People say the coronavirus doesn’t discriminate and in some ways that’s true – the heir to the throne got it, the Prime Minister got it, almost everyone can get it. But we also know that the virus loves certain places in particular – preferably the kind of places that are jam-packed with humans it can get to work on quickly. Care homes. Crowded trains in crowded capitals. And prison cells.
Obviously, a lot of these environments disproportionately affect the vulnerable and the poor, but one of them – prisons – is a lot easier to forget about, and harder to care about, than the others. It doesn’t help that some of the prisoners who’ve died of the virus in the last few days were guilty of horrible offences against women and children. These are men who it’s hard to feel sorry for, frankly.
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But the fact that the virus is now spreading through the prison system, as we knew it would, is surely a chance to take a proper look at how the system works and how it can be improved. People have been saying the virus can be a catalyst for reform of the NHS and benefit payments, but hopefully it can be the same for prisons and courts. We still have a justice system that Fagin and Fletcher would recognise. It’s Victorian. No, worse: in some respects, it’s medieval.
Partly, it is this reality that has made it so easy for the virus to spread in prisons. They’re over-crowded: prisoners are often sharing cells that were designed for one person. They’re also under-staffed: some prison officers are reporting having to look after a huge number of inmates on their own, meaning that close contact is inevitable. One lawyer who works in jails said that if cruise ships were petri dishes ripe for the spread of the virus, then prisons were a thousand times worse.
The Scottish Government’s response to this has been to pass legislation that allows for the early release of some prisoners, although no releases have happened as yet. The Government also wanted trials to go ahead without juries, although that idea was dropped after a backlash from the opposition parties and some lawyers. What’s happened, it seems to me, is that the Government recognises some of the problems with the justice system, but hasn’t been able to tackle them, even in this time of crisis.
The political reasons for this hesitancy are interesting. First, whenever the subject of justice comes up, the Tories, predictably, demand the jangle of keys and the slam of cell doors and that resonates with a lot of voters. But the second reason is just as important: the SNP is worried that radical reform might lose them support among former Labour voters with conservative views on justice – voters the SNP is desperate to keep.
This is partly why the Scottish Government keeps flirting with reform of the justice system and then pulling back, just as they have with the emergency coronavirus laws. In 2011, the Government introduced a presumption against sentences of three months or less and last year it was extended to 12 months. But it is only a presumption: thousands of prisoners are still being sent to prison for a few months even though we know short sentences don’t work, mostly because they cut prisoners off from the things that prevent reoffending, like family or a job.
What the virus has done is emphasise the consequences of the short sentences and the over-use of prison: the inmates are crammed in together, tensions rise, there aren’t enough staff to cope, there isn’t enough time or resources for proper rehabilitation work, and, when a pandemic breaks out, the crowded cells are the perfect breeding ground for the virus. And yet still, even now, the Government is paying lip service to the power of the lock and key and is apparently reluctant to release prisoners to relieve the pressure.
The Government also very quickly backed off from its plans to suspend jury trials, which is another great pity. In public, some lawyers called jury trials the bedrock of the justice system, but speak to other lawyers in private and they’ll tell you how worried they are about how juries work. Jurors are told to avoid looking up the case on their mobiles. Do we believe they stick to that rule? They’re also told not to talk to friends about the evidence. Again, do we believe they don’t? Social media has also surely made it more likely that jurors will act not on the facts but on rumour and prejudice; it must also make them more vulnerable to bribery or influence.
I’m not suggesting the Government should have used coronavirus as an excuse for sweeping away juries – of course not – but the fact that the virus is putting a strain on public services, including the courts and the prisons, is a good excuse to look at how they are working. There’s never been an inquiry into the jury system – unbelievably, there’s never even been proper research into it – but shouldn’t we ask questions of it? Is it rational to have non-experts making the decisions? Is it worth the time and money? And is the secrecy of the jury room a cornerstone of our system or a disguise for bad decisions and a lack of scrutiny?
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Sadly, we just don’t ask those kind of questions of the justice system and never really have. Instead, we carry on with a system that pretty much hasn’t changed in hundreds of years: you’re put on trial in front of a jury and then the chances are, if you’re found guilty, you’ll be locked up. A lot of the public clearly seem to like it this way, or are used to it, and so a lot of politicians are afraid to suggest that it should change.
However, an open, fair system would do things differently. It would scrutinise the decisions of the people who find other people guilty or not guilty. It would reserve prison for the most dangerous criminals only. It would recognise that short sentences contribute to the merry-go-round of commit crime, go to prison, leave prison, commit crime again. And it would try to create a system that doesn’t force people into unpleasant, crowded conditions. We should do all of these things because of coronavirus. But we should also do them because it would make for a better society.
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