Sentencing: a return to first principles

If we go back to first principles and ask ‘What is the criminal justice system for?’ we often think, first of all, that it is to protect us from crime. But that thought needs to be qualified.

 Firstly, the most effective measures for crime reduction are not part of criminal justice, but deal with social pressures towards crime. The proportion of prisoners who had been taken into care as a child, truanted from school, were homeless, had run away from home, had below Level 1 numeracy or reading ability, or used drugs, is from two to thirty times the figure for the general population. These factors are nothing to do with sentencing, except where the child’s situation has been aggravated by sending a parent to prison.

 

Seven out of ten prisoners, both male and female, suffer from two or more mental disorders1. It therefore seems obvious that prison overcrowding should be dealt with by creating more mental health facilities, not necessarily custodial, rather than prisons.

Crime reduction strategy should clearly focus on factors like these, rather than by increasing sentences, which has little effect. A healthy society is not one where people are only kept in order by fear.

When it comes to preventing re-offending, the most important factor is what happens after the sentence: do they have a home, a job, and other forms of support. These too are matters for the community in general, not the criminal justice system.

Secondly, criminal justice should be about helping the victim to recover, as far as that is possible. Many victims are not so intent on seeing the offender punished; often their main concern is that they should co-operate with programmes to change their life, and stop offending. This makes more demands on the offender than sitting in a cell.

Thirdly, we really need to sort out the philosophy of sentencing, especially with regard to prison. Sentencing is currently trying to do several things at once, conveniently ignoring that these largely contradict each other, and could be achieved in other ways. A review of sentencing is welcome, but it needs to be radical. Some people simply assume that it is to punish offenders. Others say that there should be education and training in prison. If you point out that few people receive it, and it’s often outweighed by the damaging effects of prison, it is claimed that it contains people for a period. But they are more likely to re-offend afterwards.

Every time a person is sent to prison, he is more likely to re-offend on release. In one sample, 25 per cent of those with no previous custodial sentence re-offended. After one previous custodial sentence, this jumped to 40 per cent, and so on until 76 per cent of those with 11 or more prison sentences offend again2. So prison seems a short-term solution, just as a credit card is a short-term solution to debt – but it catches up with you, with interest.

It comes down to this: the primary purpose, which trumps all the others, is an attempt to show everyone just how serious the crime was, and to measure this in units of time. It is legitimate for the state to show everyone the boundaries of permissible behaviour, but does it make sense to use this method? It stigmatizes people so that it is harder for them to find a job afterwards; it separates them from people who might be a good influence; and herds them together with others like themselves, with too little to do, often introducing them to drugs, with a high incidence of bullying, self-harm, and too many suicides (often by young people).

 

Furthermore, the baseline for sentences is quite arbitrary. No sentence is justifiable except by comparison with others. Suppose there are three offences, each more serious than the last: the offenders may be given sentences of, say, 4, 6 and 8 years. But it might just as well have been 3. 5 and 7, or even less, and the point would still have been made. This would reduce the prison population, so that there was a better chance of constructive regimes for prisoners, and there would be no need for the executive to intervene by releasing prisoners early.

Custody should be reserved for the most serious cases of danger to the public, and for enforcing reparation when necessary. The same dilemma about fixing an arbitrary length would remain, but there could be much less custody, and when it was used it would be for a constructive purpose.

Given that a substantial number of offenders are on the borderline between custody and a community measure, and that community measures are generally less costly and no less effective, cuts across the board make no sense. If the probation service can show the need for a particular programme in their area, and persuade the courts to use it when appropriate, part of the resulting saving when the prison population is reduced should be transferred to fund the programme3.

Could we not find a more constructive way of marking society’s displeasure? It sounds very logical to say ‘He has broken the law and should be punished. But surely it is just as logical to say ‘He has caused harm and should make up for it.’ This includes the victim. It enables the offender to make reparation, in some cases by meeting the victim (if he or she wants it) to answer questions and hear at first hand how the victim was affected – a difficult thing to do. In other words, restorative justice, which has been shown to reduce reoffending . It gives the offender a chance to make amends voluntarily, and it means that he or she can return to society with some positive action to weigh against the offence – a new use for the scales of justice.

 

1 Social Exclusion Unit Report Reducing re-offending by ex-prisoners, 2002, quoted by Prison Reform Trust, Prison factfile, 2006.

2 Of adults sentenced in the first quarter of 2007: Maria Eagle, Parliamentary Answer to Keith Hill MP, 29 October 2009.

3 Martin Wright, Towards a restorative society: a problem-solving response to crime. Make Justice Work, 2010, p. 14.