Presumption against short sentences misses the point

It’s a reform proposal that’s been in and out of favour in recent years.

Back in 2019 Chalk’s predecessor at Justice, David Gauke and the then Prison Minister Rory Stewart set out a rationale for introducing restrictions on short prison sentences. But a planned green paper detailing options was abruptly shelved following Boris Johnson’s election as leader and Prime Minister.  

Whilst the government’s later sentencing white paper in 2020 described numerous shortcomings of relying on short prison sentences, including regarding women’s imprisonment in particular, no new legislation was proposed to address this.

The crisis in prison capacity has changed that.

Details

Whilst we await detail about how the new restriction on short term imprisonment will work, the indications given thus far suggest plans are for a presumption, not a ban, on immediate prison sentences of less than 12 months in favour of their being suspended in the community. Certain offences including violence, sexual offences and terrorism will be excluded from these arrangements, as well as;

 prolific offenders who are unable or unwilling to comply with community orders or other orders of the court [who] must know that their actions have consequences. (Col 61)

Compared to other well trailed announcements, such as renting out space in foreign jails, it is certainly not the worst idea on the table. But there are good reasons to be cautious about too eagerly seeking a silver lining from the announcements on short prison sentences so far.

Concrete challenges

Scratch the surface on short sentences and there are concrete challenges;

• Meaningfully resourcing and addressing the underlying high social needs prevalent amongst those subject to short term imprisonment including stable housing, income, employment, mental health and addiction.
• A probation service weakened by successive failed reforms, a staffing crisis and overstretched workloads.  
• Punitive, lengthy community-based sentences and a reliance on imprisonment for breach and non-compliance.  

None are new issues. All have been exacerbated in recent years.

The scale of the challenge is not a reason to suggest the government do nothing. But, having had its hand seemingly forced on the issue, it is now relying too heavily on crude mechanistic ‘solutions’ such as presumptions whilst also failing to grapple with the need to address our use of prison sentences over 12 months.   

Longer terms of imprisonment are a driver of current demands

Current prison demands have not been driven by an increased short-term prison population. Prison sentences of less than 12 months have fallen both in number and as a proportion of all prison sentences.

A rebalancing of short prison sentences to community-based sentences will impact the ‘churn’ created by receptions and short stays in the prison estate. It will also likely save prison officer time in processing prison receptions and releases. But it is likely to offer a diminishing return on reducing the overall prison population compared to that of ten years ago.  

The long-term escalation in prison sentence length is a key sentencing trend underlying current prison demands. The government’s plans to increase prison time for some serious offences will counterbalance and likely outweigh any potential a presumption at the lower end could have to reduce the prison population.  

On Monday the Lord Chancellor cited Norway as an example for us to follow in terms of the government’s much derided proposal to rent prison places abroad.

Perhaps the Norwegian experience is a better guide to something else.  

Norway is a frequent user of short prison sentences and a relatively parsimonious user of long prison sentences. Perhaps, as Professor Sarah Armstrong argued in a webinar at the Centre for Crime and Justice Studies a number of years ago, short sentences are not the problem, but rather could;

 be something we allow and support in order to keep the floor low, so that the ceiling does not get any higher?  (at around 44.30 minutes in to this video).

A version of this comment piece was originally published on Russell Webster.