Sentencing: one cheer for Gauke

David Gauke's public statement of what has been obvious to anyone interested in prisons for decades, that our over-large prison population is not in the public interest, and needs to be reduced, is brave, right and necessary (1).   I admit that I did not think Gauke had it in him: good for him. It is certainty a huge improvement on his predecessor but two, Liz Truss, whose celebration of the doubling of the prison population as some kind of triumph for the compassionate society was an appalling piece of work, notable for some statistical legerdemain (2). Ken Clarke, Justice Minister at the start of this decade, made a similar statement, but didn't survive long enough to do anything about it (3).

Welcome though it is, nevertheless it is also a disgraceful announcement. Why? Because only a few years ago, his predecessor but four, Chris Grayling, ripped into pieces a probation service which, according to all inspection reports, was functioning reasonably well, and then sold half of it off, on the assurance that by so doing, supervision for short term prisoners could be introduced which would infallibly bring those high re-offending rates down. And that there was no other way of achieving this. And now his successor, blithely ignoring the huge damage done to the lives of probation staff and to offenders, assures us that, you know, short sentences are ineffective in reducing re-offending, so we should just stop using them. But first, guess what – we need to 'restore confidence' in the ruined service. The sheer gall! The sheer waste!

Of course, one readily understands how difficult it would be for Gauke to admit that his Tory predecessor, still in the Cabinet, wrecked the probation service, to no purpose. Any more than he can admit the Grayling wrecked the prison system by sacking one in four prison officers. There is surely something very wrong, unhealthy, about a political system where there are no consequences for such irresponsible and destructive policies as Grayling's. Grayling can't be called to account, because he isn't Justice Secretary: the man who is Justice Secretary can't be called to account, because he isn't Grayling: the civil servants can't be called to account, because they were 'only obeying orders' (actually, there is a limit to that defence - but that is for another time).

What is more astonishing than Gauke's amnesia is the silence both from Labour and from commentators (an egregious example of Korsakoff's syndrome in public policy, to which I drew attention in my very first blog (4)). Is no one going even to ask what becomes now of the Grayling reforms – whose main purpose was to put in place post release supervision for short sentence prisoners? It is easy enough for Government to draw a veil over the recent past, if everyone else is asleep.
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So much for this gift horse's dubious parentage. Now for careful examination of its mouth.

While Gauke's statement is undoubtedly a major breakthrough in challenging our addiction to ever-increasing incarceration, I doubt that it will make a big difference where it is needed, in our prisons. For several reasons.

1. the political climate is unfavourable
   
   

Only once before has Government succeeded in reducing use of custody – under Tory Home Secretaries in the early '90s. It is worth examining the difference in political circumstances. The situation in the early '90s could not have been more favourable. The reformers benefited from the devastating exposure of our prisons as inhumane, badly run and ineffective, following the widespread riots of 1990, and the near breakdown of the system – the 'burning platform' necessary for radical change. In the aftermath, no-one had anything positive to say about prisons. Government itself famously conceded that to send offenders to prison in the hope of turning them away from crime was “merely an expensive way of making bad people worse” (5). There was support for reducing numbers from all quarters, including Labour, and the judiciary, led by one of its own, Lord Woolf (6). The policy was supported by a One Nation Tory PM, John Major, who had a huge Commons majority and, at that time, enjoyed the support of a party recovering from the traumatic mutiny against Mrs Thatcher, and keen to emphasise its cohesiveness.

Yet, even in these most favourable circumstances, the reduction achieved was very temporary. Very quickly, the resurgent right wing of the party under Michael Howard rediscovered the delights of mass incarceration ('prison works'), with results that we are still living with. The actual reduction lasted little more than 12 months (7)

Compare that with today. Prisons are known to be in deep trouble - but have not lost control or failed in the highly visible way of the 1990s riots. (The Service is thus the victim of its own success in dealing much more confidently with disorder.) We have instead a 'slow disaster',  while Government constantly affirms its belief that prisons can rehabilitate offenders - just not the short sentence ones. The PM herself is no liberal, with an authoritarian record in the Home Office. The Tories do not command a Commons majority. May presides over the most bitterly, and publicly, divided Cabinet anyone can recall, and a Tory party desperate split over Brexit, with many MPs and even Cabinet Minsters on the right of the party openly conspiring for her removal. Gauke must have No 10's tacit support for his policy, but in the prolonged period of public debate needed to bring about change, can he count on her open, public support for sending fewer offenders to prison – and indeed, would her support be helpful? Would not Tory MPs and newspapers, plotting her removal. be tempted to mobilise against such a policy simply in order to damage her (as they did on the Windrush scandal)?

(Indeed, in Scotland the Tories are already opposing exactly the policy that Gauke proposes, as a “soft-touch approach which is …. making life miserable for victims of crime across Scotland...The pendulum has swung too far in favour of criminals” )(8).

The debate on crime generally is also unhelpful to reform. After 20 years of steadily falling crime – that would have been the time for sentencing reform, but Labour always flunked it – crime, including knife crime and homicide, is on the up again (9).  Moreover we are about to enter a period of great instability, worry and most likely, serious economic difficulty, as a result of an unbelievably chaotic Brexit process. In such circumstances, the Right traditionally uses fear of crime and desire for punishment to displace news that is inconvenient and encourage scapegoating and authoritarian responses to problems. The prospect of the Mail coming out for rationality in sentencing seems more remote than ever.

Not that this is just a Tory problem. At least the Tories do have a record, from time to time, of seeking to tackle our over-use of custody. Labour has, to my recollection, never once raised the issue in the past 30 years. They do not do so now, in the midst of the worst prisons crisis for a generation. And I think not just for the very obvious reason - the gift that this would be to the Mail. I do not see much sign of Labour MPs being genuinely interested in penal reform (I mean, beyond wanting bad things to happen that they can blame the Tories for) – as some certainly were in the 80s and 90s. The Lib Dems of course do propose radical change in sentencing – perhaps another way of saying that it isn't yet practical politics (10).

So its hard to see where Gauke can look to for support for a policy which is never going to be a vote winner, or a career-maker, but which can so easily be a vote loser, or a career-breaker.

            2.         understanding is lacking

To tackle such a long-standing and complex problem, you must first understand it. And Gauke's analysis is lacking. He focuses on sentences under 12 month - because they are less effective at reducing future re-offending. Not because they are key to the pressures on prisons. And indeed they are not key to prison over population. In fact, the proportion of the adult sentenced population serving sentences under 12 months has in fact nearly halved – from 12% in 1992 to 7% now. Short term prisoners are less of a problem, in terms of numbers, than ever before.

Shouldn't we first understand, then, what has caused the doubling of prison numbers since 1993? Particularly since Gauke's predecessor but two maintained the doubling was a good thing, and the very last thing we should do was get the courts to ease off?

Until quite recently, the MoJ itself provided something of answer to that question: 'The story of the prison population', periodically updated, but curiously, not since 2016 (wasn't that when we decided we had had 'enough of experts'?) (11). That document spells out the main factors: the courts are passing more long sentences (4 years or more) and fewer short ones (under 12 months); that is in part explained by changes in the mix of cases before the courts (more sex, drugs and violence against the person, fewer theft and burglary); recall to prison of ex-prisoners released under supervision has increased.

Some of this is precisely the territory marked out by Truss, and raises some very sensitive issues indeed, for reformist liberals as much as the Right. Hands up anyone wanting to suggest that sentences for sexual offences are too long – here, the liberal Left is if anything more punitive than the Right. (But don't the arguments against over-use of prison apply equally to all offences?) A thorough look at why we send to many more to jail than we did 25 years ago, or than our neighbours do now, and what to do about it, is thus a lot trickier than just doing away with the shortest sentences. Indeed, Truss was right in this, that the reformists have for too long been able to get away with the lazy, unfocussed assertion that we just need a lot less imprisonment, let 'em out. On a closer look, it isn't so simple. So, a thorough analysis is necessary.

The MoJ paper is not, though, adequate. For one thing, it is clear that this has been a dynamic process over a quarter of century, and at different times there have been quite different changes at work - at one time, for example a driver was longer sentences for burglary, but now volumes of burglary are in steep decline. The journey has been a complex one. A 'before and after' comparison is no longer enough.

More fundamentally, there seems a lack of inquiry about the puzzling relationship between actual crime, as experienced by victims, and the processing of crime by the criminal justice system (CJS). While crime as experienced by victims halved, levels of crime as recorded by the police changed much less. Volumes coming before the courts reduced, yet the prison population doubled. We can explain some of this. But we need a better stab at understanding the whole picture than we have, if we truly want to understand the phenomenon of prison numbers doubling while crime halves. Is there so much crime that it can halve without affecting the work of the CJS – which would seem to make the CJS pretty irrelevant in terms of crime control? Or has the CJS been freed up to focus on the more serious stuff? Or on the contrary, has it responded by drawing into the process offences that might earlier have escaped formal process?

We also badly needs an account that goes beyond the one sanction, imprisonment. Why has use of fines and cautions declined over so many years? Could they recover? Why did volumes of community sentences soar in the 1990s and early 2000s then fall so in the past decade? (12). What about an authoritative summary of evidence on the endless recycled arguments for high incarceration – the Michael Howard argument that prison reduces crime through incapacitation, and the argument that it deters – arguments still rehearsed as though self-evidently true? (13)

And yes – drugs: political dynamite, but we at least need to be looking at the practical effects of a growing movement towards decriminalisation abroad, in Portugal, Canada, Norway.

Finally, an interest of mine – cost benefit analysis. What does it cost to prevent a crime through imprisonment, compared to community penalties or for that matter, crime prevention?

(Criminologists may say, some of this is already published. Sure, but some isn't. And if political debate is to be informed, it needs pulling together in an accessible way.)

Of course, one readily understands why Gauke focuses publicly on short sentences: so as not to frighten the horses. And he signals pretty clearly that this is just a first effort, that he indeed does see the need as he puts it, 'a wider debate about what punishment means'. Quite so. But given the average tenure of Justice Secretaries, will he have time for more substantial analysis? And will he be allowed to do anything with it?

                  3.             impact will be limited, and slow

The third reason for scepticism is the scope for making an impact, and timing.

True, Gauke has a number of options for reducing numbers besides tackling shorter sentences – more use of temporary release to prepare prisoners for resettlement (as in his recent announcement on employment of ex prisoners) (14), faster deportation of foreign nationals who take up around 10% of the prison system (latest statistics show some progress, but the lawyers have so many ways of disrupting removal), reducing recalls, encouraging great use of parole (but will the Warboys changes inhibit that?).

But if one looks just at shorter sentences, the impact must be modest. There are 5,000 adults in prison serving sentences under 12 months. There seems to be no public data breaking this group down by offence type, so it's hard to make any guess about how many would have received a community sentences, if convicted post-Gauke. But the CJS is littered with interventions intended to contain sentencing discretion that haven't worked as planned. If the courts are allowed to make their own judgement of who, exceptionally, deserves a sentence under 12 months, history suggests there may be more than expected. There will be some 'over-shoot' – courts think a prison sentences is needed, but are deterred from passing one under 12 months, so go for 12 months or more i.e. sentence inflation, not deflation. There will be some sentenced to community sentences or suspended prison sentences who end up in jail anyway, for breach proceedings etc. I suggest a reduction of 3,000 would be good going.

And assuming legislation is needed – for no-one has any authority to tell courts not to pass sentences under 12 months – it will be liable to sabotage and accident, delay and total loss in the present fervid state of Parliament (I except Labour would find some reason to oppose or sabotage it up). If legislation were introduced, passed and brought into operation by autumn 2019 – quite a tall order – the full effect would not be had until late 2020.

So, a reduction of maybe 3,000 by late 2020. But on latest forecast the prison population will have risen by 1,000 by then. So, a reduction in overcrowding of about 2,000. Welcome, of course, especially in locals (a relief more than those numbers suggest, because of the heavy churn of short sentences prisoners). But not a game changer. The percentage overcrowding of the system as a whole will not much change (and if the population carries in rising as presently forecast, will be back to where it was by the mid-2020s.) There is a risk that we do no more than stop the continuing rise in prison numbers, but thereafter achieve no substantial reduction, as has happened in the US since the late 2000's.

A final point – none of this holds out any prospect of helping with the financial crisis of the MoJ, highlighted in my last article. It is not remotely enough to save significant money, though perhaps enough to postpone building new capacity to meet rising numbers (for which, though, no funds exist!)

Hence, only one cheer. For the moment.

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But the importance of Gauke's statement is far greater than its practical effect. It is the first time in a quarter of a century that Government has allowed itself to think about sentencing (if one excludes Truss panegyric to mass imprisonment, and Clarke's passing and soon forgotten comments) – and to do so by reference to facts, knowledge, and calculations about cost and benefit. If that can be built upon, the potential benefits are far greater and go a lot further than just temporarily easing prison numbers. We might actually start to create a rational, evidenced sentencing structure.

And the first step needn't depend on politicians – indeed, can't. Those who want to see such a change could and should be getting on with  the ground clearing, evidence gathering and analysis I have suggest as an essential precondition for major and sustained change.

Notes

1) https://www.thetimes.co.uk/article/david-gauke-interview-it-s-the-carrot-and-stick-prisoners-need-to-have-a-sense-of-purpose-2mp5qt0kx?shareToken=4e3f832459e5a223218702d7c3a0607f

2) https://www.gov.uk/government/speeches/a-speech-on-criminal-justice-reform-by-the-secretary-of-state-for-justice

3) https://www.theguardian.com/politics/2010/oct/20/kenneth-clarke-pledges-cut-prison-population. It is sobering to see how closely his plans mirrored Gauke's - but as a Europhile liberal Tory, his days were numbered. Absit omen!

4) http://www.julianlevay.com/articles/the-influence-of-korsakoffs-syndrome-on-penal-policy

5) 'Home Office (1990) Crime, justice and protecting the public. Cmd 965, London: HMSO. People always forget that first bit. It did not say, tout court,  that sending people to prison is merely an expensive way of making bad people worse.

6) Home Office (1991b) Prison disturbances April 1990: report of an inquiry by the Rt. Hon. Lord Justice Woolf Cm 1456, London: HMSO

7) https://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN04334

8) Liam Kerr, Tory Justice spokesman, Scottish Parliament. Daily Express, 6 February 2018

9) 'Crime in England and Wales: year ending December 2017'. ONS 26 April 2018. But overall, no change in violent crime as a whole, and violent crime remains at a far lower level than in the 1990s. But try telling that to the average Mail reader!

10) The Lib Dems manifesto at the last Election proposed legalising cannabis and ending imprisonment for possession of drugs for personal use

11) https://www.gov.uk/government/statistics/story-of-the-prison-population-1993-to-2016

12) Plainly, it's not all down to the effect of privatisation of probation, as some claim – see Peter Dawson's article https://www.huffingtonpost.co.uk/entry/new-evidence-gives-short-shrift-to-short-prison-sentences_uk_5b02ea5de4b0c240179abead?guccounter=1

13) I had my go at the Howard argument here: http://www.julianlevay.com/articles/doubling-prison-numbers-did-not-halve-crime

14) https://www.gov.uk/government/news/jobs-strategy-aims-to-cut-reoffending