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Sentencing Reform: Should We Scrap Short Sentences?

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About The Author

Peter Lennon (Consulting Editor)

Peter Lennon is a trainee solicitor at a Top 50 UK law firm, with experience in insurance, commercial disputes, and contentious probate. Prior to law, Peter studied History at Selwyn College, Cambridge, before completing the GDL and LPC at the University of Sheffield.

His main areas of interest are litigation, law reform, history and foreign policy. Outside work, Peter enjoys books, cooking, and pretending to know about football.

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The vilest deeds like poison weeds
Bloom well in prison-air
It is only what is good in Man
That wastes and withers there.

Oscar Wilde

In an interview with the Telegraph in January about his intentions to reform the many problems facing British prisons, former Minister for Prisons Rory Stewart had the following to say:

“You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation. They come [into prison], they meet a lot of interesting characters (to put it politely) and then you whap them on to the streets again.

“The public are safer if we have a good community sentence... and it will relieve a lot of pressure on prisons.”

The fact that Rory Stewart is the former Minister for Prisons is one of those many problems facing British prisons: he lasted less than eighteen months in the role, and his immediate predecessors managed two years apiece. In the last nine years, there have been six different Secretaries of State for Justice. The previous Justice Secretary, David Gauke, was the first since 2015 to last more than a year in the job. He resigned in July, having promised to do so if Boris Johnson became Prime Minister. Both Stewart and Gauke were subsequently deselected after rebelling against the government over Brexit.

Amidst this chaos the Ministry of Justice has been tasked with implementing steep cuts to public spending, and the prison service has been no exception. At a time when the British prison population is rising, prisons have faced budget cuts, staffing difficulties, and increasing levels of violence against both prisoners and staff. Efforts to cut costs by privatising prison services have led to high-profile scandals and public backlash.

In this context, it is no surprise that both Stewart and Gauke floated the idea of removing low-risk offenders from prison through sentencing reform, pushing the courts to replace short custodial sentences with community orders. A similar scheme has already been in place in Scotland since 2010 and has been expanded this summer. This piece will examine whether such a scheme could be implemented in England and Wales, how it would work, and whether it would address the problems facing our justice system.

The State of English Prisons (In 5 Statistics)

  1. The prison population in England and Wales in 2018 was 83,430 and has almost doubled since 1990.
  2. As at May 2019, 58% of prisons were overcrowded, holding more prisoners than recommended by the Prison Service’s own estimates for safe conditions.
  3. The number of assaults in English and Welsh prisons has more than doubled between 2013-2018, from 14,664 to 34,223. The number of serious assaults on staff has more than tripled from 3,266 to 10,213.
  4. Incidents of self-harm have more than doubled between 2013-2018, from 23,230 to 55,598. The number of deaths in English and Welsh prisons increased from 181 to 299.
  5. On average, each prisoner cost the prison system £35,371 in 2016/17. The government spends about £4 billion on prisons each year. 

(All of the above were gathered from Ministry of Justice statistics on prison population and safety, and a briefing paper prepared for the House of Commons in 2019.)

Since cuts began in 2010, prisons in England and Wales have become dangerously overcrowded and understaffed, and efforts to slash budgets through privatisation have led to high-profile scandals. There was national media coverage of the largest prison riot in decades at HMP Birmingham in 2016, which was at the time privately run by G4S. The government subsequently took back control over the prison in August 2018 following a number of prisoner deaths and a spiralling numbers of assaults, with Chief Inspector of Prisons Peter Clarke describing a “state of crisis” in the prison. In a 2018 report Mr Clarke said prisoners were “effectively in control” of another prison: HMP Bedford.

Nationally, a strike by prison officers over privatisation and unsafe working conditions was only narrowly avoided in September 2018, and the issue doesn’t seem to be going away any time soon. With prison budgets stretched, there are only two real ways of cutting costs: putting more prisons in the hands of private companies who can run them more cheaply, or reducing the number of prisoners. Given the number of scandals and the increasing public backlash against privatisation (not to mention the resistance of the Prison Officers Association), it is unsurprising that the Ministry of Justice under Gauke had begun to consider sentencing reform as an alternative.

Why should we reform sentencing?

The idea of giving fewer offenders prison sentences to improve the system is not a new one. Removing non-violent offenders from the toxic environment of prisons and keeping them in the stability of their communities (where they can maintain a job and family) should, in theory, make them less likely to re-offend, alongside reducing the prison population.

This kind of sentencing reform has actually been a part of the Conservative platform – at least in some quarters of the party – for a number of years. At the Conservative Party conference in 2015, then-Prime Minister David Cameron argued his party needed to “get away from the sterile lock-em-up or let-em-out debate, and get smart about this.” He argued for reforms to Britain’s prisons, the education and rehabilitation of prisoners, and for more offenders to be dealt with outside of prisons. Justice reform, he said, would be “a big area of social reform in the next five years.”

There is, however, more to it than mere reforming zeal. While admonishing his party to “get smart”, David Cameron also had this to say about offenders: “outside prison, we can make sure they’re working and paying taxes, rather than spending £30,000 a year keeping them in a cell.” Reducing public expenditure on prisons has been a part of the government’s broader costs-saving program since coming to power in 2010.

We can therefore identify two main drivers behind this reform: firstly, the desire to rehabilitate offenders for whom prison is not the best punishment; and secondly, the need to reduce costs and improve conditions in British prisons. 

How would these reforms be implemented?

The short answer: we don’t know.

The longer answer is that ministers have presented ideas for policy, but no concrete proposals. There is no White Paper, and no hint of a bill before Parliament. Given the government’s current focus on Brexit, there is unlikely to be anything of the sort any time soon. However, we can draw certain conclusions from their statements and begin to build up a picture.

The Ministry of Justice has consistently stated that these proposals would not relate to violent or sexual offences. Mr Stewart called for a restriction on prison sentences of six-months or less, which Justice Secretary David Gauke reiterated in a speech immediately prior to his resignation, going so far as to suggest an outright ban on such sentences. The Scottish Parliament has already experimented with a restriction on three-month sentences, which was recently extended to sentences up to twelve months.

In all cases, reformers have focused on replacing these short custodial sentences with community orders.

Community orders were created by the Criminal Justice Act 2003 and came into force in 2005. They place restrictions on offenders outside of prison such as driving bans, curfews, and reporting requirements including electronic tagging. They can also require offenders to undertake unpaid work, mental health treatment, or rehabilitation for drug or alcohol addiction. Community orders are restricted to those aged 18 or above, but equivalent provisions exist in youth sentencing.

In theory, community orders are more suitable for dealing with petty offenders, particularly for theft offences where drug addiction and poverty are often contributing factors – problems which a short spell in prison can make worse, rather than better.

The most obvious targets for these reforms are offences such as non-aggravated burglary, shoplifting, and general theft. These are non-violent offences which tend to carry sentences of twelve months or less and make up a significant proportion of offences in the UK each year. 

What else don’t we know?

There are substantial unknowns in these proposals. For example, would these reforms mean the end of custodial sentences for possession of Class A and Class B drugs? The Conservative Party has typically supported harsh penalties for drug offences and opposed calls for reform, particularly under Theresa May’s leadership. A reverse here would be significant politically as well as legally, though it would no doubt please many seeking an end to the War on Drugs.

However, it is worth noting that the vast majority of those in prison for drug offences are those convicted of trafficking and supply offences. While drug reformers can – and should – debate whether the term “supply” is applied too broadly and eagerly, the fact remains that “only” a few hundred people are sitting in British prisons for possession of drugs.

Similarly, how would sentencing reform in this area deal with mandatory minimum sentences? Domestic burglary is one of the likely targets of reform, but there is currently a mandatory minimum sentence of three years imprisonment for adults convicted of burglary for the third or subsequent time (s111 Powers of Criminal Courts (Sentencing) Act 2000). Would this be altered, or would it remain in place – is it wrong to consider someone a lost cause after three minor offences, or is it reasonable to commit someone to prison if community sentences have twice failed to change their behaviour?

There is also the question of what exactly the “restriction” on short sentences would be. Legal reform is a complex art, and the devil is usually in the detail. The equivalent Scottish reforms established a rebuttable presumption against short custodial sentences in judges’ sentencing powers. While David Gauke did float the possibility of an outright ban at in his speech, it is likely that any reform in England and Wales would follow the Scottish model, preserving the power of judges to give short sentences in some cases. What, then, are those cases? Drafting an exhaustive list would be near impossible, but grant too much discretion – “in the interests of justice”, for instance – and it may result in little actual change, undermining the purpose of the reforms.

What we can tentatively say is that any attempt at reform would probably target prison sentences shorter than six months, possibly as long as twelve months, and only for non-violent, non-sexual offences. These sentences would in most cases be replaced with community orders, but judges would probably retain a discretionary power to hand down short prison sentences if truly necessary. 

Would it help the prison system?

The Ministry of Justice publishes annual snapshots of the UK’s prison population which are available to the public – most recently for 30 June 2019. While short sentences represent about half of new arrivals in any given year, the very fact that these are short sentences – most as short as six weeks - mean these offenders rapidly rotate in and out of the prison system within the same year, and not all of them will occupy prison places (and therefore contribute to overcrowding) at the same time.

Out of more than 72,000 sentenced prisoners in England and Wales on 30 June 2019, just over 3,000 were serving sentences of six months or less. Including sentences of up to twelve months, the figure was a little under 5,000.

Of these 5,000 spaces taken up by short-sentence offenders, theft offences are by far the most common, representing about 1,300 offenders. About 900 were convicted of summary non-motor offences – around half of these are common assault and battery, but the category also includes minor criminal damage and resisting arrest – and 650 for possession of weapons. Violence against the person (VATP) offences account for another 650 of these spaces, while drug and sexual offences combined accounted for less than 200. If even half of these 5,000 sentences were replaced with community orders, it could reduce the prison population by around 2,500.

Unfortunately, this would barely put a dent in prison overcrowding. As at May 2019, overcrowded prisons held a total of 8,700 too many prisoners. Even removing all short sentences from prison – including violent, sexual, and prolific offenders – would leave our prisons overcrowded by a margin of three to four thousand people.

In many ways, this reflects the fact that many would-be reformers (including this writer!) can have inaccurate preconceptions about who exactly is going to prison in this country. The kind of reforms proposed by Mr Stewart and Mr Gauke are a softball solution. It seems a sensible rule that first-time shoplifters or cannabis smokers should not be spending half a year in prison. It is in fact such a sensible rule that judges have been following it for decades. According to Civitas, 77% of theft offences result in a non-custodial sentence – for first-time offenders, this rises to 95%.

The uncomfortable truth is that the vast majority of non-violent offenders are already dealt with by non-custodial sentences. Those who are sentenced to prison are the most severe and frequent offenders. Reducing the prison population to a level where it is no longer overcrowded (never mind halving it, as some politicians have called for in the past) would mean some combination of the following:

  • Releasing violent offenders.
  • Releasing offenders who would otherwise receive multiple-year sentences.
  • Releasing offenders with numerous previous convictions. 

This is not to say we as a society should not discuss doing these things – but it is a much more fraught discussion, over which people are much more likely to disagree. Certainly, the reforms proposed by Mr Stewart and Mr Gauke would not be enough on their own to fix our overcrowded prisons.

Would it help offenders?

Emptying out our prisons is not the only reason to reform sentencing. There is also the argument that it would better serve and rehabilitate offenders, and therefore make the wider society safer. In the speech before his resignation, David Gauke argued that replacing all sentences under six months with community orders would prevent 32,000 reoffences each year.

Research published by the Ministry of Justice in 2013 certainly supports this argument. It found that for pairs of matched offenders (ie. offenders who had similar characteristics and had committed similar offences), those who received immediate custodial sentences were 6% more likely to re-offend within a year than those who received community orders, and 8-9% more likely than those who received suspended sentences.

More interestingly, a 2018 analysis found that not only were community orders more effective at reducing reoffending, this difference was most pronounced for those offenders with larger numbers of previous offences. Conventional wisdom (and mandatory sentencing laws) tend to follow the logic that first-time offenders should be given the “light touch” of fines and community orders, while serial offenders should receive prison time. In fact, this analysis suggests that community orders and the “short shock” of prison are about equally effective at preventing first-time offenders from reoffending. Prolific offenders however, particularly those with mental health issues, were much less likely to reoffend if given a community sentence rather than imprisonment.

While it might not have much of an impact on our prisons, sentencing reform could benefit many prisoners. There is at least enough evidence to suggest that replacing short prison sentences with community orders would make offenders – particularly repeat offenders - less likely to reoffend. This would indirectly help the overcrowding issue, as well as removing people from an environment that carries substantial risks of violence, harm, and mental suffering.

Will it ever actually happen?

Probably not any time soon. The government’s current agenda is firmly focused on Brexit, and law reform of any kind has taken a back seat over the last few years.

Criminal justice reform in particular is often a project of years, a slow-moving process that requires real political will. Since the Conservative-led coalition came to power in 2010, the Ministry of Justice has seen a rapid turnover of ministers with wildly differing views – some supporters of privatisation, others prison reformers, and still more proponents of a “tough on crime” approach. In January of this year, the ministry was helmed by a Justice Secretary and a Minister for Prisons who favoured these reforms. Six months later, both men are gone due to Brexit infighting.

As far as the latest government goes, “tough on crime” seems to be the order of the day. In one of his first public policy statements after becoming Prime Minister, Boris Johnson promised 10,000 new prison places as part of a £2.5bn spending package. This is on top of 10,000 new places already promised by the government in 2016, which have yet to be created.

Once delivered, these new places would more than cover the current overcrowding in our prisons. However, building new prisons and expanding existing ones takes time. The places promised in 2016 were supposed to be delivered by 2020 but have now been pushed back to 2022. Boris Johnson’s most recent pledge did not come with a timeframe. In the meantime, the new government’s rhetoric has taken a turn away from the more reform-minded approach of previous governments and towards a “tough on crime” stance that includes expanded use of stop-and-search and harsher sentencing.

"We need to come down hard on crime," Johnson wrote in the Mail on Sunday after becoming PM. "That means coming down on hard on criminals. We need to reverse the balance of fear."

"Our first duty is to protect the public in the most basic way – and that means taking such people off the streets. Yes, in the short term it will mean more pressure on our jails…"

In the short term, at least, it appears that sentencing reform is off the table, and overcrowding in our prisons may get worse before it gets better.

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Tagged: Criminal Law, Justice, Prisons

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