff refer to TR as a “catalogue of errors” in terms of staff assignment, a mismatch between workload, staffing levels and staff location, compromised risk management, reduced IT capability with NOMS, nDelius case management system, although C-NOMIS already had inherent problems as seen in fig.3. Increased bureaucracy and a huge rise in the use of temporary and sessional staff were deemed to be the main problems. High performing Probation Trusts have been replaced with poorly performing replacements. (NAPO and UNISON, 2017). The probation staff were quick to point out that they were not to blame for the errors. Regarding the use of temporary and sessional staff will aid the ability to be dynamic and cope with peaks and troughs. The use of the voluntary sector with CRC’s may also be a sticking point with regular probation staff, although as stated by John Podmore, professor of applied social sciences, “NOMS was never an organisation that its employees proudly declared they belonged to.
Creating a National Prison and Probation Service that people aspire to join and importantly to stay in and develop skills and careers is a crucial step forward. But it must be much more than just name change”, Podmore (2017). Lizz Truss, current Minister of Justice as of April 2017, was keen to promote the newly created Her Majesty’s Prison and Probation Service with the following bold statement, “The creation of HM Prison and Probation Service (HMPPS), will build a world-leading, specialist agency, dedicated to professionalising the prison and probation workforce, backed by an additional £100m a year and 2,500 additional prison officers, with a £1.3 bn budget to build new prisons, whilst at the same time closing old and inefficient prisons”, Truss (2017).
Scepticism may be in the forefronts of most of the staff affected by the new era dawning, as previous ministers, namely Mr Gove and Mr Grayling had somewhat seemed to have failed in their primary objectives for a reformed and efficient joined up agency.
The Need for Change
Accounts of the origins of probation and its realisation in organisational form give different emphases to its role in social justice, redemption, and control or separation of ‘suspect populations’ from respectable society (Vanstone, 2004). The history of the service has frequently been described in terms of ‘phases’, one notable example suggesting that it moved from the missionary phase through welfare and diversion from custody phases towards more recent orientations towards punishment in the community and then public protection (Chui and Nellis, 2003). The reality of practice is less straightforward, although changes in social and political norms certainly mean that the problem of offending, and, inevitably, law-breakers becomes enclosed by practitioners in different terms. Redeemable, treatable or unmanageable, safe or risky, motivated or unmotivated, (Canton, 2011: 29). With current reference to offender management stated that , rather than probation supervisionas the dominant way of describing the work of the probation service is a case in point. To what extent does this represent a real shift towards a technocratic and business-like approach? Or does the term seek to mask the essential continuity in both human interactions between probation officers and probationers, and the normalising function benevolent or otherwise of probation?
These questions are certainly not settled. Yet, in the face of the Transforming Rehabilitationreforms (MoJ, 2013a: MoJ, 2013b), they become highly significant when we consider the practices and values that might transfer out of the probation service into the new Community Rehabilitation Companies (CRCs) ,as staff move from one to the other. They are also relevant in anticipating what motivations and values might guide this new version of the NPS, tightly focused on work with higher risk offenders and in the courts to assist sentencing and enforcement procedures. From a critical perspective, Cavadino et.al.(2013: 134) fear the ‘withering away’ of supervision of probationers and even question the Transforming Rehabilitation, or transforming the occupational identity of probation workers?
As far back as the 1800’s, the French social scientist, Quetelet (1833), argued that the penchant for crime diminishes with age because of what was described as the “enfeeblement of physical vitality”. Given that one of the aims of the Criminal Justice System is to reduce crime, then does Transforming Rehabilitation support this? Desistance is one of the mechanisms that can aid TR, however desistance is a complicated process of many twist and turns on that journey to desist from offending. Transforming Rehabilitation is now well under way and reports on its success will be under much scrutiny in the coming months ahead. Desistance from crime, is described as the long-term abstinence from criminal behaviour among those for whom offending had become a pattern of behaviour, is something of a mystery. Producing or encouraging desistance is the implicit focus of much criminal justice policy, practice and research. It is one of the key outcomes that justice interventions are designed to achieve and much research treats reducing or ending offending as a key measure of effectiveness, McNeill et. al. (2012).
One of the few near eventualities in criminal justice is that for many individuals, offending behaviour peaks in their teenage years, and then starts to decline. This pattern is represented in what is known as the ‘age crime curve’. The age crime curve is of a symmetrical bell shaped curve that shows the prevalence’s of offending, that peaks between the ages of 15 – 19 and declines in the 20’s, Farrington (1986). Studies of desistance illuminate the processes of change associated with the age-crime curve (Kazemian, 2007). If we are to understand desistance from crime, particularly how and why crime tails off over time, we need both testable theories of this process and empirical evidence. There is a significant evidence base on the causes of crime but desistance research suggests that the factors behind the onset of offending are often different than the factors behind its abandonment. Understanding desistance also has more subtle impacts on criminal justice debates.
The most current version of The Good Lives Model, incorporates desistance theory and also elements of positive psychology Laws and Ward (2011), is strength based regarding the premise that humans are by nature, practical decision makers, who invariably adapt themselves to their environment. In relation to desistance, Maruna (2001), described what he coined the Pygmalion effect, stated that the elevated expectations of others will lead to a greater self-belief, aiding the process of ‘knifing off’, or cutting off bonds with their criminal past. In order to achieve these goals, a great deal of emphasis on social capital or opportunities and human capital or motivations and capacities, McNeill (2006) are necessary elements to aid primary and secondary desistance. With respect to the GLM as to its effectiveness, research into this model is rather ambivalent and rather scarce to date to be able to measure the evidence.
Offender Management Outcomes
Kirton and Guillame (2015), argue that staff feel that TR has deprofessionalized the service and that stress levels are high, due to higher workloads, job insecurity, less autonomy and reduced opportunities for training and progression. Many respondents in their study were considering leaving the service. Moreover, responses to the Ministry of Justice’s (2016) Civil Service People Surveyfor the NPS suggest that only a minority of NPS staff feel that they are involved in decisions that affect their work (38%); that poor performance is dealt with effectively in their team (35%); that there are learning and development opportunities (42%); and that there are career opportunities in the NPS (33%).
The NOMS Offender Management Model is the product of bringing together the policy requirements and the messages from research and other evidence, and defining what these together mean for the principles of how NOMS will go about managing individual offenders. It is the bridge between the broad brush strokes of policy, and the finer detail of practice. It forms part of NOMS’ commissioning framework, setting out the broad specification for the approach it expects those managing individual offenders to deploy, and acting as the basis for the development of Standards and performance measures, NOMS (2006). Post Carter report, this was simply a reply from this by concentrating on key themes like modernisation in the form of New Public Management (NPM), trying to control the increasing population in the prison system and by trying to find solutions to the lack of communication between services under the umbrella of probation supervision and prison and probation.
Payment by Results
The MOJ sets out the mechanisms of FFS: Fee For Service (FFS) is payment for mandated activities that deliver through the gate services, (TTG), the sentence of the court and licence conditions to time and quality. A recognition that volume risk, that is the risk that providers are required to deliver services for a larger or smaller number of offenders than expected has been raised as a serious concern, and therefore the risk needs to be shared between Government and providers. The FFS component will therefore be a fixed price for services with a volume related adjustment where changes to volume levels fall outside of an appropriately determined tolerance range, as seen in FIig.4. above. This volume tolerance range recognises that the likely reason for a significantincrease or decrease in volume is most likely to be due to external factors not within the control of a provider.
Payment by Results’ (PbR) seems to be an ideal mechanism in TR, particularly in the current economic climate and under a government which is so keen, to reduce public expenditure, but also to reduce the scale of the public sector, and innovative because possible failings may allow to transfer the costs to private companies involved. Fox and Albertson (2011) stated, there are other potential benefits to PbR. The sheer possibility of making profits is expected to bring new providers into the field. This, combined with a financial incentive to achieve outcomes, is then expected to increase competition, sweep away unnecessary bureaucracy, and increase the desire to innovate. leading to a better understanding of what is effective, possibly leading to lower unit costs thus allowing for an element of profit to be paid. This is expected to facilitate the involvement of smaller providers who may not have the financial resources to sustain a service over several years while waiting for their results to be evident and their payments to be triggered. In all, if implemented properly then a huge success for private companies involved in TR.
One also must bear in mind that the priority given to different purposes is likely to vary over time. Countries can change their penal philosophies, with different purposes and emphases being put on the role of probation within criminal justice. Kemshall (2010) and others, for example, have argued that, in the last decade or so, more emphasis has been placed on public protection and minimizing risk in England and Wales, with a linked priority on enforcement of breach. The government’s new consultation document, ‘Breaking the cycle: effective punishment, rehabilitation and sentencing of offenders’ may see a swing back towards rehabilitation and promoting desistance, whilst promoting community sentences for less serious offences and without compromising public protection (Ministry of Justice 2010).
Lessons from the Thatcher government (1979–1990) taught us that her government targeted the large public sector organisations involved in the provision of utilities whom they presented as being inefficient, over-bureaucratic and unresponsive because they were not subjected to the ‘discipline’ of the market, such as the prison service. However, there was also the realisation that selling those public entities, who were profitable by virtue of their monopoly position, afforded a short-term opportunity to raise revenues, lower taxation and reduce public sector borrowing, now seen again in a Conservative government, Annison et.al. (2014). Do we state the obvious or is it a case of Deja vou? In this respect, it is worth remembering that earlier initiatives introduced by the previous Labour government to address this issue – such as the NOMS and Custody Plus3 were subsequently abandoned on the grounds of the costs involved.
At the heart of the government’s TR rhetoric is the idea of innovation, however as in some cases a phone call every 6 weeks from a CRC to a low risk offender may not be seen this way. TR has been communicated from the top down as an opportunity for providers of probation services to liberate themselves from central control and develop creative, effective solutions to the problem of reoffending (Ministry of Justice 2013a; 2013b).
The question of perceptual legitimacy, internal, external, and self- legitimacy has become a core site of debate for probation. Bradford and Quinton’s (2014) conditions for self-legitimacy, namely levels of attachment to the new organizations, the internalization of organizational goals, a sense of being supported by the organization, and a belief that probation staff in both the CRCs and the NPS remain legitimate holders of authority.
As David Cameron once remarked whilst Prime Minister, ‘finding diamonds in the rough and letting them shine’. With effective rehabilitation methods in place and joined up working principles, maybe optimistically, we just might see many shining lights, and hail the implementation of Transforming Rehabilitation.
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Fig.1. CPA Map showing the 21 Contract Package Areas
Fig2. System Governance
Fig.3.Assesemnt of C-NOMIS National Audit Office 2009
Fig.4. Key Components of Fee for Service Mechanism
Fig.5.Illustration of payment curve incorporating stretch targets.
Fig.6.Prochaska and DiClemente’s Cycle of Change Model
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