What is the point of a short prison sentence? David Gauke will no doubt think carefully about that question now that he’s been confirmed as the chair of the long-awaited Sentencing Review. Launched by the Ministry of Justice (MoJ), it aims to provide ideas for a new framework of sentencing across England and Wales that ministers hope will help keep the prison population in check and drive up the use of alternatives to prison. Replacing short prison terms with community sentences is one idea that Gauke has favoured in the past and it’s gaining currency again. But it’s not straightforward, as I’ll explain.
Even a short prison sentence has its benefits
What is clear, however, is that the current position in prisons is unsustainable. Official forecasts published earlier this year showed the number of prisoners is likely to pass the 100,000 mark by 2026, hitting 105,400 by the end of 2027. Even if all of the extra 20,000 prison places promised by the Conservative administration and which Labour has pledged to build are to materialise there still wouldn’t be enough. While emergency measures to ease the pressures by releasing inmates early – a further 1,100 are due to be freed this week – bring only short-term relief. The costs of imprisonment are exorbitant – around £50,000 per inmate per year, more than any other criminal sanction – while thousands who’ve been locked up leave ill-equipped to lead law-abiding lives. The government needs a long-term fix – the Sentencing Review is what it’s banking on.
Gauke is a clever choice to lead the review – a practising solicitor and former Tory justice secretary, he’ll be able to provide political cover for Labour should they run into trouble acting on his recommendations. In 2019, he managed to convince Theresa May, who was then prime minister, to back plans for a move away from prison terms of less than six months. His proposals were ditched when Boris Johnson took over at No. 10, then revived last year by Alex Chalk who was in charge of the Ministry of Justice. Chalk introduced legislation to create a ‘presumption’ that sentences of less than 12 months would be suspended, rather than imposed immediately, but the measures were killed off when the general election was called.
The principal argument against short prison terms is that they fail to rehabilitate offenders. A few months in jail is long enough to disrupt someone’s family ties, employment and housing but does not provide enough time for any meaningful work to tackle the underlying causes of their offending. Over half of those sentenced to less than 12 months in custody are cautioned for or convicted of a further offence within 12 months of being released. While at the MoJ, Gauke commissioned research which appeared to demonstrate that reoffending rates were higher among those who’d served a short spell in jail than among a similar group of offenders given community sentences or suspended prison terms. He said: ‘If all offenders who currently receive prison sentences of less than six months were given a community order instead, we estimate that there would be around 32,000 fewer proven re-offences a year. That’s an estimated 13 per cent fewer proven re-offences for this cohort.’
The figures look convincing until you drill into the detail. For someone given a non-custodial sentence, a ‘re-offence’ counts if the crime is committed in the 12 months after they are sentenced. For a prisoner, it’s the 12 months from the moment they leave jail. It means reoffending rates for prisoners don’t take any account of the period they’re incarcerated, a point acknowledged in the study on which Gauke relied: ‘Comparisons of custodial sentences with community sentences are… “like for like” in that the follow-up period for both is of the same length and takes place while the offenders are in the community. However, this obscures that for custodial sentences, the follow-up period begins after time spent in custody during which the offender has much reduced risk of reoffending.’
This is in fact the way all reoffending rates are calculated by the MoJ, which means the statistics have for years been skewed in favour of community sentences. Prison time just doesn’t count. If it did, I wouldn’t be surprised if, over a period of years, prisoners committed fewer crimes than offenders serving their sentences in the community.
It’s a reminder that even a short prison sentence has its benefits. It gives local communities a temporary respite from criminals; it provides some protection, however brief, for victims; and it sends out an important message about the gravity of certain crimes. If prison terms of less than six or even 12 months were to be curtailed, shoplifting, which comprises one in eight such sentences, would no longer merit a short spell behind bars. Retailers would surely have something to say about that. How would domestic abuse victims feel if a short period in prison was no longer an option for people convicted of common assault, battery and breaching a restraining order? Together they make up one in six short sentences. And what other sanction could provide the appropriate punishment for assaulting an emergency worker or carrying a knife? They account for one in seven short jail terms.
Short prison terms are far from an ideal criminal sanction. They’re up to ten times more costly than a community sentence and they take up a vast amount of time for prison and probation officers, with around 21,000 offenders jailed for under 12 months each year, about half the total number of newly-sentenced prisoners. But restricting their use will not make a significant dent in the prison population, because at any one time short-sentenced prisoners make up around 4 per cent of the total number of inmates. Replacing them with community orders will remove a last-resort option for magistrates and judges tired of seeing the same prolific thieves and drug dealers in the dock – and it will not have the impact on reoffending rates that David Gauke once claimed.
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