A few weeks ago, the Minister for Prisons in England and Wales was reported in the media as announcing that the government was considering “banning prison sentences of less than six months”, except in respect of violent or sexual offences. It is not clear how far advanced the government’s thinking is, or whether it will publish firm proposals or a consultation paper, on the subject.
The early indications are that the government is motivated by the expectation that a ban on the use of short prison sentences would ease pressure on prisons and by a belief that it would produce safety dividends for the public as a whole. This comes in the wake of the House of Commons Select Committee on Justice recommending a presumption against short custodial sentences in June 2018, and the Secretary of State for Justice saying in May 2018 that sentences of less than 12 months should be used only as a last resort.
There can be little doubt that even a partial ban on the use of short prison sentences will ease pressure on prisons in England and Wales. Of the 86,000 offenders sentenced to imprisonment there in 2017 alone, more than half were given sentences of less than six months. It is estimated that at least 30,000 prisoners (including petty burglars and shoplifters) would be diverted from prison altogether under a partial ban. Any such move would also have a significant beneficial effect in countering the UK’s unenviable reputation of imprisoning a higher percentage of its population than most other EU Member States (8th highest with 140 per 100,000 head of population, as against an average of 120).
Although it may seem counter-intuitive, there is also a sound basis for thinking that banning short prison sentences will actually enhance public safety. It is widely acknowledged that a short prison sentence provides little or no opportunity to rehabilitate an offender. Typically, he will not be in prison long enough to address substance addictions, lifestyle or mental health issues that may have contributed to his offending. Nor will it be feasible for him to benefit materially from any educational and training facilities that may be available. Indeed, there may not even be sufficient time for the prison authorities to devise a programme to address his needs before his release date comes around.
Conversely, it has long been acknowledged that prisons can function quite smoothly as crime academies for prisoners. Daily engagement with more experienced offenders and the criminal enterprises that are carried on within prisons help to normalise crime for a prisoner and equip him with “skills”, so that he is sent out a more dangerous offender than when he was brought in. To compound the damage, even a short prison sentence of three to four weeks can result in the prisoner losing his house, family, job, friends and reputation. As stated by the Prisons Minister, short prison sentences are “long enough to damage you, but not long enough to heal you.”
Given the experience and consequences of prison, it is hardly surprising that prisoners have a high rate of recidivism. Significantly, there is firm evidence that short prison sentences are particularly ineffective in steering an offender away from crime. Almost two-thirds of prisoners sentenced to terms of less than 12 months in England and Wales re-offend within the year of release. This compares with about one third for prisoners sentenced to terms in excess of 12 months, and 36 percent for offenders receiving community sentences (mostly unpaid work in the community). There are, of course, other possible explanations for these disparities, but, as stated bluntly by Scotland’s Chief Inspector of Prisons, “[t]he evidence is very clear that if you want to reduce crime then you don’t send people to prison for a short time”. In Scotland, there is already a presumption against prison sentences of less than three months, and it is considered that this may have contributed to re-offending rates there dropping to their lowest levels for nearly two decades. Currently, the Scottish government is considering whether to extend the presumption to sentences of less than 12 months.
The obvious alternative to short prison sentences is the community sentence. Broadly this entails the offender undertaking unpaid work in the community for a specified number of hours in the week for a specified period. Typically, this can include removing graffiti and carrying out environmental works in public facilities. They can also involve home curfews, compulsory addiction rehabilitation, education and/or group work at an “attendance centre” to discuss behaviour such as anger management, domestic violence and drink driving. Critically, they can be designed to ensure that the offender can continue with his education or employment, where applicable. Not only do they allow the offender retain his network of family and community supports, but they also relieve the offender’s family of the onerous personal, financial and instability burdens that inevitably follow from even short prison sentences.
The community also benefits from a community sentence relative to a short prison sentence. Obviously, the unpaid environmental works constitute a positive benefit that is otherwise lost when the offender is simply locked up. In addition, imprisonment imposes a much heavier financial burden on the State compared with a community sentence. Estimates of the annual cost of a prisoner range from £35,000 to £50,000, while the range for a community sentence is between £5,000 to £10,000.
Despite the compelling arguments in favour of community sentences over short prison terms, it can be expected that any proposals to “ban” the use of sentences of less than six months will meet stiff opposition. There is an entrenched view in some quarters that a non-custodial sentence is not really a punishment at all. In this view, a person who has committed a heinous crime, or who is a serial offender, needs to serve a period (even a short period) in prison in order to atone for his crime. That view, however, fails to appreciate the demands of a community sentence which, in some respects, can be more onerous than a temporary deprivation of liberty.
When I was doing empirical research on the operation of community sentences in Ireland, I came across cases in which the offenders declined the option of a community sentence in favour of a short prison sentence essentially because they considered the former too onerous. Nevertheless, it would appear that the use of community sentences in England and Wales is on the decline. Arguably, this is due partly to magistrates and judges increasingly taking refuge in the familiarity of custodial sentencing as concerns grow about the effectiveness of community sentences managed by private sector operators.
Despite the media reports that the government is considering a “ban” on the use of person sentences for terms of less than six months, it is highly unlikely that action on this front will take the form of an actual ban. Much more likely is the enactment of a statutory presumption against such sentences. This would have the effect of steering judges in the direction of community sentences or other forms of non-custodial penalty in cases where they would otherwise have been inclined to impose a short custodial term. It would not, however, preclude the use of the latter in any case where the judge was of the view that there was no practical alternative. Moreover, the Minister’s announcement suggests that the “ban” would not extend to violent or sexual offences. It is not clear why these offences should be excluded entirely, especially if the “ban” merely takes the form of a presumption against a short prison term. While a very serious violent or sexual offence will normally require a custodial sentence to mark the seriousness of the offence and/or to protect the community from the threat posed by the offender, the same cannot always be said for a lesser violent or sexual offence which would attract a sentence of imprisonment for a term of less than six months or less.
It must be said that there is a risk that restrictions on the use of custodial sentences for terms of six months or less could well result in sentence inflation. In some cases, for example, judges may be persuaded to mark the seriousness of the offence by handing down prison terms of more than six months where previously they may have imposed a shorter sentence. It is important, therefore, that any reforms along these lines should be accompanied by statutory provision to the effect that imprisonment should always be used as a last resort, and only where accompanied by clearly expressed reasons. Separately, there is surely a strong case for saying that any presumption against the use of short custodial sentences should extend to terms of less than 12 months, rather than 6, as the same arguments and factors would apply to the former as the latter. Finally, it must be acknowledged that if any such presumption is introduced, it will severely limit the use of custodial sentences in magistrates’ courts.
Download the February 2019 edition of Criminal Justice Notes