An eight point plan
A new (16 July 2018) briefing from the Criminal Justice Alliance sets out eight pragmatic and incremental ways the government could begin to reduce the prison population without impacting public safety. The CJA estimates that these measures could reduce the population by 12,000 places over the lifetime of this parliament, reducing the pressure on the system, making it safer and freeing up over £900 million.
I summarise the CJA’s eight recommendations below.
1: IPP sentences
The CJA recommends that the MoJ consider legislative intervention to convert post-tariff IPP sentences to determinate sentences – a simple solution providing firm release dates. As a minimum starting point, the 459 IPP prisoners serving tariffs of less than two years could have their sentences converted, expanding to the 1,176 IPP prisoners with tariffs of less than four years, then scaled up appropriately. A ‘sunset’ provision could also provide a release date for some or all post-tariff IPP prisoners by a particular year or by a number of years post-tariff.
The CJA notes the ever-growing rate of prison recalls and argues that the MoJ should review both the standard and extra licence conditions that Offender Managers can impose, as well as the mechanism for recalling a person following breach, emphasising that recall should be preserved for those presenting a serious risk to the public or genuinely failing to progress towards reintegration. It also argues that urgent action needs to be taken to improve post-sentence supervision so that released prisoners receive effective rehabilitative support.
Those on remand – 9,200 people – now represent over ten per cent of the prison populationeven though one in seven – nearly 1,400 – go on to receive non-custodial sentences. The CJA argues that the provision in the Legal Aid Sentencing and Punishment of Offenders Act 2012 to ensure that nobody should be remanded in custody when there was ‘no real prospect’ of them receiving a custodial sentence should be rigorously implemented.
4: Sentence creep
Average sentence length for prisoners held for indictable offences is 30 per cent higher than ten years ago, up from 15.2 months to 20. There is no firm evidence that this ‘sentence creep’ has had any deterrent effect.
Change in this area will need to be incremental and the effects are unlikely to be seen immediately (unless changes are applied retrospectively to those already serving inflated sentences, such as an early release to electronic monitoring for low-risk prisoners). But without changes to sentencing practices, there seems little prospect of the vast bulk of the prison population reducing. The CJA argues for more scrutiny of the Sentencing Council suggesting, for instance, that sentencers might be encouraged to sentence more creatively, restricting the requirements to use the upper limits of guidelines and allowing them to sentence below the lower limit.
5: Short sentences
At March 2018, 5,340 prisoners in England and Wales were serving sentences of less than 12 months. Short sentences are demonstrably less effective than community sentences at reducing recidivism (and more costly). Justice Secretary David Gauke has recently recognised this, stating that short sentences should be a last resort. Short-Sighted, a campaign by Revolving Doors, highlights that half of all people sentenced to custody are serving sentences of less than 6 months. Scotland introduced a presumption against custodial sentences of three months or less in 2010, and last September announced plans to extend this presumption to sentences of less than 12 months. Other countries with similar provisions include Belgium and Germany. There may be certain instances for which this presumption against a custodial sentence would not be deemed appropriate given the interests of, and risks to, the victim and wider community. But if reductions occurred at a similar rate as in Scotland, there would be 2,000 fewer people in prison. Introducing a presumption against short sentences of less than 12 months could save £57m annually.
6: Mental health
The 2009 Bradley Review found an estimated 2,000 prison places per year could properly be saved if individuals who receive short custodial sentences and who may be experiencing mental health problems were instead given a community sentence. This would save £57m. For many people with mental health issues, a community order with a Mental Health Treatment Requirement (MHTR) would be transformative and the prison estate, in any case, is all too often entirely inadequately equipped either to treat them or address their offending behaviour. The CJA recommends strengthening sentencing guidelines on MHTRs and providing sentencers with more training on them.
At the end of March 2018, 1,250 women were in prison for non-violent offences – either theft, fraud or drug offences. Serious concerns have properly been raised about the necessity of custodial sentences for such women, when the vast majority could serve a sentence in the community without posing a threat to public safety. The CJA recommends alternatives to custody and proper funding for women’s centres.
8: BAME People
The CJA’s final recommendation relates to the implementation of the recommendations in the Lammy review. If the demographic of the prison population reflected that of England and Wales, there would be 9,000 fewer BAME people imprisoned, the equivalent of 12 average-sized prisons. If just ten per cent of these were diverted, this would save 900 prison places with (net) savings of £25.7m.
The CJA summarises its recommendations and their potential impact in the graphic below (click to see a larger version or right click and save it to your computer to peruse).