Language matters when it comes to criminal justice

handcuffsWE have a language problem when it comes to criminal justice. Take the phrase “automatic early release”, which the Scottish Government plans to end despite strong opposition from academics, lawyers and penal reform campaigners. Automatic early release really doesn’t sound like a good thing. The phrase conjures up the image of a cell door automatically swinging open early – too early – allowing the offender within to go on his or her merry way without so much as a backward glance. It describes only an end to imprisonment; it conveys no sense of something else beginning, such as a period on licence or supervision, or of reintegration into the community.

The way we talk about sentencing options that aren’t imprisonment is also unhelpful, and journalistic conventions are part of it. Speaking in Glasgow last week, Scotland’s Chief Inspector of Prisons David Strang remarked upon the use of the loaded phrase “walked free from court” – another set of words that conveys only a lack of imprisonment, but seems to imply a lack of justice. To walk from court, it seems, is to be getting away with it, because anything other than time in a cell is a soft option. And as Brian McConnachie QC observed last week, no government wants to be seen as soft on crime in the run-up to an election.

The big problem, of course, is that the hard option – imprisonment – doesn’t work, unless the aim is to satisfy a perceived public thirst for punishment. If the aim is to reduce crime then the evidence clearly shows we should be using prison less, not more. The Scottish Government claims to understand this, and accordingly has stated its aim to reduce the prison population, yet in recent weeks Nicola Sturgeon and her Justice Secretary Michael Matheson have used the emotive justification of “protecting the public” to argue for a policy that will do exactly the opposite.

Ending automatic early release for those serving long sentences will increase the prison population, but will it also boost public protection? Intuitively, the answer seems to be yes: for as long as serious offenders are in prison, they evidently are not harming those in the community. But if we wanted our government policy to be guided by intuition then we would could do away with the Holyrood committees that consider evidence from experts in the field. In this case the experts are urging the government to reconsider, saying the “cold release” of serious offenders very near the end of their sentences would be dangerous – increasing the risk of them re-offending – while tacking an extra period of supervision on to their terms would be unjust.

“The way we talk about offending is important because writing off those who have been in prison risks creating a self-fulfilling prophecy that sends them back there”

A submission to the Justice Committee from Victim Support Scotland, which backs the end of automatic early release not only for those serving long sentences but those serving shorter ones too, brings us back to questions of perception. Victims of crime, the organisation argues, “should be able to understand why the sentence was chosen and what it will mean in practice”. Few would disagree with this – and yet the language of our courts, and consequently of our media, is deceiving. It is hardly unreasonable for a victim to believe that when a judge hands down a 10-year prison sentence the offender will be in prison for 10 years, and therefore feel outraged when he “walks free” after six or seven. Which is not to say anyone’s interest is best served by those full 10 years being served in prison, simply that more clarity and better communication is needed.

Those released on licence can be swiftly recalled to prison if they breach the conditions attached, meaning they are not “free” in the same sense as everyone else. But even if they do follow the rules and stay out of the cells, the stigma of their past life will likely be hard to shift. When we brand such people for life as “dangerous criminals”, what does it say about our belief in their capacity to change? Even the very best prison rehabilitation problem cannot compel prospective employers to look beyond a criminal record – a broader change in attitudes is needed.

The way we talk about offending is important because writing off those who have been in prison risks creating a self-fulfilling prophecy that sends them back there, while dismissing community-based sentences that might break the cycle as “soft justice” brings us right back to square one: prison doesn’t work.

This article was first published in The Herald on March 9 2015.

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