Catherine Heard, Policy and Research Associate at the Centre for Crime and Justice Studies, asks why increased use of community sentences has not led to a corresponding fall in prison numbers. Her report forms part of an ongoing comparative project funded by the European Commission: Alternatives to Custody in Europe (ACE)1 which compares law and practice across eight EU states: Italy, France, Greece, Latvia, Poland, Portugal, Spain and the UK.
Over the past decade, the Centre for Crime and Justice Studies has been charting developments in alternatives to custody and calling for a more ambitious approach to criminal justice policy, informed by principles of social justice.
Our research has shown that the UK’s increased use of community sentences has not led to any overall reduction in prisoner numbers. At best, it may have controlled the growth of short-term prison sentences. At worst, it has simply expanded the net of criminalisation and punishment, exacerbating rather than resolving social harms.
Our latest report, Community sentences since 2000: how they work – and why they have not cut prisoner numbers2, should be of value to people working in probation or those thinking of entering the profession. It offers a unique review, not only of community justice measures, but of the whole range of alternatives to custody, from bail, through community sanctions and probation, to early release systems. It gives an overview of attempts at government level to control the staggering rise in prisoner numbers since 2000, explaining why they have largely failed.
The way the alternative measures work is explained, with supporting statistical data on the use of different measures. Probation practices are described in some detail. The report covers the three UK jurisdictions.3
The EU countries involved in ACE have widely divergent systems and practices, notably in pre-trial detention, community sentences and probation. Most have chronically overcrowded prisons, as was shown in a separate report published by the same research team in 2014. By building up a comparative picture in a similar way, ACE aims to identify better approaches to ending the wasteful, harmful over-use of prison currently blighting so many European countries. It seeks to promote the fairer, more effective use of alternatives. To that end, we have developed a set of core principles on the use of alternatives to custody, to inform and underpin the policy and approach of governments and criminal justice agencies.
The use of alternatives: some guiding principles
A commitment to making better use of alternative sanctions and measures is required. ‘Better use’ is not just applying probation and other measures instead of prison when appropriate. It is also avoiding the over-use of community sanctions. These sanctions are forms of punishment and control: they must not simply widen the net of punishment by criminalising people in ever-increasing numbers. They must not increase prisoner numbers ‘by the back door’ by penalising breaches with custody. The better, more targeted use of alternatives would save resources and reduce the widespread harms caused by excessive use of prison. It would enhance community safety more effectively than prison sentences, at a fraction of the cost. Our core principles cover all the key stages: pre-trial, sentencing, and post-release. They are informed by international minimum standards to which all EU member states have signed up.
It is also important to recognise that policy-makers committed to reducing prisoner numbers need to look beyond criminal justice solutions and confront the socio-economic factors and political choices that contribute to high prisoner numbers and to law-breaking.
What do the numbers tell us?
Overall, the quantitative data presented in this report reveal a steady growth in both the use of custody and in the length of sentences served. At the same time, the use of community sentences has expanded.
These trends largely arise from changes to statutory sentencing provisions, which have become more punitive. Reforms to community sentencing, though frequent in this period, have failed to reduce prisoner numbers overall. Indeed, the expansion in the use of community sanctions since 2000 was never likely to address the UK’s extremely high prisoner numbers.
Government policy on prisoner numbers since 2000
The number of people in prison following conviction for a criminal offence in England and Wales, Northern Ireland and Scotland has increased sharply. Yet there has been no discernible government policy or strategy to reduce prison numbers and the use of custody overall, as distinct from simply controlling growth.
This is despite government data showing that reconviction rates for those leaving custody are higher than those dealt with by alternatives such as fines or supervision. It is despite regular reports of prison over-crowding and poor conditions, with incidents of mental illness, self-harm and suicide at alarmingly high levels and staff struggling to maintain safety.
In policy terms, government emphasis in all three jurisdictions has been on ‘reducing reoffending’ (in particular, by looking for alternatives to short-term prison sentences), rather than cutting prisoner numbers. There has also been a policy shift towards the greater use of community sanctions.
These have frequently been re-packaged as ‘tougher’ and making the person ‘pay back’, or forgo freedom of movement, sometimes combined with probation. In the development of alternatives, there are four notable trends, all driven by government policy on criminal justice and on public sector delivery.
- Requirements imposed with community measures have become more onerous. For example, the maximum length of a curfew has been extended to 16 hours a day.
- The punishment element is more visible. For example, people on unpaid work requirements must wear bright orange jackets saying ‘Community Payback’. Every Community Order must contain at least one punitive element.
- There is a growing role for the private sector, notably with financial incentives to cut reconviction rates under ‘payment by results’ in England and Wales, and electronic monitoring outsourcing across the UK.
- Use of electronic monitoring has greatly increased, both as a requirement to a Community Order (with a curfew requirement) and as a post-prison control (through home detention curfew).
There is little evidence yet that any of this will reduce prisoner numbers overall, help divert people from prison, or avoid the costs and other harms of incarceration.
What are the factors behind the UK’s excessive use of prison and what, if anything, has been done at government level to try to address the problem?
England and Wales
Prison populations rose steadily under Labour between 2000 and 2010. They continued to rise under the Coalition. Throughout this period there was no clear government policy to reduce numbers in custody.
In July 2009 the Ministry of Justice identified two main drivers behind the increase: more people sentenced to immediate custody (under tougher sentencing laws) and more people recalled to prison for breaking release conditions. There had also been a rapid increase in the number of breach cases resulting in prison, reflecting 2003 laws to toughen enforcement.
In November 2014 the Ministry of Justice accompanied a release of sentencing statistics with a statement welcoming the steady increase in the average prison sentence handed down since 2010. Noting its ‘major steps to toughen sentencing’ the Ministry linked these to continued falls in crime rates.
These recent examples illustrate the degree to which any policy aiming to reduce prisoner numbers is avoided. Recent reforms to community sanctions and post-prison probation are seen by some as ideologically driven attempts to open up criminal justice processes and interventions to the private sector. Their impact on prisoner numbers or reconviction rates remains to be seen.
Although there have been many parliamentary and NGO reports pointing to the need to cut overall prisoner numbers, none has had any detectable effect on government policy since 2000.
In July 2008, the Scottish Prisons Commission advocated limiting custody to cases where the seriousness of the offence, coupled with public safety grounds, warranted nothing less. It recommended a significant reduction in the prison population by avoiding the unnecessary use of short sentences. Emphasis was placed on the reparative aim of justice, making good to the victim or the community, for example, by unpaid work, paying a fine or compensation, and engaging in rehabilitation. It also referred to wider social problems – notably poverty – giving rise to crime. It said non-CJS agencies had to be mobilised to tackle these problems.
This led to a reform programme by the Scottish government. Scotland has since built on its community punishment regime to try to reduce overcrowding in prisons. There is a statutory presumption against short prison sentences. Anyone who would previously have received a short prison sentence is now more likely to get a community sentence.
In its latest justice strategy programme, a priority of reducing reoffending (as distinct from cutting prisoner numbers) is highlighted. A central part of this involves community sentencing.
Overall, while the political debate on prison numbers has appeared more progressive, it is unclear whether Scotland has yet taken a truly different path towards reducing the use of custody. As our report shows, recent figures for the use of custodial sentences and average sentence lengths are not convincing.
An independent review of prisons was launched in 2010 following an unprecedented rise in the prison population. The resulting Owers report found a ‘continuing failure to get to grips with longstanding population drivers, such as the numbers of remand prisoners and fine defaulters, together with a new driver, the number of prisoners recalled …’
To put this right, a complete transformation was required. The authors rejected a market-based approach to prisons in favour of a political approach to resolving dysfunction in the prison service. A Prison Reform Oversight Group with official, professional and civil society input was set up to work towards reform. The Department of Justice launched a consultation on community sentences to encourage their greater use, resulting in draft legislation with provisions for low level offences to be dealt with by fines, not prosecution. An effort was made to combine prison reform and community justice into one overarching Strategic Framework for Reducing Reoffending, in May 2013.
Disappointingly, plans to follow Scotland with a statutory presumption against shorter prison sentences did not result in legislation.
As this report shows, the UK’s use of alternatives to custody has expanded greatly since 2000. However, despite many restructurings, community measures have done little if anything to stem the steady increase in prisoner numbers.
Although couched in the language of rehabilitation, the decision to break up probation in England and Wales and open its services to a competitive market and payment by results may hamper the rehabilitation prospects of probation work in prisons and in the community. Extra pressures will be placed on services with no additional funding to meet those pressures.
Increasing the use of community sanctions and making them more punitive cannot avert the risks and harms of our over-reliance on prison. It simply widens the net of punishment, consuming resources that would be better spent promoting and funding other ways of diverting people from criminal justice towards the support they need. Our long-standing over-reliance on criminal justice interventions leaves little space to develop fairer, more effective solutions.