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December 3, 2016

The mystery of sentence inflation

It is clear that prisons are full to bursting, and that it would be good to reduce prison numbers.  But the number of those going to prison has been falling; it just that once people are in, they are there for longer.  Prison sentences have increased by three months in the last six years.  It doesn’t sound a lot, but for every person in prison to stay on average that much longer amounts to a huge amount more time, and more prisoners.

It is a little discussed problem, partly because no-one can pin down exactly why it is happening, or what to do about it, given that judges have wide discretion in the sentences they mete out.  And because reducing maximum sentences is politically unpalatable.

The Ministry of Justice suggests that the end of IPPs (imprisonment for public protection sentences) may have led to sentence inflation ie that judges who would have given an IPP sentence with say a minimum two year tariff, are now going for a higher tariff since they know that the prisoner will be released as scheduled.  This is an interesting theory but doesn’t account for sentence inflation every year since 2012, when the IPP sentence was abolished.

There are several possible reasons for sentence inflation

  • New legislation. This is the cause often cited by judges and will definitely have contributed.  Hundreds of changes to criminal law have been added to the statute book in the last fifteen years, and most have involved ratcheting up sentences. For instance, a law mandating that those convicted of carrying a knife twice should get a mandatory prison sentence, was enacted last year.  The cry to increase sentences through legislation (eg for dangerous driving, disability hate crime) continues, whereas there has been no legislation to reduce sentences.
  • The increase in the minimum sentence for murder. This is not new (minimum terms for murder increased in mid 2000s), but it seems to have gradually had the effect of raising the tariff (length of sentence) for most serious violent offences.
  • The drive for consistency underpinned by Sentencing Guidelines. Transform Justice is about to publish a paper on the Sentencing Council, which suggests that its’ guidelines may be unwittingly fuelling sentence inflation. Sometimes the new tariffs suggested for an offence are higher than previously (so the Council themselves predict an increased need for prison places).  Other times the recommended minimum seems to prevent a judge taking a flier, and giving someone an individualised, imaginative sentence.
  • The collapse of appeals against sentences. Around 60% of those who appeal their sentence from the magistrates’ court succeed in getting their sentence reduced, but the number appealing has slumped. In 1992 0.7% of sentences were appealed, while 0.37% now are.  There has been a 21% fall too in sentence appeals to the Court of Appeal in the last four years. This is disastrous for keeping sentences down, since it means that fewer sentences are moderated, so the “going rate” – what is culturally acceptable within the courts – goes up.  The collapse of appeals may be related to the hegemony of sentencing guidelines.  It’s more difficult to argue a sentence is disproportionate, if it falls within the guidelines.
  • More sentences are increased by the Court of Appeal. Sentences which are deemed to be “unduly lenient” can be referred to the Attorney General (known as an AG ref).  His office approves all but a handful to be referred to the Court of Appeal, where the vast majority (c78%) of sentences are increased.  Some sentences increases are huge – one man who had committed sex offences had his sentence increased from a 3 year community order to 5 years in prison.  There is some anecdotal evidence that judges face more reputational damage amongst their peers if an AG ref overturns their sentence, than if the Court of Appeal reduces their sentence.  The scope of the unduly lenient sentence process has increased in recent years, and the most recent Conservative Manifesto committed to increasing that scope further still, so that either way offences and well as indictable could be referred.  Every time a sentence is increased, the “going rate” for the sentence does too.
  • Increased sentences for historic cases. Matt Stanbury @thepubliclawyer suggested that judges used to sentence in historic sex cases more in line with the lower tariff the defendant would have “got back in the day” when they committed the offence. But a key Court of Appeal ruling, R v H 2011, put paid to that so “you now have longer sentences not just for current offences but historic ones too”.
  • Indirect pressure from the public, media and politicians. The length of sentences for sexual offences have gone up considerably.  The clamour for tougher sentences from many sources must have some influence on judges’ decision-making, particular where they have wide discretion as to which sentence to use.  Judges are independent, but they read newspapers, and have friends and family with opinions.  Unconscious or conscious bias affects all decision making, including judicial.

This list is an educated guess as to why we have had sentence inflation, and I don’t know the weight of the various factors.  Would love to have your views on twitter, linkedin or via email (penelope@transformjustice.org,uk).