The down side of getting tough in the community

As far as the consultation is concerned, things aren’t always as simple as they seem. A Ministry of Justice report noted that due to the limit on resources available for probation and the need for sentences to remain “proportionate”, delivering top end community orders may result in a number of primarily rehabilitative requirements to be substituted for primarily punitive ones. It stated that the result may be a rise in reoffending when some rehabilitative requirements are replaced. That the proposals seek to promote punishment in the community rather than rehabilitation may well be fraught with difficulties and scupper the otherwise laudable sentiments before the scheme even gets off the ground. It would be more sensible to be true to the basic principle that rehabilitation works rather than dress it up as punishment in the community.

The tick box mentality

The Sentencing Council has the laudable mission of making sentencing principles accessible to the general public. However, the creation of categories of sentencing has created a tick box mentality and also caused concern that guidelines prevent flexibility and can lead to injustice. Take, for example, the child cruelty guidelines. On the face of it they appear to reflect a need to punish an abhorrent crime but, on closer inspection, unless the judge is prepared to take an exceptional course and find that the guidelines do not apply, no real allowance is made for parents who make progress after the event. In one case where a young and isolated mother injured her baby, the judge discounted the custodial sentence to 16 months imprisonment but could find no reason to go outside the guidelines. She lost her relationship, her home and her child for the sake of eight months in prison (half of a 16-month sentence). Apart from protecting the judge from inflammatory headlines about bad mothers, what on Earth was the point? With help and support it was extremely unlikely that she would offend again.

The Court of Appeal regularly states that (a) sentencing is not a mathematical exercise and (b) that the appropriate sentence remains fact specific. However, despite this, the Sentencing Council, just as its predecessor, continues to issue guidelines which attempt to place most offences into one of three or four categories.

The guidelines do not preclude sentencers from reflecting the individual features of an offence in the resulting sentence. However, as demonstrated by the example above, they advocate a mechanistic, rigid approach to the sentencing of offenders. An approach which presupposes that custody ought to be imposed on first time offenders for offences which fall into the mid-range of offences of their kind. Contrast the tick box approach with the art of sentencing real people and we start to appreciate that prison becomes nothing more than an expensive and demoralising holding zone. How does a prisoner get back to work and a normal life without support and assistance? Can this really be done by long licence provisions or is a short sharp shock, the threat of a long term controlled community placement likely to have a more constructive outcome?

The Sentencing Guidelines create inflexibility for pragmatic judges who want to consider each case on its merits but are almost forced to take a mechanistic approach. It takes boldness or an exceptional case to ignore the guidelines but such imagination means the judges inevitably make the headlines. Take, for example, the suspended sentence recently imposed on Tariq Jahan, who was found guilty of inflicting GBH after breaking a man’s jaw. The same Tariq Jahan had called for calm after his son died in the Birmingham riots in August 2011. His Honour Judge William Davis QC said that “People who break people’s jaws in this kind of mindless violence normally go to prison but I take a view that because of his extraordinary position it is right to suspend sentence.” A non-immediate custodial sentence shows a judicial pragmatism that the criminal courts can be really good at. Why not give the judges the opportunity to do it more often but retain the threat of custody by way of breach proceedings.

There are numerous other examples where the public can accept someone should not be sent to prison. Then there are the cases that cause debate. In one case (R v S 2011 EWCA Crim 1238) a 16-year-old boy pleaded guilty to statutory rape of his girlfriend, G, who was aged 12-13 and became pregnant. It was not disputed that she instigated sexual intercourse on each of the 20 occasions, and it was accepted that the pair were in a loving and stable relationship. The judge sentenced D to six years’ detention, which was reduced to two years three months by the Court of Appeal (just enough to reduce his liability to sign on the sex offenders register to seven years rather than life). Many took the view that it was not necessary to impose a custodial sentence for this offence at all. The boy did not need rehabilitating. Even though he had an underage girlfriend, he was not a “sex offender” in the ordinary sense of the term. A custodial sentence would disrupt his education and cause utter confusion about loving relationships that would be so much better dealt with by some compulsory sex education and a restriction on his social life.

Placating the public

Tabloid headlines regularly scream that judges are too soft and we should “lock ‘em up and throw away the key”. However, the riots and the research suggests that when posed with real examples of crime, and asked to indicate the appropriate sentence, the actual sentence imposed by the courts was harsher than that felt appropriate by the public. Despite this, the Sentencing Council states on its website that “Sentencing has got tougher… the average sentence length for those sentenced to immediate custody for indictable offences has increased from 14.0 to 16.2 months over the period 2000 to 2010. In the Crown Court, this has increased from 22.8 to 25 months.”

Scotland showing the way

Slowly but surely it is being recognised that rehabilitation is the way to reduce crime; projects such as Turning Point 218 in Glasgow has had enormous success at reducing recidivism, and it is reported that it will be rolled out across Scotland. The project is aimed at women, with the focus on tackling addictions, with a view to restoring some routine in the previously chaotic lives of women who have entered the criminal justice system.

The Daily Record reported that the project saves £2.50 for every £1 spent on women who reoffend, and that the cost of addressing offending behaviour in the community costs £3,000, whereas the cost of 12 months’ custody can be as much as £40,000. The project would see women taught life skills, such as debt management, parenting skills, tackling hygiene and cooking. They will also be encouraged to maintain relationships with their children where suitable. The chair of the Commission on Women Offenders, former Lord Advocate Dame Elish Angiolini said that “… many of the women are vulnerable people for whom offending is the result of chaotic lifestyles, mental health difficulties and addiction problems. We must… be able to find better ways of addressing their behaviour than locking more and more of them up.” The thinking is this: by imposing custodial sentences with insufficient regard paid to the causes of their offending, offenders do not address their behaviour and return to society in a worse position than when they were removed.

Accommodation and finance are two obvious problems faced by offenders post-release.

New justice centres, suggested by The Commission on Women Offenders in their report published on 17 April 2012 which considers more effective ways of dealing with women offenders, would house prosecutors, social workers, probation and drug workers in one unit. Some may also have residential centres, in which sentences would be served partly in custody, partly in the community. With the focus on after care, the current practice of releasing women with £65 to last them up to a month would be a thing of the past.

Proof from Texas

Texas has demonstrated that rehabilitation works and costs less than building more prisons to cope with increasing capacity from ever increasing sentences. That’s right, the same State which has executed 481 people since 1976, and currently has 317 people on death row. It would appear, however, that when faced with the statistic that, for juveniles, custody is less effective than supervision and treatment of offenders in the community, the powers that be have taken note.

The Texas taxpayer has saved $200m, which would have been spent on prisons, after a $100m investment in probation to supervise youths who previously would have been sent to custody. According to the Texas Public Policy Foundation, every youth redirected from the Texas Youth Commission saves taxpayers about $80,000 per year. They claim: “For all but the most serious and high-risk offenders, incarceration often increases re-offending, as lower-risk youths are negatively influenced by higher-risk peers and positive bonds with their family, church, and community are frayed. While effective in-home programs address the lack of discipline and other underlying family issues typically at the root of delinquency, these problems may remain unsolved after a non-violent youth stays for an average of 11 months at TYC and returns to the same setting.”

The future

The consultation creates a dichotomy by simultaneously proposing rehabilitation and punishment. Rehabilitation has been proved to reduce reoffending. If you cut out the rhetoric, it is pretty simple to raise the qualifying requirements of suspended sentences from one to three years or, more radically, to rule out imprisonment for many offenders who commit an offence worth less than three years. Putting an offender on a programme, with a tag and under the threat of a suspended sentence still leaves the option of a custodial penalty for failure or breach. The Probation Service resources can be diverted from writing court reports to proper programmes and the funding comes from reducing prison places. The courts are aware of the available sentencing options, and in many cases, pre-sentence reports provide nothing more than a rehearsal of mitigation which can be or will be advanced by the offender’s barrister at the sentencing hearing.

It is important to appreciate that our key aim when sentencing ought not necessarily be to punish the individual, but to improve things for society as a whole. Whether we like it or not, reducing the cost to the tax payer and the number of victims of crime means helping the offenders help themselves. The end product is a reduction of the burden on the State, less crime and fewer victims.

The way in which to achieve this is to have a general policy that for sentences less than two years a community disposal is imposed. This enables the offender the opportunity to be rehabilitated in the community, but as outlined above, preserves the option of a custodial sentence where the offender breaches his or her sentence.

The following is, at least at first, unpalatable, but do stick with it. Street fighting, domestic violence and sexual offences should not be met with custodial sentences, at least not at first. Imprisoning those who engage in street fighting is counter-productive. It places offenders in a corrosive environment, surrounded by many more serious criminals, in a situation where they are unlikely to work towards changing their behaviour. Imprisoning perpetrators of domestic violence can never provide a long-term protection for victims. Protecting the victim, and potential subsequent partners, is most successful when the offender does not reoffend. That is only achievable by a programme specifically aimed at addressing the offender’s behaviour, coupled with court orders to prevent the offender from contacting his former partner.

As unpopular as it is, sex offenders can also be dealt with effectively in the community, and there is no reason why they should be excluded from the rehabilitation revolution. In February 2012, there were 12,000 prisoners two-to-a-cell, in cells designed for one. Consider then, whether it is likely with resources stretched to that degree, that offenders properly receive the treatment that the courts who imprison them intend them to. A more economic and effective method would be to treat many sex offenders in the community where properly funded schemes (made possible by the savings on expensive custodial sentences) can provide a controlled, supportive and monitored treatment programme.

It remains to be seen whether there will be a positive response to the MOJ consultation but logic and evidence dictates that in the end, s 152 (2) of the Criminal Justice Act 2003 requiring that custody may only be imposed if the offence(s) is so serious that only custody is justified, combined with tough sentencing guidelines has done nothing more than lock up a generation of criminals who could have been productive members of society with a bit of help, control and education provided by a properly funded Probation Service.

The suggestions outlined above might be radical, but they are sensible. It may stick in the gut to follow the Texans but we can only congratulate the Scots.