What are the prospects of short prison sentence reform?

Helen Mills
Thursday, 2 July 2020

Over 60 per cent of all those sentenced to prison in England and Wales are subject to a sentence of less than a year. The vast majority are sentenced to less than six months in custody.

The negative individual and societal consequences of our current use of short-term imprisonment are well documented. The system of short sentences is summed up in a recent Justice Inspectorate report as keeping individuals, “locked in an expensive merry-go-round of criminal justice processes”.

While the argument against our current use of short-term imprisonment is far from universally won, the case for doing something about the volume of short-term sentences is very much a live issue.

In the discussions these interventions have prompted, sentencing reform is frequently proposed as necessary to reduce the use of short term custody.

This has an obvious appeal. If we legislate to remove or restrict sentencers’ access to prison sentences of a certain length, so this logic goes, then fewer people will be given these sentences, and consequently, fewer people will go to prison.

However, the ambition to reduce custody has proved more challenging to achieve in practice than this theory would seem to suggest.

Ensuring that the learning from strategies to reform short prison sentencing informs how we can best achieve change in the future has led us to hosting a webinar later this month discussing short prison sentencing and its reform.

This is a subject about which our four webinar panelists have interesting stories to tell and insights to share.

While the idea of a presumption against short term custody in Scotland was first mooted in the Scottish Prisons Commission’s landmark report in 2008, Kenny MacAskill MP has been seen as instrumental in getting it from a report recommendation to the legislative books during his time as the Scottish Justice Secretary.

Last year saw the Scottish presumption extended from prison sentences of less than three months, to a presumption against imposing prison sentences of less than a year. What convinced him a presumption against short term custody was worth expending political capital? And what are his reflections about the implementation of the presumption in Scotland?

Sarah Armstrong’s work has long expressed and evidenced concerns about the growth in the size and scope of criminal justice. Yet in her comments to the Scottish Justice Committee last year she said, “I am probably the exception on this panel, in that my thinking on the issue has evolved and I no longer support a presumption against short sentences”.

It will be interesting to hear more about what informed this change in her thinking, what her assessment of the Scottish presumption is now, and how this might inform future decarceration efforts more widely.

Cyrus Tata’s recent book includes in its opening lines that he has been, “uncomfortable with the received wisdom of sentencing scholarship and policy thinking”. This has led him to challenge some taken-for-granted assumptions about sentencing. Most notably for our discussion is his challenge to the notion of prison as a last resort.

He argues this supposedly progressive legislative principle is in fact part of the problem in our current recourse to imprisonment, not part of the solution. How he proposes we might rethink this and what we should do instead will no doubt provide interesting food for thought.

Finally, as both a serving sentencer in England and Wales and an academic, Nicola Padfield is an obvious choice for opening up a discussion about where we are in terms of current sentencing policy and assessing some of the possibilities for change.

While too early to draw firm conclusions, I also hope the webinar will provide an opportune moment for Nicola Padfield and others to consider the emerging picture in terms of COVID-19 and its potential impact on prison sentencing. In the words of the Justice Secretary this week, as a result of COVID-19, “parts of the justice system will operate differently for some time but, in many ways, the world will never be the same”.

Notwithstanding that formal changes to sentencing have not been forthcoming, other parts of the system are undoubtedly different due to COVID-19 and, as an element in an interconnected system, sentencing is unlikely to be unaffected by this.

This includes the impact of a highly restricted prison regime on prison sentences, the significant changes to court processes as a result of social distancing, and, looking forward, the still emerging measures that may be introduced to deal with the backlog of court business. How might prison sentencing be affected?

If you join us on 17 July you’ll hear more about what we know and don’t know about the options, challenges, and pitfalls of reforming short prison sentencing, whilst also having the opportunity to pose questions and contribute to a forward-looking discussion on how the use of short term imprisonment can be challenged.

I look forward to opening up this conversation and mixing Scottish and English expertise, with no quarantining required.