Season 4, Episode 3: Short term prison sentences – why are they a disaster?

Transcript

Stella Tsantekidou 

Hello, this is Stella, Head of Policy and Campaigns for Catch22. 

The Criminal Justice sector has long pointed out that criminals in England and Wales are being jailed for short term sentences that fail to prevent reoffending. The UK outperforms almost every other country in Europe in that regard. We imprison people for longer, and we fail to rehabilitate them and prevent reoffending more frequently.  

In Europe, the average custodial sentence length is 8.2 months, whereas in the UK that figure is at 22.6 months. In countries like Norway, the conviction rates for those released after 12 months is around 20%. In the UK, the figure is 54.9%.  

That has been the case until now, at least because Alex Chalk, the Justice Secretary, announced last month that there will be a new legal presumption that offenders facing jail sentences of under 12 months will instead be given a community sentence. Now, this is very welcome news for many working in the Criminal Justice sector, as scrapping prison sentences has been at the top of the agenda for many organisations and politicians for many, many years now. 

With me to discuss this is Harvey Redgrave from Crest Advisory. Hi Harvey. Could you tell us a bit about your background and your work? 

Harvey Redgrave 

Hi Stella, thanks for having me on.  

Yeah, of course. So, I’m Harvey. My background is as a civil servant for about 8 years, I was in the Home Office and spent several years at Number 10 where I worked under three different prime ministers. I also spent some time as a Labour policy adviser leading on crime, justice issues, and I’ve been Chief Executive of Crest Advisory, which is a hybrid think tank consultancy specialising in crime, policing, and criminal justice since 2015. I’m also a trustee at Catch22, I’m delighted to say, since February. 

Stella Tsantekidou 

Amazing. Thank you, Harvey. So, could we start by explaining in what instances people are ordered to serve short sentences? 

Harvey Redgrave 

Yeah. Short prison sentences are really a tool for judges who have run out of other ideas. So, they’re normally for what we might consider to be low level offenders. So that might be someone who’s committed a theft or a shoplifting offence. Perhaps it could be a burglary. It would not be a serious, violent offender typically, and most judges will opt for a short custodial sentence if they feel that they’ve already tried every other alternative. So often we see prolific offenders who’ve been in front of the courts multiple times, and the judge has decided that a community order, a fine, tagging, is not going to work. The community needs some respite from that offender and a short prison sentence is the only tool in the toolbox available. 

That’s normally, I would say, the circumstances in which those types of sentences are given. 

Stella Tsantekidou 

So, it’s a last resort, but does it work? 

Harvey Redgrave 

It doesn’t work. It’s an extremely costly and ineffective measure. Normally an offender who goes in for a few months is not in long enough to start and complete a course of rehabilitation, but just long enough to break meaningful links with family, employment, community. So, there’s just enough to increase the criminogenic underpinnings of that person’s behaviour, but not enough to attempt to rehabilitate them.  

And of course, it is extremely expensive. We know that locking people up costs in the region of £40,000 to £50,000 a year, so it is expensive. But critics of short prison sentences, of which I am one, have to recognise that they don’t fall out of the sky. There is a reason that they exist and the reason they exist is because the alternatives to custody haven’t really been able to command confidence and have their own set of problems, which is why judges opt for short custodial sentences. 

Stella Tsantekidou 

Because we already said that this is often a last resort for judges who have already tried perhaps community sentences, what are the alternatives to short term sentences? 

Harvey Redgrave 

So typically, the alternative would be either a community order, so that can be unpaid work, it could be a course of treatment, but that would be served over a year or two years. Or what’s called a suspended sentence order, which is similar to a custodial sentence, the same threshold, but essentially where the judge says, ‘we’ll keep you out of prison, but if you offend during this time, you’ll be automatically recalled to prison.’ So, those are the sorts of typical alternatives that that would be sentenced.  

But what we’ve seen interestingly with community orders is a real collapse in their use over the last decade. So, I think the use of community sentences has more than halved over the last decade, which speaks to a lack of confidence amongst judges that they can act as a meaningful alternative to custody. 

Stella Tsantekidou 

Why do you think judges have lost confidence that this is a meaningful alternative? Do you think there is evidence? Do you think there is some kind of bias going on or do you think that, for example, do we know what police officers think about community sentences? 

Harvey Redgrave 

That’s a good question about police officers. I suspect they think that they’re a soft touch, which is what most of the public tend to think. There’s no one answer to this. Actually, Crest did some work on the collapse in community sentences, and we published a report about 3 or 4 years ago, a lot of the content of that report is still relevant today.  

So, one key factor here is that the probation service, which oversees community orders, is in a real state and, you know, has been through several traumatic reorganisations. It was privatised and then it was renationalised, it’s underfunded, the workforce is – there’s a huge amount of vacancies they can’t fill, staff vacancies, workforce morale is low. And the capability and capacity of the probation service to oversee these sentences, I think has been called into question, hence why judges don’t always know or feel confident that there is a level of provision there that could oversee sentences in the community.  

Another factor is, this is a bit technical but, that one of the key roles of a probation officer is to provide what’s called a pre-sentence report to the judge. Which sets out the circumstances of the offender in question. So, are they suffering from drug addiction? Are they homeless? What sorts of behaviours have led to them committing this crime? What are their underlying needs and vulnerabilities? And that will make a recommendation to the judge about what sentence to give, and the judge ought to read that pre-sentence report and tailor their sentence accordingly. What we think has happened over the last 5 to 10 years, is that the quality of those pre-sentence reports has declined as the probation service has been under more pressure. Demand has gone up, funding has been reduced, the quality and depth of those pre-sentence reports has reduced so that the judges aren’t necessarily getting the level of information that they need to inform sentencing decisions before they pass sentence. 

Stella Tsantekidou 

So, they don’t really have the background of the person for whom they have to decide the sentence on. They don’t really know what are the considerations, and presumably, whatever information they do get, if the quality is very low – so if you just get, you know, a couple of sentences, they may not even trust that this is exactly the best representation of that person. And so maybe they prefer to err on the side of caution rather than give a softer sentence.  

But we keep on saying softer sentence. Could you tell us, Harvey, what does a community sentence normally imply, and how exactly is it a punishment? And how does it differ from, you know, just being in prison or just being outside and free? 

Harvey Redgrave 

Yeah, this is a good question because, I think you’ve touched on something really important here, which is when you talk about a short prison sentence, everybody understands what that is, what that looks like, what that means. In fact, when the sentence is made, it’s quite visceral because the offender is literally taken down from the court into the cell underneath the court.  

When an offender is sentenced to a community order, there is a whole range of different things that could mean and there is a level of, a lack of understanding, and a lack of knowledge about what that means. So, part of this is about educating not just the public, but the judiciary about what community orders involve and actually another area that I didn’t mention was judicial training, which has been cut back and and magistrate training where they can be taught and learn about what community orders involve because, you know, even the fact that when you sentence someone to community order, it can be many weeks before that order starts, unlike a prison sentence where the offender is taken straight down to the docks, a community order won’t start for several weeks.  

And there’s something symbolic about that in people’s minds too, that, you know, the sentence starts at the moment the judge issues it. Well, it doesn’t for a community order, actually, you go back home and then you won’t start again for a while.  

The punitive element, I think is normally associated with unpaid work, so that would be the bit of the community order that would seem to be the tough element that involves some restriction of liberty and some sort of element of paying back. But there are very many different interpretations of what unpaid work might involve, and we’ve had anecdotally reports that some of these community orders involve things like working in a charity shop that most people would consider to be not particularly punitive, in fact a lot of people would volunteer to work in a charity shop. 

Stella Tsantekidou 

Surely there are other needs. I’m sure that local councils have needs for free hands for other things that will make people feel that this is not soft sentence because yes, you’re quite right, people do literally volunteer to work in charity shops. It can be even a pleasant experience for some. Did you read Rory Stewart’s book, Politics on the Edge? 

Harvey Redgrave 

I haven’t read that yet. No, I’ve been meaning to. I know that he’s very passionate about this and has spoken about it on his podcast. 

Stella Tsantekidou 

Yeah, he’s spoken about it on his podcast as well, but what I found very interesting in the book is the juxtaposition of his time in the Department for International Development and then becoming Prison Minister, and the discrepancy in the funding and the amount of researchers you have, and the things that you can actually do. And how, obviously he starts as a very ambitious Minister, who, he sees himself above all as a project manager, someone who achieves things.  

And obviously, when he starts as a Prison Minister, he starts getting briefed and he realises, obviously, short term prison sentences, bad, bad, bad. Everyone says it. How hard can it be? I’m going to get rid of them. But obviously then he comes up against the decision of how is this going to look as a Daily Mail headline? It sounds like this is the basic problem that a lot of politicians have had with this specific brief.  

But in your experience, Harvey, why has it taken so long? And why does it have to reach a crisis point for the government to basically say that they’re going to ban short term prison sentences. Because it looks like from an outside perspective, it looks like the only reason why Alex Chalk announced that now is because they started having headlines about how convicted rapists, there is no space to put them in prison, so obviously they had to do something. 

Harvey Redgrave 

Correct. The reason is because the politicians don’t live in a bubble. The reason that they are worried about the politics of appearing soft is because their constituents care about crime. And sometimes we who work in the sector forget that when we say prison doesn’t work well, that’s true if you think about rehabilitation as your public policy objective, it doesn’t work. It doesn’t rehabilitate offenders. It probably makes them more likely to commit crime. 

But in terms of punishment, if you agree that there is some kind of social value to punishment that communities value, the idea that if you step over the line, if you break the law, if you misbehave, that there are consequences to that, that you pay something back to society – prison does provide that. And it provides that reassurance to the public, to victims there, somebody has been punished for what they have done.  

And where we have gone wrong, I think over the last 10-15 years is that we’ve assumed that prison is the only way to punish. And we have at one end – I’m caricaturing, painting a garden fence, or working in a charity shop, and then prison, which is very expensive and very ineffective. So really what we ought to be trying to do is think more creatively about how you broaden punishment so that it isn’t the only lever that you have to pull is to send someone to custody for a short sentence. 

Because, you know, MP’s respond to public pressure and they, and if you look in any MP’s mail bag and what their constituents are writing about, it’s, you know, ‘why aren’t offenders being locked up?’ you know, ‘there’s been 10 burglaries on my street’, and, you know, ‘these people are walking free and it’s not being taken seriously’. That’s why there is nervousness, politically always about seeming to dilute punishment.  

But what Alex Chalk has done is what smart politicians do is to take a crisis as an opportunity. And this crisis is an opportunity to do something sensible and progressive on Prison Reform. But the other side of the coin is that he has to fix probation and community orders because if you don’t, it will just look to the public like you’re watering it down and you’re giving people a green light. 

Stella Tsantekidou 

On the one hand, when I’m hearing you saying this I’m thinking, we know that it’s a very small percentage of the population that commit the vast majority of violent crimes. So, there is a cohort of people who it makes sense to lock them up literally. There are some people who, very, very small, number of people who should be behind bars for the protection of the rest of the community. 

On the other hand. When you read that it costs more to put the person in prison than it does to send them to Eton, it does make you think, surely there is not just wasted potential, but surely, we could have intervened earlier and prevented this. And I’m wondering, do we have any evidence for any better alternatives? And what is stopping us from introducing some more creative alternatives? To you know, find where is the need in a community for a free pair of hands, let’s say, and connect that with our prison system which is overflowing. 

Harvey Redgrave 

Yeah, it’s a really interesting question. One of the ways that you might think about this is the idea from parts of America of justice reinvestment, whereby if there is a financial incentive, local areas will invest more in prevention. So, take the example of youth justice. A Local Authority pays for the costs of a child in care, so when they’re in care, the Local Authority picks up the tab, pays for it. If a young child is locked up in a youth offending institute, the exchequer pays for it, Ministry of Justice, and that cost is centralised. So, there is a financial perverse incentive for the Local Authority to allow that to take place because once they move from care into prison, they’re no longer picking up the cost.  

Now, if you devolve the cost of custody to the local authorities, in theory you would create a powerful financial incentive for that local authority to invest in alternatives to custody diversion, preventative measures, because we know that there is a pipeline from care into custody for young people, and the numbers of kids in care that go into the criminal justice system is staggeringly high. And so that is just one example of how you might create those incentives for investing in more preventative alternatives. 

One idea I’ve had actually is, whether you could have at the national level some sort of mechanism whereby every time policy is made around sentencing, there has to be an external assessment of the impact on prison numbers. Because what we’ve had over the last 15 years, if you take the prison population and you step back a bit and you think about what’s happened. We’ve had a series of sentence inflationary measures being taken by policymakers in the Home Office and and in the Ministry of Justice. But no attempt to deal with the implications of that from a capacity perspective and now guess what? We’ve run out of space and in future rather than that being a free hit, we should internalise the cost of those decisions and say, OK, if you if you want to increase mandatory minimums, if you want to increase sentence lengths, fine, but you need to get an external, independently assessed calculation of the cost of that in terms of prison space, and you need to plan for that and show how you’re going to pay for that. A little bit like the OBR does for the economy on fiscal headroom, so that you create a kind of mechanism for policy to think about internalising the cost later down the line. 

Stella Tsantekidou 

That’s exactly what I was thinking as you were saying that. That’s very interesting. I do wonder how much pushback there would be for such an idea, or how much would such an idea cost, I guess. Do you think it’s something that we have the capacity – that the government has the capacity, like, there is a way to know what the impact is going to be? 

Harvey Redgrave 

Absolutely. Well, they already do it internally, and you know every policy decision has to have an impact assessment and those impact assessments at the moment are internal to government. But what I’m suggesting is a bit like you have an OBR that publishes all of the forecast ahead of the budget. It will set out what the impact of economic decisions will be, or you have the Migration Advisory Committee, we’ll do the same on migration decisions on the shortage occupation list. Let’s have an external body and let’s transparently publish the impact assessment of sentencing decisions so that we know this is going to, you know, this sentencing policy change will involve an additional 1000 prison spaces. OK, how much will that cost? We need to build now. Because yeah, otherwise you end up with where we are. Which is crisis. 

Stella Tsantekidou 

Yeah, that’s a great idea. That’s a lot of food for thought. Thank you for joining us, Harvey. 

Harvey Redgrave 

Thank you for having me.