in New York, unpaid work is often started the day of the court sentencing date. If they can do it, why can’t we?

How to reduce the use of short prison sentences: Part 2

Posted on 25 Jun in

Phil Bowen

An old friend of mine in the police once said that, from her perspective, at least prison provides the community some respite from an offender, even if it does not reduce re-offending. It is true that prison’s ability to incapacitate has normative merit. But, as Professor Nigel Walker said in his book, Why Punish?:

Custody may prevent people from harming others, but it also prevents them from doing things that are harmless. It prevents far more than is necessary.

That insight is certainly true of the 32,226 people who we sent to prison for less than 3 months last year. According to the Ministry’s own data the average custodial sentence for this group is only 24 days. Off these, 41% receive sentences of less than 1 month, serving only about 11 days in prison in total. This is hardly the respite my cop friend meant. In fact, it is probably worse than she thought because it has now been shown that those released from short prison stays commit more crimes than they would have if they were given something, almost anything, that isn’t prison.

So the question is, as always with these blogs, if not these short prison sentences, what instead?

One option could be a new community sentence, calibrated to be a straight, like for like replacement to processing someone through our prison estate for a few days. Instead of sending someone to prison, we could use unpaid work, with every 1 day of custody equalling one day of unpaid work. We would, moreover, suggest a ceiling on the use of unpaid work (of say, 20 days maximum). This would help the offender can keep links with any family, employment or housing. It would also ensure that all the unpaid work can be done swiftly.

We suggest that this short unpaid work order could be set within a deferred sentencing framework. According to current Sentencing Guidelines, the court can use deferred sentences in:

cases close to either the community or custodial sentence threshold where, should the offender be prepared to adapt his behaviour in a way clearly specified by the sentencer, the court may be prepared to impose a lesser sentences.

The guidance goes on to say that the purpose of these sentences is so the court can

have regard to the offender’s conduct after conviction… including the extent to which the offender has complied with any requirements imposed by the court.

This to us seem like a good fit for a proportionate, swift community option for courts. On successful completion, offenders or those supervising their sentence could present evidence of completion, to an appointed administrative court officer who could, on behalf of the court, confirm the completion of the sentence, resulting in no further action. We would argue, to give offenders a practical incentive to complete court mandates, that the court could give someone an absolute discharge in these circumstances.

And lest we are accused of replacing one punishment with another, we can see that this type of community punishment could be paired with voluntary referral to rehabilitation services, perhaps through advice and support clinics such as run at Highbury Corner and Plymouth magistrates’ courts or other services, such as referral to women’s centres for 4,093 women given sentences of less than 3 months. It may even be that voluntary engagement with rehabilitative services can be marked off against the overall court mandate (so if someone takes up the offer of support with drug issues, 2 or 3 days spent working on your addiction could be discounted from the number of unpaid work days needed).

To pull this off, there would have to be a few key ingredients to make it work in practice. The first of these is immediacy. One good thing about prison is that it always gets done immediately following the court sentence. So, why can’t we replicate that virtue, while causing less damage, in the community? In my conversations with sentencers, the frustration they have about unpaid work is not the requirement itself— it’s that it take so bloody long to be get started and completed. And yet, in our sister organisation’s projects in New York, unpaid work is often started the day of the court sentencing date. If they can do it, why can’t we?

If we can make this option immediate, we must also make it understandable. It should be given out in blocks of working days, not the confusing number of hours as is currently done. And the court should emphasise to the offender that this order is an alternative to a very short prison sentence.

Moreover, it would be a key component of such an order that the work done by offenders is reparative to those local communities and businesses afflicted by crime. If, for example, offenders are channelled into work that is for the benefit of the communities, if they work on projects for public benefit, while there may not be direct victim reparation, there would be wider community reparation. This is not a nice to have in our view, but vital to securing the public legitimacy of the option.

What would be the impact of such a shift? Looking at the data, 90% of the under 3 months cohort are going there for non-violent offences. If we assumed that a risk averse Ministry wanted to continue to give people committing violent offences short prison stays, this still leaves around 29,000 people we could move away from short doses of prison in to something else. In proposing this, our basic thought is to help offenders get their mandates done, to give the courts a quick and simple option and to build public support for the constructive work offenders can do in the community. It is premised on the idea that replacing very short prison sentences with something proportionate, something meaningful but fundamentally less harmful, would benefit us all.

In our next blog, we will look at the second level of the under twelve month group— those getting short prison sentences of 3-6 months.