So, the long-awaited recommendations of the independent review of sentencing, chaired by former justice secretary David Gauke, have landed. The recommendations – heavily trailed over the last couple of weeks – are largely welcome, if tempered by a pragmatism that comes from the dire straits His Majesty’s Prison and Probation Service finds itself in. At the same time, beyond urging less punitive rhetoric, the review has swerved from addressing the bigger picture of why the government faces a capacity crisis in prison.
A quick reminder of the review’s context paints the gravity of the situation. Despite spending billions of pounds on new prisons, the government faces an untenable rise in prison numbers of about 30 per cent over the next few years. Shabana Mahmood, the justice secretary, has admitted, “We cannot build our way out of this crisis.” Emergency measures have bought some time, but the government soon faces running out of prison cells, or a “total breakdown of law and order”, to quote Mahmood once more.
The sentencing review’s primary answer is to legislate to ensure that short custodial sentences are only used in exceptional circumstances in favour of community sentences, to extend the use of suspended sentences, to introduce new models of “earned progression” that will offer many prisoners an opportunity to be released early (as opposed to the current method of automatic early release), and reforms to how people can be recalled to prison. The combined impact of these measures is estimated to save around 9,800 prison places. More generally, the review criticises previous approaches that put punishment for its own sake above the need to reduce crime.
There is evidence that public support can be garnered for these measures. As part of our own work on the sentencing review, the Howard League for Penal Reform asked Public First to conduct polling and focus groups on sentencing reform. While the polling was nationally representative, the focus groups deliberately selected participants who might be expected to be unsympathetic to the government and its agenda. We wanted to understand the views of those who are hardest to persuade and to investigate what arguments they find most convincing.
While the public sees public protection and punishment as the criminal justice system’s most important functions, when asked to choose between rehabilitation and punishment as the best way to address crime, more members of the public choose rehabilitation. When asked what factors should lead to people being given more lenient sentences, the public is also most likely to say that engaging with rehabilitation programmes should make a sentence more lenient.
There is broad agreement, including among prospective Reform voters, that reducing short prison sentences and increasing community sentences for people who commit non-violent offences will ease overcrowding, reduce costs, and allow resources to be focused on more dangerous criminals. On short sentences, a plurality, but not a majority, of the public support the complete abolition of prison sentences for low-level offences such as drug possession, vandalism and shoplifting, and their replacement with community sentences. This is particularly true of younger people.
A majority of the public, including a plurality of Reform voters, agree with an approach where prison sentences are served partly in prison and partly in the community under licence. There is support in principle, in other words, for the kind of progression model that Gauke has outlined for most prison sentences.
That said, it remains to be seen if the government can deliver these changes effectively, given prisons are not the only overcrowded service in criminal justice. The probation service is already facing workloads far beyond its current capacity, and some of the billions earmarked for new prisons would be more wisely spent on investment in the community. Spending money on an expansion of electronic monitoring, as the government intends, is also no substitute for good relational work by experienced probation officers. The review does acknowledge the crucial role the probation service plays, but without proper support, there remains a real risk that people will be set up to fail.
While Gauke’s interim report in February identified sentence inflation as the primary driver behind the prison capacity crisis, today’s report does not propose how to reverse the trend of ever-longer sentences. With murder sentencing excluded from its purview, it is hard to see how the review could have proposed any deflation of other sentences. However, the review does urge the government to consider these issues if the system is to achieve long-term sustainability.
Of course, public opinion is not necessarily in an easy place when it comes to revisiting sentence lengths for more serious crimes. While at a national level, crime is a second-order concern for voters – below issues such as the cost of living, the NHS, the economy and immigration – at a local level it can rank more highly. Meanwhile, there is widespread dissatisfaction among the public with how crime is dealt with and with the state of the criminal justice system as a whole.
Yet that is precisely why the government needs to go further. Acting more boldly to create a safe and sustainable prison system that no longer stumbles from crisis to crisis and from emergency measure to emergency measure might start to answer that widespread dissatisfaction. Investing in the probation service and allowing it to focus primarily on the rehabilitative work in the community, which is its historic strength, would help address local concerns and show people a system that is working to cut crime.
For now, ministers seem to be hoping that the review’s package of measures will buy a few years before the same capacity crisis once again grips the system. This may yet prove a missed opportunity.
Andrea Coomber KC (Hon) is Chief Executive of the Howard League for Penal Reform
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