Alternatives to Prison - a Shot in the Arm or Shot in the Foot ?

The movement to cut the prison population picked up steam this morning when the Lord Chief Justice told the Justice Select Committee that “fewer criminals should be jailed and tougher community punishments developed as an alternative to imprisonment”. In contrast to Michael Gove, who last week called for a reduction in prison numbers having steadfastly refused to countenance it when in office, Lord Thomas is in a position to do more than talk.

As head of the judiciary he can exercise a strong influence on the 20,000 judges and magistrates who send people to jail. Unfortunately, he seems to have passed up the opportunity to persuade the Sentencing Council (of which he is President) to take a more ambitious line on alternatives to prison in its recent guideline on the imposition of community and custodial orders.  He might, however, look for an opportunity to issue a guideline judgment encouraging the greater use of community sentences.

The Chief Justice might say that his support for such sentences is contingent on their being tougher.  If he means that they should impose more and more onerous requirements on offenders, his positive intentions could easily lead to unintended consequences. The numbers spared custody at the front door of sentencing could be exceeded by those experiencing it via the back door of breach- a risk Lord Thomas seemed to recognise in respect of the post release supervision of short term prisoners introduced last year. If the Chief means the sentences should be , to coin a phrase , tougher on the causes of crime, he might be on to something.

Gove last week called for community sentences to be far better policed, with swift and certain sanctions for those who don’t comply. “Swift and Certain” is shorthand for an American approach to probation originating in Hawaii. It appeared in the 2015 Conservative manifesto but has yet to find its way into legislation. I’ve long had doubts about its applicability here, though these would be alleviated if the response to missing appointments or drug tests were not swift and certain periods of detention- as they are in the US HOPE Probation system- but more intensive rehabilitation efforts or lesser sanctions such as community work or curfews reinforced, if necessary, by tagging.

There’s a bigger problem of course which is whether the reformed probation service is able to step up to the plate.  It may be that the Ministry of Justice review of the new arrangements finds the new model fatally flawed, but its hard to see it being abandoned. The MoJ  may look to reinvigorate it by encouraging more diversion from prison.

We are told that the Community Rehabilitation Companies are struggling because the numbers of cases they supervise - and the fees that go with them- are lower than they’d expected. On business grounds if no other, they’d presumably be keen to get onto their books some of the 90,000 people sentenced to custody each year, as an alternative to custody and not just after release from it.

If that’s something the Lord Chancellor and Lord Chief Justice want too, it shouldn’t be beyond their wit to arrange it.