Prison populations, sentence inflation and the future of punishment
In this blog Dylan O'Connor considers why the prison population is so high and whether this is likely to change
In recent decades, England and Wales has seen a colossal leap in the number of those incarcerated, with the prison population almost doubling in size from 44,246 in 1993 to a peak of 85,134 in 2015. As of 2019 the country has the highest imprisonment rate in Western Europe.
Whilst the impact of coronavirus and other mitigating factors has helped slightly reduce prison numbers in recent years, The Ministry of Justice’s projections for prison population, anticipates a rise to 98,700 by 2026.
The charity, the Prison Reform Trust (PRT) in their research estimate that ‘sentencing changes alone’ can account for an increase of around 16,000 prisoners since 2003. This rise can largely be attributed to the increase in those sentenced to 10 years or more. The population of those serving a mandatory life sentence has doubled, since 1993. Additionally more life sentences are being handed down by the courts, with the number rising by 240% from 2000. As such, those guilty of serious crimes are spending longer on average in prison before being released from life sentences.
The average custodial sentence length for prisoners sentenced to immediate determinate custody for indictable offences has also risen from 16 months in 1993 to 21.4 months in 2019, with the steepest rise coming in the last decade.
Glancing over these statistics, one may think that this is something to be celebrated rather than castigated. Put colloquially, do they not suggest more criminals are being caught? No, figures from the Crime Survey for England and Wales show violent crime has decreased from 4.5 million incidents in 1995 to 1.2 million incidents in March 2020, a fall of 72% accompanying a general downward trajectory in crime rates. Since midway through the twentieth century there has been no tangible link between the recorded crime rate and the number of people behind bars, yet the prison population, since the 1990s has more than doubled. PRT, Peter Dawson has stated there is not a "shred of evidence to show this runway sentence inflation reduces crime."
Whilst some may instead point to harsh sentencing as an efficient way to deter criminals, we are also seeing greater numbers of people being recalled back to prison. Those released having served a longer sentence particularly face a much higher likelihood of being recalled to prison after release than previously. PRT state ‘around 8,000 people are currently in prison for that reason alone.’
Whilst there have been reductions in the number of prisoners serving short sentences of six months or less, those convicted of less serious offences still make up a majority of those being sent to prison. The Ministry of Justice reported 69% of the 59,000 people sent to prison to serve a sentence in 2018 had committed non-violent crime. However, evidence indicates that sending people to jail for shorter sentences is ineffective. The rate of recidivism is higher amongst those who are given a prison sentence of less than 12 months (63%) compared with those given either a community order (56%) or a suspended sentence order (54%). Some may argue for certain offences, a community order does not bring justice to victims and their families. Arguably however, the better outcome for society is minimising the chance that offenders will continue to make the same costly mistakes.
In 2019, statistics on recidivism have led former justice secretary David Gauke to suggest that there is a ‘a strong case to abolish sentences of six months or less altogether.’ The rationale for this, he states is also due to the destabilising impact on individuals lives and society more generally. ‘Prison,’ in this instance he states, ‘simply isn’t working.’
The Future of sentencing
This rise in prison population in the last few decades is a reality that contravenes recent rhetoric of Prime Minister Boris Johnson, who in 2019 bestowed ridicule upon our ‘cockeyed crook-coddling’ justice system. His views enjoy significant support in large sections of the media and amongst the general public as well. A recent poll suggests 70% of the population believe the justice system to be too lenient, whilst only 4% of those questioned believed sentencing to be too harsh.
For this reason alone, it did not come as a particular surprise when Johnson commissioned a sentencing review in 2019, to tackle ‘dangerous criminals’ who he said ‘must be kept off our streets, serving the sentences they deserve.’ This White Paper now forms the foundation for the controversial Policing, Crime, Sentencing and Courts Bill, currently being passed through parliament. Whilst it has yet to receive royal assent, the Bill proposes a dramatic shift in sentencing.
The Bill introduces potential life sentences for drivers who kill in the course of driving, Whole Life Orders for child killers and, in exceptional circumstances 18–20-year-olds, and an end to automatic halfway release for serious violent and sexual offenders who are sentenced to between four and seven years. Perhaps most controversially, as far as sentencing is concerned, the Bill includes an increase in the maximum penalty for criminal damage of a memorial, from three months to 10 years.
Whilst arguments could be made that these reforms may reflect the public’s desire and increase community confidence in the justice system, the Bill’s own impact assessment states there is ‘limited evidence’ the measures will deter offenders or reduce crime. It also states that the cost for the prison service will be ‘increased population and longer times spent in custody which may compound prison instability, self-harm, violence and overcrowding.’
With a sense of obstinacy that they are doing the right thing by imprisoning more people for longer stretches, the Government’s plan is to pump £4 Billion into the prison system to deliver up to 18,000 more prison spaces. With the backlog of criminal cases being brought before the crown court mounting, one cannot be criticised for wondering if that money might be better spent elsewhere in the justice system. As chair of the Bar Council Derek Sweeting commented ‘decades of underfunding and mounting backlogs will not be turned around… by tougher sentences.’
What can the government, or any other authority for that matter, practically do to alleviate the various stresses on the prison system? Whilst it is courts who hand down sentences, the sentencing framework of England and Wales is established by parliament. In response to the prison population crisis of the 2010s, which led to widespread panic and the early release of many prisoners, the government introduced the Sentencing Council, which was established in April 2010, under the Coroners and Justice Act 2009. The Sentencing Council’s primary task is to act as an independent advisory body, which issues guidelines on sentencing to judiciary. Judges and Magistrates are obliged to follow the guidelines issued by the Council, unless the court is satisfied that it would be ‘contrary to the interests of justice to do so.’
The Justice Committee, a key stakeholder in the Council, made clear that the Council’s statutory role should include ‘evaluating government policy and bills’ directing the Council to Section 132 in the Coroners and Justice Act 2009. Since its foundation, whilst the Council has produced a vast quantity of definitive guidelines covering over 200 criminal offences, it has received criticism for its absence in influencing policy and law-making. The Council was not involved in the white paper sentencing review in 2019, nor is it mentioned in the Bill. There have been no formal studies undertaken by the Sentencing Council as to why England and Wales have seen such sentence inflation either. It has also failed to conduct any overview of sentence levels as a whole, something which a 2014 British Academy Report labelled ‘sorely needed.’
It is clear therefore that to reduce prison numbers whilst maintaining proportionality, preserving cost and reducing recidivism, a number of reforms are required. Advisory councils, such as the Sentencing Council, need to fulfil their statutory duty and embellish a more prominent role in law-making and policy issues.
Secondly, the Government ought to engage in open dialogue with experts in the field, as to whether inflating sentences is likely to bring any real positive change or if its sole merit is the galvanising of mass political support.
Further, a greater emphasis on alternative forms of punishment for low level offending, should be pursued by lawmakers and, where possible, courts. Community orders, suspended sentences and electronic tagging have proved to be more effective at reducing recidivism.
Finally, the government should seek to invest in reconciling the root causes of crime. It is widely accepted that socio-economic factors are significantly influential in leading individuals down criminal paths. A glaring example of this is that although they only make up 1% of the population, around two fifths of children in secure training centres and young offenders institutes have been in care. Several studies have highlighted the role of stable and positive relationships between offender and caseworker in helping individuals break free from a life of crime. Evidence also shows punishment, in any form, ought to be intertwined with social services such as housing, skills development, and drug treatment.
However, by viewing the criminal justice system in isolation from other institutions, ramping up sentencing and preparing for thousands of new prison spaces, the likelihood is the numbers of offenders trapped in a viscous prison cycle will only increase.
An emphasis on rehabilitation, alternative punishment, a reduction in harsh sentences and addressing social causes may appear costly, whether in terms of political point scoring or government expenditure, but the evidence suggests rethinking our approach to punishment can drastically improve the state of the prison system and society as a whole.
Articles are intended as an introduction to the topic and do not constitute legal advice.