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The myth that tough sanctions deter crime – revealed by the Sentencing Council

Penelope Gibbs
07 Oct 2022

I recently had a long conversation with two experienced police officers about crime and punishment. They were convinced that sentencing in England and Wales was not too harsh and that victims wanted long sentences. The policemen’s beliefs reflect those of many people – that harsh punishment is a deterrent, and this reduces crime.

Deterrence is a key principle in the sentencing regime of England and Wales. Judges justify sentences on the basis that they will deter both the defendant and the population in general from committing similar crimes in the future. A sentence that deters is an effective sentence.

The Sentencing Council of England and Wales is tasked with developing sentencing guidelines for judges to follow (they can deviate but have to justify why). Since the Council was set up it has been criticised by us and others for not meeting one of its statutory duties – to have regard to the cost of different sentences and their relative effectiveness. In response the Council commissioned an academic review of the effectiveness of sentencing. This was a brave act since the report sets a bomb underneath most current sentencing practice.

The academics have done no original research, but they have reviewed relevant, reliable studies which throw a light on the effectiveness of current sentences. They find literally no evidence to say deterrence works. Judges don’t usually distinguish individual and general deterrence when justifying sentences. But the authors do distinguish.

“A general deterrent effect would occur where a disposal makes other potential offenders less likely to offend…Despite pervasive “common sense intuitions”, the evidence for a general deterrent effect related to sentence severity is weak…We will not go as far as saying there is no possibility of a general deterrent effect linked to sentence severity…However, we will say that, based on our literature review, there is no strong evidence to support more severe sentences on the basis of their general deterrent effects. Moreover, we note that some have argued it is time to accept that sentence severity has no effect on the level of crime in society”.

The authors explain why general deterrence doesn’t work. First, a severe sentence can only have a deterrent effect if offenders know about and understand it. But most people, and particularly those likely to commit crime, have a very vague idea of how crimes are sentenced. And the small likelihood of being caught undermines any deterrent effect of sentencing. Lastly, deterrence-based policies assume that people who commit crime make at least broadly rational decisions, “giving some thought to benefits and costs”. But evidence points in the opposite direction, most crime being spontaneous, often driven by temper, mental health issues, drink or drugs. Those who commit crime don’t think rationally about the exact sentence they would get were they convicted – they are caught up in the moment.

Our own research on assaults on NHS workers and police suggests the same. The penalty for this offence has quadrupled in the last four years, but the number of recorded offences has gone up.

Individual deterrence doesn’t work for many of the same reasons. Someone who is shoplifting to fuel their drug habit is hardly likely to stop mid shop to recall the sentence they received last time they were caught. The physical craving for a fix is a much stronger impulse. The trajectories of those who commit crime also provide hard evidence that punitive sentences do not prevent reoffending. Rebecca Lievesley and colleagues interviewed prisoners who had served many short sentences. The prisoners said prison contributed to their identities as criminal offenders. Also “serving multiple prison terms meant these times tended to blend together (i.e., the individuals had difficulty counting their number of incarcerations or length of any of them) and the individuals were often plagued by the lack of services or resources to assist in overcoming the criminogenic conditions they faced when released into their troubled community environments”. The report cites other studies which found that giving those who keep committing crime ever long sentences does nothing to stop them.

The only criminal sentence which looks as if it might have a deterrent effect is the suspended prison sentence. This is a prison sentence which is only activated if the defendant is reconvicted of another crime or breaches the conditions of their suspended sentence. The judge can impose conditions with the suspended sentence like tagging, being supervised by probation, doing unpaid work etc. The reoffending rate of those subject to suspended sentences with conditions is better than either the community order or a short prison sentence. Is it the “sword of Damocles” effect that leads to less crime? The authors think so. It fits with evidence that it is the swiftness and certainty of sanctions, not the severity, which makes the difference. “A suspended sentence transforms the prospect of an immediate custodial sentence from an easily discounted future possibility to a very present reality”. We need more research on suspended sentences. It’s not clear what role the threat of prison plays or why suspended sentences with conditions are so much more successful than those without.

The report suggests most prison sentences regardless of length are not effective in reducing offending, whether via deterrence or rehabilitation. It points out that the caution (used by police out of court) is the cheapest and most successful disposal in terms of reducing repeat crime.

What can the Sentencing Council do with this dynamite report? If its findings informed sentencing, we would have a completely different regime and halve the number of people in prison. But the Sentencing Council has no control over primary legislation. They can only develop guidelines for the legislation parliament has passed. They could though preface each guideline with a short explanation of what makes sentencing effective; and lobby the government to pass more effective criminal laws. Let’s hope.

We all want to reduce crime and for criminal sentencing to play a part in achieving that. This report reflects the best evidence as to what might or might not work. And it’s not more prison. Prison is a dead end.

If you would like to know more about cautions and why resolving crime without going to court works do sign up to our free conference in London on January 19th.

And to listen to two experts discuss the negative effects of criminalising drug users do tune into our podcast.