Reducing Rehabilitation

 When in opposition, the Conservatives were critical of the legislative hyperactivity of new Labour in the criminal justice sphere. But the coalition is proving just as adept at confusing the courts and the public alike about their approach to law and sentencing. Today they are implementing one set of reforms to non- custodial measures which became law in the Crime and Courts Act in April, while legislating for yet more changes in the controversial Offender Rehabilitation Bill.   

We should perhaps be celebrating the coming into force of the provision enabling courts to defer sentence so that offenders can engage in restorative justice activities with the victims of their crime in appropriate cases. But without resources, a much needed option, used very widely on the continent, is likely to remain the exception rather than the rule; we are left to wait for "secretary of state guidance" to see how it will work.

In the meantime, alongside this potentially positive measure, courts will now have to include a punitive element whenever they impose a community sentence on an adult. This means a fine and/or a requirement made for the purpose of punishment. This seems potentially to include any of the existing requirements (which in individual cases might be punitive)  but courts are likely to impose more in the way of unpaid work, curfews and exclusions from certain areas. As the Government themselves acknowledge, there is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate . Tougher requirements may also make compliance more difficult and breach more likely.

Whether the net  result will be more  prisoners depends on two other factors- will the changes persuade sentencers to make community orders today in cases that yesterday were deemed so serious that only custody will do?  Arguably they should do since the punitive weight of the new orders will be greater than they were. The government made a commitment to discuss with the Sentencing Council   whether any changes would be needed to existing sentencing guidelines but nothing seems to have come of it.  It is also possible, though highly unlikely, that tougher community sentences will have some kind of deterrent impact on offenders or the wider public.

So the costs of custody may go up as a result of these changes . But what about the costs of community orders.Some punitive elements are a good deal cheaper than rehabilitative ones.  The government’s strategy is to fund the supervision of short term prisoners by reducing the costs of community orders. As well as achieving this through privatisation,  they may end up doing so, paradoxically by reducing rehabilitation.