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May 14, 2016

Can we curb our addiction to the short prison sentence?

Prison is a dead end, whatever length of time you are there. The courts in England and Wales give c 50,000 prison sentences of less than six months every year, of which half is usually served inside.  There is no expert nor practitioner who thinks that short sentences serve any useful purpose, other than as a punishment.  And they cost the system a lot – since processing someone in and out of a prison costs roughly the same whether they are staying for a week or three years.

Recently the government has been tentatively considering sentencing reform, maybe because prison reform is difficult (impossible?), when the prisons are full.  Though those on short sentences form only a small proportion of the total prison population, it’s worth trying to get them out.  But how?

The danger of any move to curb the use of short sentences is the unintended effect.  In Scotland there is a statutory presumption against the use of any sentence under three months, but as Professor Cyrus Tata has pointed out, these sentences can still be used when the court considers that no other method of dealing with the person is appropriate  and “does any sentencer make a decision which she or he considers inappropriate”?  Equally, if judges are offered new alternatives to custody, they are likely to use them as a substitute for a community sentence, not instead of imprisonment.

The fabulous rise of the suspended sentence is a case in point.  In England and Wales the suspended sentence has risen exponentially in popularity, while the community sentence has declined.  A consultation from the Sentencing Council implies that sentencers are using the suspended sentence as a particularly “tough” community sentence, rather than as a genuine alternative to a prison sentence.

So why on earth do I advocate an extension in the use of suspended sentences? Stealing and developing an idea of Nicky Padfield, Reader in Criminology at Cambridge University (Criminal Law Review Issue 5 2016),  I think that all sentences under twelve months should be suspended. So no-one would serve a short sentence, unless they had re-offended while subject to a suspended sentence.  This would reduce the population of short sentenced prisoners considerably, and provide a strong incentive for those spared prison to turn their life around.  Instead of reaching the dead end that is prison, they could take an alternative route.  But, for this to succeed, it would be essential to prevent judges up-tariffing community sentences into suspended sentences. Judges need strong guidance, better training and a sophisticated “nudge” programme.  Such an approach has succeeded in persuading judges to reduce the use of prison for children (numbers in custody have reduced by two thirds) – so why not try it for adults?