Being realistic about sentencing reform

Helen Mills
Tuesday, 13 October 2020

Helen Mills takes a look at the government’s sentencing proposals and the implications for the Centre’s current short prison sentences work.

Last month the government published A Smarter Approach to Sentencing setting out proposals for sentencing reform which it intends to legislate for next year. A good summary of all the proposals in the 115 page document is here. Here I offer a few themes.

Tough on law and order

Tougher sentences – well trailed in the media – AKA the public face of this White Paper. That means longer prison sentences. Policies proposed include restricting automatic early release, more restrictive criteria for sentencers to impose sentences below mandatory minimums, new mandatory minimum sentences in some cases of repeat convictions, and whole life terms in cases involving the murder of a child.

Whilst these policies are hardly a surprise - this is a government which promised longer prison sentences in both its election campaign and Queen’s Speech – for anyone wondering how a toughness would fare when confronted with the realities of a criminal justice system in crisis, it’s a sobering moment. It’s one thing to promise toughness when campaigning. But creating extra demands for an overstretched criminal justice system, at a time when prison conditions plumb ever deeper lows and a probation service weakened by botched reforms, risks accelerating the well-established downwards trajectory. To do so when serious investment is unlikely to happen any time soon seems wreckless.

But that does seem to be the road we are on.

That may sound like catastrophising. But it’s laid bare in the useful accompanying impact assessment to the White Paper. The proposed benefit of the proposals is greater public confidence in sentencing. These are weighed up against the costs of the proposals for prison and youth custody service of:

...increased population and longer times spent in custody for some offenders which may compound prison instability, self-harm, violence and overcrowding” and for those caught up in the criminal justice system and their families of “family breakdown (…) affecting prisoner mental health and subsequent reoffending risk.

By its own assessment, ‘tough on law and order’ looks a hollow strategy by which to govern.

Home Detention Order

Community sentences are to be toughened up too. A new community order is proposed, the Home Detention Order. It’s one of a number of reforms aimed at extending the use of electronic monitoring. This new order would see those who do not comply with community supervision potentially subject to a “highly restrictive and lengthy” curfew.

Given that, in a recent study by the Justice Inspectorate, nearly one in three of those released from prison had no fixed abode, it's less clear how the government will ensure those subject to probation supervision have the prerequisite houses to curfew within. 

Pre-sentence reports

There are plenty of proposals in addition to the headline grabbing. Some of which are welcome. The decline in pre-sentence reports is recognised, an intervention often critical to make the case for a community based sentence rather than custody. Though there’s little detail about what is being put in place to reverse this trend.

Adding to the sense of disconnect, the paper is also not without its internal contradictions. The systemic issue identified as:

...a persistent problem for lower level offending is the failure of non-custodial sentences to deliver better outcomes and so offenders typically end up being sentenced by courts to short spells of custody after they feel they have exhausted all other options... 

is forgotten six pages later when use of immediate short prison sentences for non-compliance is proposed in the planned pilots of problem solving courts.

Reforming in the current climate

Here at the Centre, colleagues and I are looking at sentencing reform options to reduce short sentences. When we began this work we had reservations about some reforms such as presumptions and bars, particularly about whether they could leverage significant change in practice and the risk that they could result in up-tariffing to longer sentences. But we also had a sincere hope of making a contribution to addressing the overuse of short sentences.

Pushing for specific sentencing reforms in the current context though seems unlikely to have an impact given the current direction of travel. That might be a depressing or pessimistic thought. But it may also be a realistic one. The challenge now is mapping out a longer-term vision in times when there is scant evidence of one.