High rates of reoffending

3. Abolition of short custodial sentences

3.1 Relationship to poverty/ inequality mechanisms

Higher economic inequality has been found to be associated with increases in punitive preferences, leading to greater use of prison sentences including the use of short custodial sentences (up to one year) for minor offences (Duque and McKnight). Concern has been raised about the effectiveness of short custodial sentences for minor convictions and their long term impact. Custodial sentences negatively affect ex-offenders’ employment prospects, families and psychological well-being. Evidence shows that they have long-run negative effects, both for the individuals concerned and for society more broadly (see for example evidence reviewed in (House of Commons Justice Committee, 2019)). Short custodial sentences, with or without supervision on release, have the highest reconviction rates among adult prisoners (MoJ, 2013a) and higher rates of reoffending than sentences served in the community via ‘court orders’ (community orders and suspended sentence orders) (Mews et al., 2015; Eaton and Mews, 2019). These high rates of reoffending increase the risk of a vicious circle of offending and long term poverty.

If short custodial sentences lead to higher rates of reoffending than community sentences served for the same crime, then the idea that custodial sentences will keep the public ‘safe’ is misplaced. One of the factors here is that those serving short custodial sentences often suffer from addiction, homelessness, poor mental health and debt problems (HMI Probation, 2016). Despite recent reforms to rehabilitation, prisoners serving short sentences face on their release the same challenges, if not more due to the impact of imprisonment on family relationships, employment and finances, i.e. factors that contributed to them committing crime in the first place.

Overall, the increase in punitive preferences linked with economic inequality has led to an increase in more offenders serving short custodial sentences. High reoffending rates, and the disruption of short sentences to individuals’ lives elevates the risk of poverty in the long term.

3.2 Party Political Support

As a result of sentencing reforms in England and Wales, there have been increases in the use of short custodial sentences since the 1990s, under both Labour and Conservative governments, reflecting a shift towards a harsher penal policy (see, for example, Duque and McKnight, 2019).

As more evidence has become available on the high reoffending rates associated with short custodial sentences, reforms have been introduced in Scotland. These reforms have meant that since 2011 judges have been instructed not to impose sentences of three months or less, unless no other punishment is deemed "appropriate". In 2019 the Scottish government extended this presumption to sentences of 12 months or less, a move that was opposed by Scottish Conservatives claiming that the government was "taking a risk with the safety of the public" (BBC, 2019).

In 2019, the then, Conservative Prisons Minister Rory Stewart told the House of Commons Justice Committee that he wished to see a reduction in the use of short prison sentences of 12 months or less in England and Wales "in recognition of research evidence that they make people more likely to commit crime". He said he saw a "very strong argument both on public protection and on the economic benefits" and concluded that community sentences are more effective and cheaper. He also indicated that he would like to consider abolishing sentences of less than six months, except in exceptional circumstances, through legislative means, if necessary (House of Commons Justice Committee, 2019, p.93).

In a speech in February 2019, the then Minister of Justice David Guake said "In the last five years, just over a quarter of a million custodial sentences have been given to offenders for six months or less; over 300,000 sentences were for 12 months or less. […] For the offenders completing these short sentences whose lives are destabilised, and for society which incurs a heavy financial and social cost, prison simply isn’t working." (David Guake, 2019).

The Conservative government is exploring alternative approaches to short sentencing. For example, the Female Offender Strategy seeks to reduce the use of short sentences for women through using a more preventative, community based approach. In addition, a 2-year £6 million pilot scheme was launched in 2018 under which prisoners serving very short sentences receive support to ensure that they are signed up to benefits, given employment support and have bank accounts before they leave prison (Through the Gate Resettlement Services). However, so far, the Conservatives have stopped short of abolishing short sentences.

In March 2019 Labour launched a consultation on “Building an Effective Criminal Justice System” to explore justice reforms (The Labour Party, 2019a). That review concluded with the recommendation that Labour adopt a Scottish-style presumption against short sentences and develop alternatives to custody. This led to an announcement at Labour’s party conference in 2019 that it plans to end short prison sentences by legislating for a presumption against custodial sentences of less than six months. This would not apply to those who have committed violent or sexual offences. A commitment which was included in Labour’s 2019 General Election manifesto (The Labour Party, 2019b). The Labour party also committed to invest in alternatives to custodial sentences that have been proven to reduce reoffeding, including further funding for the Female Offender Strategy, women’s centres and problem-solving courts designed to tackle the root causes of offending.

3.3 Type of intervention

Legislation.

3.4 Level

Sub-national (Law and order is a devolved matter outside England and Wales).

3.5 Public Support

No opinion polls asking the public directly what they think about abolishing short custodial sentences were found during the course of this review. We therefore review more general evidence on the public opinions on sentencing and the use of custodial sentences.

In general, public opinion polls find that people hold what appear to be conflicting opinions. On the one hand, they report a desire for very punitive sanctions and think that the current regime is too lenient. On the other hand, they put emphasis on sanctions which rehabilitate (particularly concerning young people).

For example, Ipsos MORI Scotland surveyed a representative sample of 1000 Scottish adults in 2019 to better understand public knowledge of and attitudes to sentencing in criminal cases (Ipsos MORI Scotland, 2019). They found that the majority of the public (56%) think that sentences handed out by the Scottish Courts are too lenient and the public is sceptical about the effectiveness of community sentences as a deterrent measure (48% think they do not reduce reoffending). However, when asked about the sentence they thought ought to be given in a number of specific cases, the most common answers tended to be broadly in line with the sentences likely to be imposed in practice. In addition, they found that people tend to over-estimate the proportion of sentences that result in a prison term (the average estimate was 30%, compared with the actual 2017-18 figure of 14%) (Ipsos MORI Scotland, 2019). Respondents felt that the single most important aspect of sentencing was public protection (50%), with a quarter reported that rehabilitation of the offender was the most important. Over half of respondents (53%) reported that they knew a little or nothing at all about the sentences given to people convicted of crimes in Scotland (Ipsos MORI Scotland, 2019).

Results from an IPSOS Mori Poll conducted in Great Britain in 2019 on moral issues were contrasted with results from a similar poll conducted in 1989. The analysis of these two polls finds that capital punishment is the only issue in the survey that saw a significant increase in ‘moral disapproval’ (Duffy, 2019). In 1989 only 22% thought that capital punishment was morally wrong but by 2019 this share had increased to 37% (Duffy, 2019). However, it is striking to note that in 2019 nearly two-thirds of the population (63%) do not think that capital punishment is morally wrong.

A Populus Poll of 944 adults in England and Wales in 2018, commissioned by Revolving Doors Agency found that:

• 80% of the public think that theft of daily essentials such as food, sanitary products and nappies does not warrant a prison sentence (this was true for voters across all the major parties);
• 74% of the public think people with drug or alcohol addictions belong in treatment programmes instead of prison;
• A majority of voters said they were likely to vote for an MP candidate that supported reducing prison populations and using the savings to invest in drug treatment and mental health programmes (only 16% said they were unlikely to do so). Each of the major parties had more people likely to support this policy than unlikely to do so.

(Revolving Doors Agency, 2018)

The opinions of some sections of the media may be harder to shift than the general public. As the former Chair of the Sentencing Council reported to the House of Commons Justice Committee:

"Using less prison may be "a very hard sell," observing "[t]he very difficult part of that is the attitude of large sections of the media, which are very critical of sentencing and see most of it as overlenient."
(House of Commons Justice Committee, 2019)

The Committee reported the example of an article in the Daily Mail following their discussion with the Prisons Minister about his proposals for reducing the use of short-prison sentences, carried the headline ‘A green light for criminals’: Anger as justice minister calls for most sentences of less than a year to be axed to cut jail population, despite the content of the article being more balanced. In response to the Committee, Rory Stewart agreed that the Ministry of Justice had a "role in leading, shaping and making powerful arguments for why an ever-growing prison population is not in the interests of the public, including victims and wider society". Nevertheless, "he believed that the public were likely to become more punitive over the next 15 years, making that argument more difficult." (House of Commons Justice Committee, 2019).

3.6 Evidence of effectiveness

Over the past 25 years, the prison population in England and Wales has almost doubled in size; from 44,246 in 1993 to 82,384 in December 2018 (House of Commons Justice Committee, 2019). Short custodial sentences are still widely used in England and Wales; one in three offenders who are given a custodial sentence are sentenced to less than three months in prison, half receive a custodial sentence of less than six months (Parliament, 2018). The rates are even higher among women offenders, with half receiving a three-month custodial sentence or less, and two-thirds receiving a custodial sentence of six months or less (Parliament, 2018).

Many serving short custodial sentences are vulnerable people with complex needs which include poor mental health, personality disorders, addiction and substance abuse, special educational needs, care leavers and exclusion from school (HMI Probate, 2019). Many have received a custodial sentence for committing non-violent crimes. For example, almost half (47%) of women sentenced to a short custodial sentence have committed shoplifting (MoJ, 2018a). Examples of imprisonment for non-payment of council tax, fines, and children not attending school are still being reported (House of Commons Justice Committee, 2019). In giving evidence to the House of Commons Justice Committee, Nacro (a national social justice charity) explained that family relationships, employment and accommodation may be put in jeopardy or lost as a result of serving a short sentence, and these sentences are too short for the delivery of meaningful work to address the triggers to reoffending (House of Commons Justice Committee, 2019, p.93).

Steps have been taken to address rehabilitation of short-sentence prisoners. Following the Offender Rehabilitation Act 2014, all prison leavers in England and Wales, who serve more than one day in prison, should be provided with a minimum of 12 months statutory supervision. Prior to this, only prisoners who received sentences of a year or more were supervised on release by probation staff. As part of the Transforming Rehabilitation strategy, the government also restructured the probation service including the introduction of private providers to "encourage innovation and creativity". A new National Probation Service (NPS) which handled high risk of serious harm cases and those subject to Multi-Agency Public Protection Arrangements (MAPPA). 21 Community Rehabilitation Companies (CRCs) were contracted to manage most other medium and low risk of serious harm offenders with most short sentence prisoners fitting under this category. The CRCs were tasked with offering a resettlement service for short-term prisoners which was meant to start from the point these individuals entered prison. CRCs are paid a service fee and an additional payment by results which depend on future reoffending. Under their contracts, CRCs must (1) prepare a resettlement plan, within five working days of the screening being completed by prison staff; (2) help prisoners find post-release accommodation; (3) help prisoners retain employment held pre-custody and gain employment or training opportunities post-release; (4) provide help with finance, benefits and debt; (5) provide support for victims of domestic abuse and sex workers; (6) undertake pre-release coordination. However, an official inspection of Through the Gate Resettlement Services for short-term prisoners in 2016 found little evidence of creativity or innovation, the needs (commonly complex needs) of individual prisoners were not being properly identified and planned for and too much emphasis was put on process, not enough was being done to help prisoners to get ready for release or to manage risks (for example, resolving debt issues, housing and risk of harm) (HMI Probate, 2016). The House of Commons Justice Committee examined the Transforming Rehabilitation reforms and concluded that the introduction of post-release supervision for prisoners who have served short prison sentences has failed to impact on reoffending rates and has diminished the level of service provided to those who were already eligible (House of Commons Justice Committee, 2018).

Ministry of Justice statistics show that reoffending rates remain very high among ex-offenders released from short custodial sentences. The proven reoffending rate among adults who were released from a custodial sentence of less than six-months between July and September 2017 was 64.8% (MoJ, 2019a). This is higher than the overall proven reoffending rate of 37.2% among adults released from custody or starting court orders. Most strikingly, reoffending rates, and the average number of reoffences, are higher for people who serve a short custodial sentence (with or without supervision on release), compared to those given community orders or a suspended sentence (Mews et al., 2015; Eaton and Mews, 2019). High rates of reoffending, creates further victims of crime. An official criminal justice joint inspection report published in 2016 found that among short-sentence prisoners included in the inspection sample, the average number of previous offences was 33 (HMI Probation, 2016). The Ministry of Justice estimates that there would be over 30,000 fewer crimes each year by replacing short custodial sentences of less than six months with community orders (Hansard, 2019).

The House of Commons Justice Select Committee has said that it supports the move to abolish “short, ineffective prison sentences” and has called on the government to “introduce a presumption against short custodial sentences” (p.98)(House of Commons Justice Committee, 2019).

3.7 Cost

There is considerable potential for cost savings as a result of abolishing most short sentences (only to be used in exceptional cases). Prison places are expensive with the average annual cost per prisoner £38,636 (MoJ, 2018b). Although there are costs associated with community rehabilitation and monitoring, these costs are considerably lower than the cost of prison places. Lower reoffending rates associated with community or suspended sentences than for short custodial sentences means that there are additional cost savings to be made. The Ministry of Justice estimates that the economic and social costs of reoffending is £18bn a year (MoJ, 2019b). The National Audit Office estimated in 2010 that that the economic and social cost of reoffending among people who serve short custodial sentences was between £7 billion to £10 billion a year (NAO, 2010).

A custodial sentence is the more costly option. In 2010, the National Audit Office estimated that a six-week stay in prison cost, on average, £4,500 (NAO, 2010, p.12). In contrast, a highly intensive two-year community order, involving twice-weekly contact with a probation officer, 80 hours of unpaid work and mandatory completion of accredited programmes was estimated to cost £4,200 per offender in 2008 (NAO, 2008). The estimated cost of a more typical one-year order involving probation supervision and drug treatment was estimated to be £1,400 (NAO, 2008).