David Gauke: There’s a Conservative case for prison reform – take a look at Texas

David Gauke is a former Justice Secretary and was an independent candidate in South-West Hertfordshire at the 2019 general election.

Those who take a close interest in US Presidential nomination races will remember Rick Perry.

He was the Governor of Texas who emerged in 2011 as one of the leading candidates to be the Republican’s Presidential candidate in the 2012 elections.  He was socially conservative; he was very tough on illegal immigration; he favoured introducing a flat tax and scrapping three government departments; and expressed his scepticism about global warming. He was undoubtedly a candidate of the Right.

Despite having a well-funded campaign, Perry performed poorly in debates and after a disappointing performance in the Iowa caucuses suspended his campaign.  He briefly tried again for the 2016 nomination, before being appointed Energy Secretary by President Trump (one of the departments he had sought to abolish).

The reason I mention Perry is that, as well as being a very conservative politician from a very conservative State, he also presided over radical changes to penal policy in Texas when he was Governor.  Seventeen years on from these reforms, crime in Texas has fallen substantially and the changes made are widely seen as very successful.  So much so that, in my capacity as Chair of the Independent Sentencing Review, I visited Texas last month along with the Lord Chancellor, Shabana Mahmood, to see what lessons could be learnt for the purposes of our own approach in England and Wales.

The most significant Texan reforms were introduced in 2007.  This involved introducing good behaviour credits, which allow prisoners to earn an earlier parole hearing through good behaviour and participation in work, education and vocational programmes, as well as an overhaul of probation and a diversion of resources from punishment to treatment for non-violent offenders.

It would be fair to say that Perry was not the instigator of these reforms.  Instead, they were driven by a cross-party consensus in the State legislature led by Republican Representative Jerry Madden and Democrat Senator John Whitmire.  Nonetheless, Governor Perry accepted the proposals – and for a very good conservative reason.  He needed to control public spending.

The Texan prison population in 1980 was 30,000.  That is not a small number but it subsequently grew to 153,000 by 2007.  The trend was set to continue, with projections showing that the prison population was due to increase by a further 17,000.  Perry’s predecessor as Governor, George W Bush had built 38 prisons and seen the corrections budget increase from $1.4bn to $2.4bn.  The State now faced a further $500m bill to build further prisons to cope with the growing prison population.

Perry – a fiscal conservative who favoured lower taxes – was persuaded to take a different approach.  Not only did the additional places prove not to be necessary, but the Texan State prison population proceeded to fall, and is now at 134,000, notwithstanding that the overall population in Texas has grown by nearly 30 per since 2007.  Crime has also fallen significantly – by 29 per cent – as reoffending rates have reduced dramatically.

We should not ignore the reality that Texas is – by European standards – a very tough system.  The prison population is smaller than it was, but its incarceration rate (measured by the number in prison per 100,000 in the overall population) is, at 751, extraordinarily high compared to England & Wales (139) let alone the likes of Germany (68) and the Netherlands (64).  It still has the death penalty, makes extensive use of solitary confinement, and, having seen for myself, the prison cells are often tiny and extremely basic.

Having said all that, the prisoners we met spent very little time locked up in their cells, certainly compared to many of our own prisoners.  They worked reasonably long days, could relax in communal areas and could win access to digital tablets with controlled access to the internet (one long term inmate had developed an interest in history podcasts but – astonishingly – had hitherto not been familiar with The Rest Is History until I put him right).

There was a special regime for prolific offenders whose criminal activities were as a consequence (as is usually the case) of addiction to drink or drugs.  Here a therapeutic approach was taken in which a group of 120 or so men would hold four hour long meetings in which they would take turns to share their feelings about how they were facing up to their demons and how the experience together was changing them for the better, with each contribution greeted with large applause.  It was, in truth, perhaps too American in style to be exactly replicated here, although I did wonder if the prospect of being expected to share one’s feelings with 120 other people would have a significant deterrent effect on most Britons.

What was most striking was that the prison was calm – and calmer than one would often find within our own prisons.  The good behaviour credits, which enable prisoners to bring forward their parole date hearings and, therefore, their potential release date clearly had an incentivising impact.  This works best for those in prison for a longer period, where it is possible to establish the programmes and provide the work, but – given sentence lengths in Texas – there was no shortage of long term prisoners, some of whom might knock decades off their sentence.

The Independent Sentencing Review will look at what is done in Texas, just as we will look at what works well in other jurisdictions, but it is never possible to transplant one set of policies from one country to another.  There are too many differences in culture and practice to make that possible.

Nonetheless, it is a noteworthy to see somewhere like Texas can change its approach so radically and so successfully.  Like us today, Texas had seen a big increase in prison population over a short period of time (ours has essentially doubled since 1993) and faced a substantial cost in building more prisons (the Government is already committed to spending £10bn on prison building, and that still will not be enough to keep up with current projections).

Texas chose to change approach.  It could be described as being more liberal, but it happened under a conservative Governor for conservative reasons – to protect the taxpayer.  And this underlines an important point that can be missed from this debate.  Prison reform should be a cause that conservatives can get behind.

The centre right should believe in getting the best possible value for money from every pound raised from the taxpayer.  The centre right should be sceptical about the State taking on further financial obligations, and there is no clearer example of that than our ballooning prison population.  The centre right should care about reducing crime, but that should be reflected by a determination to take the most effective measures to reduce crime, not in performative actions that achieve little.  The centre right should also have a hard-headed understanding of the reality of human nature.  That means that punishment and deterrence should play an important role in our criminal justice system but so should rewarding good behaviour.

One of the first in this country to spot the success of the Texan reforms to criminal justice was Danny Kruger, who presented an excellent documentary on Radio 4 in 2014 on the subject.  And I am sure he will not mind me pointing out, one cannot get much more conservative than Danny.

There are plenty of practical lessons from Texas, but there is also a more political one.  Politicians of the right can – and should – embrace criminal justice reform.