Cheaper and just as good?

Badging community sentences as alternatives to custody is fundamentally dishonest, argues Ken Pease

Professor Ken Pease
Friday, 22 January, 2016

This is the second of four pieces we are publishing, the product of a partnership with the University of Birmingham, discussing correlations between police recorded crime, criminal justice activity and social factors.

An alternative is a substitute or replacement.

I just Googled ‘alternatives to’. My favourite on the first page of results was ‘Alternatives to Lego this Christmas’. I like it because it captures the mental process which underlies the use of the word.

‘‘What shall we get Tommy this Christmas?

Lego’s the obvious choice.

Is there anything like Lego but cheaper and just as good which we could get him instead?’’

The penal equivalent is:

‘‘What shall we sentence Adam to this time?

Prison’s the obvious choice.

Is there anything cheaper and just as good we could sentence him to?’’

Community penalties as alternatives to custody

What are the advantages of badging a community penalty as an alternative to custody?

It frightens at least some novice offenders. Insofar as it is really used as an alternative to custody, it may make a tiny dent in the prison population.

It will be tiny because those given the shortest prison sentences (and hence the most obvious candidate to receive an ‘alternative’), are also those whom the evidence shows are also the most likely to appear before the courts again, and quickly. 

What are the disadvantages of badging a community sentence as an alternative to custody? The pragmatic reason is that it causes confusion and injustice. The other reason is that it is fundamentally dishonest.

In the 1970s I researched the introduction of community service orders for the Home Office. Some magistrates used it as an alternative to prison. Some did not.

The sentence required offenders’ consent. They gave it not knowing whether if they refused they would go to prison. If they refused, they could be imprisoned even if that was not the court’s original intention because of the inferred bloody-mindedness in refusing.

If someone breached the order, the court dealing with the breach would not know the intention of the sentencing court. Some got prison sentences which the original court did not contemplate. Others got fines or the like when their original sentence really did replace custody.

Time has changed the picture only in changing the language. It has not changed the central problem that once you label something as an alternative to something else you set presumptions in place which have unhappy downstream consequences.

On Lego and Oleg

What of the charge that the alternative to custody label is fundamentally dishonest? Imagine your alternative to Lego (let’s call it Oleg) which had pieces that did not fit together and were all the same colour but was marketed as an alternative to Lego. Trading Standards would get involved.

Sadly Trading Standards cannot get involved when (for example) Community Payback is represented as an alternative to custody. Prison and community payback are as different as Lego and Oleg. They are different kinds of thing.

Custody gives temporary respite to the community. Community Payback is a form of restitution by proxy.  Only in the vain hope that one will reduce demand on the other can they be thought of as alternatives.

If the example of Community Payback fails to persuade, think of the decision to suspend a prison sentence as an alternative to activating it. The court gives someone a one year sentence. Clang go the prison gates. But then it is suspended. Birds sing and freedom beckons. The suspended prison sentence is just a scarier version of a conditional discharge.

By all means give sentences now labelled alternatives to custody when there is a coherent penal philosophy behind them. Oleg in kits with a tube of Araldite may be just the thing for budding bricklayers. But spare us the weasel phrase ‘alternative to Lego’.

Professor Ken Pease is Visiting Professor at University College London, the University of Loughborough, Manchester Business School and Chester University.