What has Richard Thaler’s Nobel prize got to do with the new Sentencing Council draft guidelines on sentencing terrorists? The answer is that we need to step back and think whether ramping up sentencing will change the behaviour of potential terrorists.

We all want fewer people to be tempted by extremist beliefs or to commit terrorist offences, but I am somewhat doubtful that punishing these terrorists even more severely will make us all safer.

It is tempting to think that punishment for crime reduces crime but does it? And could the resources be better spent on other ways of reducing crime?

Richard Thaler’s important work says that we do not behave rationally most of the time, and that our behaviour can be nudged in a positive direction. For instance, Thaler suggested that people could be encouraged to sign up to donate their organs (in the event of their death) by inserting a question in the driving licence renewal form asking them to opt in or out of organ donation.

All crimes are the result of behaviour the government and society wants to change. Clearly we can’t deal with all potential and actual terrorists using nudge theory, persuasion techniques or designing out crime. But the balance between using the criminal law and other techniques seems to be awry.

The Sentencing Council press release on changes to guidance on terrorist offences refers to recent incidents:

“Some of these latest acts of terrorism have involved far less sophisticated methods than have been used previously. Terrorists have, for example, used motor vehicles or knives in attacks…In addition, there has been growing concern about the availability of extremist material online, which can lead to people becoming self-radicalised. As a result of such changes in offending, for the offence of the preparation of terrorist acts, the Council is proposing that sentence lengths be increased for lower level offences, such as those where preparations might not be well developed or an offender may be offering a small amount of assistance to others. The Council decided that, in the current climate where a terrorist act could be planned in a very short time using readily available items such as vehicles and knives as weapons, combined with online extremist material that normalises terrorist activity and provide encouragement, these offences are more serious than they have previously been perceived”.

What is missing from this is a rationale for increasing sentences for these crimes – the reason given is these crimes are now perceived to be more “serious” than previously. But it doesn’t explain what longer sentences will actually achieve – will they deter the perpetrators or others from committing such crimes, or will an extra year in prison help rehabilitate that individual? There is very little evidence that deterrent sentences work with this group, so it is not clear what extra time in our crime-ridden prisons will achieve.

The belief that criminal punishment changes behaviour for the better is prevalent throughout society. A campaign by charities to increase sentences for animal cruelty is succeeding. This website from Battersea Dogs’ Home (thanks Richard Garside for info) calls for minimum prison sentences to be increased in England and Wales from 6 months to 5 years – a ten fold increase. Animal cruelty is absolutely terrible, and the penalties for it are low compared to any kind of cruelty to humans. But there is no evidence that increasing criminal sanctions will prevent or stop the bad behaviour. I can’t see anything on the site explaining how longer sentences will “make such shocking cruelty to animals a thing of the past”. Some individuals who are convicted of animal cruelty may be imprisoned for longer, but the cruelty will still go on.

The best way to reduce animal cruelty is through public education, nudging and better detection of the crime – the most powerful deterrent is the chance of being caught, not the sanction itself. (For a brilliant explanation of this read Criminal by Tom Gash).

Both the English and Welsh and Scottish governments have bowed to political and Political (lots of MPs and MSPs have signed up to the cause) pressure to increase sanctions for animal cruelty, and every day criminal justice ministers are lobbied to increase penalties for a different issue – disability hate crime, up-skirting, dangerous cycling, death by driving etc. But our prisons are full to bursting and our sentence inflation rampant. Criminal law is one of the bluntest instruments to change behaviour. Almost every other approach works better and is more cost effective – in our rush for retribution, we’re in danger of forgetting the wisdom of behaviour change experts like Richard Thaler.