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April 29, 2018

Everyone admits short prison sentences are ineffective, so why do the courts still use them?

Hallelujah! A government minister is openly saying that short prison sentences are a waste of time. Or at least tweeting “1870 Declaration of the National Prison Association of the United States: XX. “It is the judgment of this congress, that repeated short sentences for minor criminals are worse than useless; that, in fact, they rather stimulate than repress transgression.” Minister Rory Stewart also said in the House of Commons that “we have conclusive evidence that giving somebody a community sentence rather than a short custodial sentence reduces reoffending over a one-year period”.

Given rampant sentence inflation and a long pipeline of legislation for new offences and/or more punitive sentences for existing offences, it is a huge relief to hear a minister express a clear desire not just that the prison population fall but to do something about reducing it. Other ministers have referred to a fall in the prison population as a “nice to have”, over which the government has no control, because judges make decisions on a case by case basis.

Rory Stewart, Minister for Prisons and Probation, seems to understand that the government has very powerful levers by which it can reduce the prison population, if it wants to use them. Mr Stewart admitted that England and Wales has “a lot of learn from Scotland”. Hallelujah again. The SNP administration in Scotland has brought in a presumption against prison sentences under three months, and is proposing to increase that to sentences under twelve months. The presumption against sentences under three months has not made a big difference to the Scottish prison population, but the messaging and direction of travel matter, and the under twelve month presumption will be a step change.

The  Westminster government is faced with several challenges in trying to reduce or eliminate the use of short prison sentences:

  1. Unlike the Scots, we privatised most of our probation services and the delivery of community sentences is pretty ropey.  This doesn’t mean that they are not more effective than short prison sentences in reducing offending – they still are.
  2. Magistrates and judges have a long standing distrust of community sentences, which has led to a decline in their use, a decline which started way before Transforming Rehabilitation (the programme to part-privatise probation).
  3. Our press may campaign against any move to reduce short prison sentences, particularly if the reform affects someone convicted of, say, domestic abuse or of assaulting a police officer .
  4. The legislative timetable is full of Brexit ping-pong so there is no time to get a new presumption/ban on short sentences through parliament.

There is no easy answer to these challenges. But here are some ideas on how to at least prepare the ground for abolishing short prison sentences:

  1. Give judges and magistrates better training. All would benefit from a basic crash course in criminology – on the societal and individual drivers to crime, what works to reduce crime (inc desistance theory), and the relative effectiveness of different sentences.
  2. I am not a big fan of getting judges to visit prisons, since they never see the real prison, warts and all. Instead I would mandate all judges to visit community sentences in action and talk to those involved. The pioneering programme “Rethinking Crime and Punishment” ran a successful pilot programme to get judges to truly understand community sentences. This was funded by a charity – the Esmee Fairbairn Foundation – but, when it ended, the government would not pick up the tab to continue or expand it.
  3. Don’t try to ban the suspended sentence order. This week the Chair of the Sentencing Council wrote that the SSO should never be recommended in a pre-sentence report, since it was not a “real” sentence and appeared to be being used instead of a community sentence. Our sentencing framework is not ideal and the SSO is a fudge, but it has been preventing many people from being sent to prison for a short time. And those who are sentenced to an SSO with conditions reoffend less than those sentenced to community sentences. So it seems to be throwing the baby out with the bathwater both to increase penalties for breach of SSO, and to artificially reduce its use.
  4. If ministers don’t think they can get sentencing legislation through any time soon, why not task the Sentencing Council with reducing the use of short prison sentences through adapting their guidelines. A new report commissioned by the Council points out that both the official reports on the impact of their guidelines point to an inflationary effect. Sir Anthony Bottoms, the author, suggests sensibly there should be a greater emphasis on personal mitigation in the guidelines, and a requirement that courts ask themselves “is custody unavoidable?”
  5. Messaging is critical. The newspapers may oppose any reduction in short prison sentences, but are unlikely to do so if they understood that short prison sentences lead to more crime. And ministers should not be tempted to say that community sentences are tough, or should be tougher (as they and the opposition frequently do). There is no evidence that tougher or more punitive community sentences work better, and some evidence that the more requirements piled on a community sentence, the more likely it is to be breached and thus fail.
  6. The government may also want to put some focus on particular areas. Postcode sentencing is a little studied but real phenomenon – whereby some courts/areas/judges seem to be much more liable to use prison sentences than others. Russell Webster the other day found a table in the Ministry of Justice’s responses to FOI requests which revealed: “The proportion of defendants sentenced to immediate custody in Magistrates’ Courts ranged from 0% (in 4 courts) to 14% in South Worcestershire and 33% in Harrogate and Skipton (where only 6 defendants were sentenced all year.)” It would be worth analysing which areas are most prone to use short-term custody and focus scarce training resources (and ministerial visits) on those areas.

Revolving Doors has launched a #shortsighted campaign to reduce short prison sentences. Do pledge your support. And go to see your MP to persuade them of the campaign’s merits.