Short Changed ?

Soon to be ex Justice Secretary David Gauke rightly told us in a farewell speech last week that a short spell in prison doesn’t protect the public, doesn’t serve as much of a deterrent and exacerbates those already deep-rooted difficulties an individual faces. Sadly, his own 18-month spell as Justice Secretary hasn’t proved long enough for him to do much about the problem. He should really have started tackling the issue much sooner. He seems to have listened to his deputy’s Rory Stewart’s foolish view that there had been too much talk “about grand issues of sentencing policy, reoffending and the policy context.” In reality there hasn’t been enough.

David Gauke has done what he can to encourage his successor to take forward his progressive reforms to sentencing. He’s bequeathed them a Single Departmental Plan for the MoJ that aims to protect the public from harm caused by offenders through building confidence in an effective probation system, reducing the use of prison and increasing the use of community and alternative sentences. And he’s got his department to produce a sheaf of research showing an £18 billion cost of reoffending, very high level of needs experienced by people who commit crime and the fact that sentencing them to short term custody- even with supervision after release- is associated with higher proven reoffending than if they'd instead got community or suspended sentence orders.  But will all this be enough to keep a policy of reducing prison numbers in place?

A somewhat different view has been put forward by new Tory think tank Onward who argue that a greater number of persistent offenders should go to prison for longer periods.  Disappointingly, on penal policy, Onward's “new ideas for the next generation" turn out to be Michael Howard's Prison Works vision from the last one. Onward seem to want “three strikes and you’re out” mandatory minimum prison terms, arguing that “super prolific offenders” account for more crime and get fewer prison terms than in the past. They also want more prisons to be built. (Their Director Will Tanner used to work for G4S).

The statistics Onward deploy seem arguable. With fewer crimes being cleared up, it’s not surprising if “the usual suspects” loom larger in the population of those who are brought to justice. It would also be odd if the calamitous decline in prison performance and debacle of probation privatisation have not had negative impacts on the unfortunate people who have experienced them as service users.

Dealing with petty persistent offenders raises some fundamental questions of sentencing philosophy in particular about the weight that should be attached by courts to previous convictions. On one view, anything but a very limited weight can amount to a kind of double- or more-  jeopardy in which you can end up being punished in perpetuity for past misdeeds.  

The short-lived 1991 Criminal Justice Act controversially provided that an offence should not be regarded as more serious because of any previous convictions of the offender or any failure of his to respond to previous sentences.

On another view, repeat offenders deserve to be dealt with more harshly, because spurning a chance to go straight and continuing to flout authority make bad behaviour worse and elevate the need to protect the public above concerns about reform and rehabilitation. For the last 25 years, courts have been required to find recidivist offenders more culpable; and many of those who end up getting short prison sentences are likely to have simply exhausted the patience of the magistrates and judges.

Whatever Onward might think about the feebleness of the courts, the fact remains that since 2010 for the more serious types of cases , the proportion of offenders going to prison has gone up along with the length of their sentences. They are right to call for a review of Sentencing Guidelines, but if the Sentencing Council were to do its job and properly have regard to the cost of different sentences and to their relative effectiveness in preventing re-offending, the conclusions would be very different from Onward’s dismal prescription.

Unfortunately, evidence may struggle to prevail in the forthcoming government. Back in 2011, several up and coming Tories argued the need to reverse the tide of soft justice, “not ashamed to say that prisons should be tough unpleasant and uncomfortable places”. Liz Truss, Dominic Raab, Priti Patel and others who now expect jobs from Johnson, argued that what was to become Gauke’s policy of a presumption against short prison sentences is the wrong approach and that we should be doing exactly the opposite- ensuring that persistent offenders are imprisoned for longer periods. “When the law is broken, our condemnation should be unequivocal. The primary purpose of our justice system is to protect our society, not to act as a welfare service for convicted criminals.”

Such a forlorn view may bring an end to short prison sentences – but only by replacing them with longer ones.