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THL faint hope
Russell Webster

Russell Webster

Criminal Justice & substance misuse expert and author of this blog.

A faint hope for long sentence prisoners?

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There are more people sentenced to an indeterminate term in England and Wales than in the other 46 countries in the Council of Europe combined.

What to do about long sentences?

One of the things I admire most about the Howard League for Penal Reform is its sheer energy and productivity.

Less than three weeks after its last publication which sought to shame the MoJ into taking action about the increasing number of prison suicides, it has published a new briefing, highlighting the plight of prisoners serving indeterminate sentences.

Faint hope: what to do about long sentences” calls for a more humane approach to those serving open-ended sentences.

Key facts

The Howard League sets out some key facts:

  • There are more people sentenced to an indeterminate term in England and Wales than in the other 46 countries in the Council of Europe combined.
  • There are currently 11,675 people serving life and Indeterminate sentences for Public Protection (IPP) sentences, which compares to 4,530 in 2001 and 2,708 in 1991.
  • As the number of people serving open-ended sentences has increased, so too has the length of time they spend in prison. Average tariffs have increased by 32 per cent and 75 per cent for mandatory and non-mandatory sentences respectively in less than a decade. Most people spend many years in prison beyond the minimum tariff length set by the court.

The Howard League states that there does not appear to be any explanation for these significant increases in tariff length other than sentence inflation. There is no evidence that murders have become more sadistic or brutal, or that reoffending rates for those who have committed serious offences have increased.

Reoffending rates of those released from the custodial part of a life sentence have continued to be very low – latest figures show that 3.2% of released mandatory lifers reoffend, compared to a prison population average of 45.8%. Rather, tariff lengths have gradually, and largely unintentionally, risen in a punitive penal climate.

The briefing paper claims that the situation is exacerbated by an overwhelmed and overly risk-averse Parole Board, which is tasked with determining when and if a person sentenced to an indeterminate term is released. It will be interested to see what, if any, changes Nick Hardwick will make as he moves from being Chief Prison Inspector to Chair of the Parole Board.

The briefing paper argues that there are lessons to be learned from the way other jurisdictions approach long-term imprisonment. In particular, it examines prison systems in Canada, Portugal and the Netherlands.

The paper calls for an overhaul of recall policy and the reversal of sentence inflation. It also recommends the introduction of a ‘faint hope’ law that would enable people sentenced to an indeterminate term, who had made an exceptional effort, to apply for earlier parole eligibility.

Opportunities for release

The Howard League compares the English & Welsh system with the Canadian, Dutch and Portuguese systems which allow for release at several different stages of a sentence. Multiple opportunities for release are linked to a much greater recognition that steps should be taken to prevent somebody being in prison longer than necessary.

Portugal has a dedicated court for overseeing and reviewing sentences at which specialist judges and prosecutors approve sentence plans, review the legality and legitimacy of treatment and conditions and, most importantly, consider release at regular intervals. All persons sentenced to more than two years in custody are first considered for release after serving one-sixth of their sentence. If not released, release will be considered again at the halfway and two-thirds point (or each year, depending on which is the shortest time period). If a person is still detained after having served five-sixths of their sentence, release is practically automatic. This is due to the important principle of a right to probation under Portuguese law, so that a proportion of the sentence must be reserved for reintegration and support. In practice, the five-sixths rule acts as a vital safeguard but the vast majority of people are released before this stage of the sentence.

In the Netherlands restraint is the overarching theme of the sentencing system (except for the 30 people currently serving whole of life sentences). The vast majority of sentences are determinate and relatively short. Prisoners are eligible for release at the two-thirds stage of their sentence and the overwhelming majority are released at this point. For those serving longer determinate sentences less restrictive conditions
are considered at a relatively early stage.

Canadian life sentences follow a similar structure to those in England and Wales – a minimum tariff set by the sentencing judge must be served before a person can apply for release to the Parole Board of Canada. The guidelines for tariff lengths are fairly rigid – 10-25 years for second degree homicide and at least 25 years for first degree. However, innovative policies facilitate earlier release in certain circumstances, the most notable being the ‘faint hope clause’.

Simplistic and Minimalist as Art Lines Background

Faint hope

Section 745.6 of the Canadian Criminal Code, colloquially known as the faint hope clause, allows those sentenced to life with a minimum of 15 years, to apply to have a jury examine the progress they have made in prison and review parole eligibility.

The thinking behind the clause, which came into force in 1976, was that it is contrary to the public interest to continue to detain a person who has already served a significant period of time in custody, has made exceptional efforts to rehabilitative themselves and poses a low risk of harm.

Most importantly, the policy enhances democratic input in the penal process, enabling ordinary citizens to have a say on the sentence lengths of those convicted of the most serious crimes.

The faint hope clause has been successful. Between 1987 (when the first hearing took place) and 2010, 173 applicants received a full jury hearing, 143 (82.7 per cent) had their parole eligibility dates reduced and 130 were subsequently released by the Parole Board of Canada. Only four of the 130 released have been returned to custody – three for a drugs offence and one for robbery.

Notwithstanding this success, former Canadian Prime Minister, Stephen Harper, abolished the faint hope clause in 2011. This change was not applied retrospectively so it will remain a part of Canadian policy until at least 2025.

Change in England and Wales?

The Howard League advocates for the introduction of a faint hope clause in England and Wales arguing that:

Even if such a policy had a very limited impact and only one per cent of those serving an indeterminate sentence were released five years earlier than they otherwise would have been without a faint hope policy, this would amount to 584 fewer years of imprisonment, saving approximately £21.5 million.

They also make four other recommendations:

  1. Sentence inflation should be reversed.
  2. Measures should be introduced to improve the efficiency with which prisoners with an indeterminate term move through the prison system.
  3. Once a prisoner is eligible for release, there should be a presumption in favour of release.
  4. Recall policy and practice requires a major overhaul. The number of people recalled each year should be dramatically reduced. All technical breaches of licence conditions should be responded to in the community save in exceptional circumstances.

The Howard League concludes by arguing that these polices would save the taxpayer millions of pounds, reduce prison overcrowding, and give prisoners a greater incentive to behave well and turn their lives around.

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