Sentencing Reform - A Little Less Conversation, A Little More Action Please

 

 The Howard League deserve credit for persuading five retired senior Judges to argue publicly that the sentence inflation which has brought the prison system to its knees must be brought under control and for a reversal in the trend of keeping people in prison for longer simply to punish them more severely. If implemented, their recommendations would help chart a more sustainable future for prisons and a more effective approach to reducing re-offending.

For me, their warning that without urgent remedial action, “this country will soon experience US-style mass incarceration” is a bit overblown. America’s 1.9 million prisoners represents a rate of imprisonment (531 per 100,000) which is 3.5 higher than ours (146).  

But the four former Chief Justices and one lead judge on criminal justice are surely right to urge a return to more modest proportionate sentences across the board to bring England and Wales into line with Western European norms.

A question nagged away as I read the paper though. While in their various senior roles in the judiciary, could and should the authors not have done more themselves to curb the trends they now decry? Is this not another frustrating example of Post Retirement Enlightenment Syndrome – the phrase originally coined to describe the experience of having politicians “come out” in favour of drug policy reform only after ceasing to occupy positions in which they might have actually carried it out.

The paper lays the blame for sentence inflation firmly at the door of government and the legislature. But can it really be the case that the rise since 2010 in the rate of custodial sentencing from a quarter of the more serious cases to a third; and the increase in the average length of prison terms from 14 to 20 months is down to new laws or the will of parliament?

It’s possible that harsher sentencing reflects more serious offending, or offenders with more previous convictions. But an inconvenient truth may be that the independent judges and magistrates who impose criminal sentences themselves have played a significant role in sentence inflation, whether deliberate or inadvertent.  It may be that it's guideline judgments of the Court of Appeal, rulings on unduly lenient sentences and in particular sentencing guidelines which have served to push up the going rate of punishment- an increase in sentence lengths which means that the people released early from prison this week after serving 40% of their sentence will have on average served two weeks longer in prison than those who served 50% of their sentence in 2014. 

Take the guidelines which are produced by the Sentencing Council, which is fundamentally a judicial body. The sitting Chief Justice is the President of the Council and Lord Justice Leveson, one of the authors of the critique its first Chair. A review of its work in 2017 found that two of its first major guidelines resulted in unexpected increases in sentence severity.

In their Howard League critique, the Judges say the Sentencing Council’s role is to ensure a proportionate structure for sentencing, meaning that the increase in minimum sentences for one crime will necessarily have a knock-on effect across the board. But why should longer sentences for homicide or sexual offences require a harsher approach to theft or burglary?

In fact most sentencing guidelines have sought to maintain the existing practice of the courts rather than toughen it up but the increase in sentence severity for most categories of crime since 2010 suggest that they have in large part failed, too often acting as an accelerator rather than brake on the use of prison. 

I’d like to see current sentencing levels recalibrated downwards on the basis of effectiveness and cost - one of the factors the Council must consider. So too it seems do the retired Judges. But the Council has been unwilling to do it.

Indeed, after a consultation, in 2021 the Council concluded that it was not its role to reverse any observed trends in the prison population. They argued that “were it to seek, artificially and unilaterally, to raise or lower sentence levels without good cause – whether in general or for specific offences – it would rapidly lose the confidence of sentencers, a broad range of public opinion, and no doubt a significant body of opinion within Parliament.” Surely the Judges’ critique lays out a very good cause.

The retired Judges call for “an honest conversation about what custodial sentences can and cannot achieve and their human and financial costs,” mirroring a call by the Justice Committee in the last Parliament who concluded that “public debate on sentencing is stuck in a dysfunctional and reactive cycle”.  In his latest Annual Report, the Chief Inspector of Prisons argued "there is a pressing need for a much bigger conversation about who we are sending to prison, for how long."

This is another area where the Sentencing Council has been found wanting. In 2011, Lord Justice Leveson wrote in its first Annual Report that it had a significant opportunity to contribute … to wider public understanding of issues of sentencing.” He and his co-authors now recognise that 14 years on “the public has a poor understanding of sentencing, receiving most of their information from media reports on individual catastrophic cases”.

A better level of debate is of course needed – and to my mind one that is more adult than simply distinguishing between people we are cross with and those we are scared of, as a former Lord Chancellor frames it.  

But ensuring a constructive and viable way forward requires action, not just words.