This week the Lord Chief Justice implied that too many people were imprisoned, and that the solution to reducing prison numbers was tougher community punishments. It is a common cry – Richard Garside has pointed out the popularity of the “tougher punishment” rhetoric over the last ten years.
I am glad the Lord Chief Justice perceives that too many people are in prison, but slightly perplexed. Judges and magistrates have large discretion to choose the sentence they recommend, and sentences have been getting longer over the last ten years. Since 2006, the average sentence length has increased from 12.3 to 16.4 months. Martin Narey pointed out this week in the Times: “What might have been an eight-year sentence a few years ago for say, robbery, is now typically a ten or 12-year sentence. The amount of time served for such sentences can safely be shortened and would significantly reduce the population”. John Thompson and Robert Venables got a life sentence with an 8 year minimum tariff for the murder of Jamie Bulger, while the teenage killers of Elizabeth and Katie Edwards this month were sentenced to life with a minimum tariff of 20 years. One organisation that could nudge judges towards shorter prison sentences is the Sentencing Council, of which the Lord Chief Justice is President, and the majority of whose members are judges.
It seems though, that the Lord Chief Justice thinks that community sentences need to be made tougher, if judges are to be persuaded to use them more often. It wasn’t clear whether he thought making them tougher would make community sentences more effective, or just more palatable to judges and magistrates. There is no evidence that making them tougher would reduce re-offending, but I also wonder whether the average Crown Court judge or magistrate understands in depth what now happens on a community sentence. Judges get very little (any?) training in the research evidence on the effectiveness of different sentences, and no “experiential” or other training in what community sentences actually involve. Ten years ago, the pioneering programme “rethinking crime and punishment” tried to increase judges’ knowledge of, and thus confidence in, community sentences. In the Thames Valley they got magistrates and judges to go out to see community programmes in action and to speak to people on them. Lord Phillips, as Lord Chief Justice, praised the programme and community sentences.
I think that the average magistrate or Crown Court judge knows less now about the reality of community sentences than they did ten years ago. There are now no well funded experiential training programmes, no probation liaison committees, and no community justice forums (apart from police and crime panels) which judges are allowed to be members of. So I’m concerned that the Lord Chief Justice and his colleagues may have a perception of community sentences that does not square with the reality. There are problems with CRCs, but they and the National Probation Service are definitely doing better rehabilitation work than can be done in prisons currently (if ever?).
The Scottish Government has enacted a presumption against short prison sentences. They haven’t banned them, but they have greatly discouraged judges from using them. The Scottish prison population is coming down, while ours is not. Maybe, as well as improving judges’ confidence in community sentences, we should enact this measure.