The decline of the community sentence could be seen to be a good thing.  After all, it reflects a decline in offending and of those prosecuted in court.  But actually its a tragedy, when this decline has coincided with an increase in the prison population.  Since 2005 the number of community sentences given has nearly halved.  Meanwhile sentences of immediate custody have declined – but by only 14%, and suspended sentences (which can easily result in custody) have exploded in popularity.

How have we let this happen?  Prison is a dead end which offers offenders little way out.  Community sentences are far cheaper than imprisonment, and offer greater opportunities for rehabilitation.  But a recent report from the National Audit Office on the new probation landscape offers scant hope for a revival in the popularity of community sentences.  In my naivety,  I had thought that the main point of the reform of probation was to incentivise the reduction of re-offending – difficult to pull off, but worthwhile. But I now discover that the financial incentive to reduce offending is tiny, while the incentive to simply get offenders through “activities” is big.  Given that the “activities” are prescribed, the incentive to innovative is practically nil, as the NAO points out: “In Warwickshire and West Mercia, the former probation trust and the CRC had, since 2013, shifted their activities away from established ‘accredited programmes’ towards more vocational services….However, under the fee for service, the CRC will lose £1.4 million of the payment it would have received for delivering accredited programmes, and will not recover the £1.1 million it had planned to spend on vocational rehabilitation”.

I despair.  All evidence on how people desist from crime suggests vocational education is part of the solution.  Its not even that innovative. Yet our new system disincentivises this approach.

This still doesn’t explain why community sentences have become unpopular with judges – who are probably quite hazy about the details of the new CRC contracts.  We desperately need more research on this, but judges’ lack of knowledge of, and trust in, community sentences is probably part of the answer. In a previous blog I bemoaned the lack of training for magistrates – including in women’s community sentences.  And in a recent trenchant article, Nicola Padfield, Reader in Law at Cambridge University, has suggested that the Sentencing Council could play a more constructive role. Of its consultation on the imposition of community and custodial sentences she writes: “the focus of the consultation was community orders, offering only vague general principles and no clear examples of the types of offence that cross the “custody threshold” (or any explanation of where and why the guideline simply reiterated current statutory provisions)” Criminal Law Review Issue 5 2016.

How to reverse the decline of the community sentence?  It is not perfect, but it’s definitely a better option than prison in thousands of cases.  We need to both incentivise practitioners to innovative and to persuade judges of its’ merits. Nudge techniques could work but, even more powerful, would be delegation of responsibility and budgets to local authorities or PCCs.