18. Memorandum submitted by
Paul Kiff
REASONS FOR
RISES IN
THE USE
OF CUSTODIAL
SENTENCES 1995 TO
2005
Between 1995 and 2005, the annual number of
prison sentences rose by about 25% from circa 80,000 to circa
101,000.
Although there has been some limited research
into the reasons underlying this growth in volume, it has not
made use of a suitable research design and has therefore generally
been inconclusive.
No research has yet established that, given
similar circumstances, the sentence passed for a given offence
has been more likely to be given a custodial sentence in 2005
than in 1991.
A piece of research with a research design sufficient
to measure whether magistrate sentencing has become more likely
to use custodial options over the last 10 years could be and should
be executed quite simply.
The main body responsible for increasing the
number of custodial sentences passed over the 10 years has been
the magistracy. (Between 1995 and 2005, the number of custodial
sentences passed by magistrates courts increased from just over
20,000 to 33,000—62% of the entire growth in custodial sentences).
Although the growth in numbers of custodial
sentences in magistrates' courts has also been associated with
a growth in the proportionate use of custody, representatives
of the magistracy have maintained that the apparent increased
tendency to use custodial sentences reflects real shifts in the
level of seriousness of offences coming before them.
This explanation is lent credence by the fact
that the average length of custodial sentences passed by the magistracy
has actually fallen since 1991.
This does not suggest increased leniency but
a significant rise in the number of cases where offence seriousness
was only just over the threshold for passing a custodial sentence
whilst the number of cases clearly over the threshold has probably
remained very stable over the 15 year period.
2003 CJ ACT
Despite what observers might have imagined or
hoped to see, there never was any indication that the 2003 CJ
Act was designed to reduce the use of short custodial sentences.
Indeed, had the provision for custody plus been put into effect,
the opposite was a much more likely outcome.
Despite a number of papers on the subject, the
Sentencing Guidelines Council has never yet been able to make
any headway in determining exactly what might comprise a case
"so serious" that only a custodial sentence would be
sufficient. The definition has been repeated endlessly but what
it means in concrete terms has never been defined. Not surprisingly
because it is an impossible definition to make objectively.
Other features of this and more recent legislation
(such as admission of hearsay evidence and abolition of double
jeopardy rules) plus the effects of public debates (such as guilty
plea discounts) have intensified the probability of serious offences
getting longer prison terms.
RISES IN
THE PRISON
POPULATION 1995 TO
2005
Debates about the thresholds for custodial sentences
have been plagued by a key assumption that the growth in the size
of the prison population from 51,000 to 76,000 between 1995 and
2005 could be attributed mainly to the greater use of custodial
sentences, especially the short custodial sentences imposed by
the magistracy.
There is a serious flaw in this argument.
It ignores the fact that, despite the effects
of growth in the number of shorter custodial sentences since 1995
(mainly at the magistrates' courts), the total number of people
in custody at the end of 2005 for a short prison sentence (six
months or less) was only 6,000. This is only 1,500 more than were
in prison in 1995 for such short sentences (4,500). Thus only
6% of the growth in total prison population between 1995 and 2005
could be attributed to the increased use of short custodial sentences.
One of the reasons why the numbers actually
in prison for short sentences has not risen very much is that
the average length of such short sentences has fallen markedly
over the 15 year period.
REAL REASONS
FOR RISES
IN THE
PRISON POPULATION
The real culprit behind the rise in the prison
population since 1995 is the extent to which the Crown Court has
passed many more long and very long prison sentences.
At the end of 1995, there were 32,000 people
in prison for sentences of over 12 months. This number rose by
2005 to 54,000, an increase of 70%.
The numbers serving sentences of four years
and over alone at the end of 2005 was 32,000, an increase of 90%
since 1991.
These trends are clearly but not wholly attributable
to a significant rise in the average length of sentences for serious
offences.
There has, at the same time, been a significant
rise in the number of such cases coming to court.
ARGUMENTS FOR
REPLACING SHORT
CUSTODIAL SENTENCES
WITH COMMUNITY
SENTENCES
Problems lie in the nature of arguments used
to argue the case for replacement of short custodial sentences
by community sentences.
The first problem lies in the false analysis
of the role of short prison sentences in raising the size of the
prison population, as explained above.
Other arguments mainly rely on the use of relative
cost and effectiveness arguments.
COST
Although it is true that the annual cost of
an average prison place is five times that of a community sentence
of similar length, it is not true that the average cost of a community
sentence to replace the average short custodial sentence is lower
than its custodial equivalent.
An average short custodial sentence last three
months or less, of which only half is spent in custody in the
cheapest types of custody—at a total cost of about £3,000.
The community equivalent would last between
12 and 18 months as a minimum and would use the most expensive
community option—at a total cost of between £6,000
and £9,000
EFFECTIVENESS
It is often argued that community sentences
are at least no less effective than short custodial sentences
in reducing recidivism.
However, despite an agreement some years ago
to change the way that such recidivism is measured, Home Office
data analysts persist in comparing recidivism after completion
of custodial sentences with recidivism measured from the start
of community sentences.
This is absurd since the community sentence
is designed to produce a reduction in offending through therapeutic
intervention which has not been completed until the sentence is
finished.
A NEW APPROACH
A case for replacing short custodial sentences
with community sentences can nevertheless be made.
First, a fair comparison of community sentences
with short prison sentences would almost certainly reveal that
community sentences are indeed much more effective in tackling
recidivism.
Secondly, the simple comparison of prison and
community sentence operational costs ignores the cost to the state
and society of the disruption to offenders' lives engendered by
a prison sentence and the cost of the higher rate of recidivism.
These costs are only partially borne by the Home Office so seem
to get ignored in policy evaluation.
The Home Affairs Committee could and should
take a lead in promoting a better means of making the comparison
of alternative sentences total social costs and benefits.
At the same time, the Committee could and should
press for research:
— Into the reasons underlying the rise
in the number of persons in prison serving long prison sentences.
— Clarifying whether the rise in short
prison sentences can be blamed on tougher sentencing or not.
Paul Kiff
Cracking Crime Scientific Research Group, University
of East London
6 March 2007
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