What would a more effective long-term sentencing policy look like?
1.1 The essential point is to be clear about the aims of sentencing. As the announcement of the Inquiry reminds us, the Criminal Justice Act 2003 (sec. 142) (CJA) defines the purposes of sentencing as:
- The punishment of offenders
- The reduction of crime (including its reduction by deterrence)
- The reform and rehabilitation of offenders
- The protection of the public
- The making of reparation by offenders to persons affected by their offences
David Blunkett, as home secretary, made it seem even simpler: his ‘two very clear objectives’ were ‘to punish offenders and reduce re-offending’ (Reducing crime – changing lives, 2004). A different set of aims will be quoted in paragraph 1.4.
1.2 Lord Justice Auld (2001), however, warned against regarding sentencing as a solution. He said that:
I have always been of the view that we expect too much of the courts as a medium for reducing crime, for remedying wrongs to victims and society and for rehabilitating individual offenders (p. 387).
He therefore considered that
[t]here is value in providing for resolution outside the courtroom so far as is consistent with justice, the public interest and efficient public administration’ (p. 368); and that ‘[a]ny initiatives in this field should be part of an over-all and principled reform aimed at removing from the courts matters for which they are not appropriate or necessary, while leaving them, in the main, to deal with matters for which they are well suited, in particular, marking society’s disapproval and safeguarding public and private safety (p. 388).
In sum, he recommended
the development and implementation of a national strategy to ensure consistent, appropriate and effective use of restorative justice techniques across England and Wales (p. 391).
1.3 With respect, Sir Robin Auld did not go far enough. There is a comfortable assumption that the aims set out by the CJA and Mr Blunkett are complementary: while a person is being punished in prison, the public is protected and he or she can undergo rehabilitation. In fact they are contradictory. The more punitive, the less rehabilitative. Protection of the public is almost always only temporary, and incurs a high re-offending rate, just as a mortgage incurs interest. The greater the deterrence, the greater the lengths to which offenders will go to escape conviction. And so on. (These points are written mainly with imprisonment in mind, but apply to other sanctions to some extent. There is no need to dwell here on the well-known counterproductive effects of imprisonment: creating social exclusion and homelessness, splitting families, creating stigma, and so on, to say nothing of the reconviction rate. The fact that each time a person is imprisoned, the chances increase that he or she will be imprisoned again, makes nonsense of the claim that prison ‘works’.)
1.4 It is interesting to compare the aims in the Criminal Justice Act with those of the review of sanctions for regulatory offences, whose effects on their victims can be just as serious as those of ‘street crimes’, including deprivation of property, injury and even death. The review concludes that:
A sanction should:
1. Aim to change the behaviour of the offender;
2. Aim to eliminate any financial gain or benefit from non-compliance;
3. Be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction;
4. Be proportionate to the nature of the offence and the harm caused;
5. Aim to restore the harm caused by regulatory non-compliance, where appropriate; and
6. Aim to deter future non-compliance
(R B Macrory, Regulatory justice: making sanctions effective.
London: Better Regulation Executive, 2006, p. 11)
It is noticeable that punishment for its own sake is evidently not thought to be of primary relevance to the effectiveness of sanctions.
1.5 A basic problem is that the CJA’s first aim, punishment, is not really an aim, but a strategy intended to achieve other aims. It is essential to look at those aims and see whether they could be achieved by a method with fewer unwanted side-effects. A major aim is to symbolize the seriousness of the harm caused by the crime. This could be achieved more constructively by the amount of reparation that the offender makes. An extreme example is the former cabinet minister John Profumo, who spent the rest of his life making reparation for his errors through community service. To be sure, he did so voluntarily, but compulsory service is also possible. In South Africa a woman who killed a young burglar, but was unlikely to commit further violence and had four dependent children, was given a sentence of 8 years’ imprisonment suspended for three years, on condition that inter alia she apologize to the victim’s mother (High Court of South Africa, Transvaal Provincial Division, State v. Maluleke and others, CC 83/04). Another case was cited as a precedent, in which community service coupled with suitable conditions was imposed for homicide (S v. Potgieter 1994(1) SACR 61(a)).
1.6 A second aim is to discourage the offender from repeating the offence. To call this deterrence is to assume that scaring people is the best way to persuade them to behave with consideration for others. Related to this is the aim of scaring others. It is a truism that the basis of deterrence is the fear of being caught; the likely punishment self-evidently only influences a person who believes he or she is likely to be caught and convicted, knows what penalty to expect, and cares about the consequences.
1.7 It is essential to look for other ways of persuading people to behave. In a civilized society these must surely include making offenders concerned more about harming others than about risking punishment themselves. They have to be persuaded that they are capable of taking a place in the community in a better way, and trust that others in the community will re-accept them when they have made amends.
1.8 It is reported that the German Prison Act of 1976 defines three guiding principles of prison administration: (1) Life in prison should, as far as possible, reflect the general relationships of the outside world; (2) Administrators should work to limit the damaging effects of imprisonment; and (3) the administration of prison should be aimed at assisting the prisoner to adapt to life in freedom. This demonstrates a recognition that life in prison does not resemble the community in which offenders are supposed to live; that prison has damaging effects, and that people need extra help in returning to freedom, which they would not need if their freedom had not been taken away in the first place. For all these reasons, it is in the public interest to avoid prison sentences wherever possible.
- What steps might be taken to reduce the prison population whilst retaining public confidence in the criminal justice system?
2.1 If people are being sent to prison inappropriately for lack of more appropriate facilities, the obvious way to deal with overcrowding in the former is to provide more of the latter. Sentencers should insist on this. Public confidence requires that community measures are carried out in the best possible way: cutting probation resources to pay for prisons makes no sense.
2.2 A method is needed to ensure that for every thousand by which the prison population is reduced, equivalent resources are transferred to community facilities. (With prison running costs of the order of £40,000 per place at 2007 prices, this would release up to £40 million per thousand places.)
2.3 Whenever a court imposes a sentence which is likely to appear ‘lenient’, it should (as in New Zealand) issue a simultaneous press release explaining its reasons for believing that a community sentence is more in the public interest.
- What steps should be taken to get people from vulnerable groups (women, young people, the mentally disordered, alcohol and drug addicts, and minor offenders out of prison?
The top priority is to transfer resources from the budget for building and running prisons to building and running the facilities that have some chance of helping them to live more productive lives – for their own sake and everyone else’s.
- How can community sentences be more appropriately used?
4.1 Probation (or after-care supervision) is not the same as surveillance. It is more likely to be effective if it is based on a respectful relationship than on a crude threat of recall to prison (see Question 7 below). A relationship also implies continuity, which has implications for the structure of the probation service: a succession of short-term contracts with high staff turnover will not be helpful.
4.2 It should be made clear that community service is seen as a way of making amends to the community; it should not be seen as a punishment or a stigma, but on the contrary a means for the offender to show what he or she is capable of contributing if given the chance – and for the community to reciprocate.
- What is the role of restorative justice?
The philosophy of restorative justice has several strands.
5.1 It should not be assumed that the criminal justice system is the best agency to deal with any action which is capable of being defined as a crime. For example, when a dispute has resulted in criminal damage or an assault, it is often in everyone’s best interest to address the dispute rather than the criminal incident, by referring the case to a community mediation centre rather than to the police.
5.2 The harm caused by the offence should be balanced by making amends, rather than by inflicting further harm on the offender.
5.3 The victim should have the opportunity to meet the offender to seek explanations and discuss the best form of reparation. (This contrasts with victim statements, which offer no opportunity for dialogue.)
5.4 Many victims want steps to be taken to reduce the likelihood of re-offending, for the sake both of potential victims and of the offender him or herself. The offender’s co-operation with rehabilitation programmes, when needed, should therefore be regarded as a form of reparation (for example, Naomi Campbell’s attendance at an anger management course).
5.5 The community should be involved, for example by providing mediation services and where appropriate trained volunteer mediators (for which the lay magistracy and youth offender panels provide precedents). The community also has a responsibility to enable the offender to make reparation.
5.6 The informal dialogue of a restorative process allows the discussion of background circumstances that would not be admissible in a criminal case. These can throw light on background factors which affect crime, such as inadequate employment, schools and housing, and there should be a system for passing them on to those responsible for crime reduction strategy.
5.7 Restorative justice should therefore be available at any stage: as an alternative to the court when the parties are known to each other, as diversion from prosecution, pre-sentence, as part of a sentence (subject to consent), or post-sentence/pre-release. The earlier in the process it takes place, the greater the saving of time and resources.
- Should short term imprisonment be abolished, and if so, how?
6.1 Yes, by a provision similar to the one in the CJA 1982, setting a threshold below which prison cannot be used. The sanction of choice should be reparation: fines should be replaced by reparation (financial or through service) to the community for the harm caused.
6.2 A prison sentence should not be imposed unless the court can show that it has examined community-based measures and that it would not be in the public interest to use them. No one should be sent to prison for lack of facilities for, e.g., treating mental disorder or addiction to drugs, alcohol or gambling, or for community service.
6.3 Custodial and community measures should be paid for from the same budget, so that there is a financial incentive to avoid the use of custody unless it is necessary for public protection.
- How can the system of recalls for offenders who breach community sentences or licence conditions be improved?
A procedure should be in place for the offender to discuss their circumstances immediately, not after a spell in prison. They should have the opportunity to explain any change of circumstances, and to make a fresh commitment to comply with the terms of the order. In particular, they should be allowed to point out any lack in the support which they have received; orders should be regarded as two-way contracts between the offender and the community, in which both have responsibilities.
- Should it be more difficult to qualify for indeterminate sentences for public protection?
Yes, courts should be required to give reasoned, not formulaic, explanations of why these are necessary, and should be satisfied that an institution with suitable treatment facilities is available before passing the sentence.
- Should the use of conditional cautions and referral orders be extended?
9.1 Prosecutors should be actively encouraged to use conditional cautions. A caution should count as a successful disposal of a case. In calculating the time taken for the disposal of a case, the date of referral (not completion) should be used, to avoid putting pressure on victims to take part before they are ready.
9.2 Where the prosecutor has not done so, it should still be open to the court to adjourn a case, where the accused did not deny involvement, for an assessment of the possibility of a restorative outcome. In New Zealand this is the norm for juvenile offenders, fulfilling the function of pre-sentence reports. Some cases could then be discontinued; others could be brought back to the court, which could then endorse (or if necessary modify) the agreement reached by the victim and the offender.
9.3 As the CPS has pointed out, however, this option requires the availability of personnel trained to conduct restorative meetings. Given the government’s policy of encouraging involvement of the voluntary sector, there should be specific encouragement for those who wish to take the initiative in setting up a local accredited mediation service which could assess such cases when they were referred to it, and conduct restorative meetings where appropriate.
- Given that many persistent offenders commit minor offences, how would you recommend dealing with them?
Since they are evidently unable to meet their needs by legitimate means, there should be a discussion with them, and any significant people in their lives, as to how they could make their contribution to society by legitimate means. If there are no suitable people who are significant to them, the voluntary sector should be encouraged to provide support of this kind. Once again, it is a question of a two-way contract: they need to be not only persuaded, but enabled, to be included in society.
- To what extent has public confidence in sentencing been eroded (e.g. by the media), and what can be done about this?
11.1 Some sections of the media are guilty not only of circulation-chasing headlines, but of mental laziness, in promoting without question the assumption that ‘toughness’, such as naming-and-shaming and imprisonment, is the best way of promoting social cohesion, and that non-custodial sentences are a ‘let-off’..
11.2 Opinion-formers, especially politicians, need to stand up against this, supported by the knowledge that despite the headlines, the majority of the public, including victims, is not as vindictive as is commonly assumed. The British Crime Survey, for example, found that only about a third of victims of burglary or mugging wanted ‘their’ offender to be imprisoned (Home Office Research Study 200, Attitudes to crime and criminal justice, 2000, Tables A6.2 and 6.3). More recently, an ICM survey found that about two thirds of crime victims do not believe that prison works to reduce offences such as shoplifting, stealing cars and vandalism, and more than half thought that paying back to the community by doing compulsory work would be effective (Smart Justice, Crime victims say jail doesn’t work, 2006).
11.3 There are indications that victims who have met their offender feel less angry and vengeful, especially when the offender is young; greater use of restorative measures can therefore be expected to assist in changing attitudes. Most offenders, too, regard the process as fair, so that their respect for justice is increased.
11.4 That said, however, for more serious crimes people do want the seriousness of what they have suffered to be recognised. As was pointed out in Paragraph 1.4 above, reparative measures need to be adequate and adequately carried out, but their adequacy may be measured as a sincere apology backed up by undertaking a serious reparative task.
- How can arrangements for the rehabilitation and resettlement of offenders contribute towards more effective sentencing?
Sentencers should remember that resettlement will not be necessary if the offender is not sent to prison in the first place.
- Should the sentencing guidelines process be changed? If so, how? Is the current approach the most appropriate?
13.1 The primary aim should be to (re)integrate of those who have broken the law into the community, and to identify pressures that may cause others to offend. Both the Sentencing Guidelines and the Judicial Studies Board should recognise that a sentence is only the choice of a measure; its effect depends on those who carry it out. In an overcrowded prison an given amount of punishment is inflicted in a shorter time, and participation in rehabilitative programmes is reduced. The Sentencing Guidelines Council should educate the public, for example by issuing research findings and fact sheets showing what is and is not effective; then when it makes recommendations, the reasons for them are more likely to be understood.
13.2 It needs to be recognised that to react to current events, such as the use of mobile phones by motorists or the use of guns, by increasing sentence maxima, is not an effective response. The appearance of a conflict between politicians and the judiciary should be avoided: there should be seminars for judges, politicians and journalists to increase awareness of the limitations of sentencing and the need to look into more far-reaching ways of reducing social conflict.
sentencing HAC response 073.doc
i Dr Martin Wright is the author of Making good: prisons, punishment and beyond (1982), Justice for victims and offenders (2nd ed. 1996), and Restoring respect for justice (1999) in which these points are developed (especially in chapters 2, 5 and 6). He is a former director of the Howard League for Penal Reform and policy officer for Victim Support. He is currently vice-chair of the Restorative Justice Consortium, but writes in a personal capacity.