Call for short prison sentencing reform

Tabled by the MPs Alex Cunningham and Sarah Champion, the new clause intends to support a move from short prison sentences to community based interventions. 

Here I summarise the approach the Centre has taken, and the progress of the amendment thus far. 

Case for reform

Pre-pandemic around half (46 per cent) of those sentenced to custody in England and Wales were subject to short sentences of less than or equal to six months.

At the Centre, we envisage a society less reliant on imprisonment and punishment. Like many others, we see the case for reform as not simply about the short length of these prison sentences being problematic, but about who we imprison, why and in what circumstances.

The then Chief Inspector of Probation, gave this description of those subject to short prison sentences in a 2019 justice inspectorate thematic review on the issue:  

These are troubled people in the main. Many are arguably disadvantaged on almost every index of need, having had an unfair start in life, with an estimated one in four taken into care. They have usually led bleak lives as adults, all too frequently blighted by addiction, broken relationships and mental health problems.

Often, the first tasks upon [prison] release are to help the individual find somewhere to live and apply for Universal Credit. Housing is increasingly difficult to find, and state benefit is not paid quickly enough to reduce the risk of individuals stealing to feed themselves, or reoffending in other ways. This is a known issue for prisoners generally, but the people who tend to be given short sentences are very likely indeed to need early help, and likely to return to prison promptly without it. I suspect notably more are homeless upon release, and unfit or unable to earn a living. There is very little specific and reliable information available, however, to show their issues or how they fare upon release. This is so regrettable.

Given the inadequacies of the current use of imprisonment as a response to significant unmet social need, it is no surprise that for many the case for reform is both overwhelming and obvious. 

The sentencing reform options which could bring about hoped-for changes in practice, however, are not. 

Sentencing reform on its own can never resolve the material circumstances which drive our current use of short prison sentences. 

It is only one element in the systemic reform required.  

But it is an important element. 

As such it is one myself and colleagues are keen to contribute to by continuing to think through with others the concrete reform possibilities. 

Key proposals

The new clause aims to provide a clearer and more restrictive purpose to the use of imprisonment, by giving greater specificity over the factors that rule custody in and out as a sentencing option. This includes restricting:

• The relevancy of previous convictions in determining custody. 
• The use of prison for primary carers of dependent children. 

The specifics of the amendment itself are here (from column 699).  

The reform proposed differs from that of a presumption against short prison sentences. The approach taken here is to be specific about when custody is appropriate, rather than to focus reform on restricting sentencers access to a particular length of prison sentence, as is the case with a presumption or bar on prison sentences of a certain length. 

If taken forward into legislation, this reform would provide a principled first step that can be built on over time, and to which other factors that rule custody in and out as a sentencing option, could be added to in the future.

What about the presumption against short sentences? 

As mentioned above, another potential formulation for reform on this issue is introducing a presumption against short sentences. The last Labour manifesto for example, proposed a presumption against prison sentences of up to six months excluding violent and sexual offences. 

This option has advantages. It is bold sounding, gives clarity to others over the target and builds on the considerable consensus that short prison sentences are not desirable. 

However, given the long-term trend of the length of prison sentences increasing, and that this is likely to be exacerbated in the coming period in the wake of PCSC Bill becoming legislation, a presumption against the short length of a prison sentence runs the significant risk that some lawbreakers will receive a longer prison sentence as a result of any restriction on prison sentences below a certain length.

In addition, introducing a presumption against custody, based only on specifying the prison sentence length to which the presumption applies with exemptions for certain lawbreaking such as violent and sexual offences, is likely quickly to run into difficulties in practice.

It could create circumstances whereby some of those committing low level (but persistent) lawbreaking, such as theft, would be subject to longer prison sentences of six months plus than the potentially shorter sentence received for violence against the person or sexual offences, for which the whole sentencing tariff still applies. 

One way of addressing this could be to adopt some of the principles outlined in the amendment proposed above into the formulation of a presumption against short prison sentences. 

If a presumption against prison sentences of a particular length is proposed and additional work is not done to align sentences of imprisonment with a clear and restrictive purpose, such inconsistencies could result in a ratcheting up of sentencing generally. 

For a reform with an intended target of reducing the use of imprisonment in less serious cases this would be a significant backfire. 

Building an ambitious long term agenda 

The tabling of the amendment led last week to a Bill Committee debate. Chris Philps gave the government’s reasons for not supporting this new clause (from around column 702). 

The clause was withdrawn, leaving the way open for it to be reintroduced in the House of Lords in the autumn, should there be the support for this. 

Myself and colleagues are aware of the significant barriers to this reform progressing in the context of the PCSC Bill itself, but believed this was a discussion worth having. 

In making progress in the longer term, I hope it is helpful to have considered options on the table now. 

Note 

The proposals outlined here have benefitted from generous input of a wide range of people. I am particularly grateful to Professor Andrew Ashworth, for his input and guidance on the sentencing reform proposals themselves.