In a New Statesman article published on Monday, David Gauke was clear that he favoured a fundamental rethink of sentencing policy. “For the last 30 years, there has been a sentencing bidding war between the political parties seeking to compete to be seen as the toughest on crime,” he wrote. “We have no choice but to pause the increase in the prison population.”
To grapple with some of the options that might be under consideration, you first have to know that the measures that might address the immediate capacity emergency – like releasing prisoners early and delaying court hearings – are distinct from those that could be part of sustainable reforms in the long term. The government is already using the first set of measures; it has asked Gauke to look at the second category.
Another issue is the availability of prison places – but even if Labour succeeds in its promise to create 14,000 additional places in six new prisons at a cost of £4bn, they will still be 8,000 places short by 2028, the Institute for Government estimates. So even if you think more prisons are a brilliant idea in their own right – see this First Edition with former chief inspector of prisons Nick Hardwick for some of the reasons they might not be – they are not a complete solution to the problem.
None of the below measures will solve the crisis on their own, either – and they will often increase pressure elsewhere. But in some combination, they may represent the best chance of fixing the system for the long term.
Reduce the use of short prison sentences
When he was justice secretary, Gauke argued for a reduction in the use of short sentences. And he is not the only observer to conclude that short prison sentences for minor offences are ineffective. About two-thirds of people sentenced to less than six months in jail go on to reoffend; people who aren’t sent to prison are much less likely to do the same.
In 2021, John Bache, former chair of the Magistrates’ Association, told Haroon Siddique: “I don’t see that short prison sentences actually achieve a great deal. The bulk of these people, who commit multiple crimes, they’ve got an underlying problem, which is mental health or alcohol or drugs or a combination of any two or three of those.” The solution, he said, was to address those underlying problems.
The Howard League, a charity that advocates for prison reform, argues that the government should introduce a presumption against the use of short sentences, but that courts should retain the discretion to impose one if there is a specific reason to do so. With about half of all people sent to prison on sentences of less than six months, that would have a significant effect on overall numbers.
Another step would be to abolish recall for breaching parole conditions for sentences of less than 12 months, which are often shorter than two weeks, and for administrative breaches.
Introduce a ‘queuing system’ or house arrest
Prisoners are often released from custody early and given an electronic tag to ensure they keep to a 7pm-7am curfew. In a report for the law reform charity Justice earlier this year, Hardwick argued that some convicted criminals should be tagged before being imprisoned, with the time in the “queue” deducted from their overall sentences.
That could reduce pressure on prison numbers. The same approach is taken in Norway, where reoffending rates have dropped from 70% to 20% since the 1990s. While it might be unpalatable to some, it is likely to be preferable to the current approach of simply delaying sentencing on an ad-hoc basis.
The justice secretary, Shabana Mahmood, said yesterday that judges could also be given the power to sentence people to house arrest. That would be a similar approach, but with no custodial element – and would be another way to reduce short prison sentences overall.
Prioritise remand hearings
Partly because of the pandemic, the number of people on remand – that is, waiting for trial and not yet convicted – has risen 84% since 2019, the Institute for Government says; they now account for almost 20% of the total prison population, or 17,000 – a record high. Many defendants now spend more than six months on remand waiting for a trial – but 30% of that number do not get an immediate custodial sentence. Those on remand have the highest suicide rates among all prisoners.
In 2022, more than half of those who had been held on remand for more than six months were facing trial for alleged non-violent offences. If those cases were brought to court more rapidly, the pressure on prison places would decrease. But that would require more investment in the courts, or further delays to other cases.
Put more resources into probation
These changes would increase demands on the probation service – which the chief inspector of probation in England and Wales has already said are unsustainable. He argued in July that even short-term measures to reduce overcrowding ought to mean that those sentenced for minor offences such as shoplifting should no longer be supervised.
A report by Channel 4 last month revealed that the probation service has consistently been working at 120% capacity since January 2023, figures which the probation officers’ union said were likely an underestimate.
A recruitment programme is underway to recruit 1,000 new trainees, and pay rises have also been brought forward. But officials have also been looking at ways technology could fill the gap. Options include expanding the use of smart watch-style devices that send messages to offenders reminding them of appointments and restrictions, and “sobriety tags” that monitor alcohol consumption.
End ‘sentence inflation’ and create incentives for good behaviour
In the end, changes to short sentences and remand will only go so far: the main driver of the increase in prison numbers has been the imposition of longer sentences. About 57% of prisoners on determinate sentences were serving four years or more in March this year, with another 15% of the total prison population serving indeterminate sentences.
Most of these people are in prison for serious crimes: more than half have been convicted of violent or sexual offences. But one sign of Gauke’s view is his praise for an approach in Texas, where the prison population has been reduced by rewarding prisoners who complete rehabilitation programmes and show evidence of changed behaviour. At the same time, crime rates have fallen.
Gauke could advocate for a similar approach. Others have called for more fundamental changes to sentencing guidelines and an attempt to escape the long-term trend of repeating “sentence inflation”. Other options include reducing the use of long custodial sentences for women, who are typically low risk, and a presumption that prisoners should be moved to another secure location once they reach a certain age.
There is no doubt that some of these options will be very politically difficult. But there is little reason to think that the status quo – huge numbers of people locked up at great expense and in grim conditions, often going on to reoffend anyway – does not come with risks of its own.
