There is no doubt that recent months have seen some progress in the way matters of penal policy are discussed in the political arena.
For many years successive governments pretended their job was merely to supply prison places, and the filling of those places was entirely a matter for the courts. Now, the prison capacity crisis (as opposed to the more longstanding crisis of prison overcrowding and impoverished regimes) has forced a step-change in approach from the new administration. “We cannot build our way out of this crisis”, as Shabana Mahmood has since publicly recognised, with a tacit admission that government policy does have a direct bearing on how prisons are used.
Having laid the ground for a review of sentencing in the autumn of last year, with our paper Sentence Inflation: a Judicial Critique, we at the Howard League have been working hard to engage David Gauke and his colleagues on the Review panel in their deliberations.
The panel faces a complex task and one that cannot be extricated from the difficult politics that surrounds criminal justice and any attempt to moderate penal policy. At the same time, the Review must be bold because only bold solutions will reverse trends in sentence inflation that have lasted decades.
For the Howard League, and for other actors in the sector, it falls to us to create as much space as possible for bold ideas to flourish.
Rather than repeat the policy proposals we presented in our submission to the Review’s call for evidence, many of which echo recommendations made by others, I want to focus on two overarching ideas. These try to answer two questions: first, what does a sustainable approach to sentencing look like? And second, what should that sustainable approach to sentencing mean for the prison system?
We are clear that the rising prison population cannot be tackled without grasping the nettle of sentence inflation. The only way the prison system can move away from a perma-crisis of overcrowding and everything that entails is by achieving sentence deflation.
While the Review has put much store in international examples of good practice – and the Howard League has submitted additional material on decarceration initiatives from other countries – we elected to frame this first question not through international comparisons, but by considering our own history as a jurisdiction. It is our contention that the review must effectively reset the clock to a time when sentencing in England and Wales was more sustainable.
Resetting the clock would mean examining sentencing across the last three decades. Given the inflationary effect of the 2003 Criminal Justice Act, any serious attempt to reset the clock would at least take that as a starting point. We would go further and argue that England and Wales is no more criminal a jurisdiction than it was in the 1990s, a position supported by comparative crime rates. Whatever time period the Review settles on, the principle of resetting the clock should be the guiding principle of any legislative reform to reverse sentence inflation.
A sustainable criminal justice system is one in which prison is used as sparingly as possible, for as little time as possible. If we could move towards that goal, what would it mean for prisons themselves?
To begin with, we may need to be more transparent about what custodial sentences actually involve. Sentences imposed by courts generally comprise a period spent in prison and a period spent in the community on licence. The exact parameters vary depending on sentence length and type (whether determinate or indeterminate), but a large majority of people who receive a custodial sentence will serve part of this on licence in the community.
The custodial element of the sentence should be reserved for addressing the causes of offending and providing people with the support they need to rehabilitate, in a safe way to protect the public. Time spent on licence in the community should function as a stepping stone, supporting people to achieve rehabilitation in the ‘real world’ while supervised.
We have therefore suggested reconceiving custodial sentences in two parts – for example, as ‘Detention and Supervision’ orders. The custodial portion of the sentence should be focused on achieving a successful and safe release in the quickest time possible.
Unfortunately, the prison system as it is currently configured seems to do the opposite, actively working to keep people behind bars unnecessarily because of regime failings and an emphasis on ‘warehousing’ rather than on timely sentencing progression. This is not simply because capacity pressures trump all other considerations. The government needs to improve provision and access to rehabilitation, establishing clear and consistent routes out of custody – as well as addressing inefficient and ineffective recall policies and procedures.
Helping people to achieve a successful and safe release in the quickest time possible may seem a perfectly reasonable aspiration for a well-functioning prison system, but, in reality, this would amount to a revolution behind bars. Alongside much-needed investment in probation and other community services, it will require a whole-system approach for sentencing reform to succeed.
This article is part of our ‘Ideas for sentencing reform’ series, discussing sentencing reforms against the background of the Independent Sentencing Review under the former Lord Chancellor, Rt Hon David Gauke.
If you would like to suggest an article for this series, get in touch.
