Better alternatives to letting dangerous people out of jail

Most people already think that prison sentences are too soft. But the new Labour government is planning to release prisoners even earlier.  Under the plans, people will be released after serving just 40% to 43% of their sentence.

Keir Starmer says that “We’ve got too many prisoners.”

New Prisons Minister James Timpson believes "we're addicted to punishment”, and that fewer criminals should be sent to jail.

He says:

“A lot of people in prison in my view shouldn’t be there, and they are there for far too long. It’s getting worse. There are people serving sentences for longer than they have been alive. We have 85,000 people in prison as it stands. Only a third of them should definitely be there. The next third primarily require mental health support. The other third, largely women, prison is an absolutely disaster for them.”

People who have read this substack for a while will know that I don’t agree with this.

Ed West has done a public service by logging some of the human consequences of criminals being let out early. He maintains a bleak and ever-growing list on twitter of offenders who have been released early, only to offend again.

Ed’s recent piece on this is very powerful. Here’s just a tiny snippet from his list of examples:

A man who killed his wife in 1981, who was released after a few years and went on to strangle a girlfriend 12 years later, was subsequently freed - and ended up killing a third woman.

There was serial rapist Milton Brown, who was sentenced to 21 years for raping three women – one of whom took her own life – and was released early, only to rape again.

Or Joshua Carney, 28, freed on licence from prison and who just five days later brutally raped a mother and her 14-year-old daughter. He was allowed out despite 47 previous convictions, and now having been convicted of ‘13 charges including rape, attempted rape, actual bodily harm and theft’ he is still eligible for parole in 10 years.

Why prison works

Prison works.  Where there are natural experiments you can see this very clearly. For example, Italy has periodically done mass pardons to clear out its jails, and as Ben Southwood points out, the result is higher crime.

Indeed, the UK is arguably such a natural experiment: Crime rose inexorably from the 1950s to 1995 and the risk of imprisonment for criminals fell. Then Michael Howard declared that prison worked, and started to run up the prison population. His Labour successors followed, and crime fell.

Prison has three effects.

• Deterrence (before)

• Incapacitation (during)

• Rehabilitation (after)

Of these, the least discussed, but arguably most important, is the simple incapacitation effect.

There are a large number of criminals for whom longer sentences would be a good use of money.

The maths is simple and stark. There are just two elements:

First, the clear-up rate for most offences is very low.  In 2022/23 in England and Wales the proportion of crimes (excluding fraud and computer misuse) resulting in a charge and/or summons was 5.7% - not much above one in twenty. And far of course far fewer go to jail. In 2022/23 there were 5.5 million reported offences, excluding fraud and computer misuse and up to 1.2 million further fraud and computer misuse offences. Over the same period 65,290 people were sent to jail. The cost of catching them and prosecuting them is very high.

Second, the reoffending rate for prisoners who are released is very high.  The proven reoffending rate¹ varies by how long people have been in, but it is very high:

And this is just those who are actually caught and charged or cautioned, in the context of a low clear up rate.  So we can be confident that the real reoffending rate is even higher.

The combination of these numbers means that if you have actually caught someone and put them through the long and expensive legal process to put them in jail, it is really worthwhile and efficient to keep them there for longer if you want to reduce crime.

Super prolific offenders

A few years back I wrote a research note on the most prolific criminals.

Around 50% of all crime is committed by 10% of all offenders - according to the Ministry of Justice’s own statistics.  Within this, 4% of all crimes are being caused by just 0.2% of all criminals.

You might think that people with a large number of previous offences would get much longer, exemplary sentences when they appear in court. But this is not what the courts are doing. For some offence types the length of sentence actually appears to go down: “more crime, less time”.

I’m not a lawyer, but from a boring flip chart / McKinsey consultant point of view, the answer here is pretty obvious: lock up the prolific criminals for longer.

Obviously this isn’t the only thing that needs doing – we also need to tackle the causes of crime, particularly drug-fuelled acquisitive crime, which the last government was doing with a large programme to increase numbers in treatment. 

But, but, but… there’s no substitute for incapacitating those who commit a lot of crime through longer prison sentences.

Over the decade to 2018 I found that there were 206,000 offenders who were convicted but did not receive an immediate custodial sentence, despite having more than 25 previous convictions. There were 32,000 offenders who were spared jail, despite having more than 50 previous convictions, and 2,450 offenders spared jail, despite having over 100 previous convictions.

Why things got like this

Boris promised action on these prolific offenders in 2019 and the 2020 Sentencing White Paper, but it went nowhere.

The main blockers to action are:

1)      The house view of MOJ and more importantly the Treasury, which is anti-prison. Prisons score very badly in the methodology HMT has used to allocate capital.

2)      Reluctance from Lord Chancellors to press the judiciary to take this more seriously.

3)      The failure of successive PMs to invest in more prison places.

So as the Conservative party seeks to change and modernise we need to be totally clear about our own failings on this front.

The new government

However, it is not the case that the Labour government has “no choice” but to let out more prisoners.  Indeed it is clear from the comments of the PM and his prisons minister that they are prison-sceptics.

But if they did want to avoid letting people out (and the new Prisons Minister clearly doesn’t) here are some alternative things it could do:

1) A much more aggressive approach to removing the nearly one in eight prisoners who are foreign nationals. According to the House of Commons Library, as of the end of June 2023, there were at least 10,321 foreign nationals in prison in England and Wales, out of a total prison population of 85,851. (Outside prison it is the same - there are around 12,000 foreign national offenders subject to deportation action living in the community - three times more than in 2012). I argue for us to exit from ECHR, one of the main legal tools offenders use to block their deportation. This government obviously doesn’t want to do that, but could still take a more robust attitude to countries who refuse to take back their nationals. Don’t want to take back your nationals from the UK? Your citizens should get no visas to the UK, and remittances and aid should stop until you change your mind. We should also change policy on asylum: foreigners convicted of crimes that attract sentences of less than 12 months can still be granted asylum and stay here. Given that people who commit one crime are more likely to commit another, this should change.

2) Empower magistrates to clear the massive backlog of people in prison awaiting trial or sentencing. I wrote about this before. The number of people who are in prison on remand in England and Wales has increased hugely in recent years, up from 9,708 in December 2019 to 16,005 in December 2023.

Remand is now 18% of the total prison population. Of these, about a third (5,518) have been tried and are awaiting a sentence, while two thirds (10,487) are awaiting a trial. We should enable magistrates to do more specifically for cases in the remand backlog, so freeing up prison places. The prize is huge - getting back to pre-pandemic levels of remand would be worth 6,000 places. They already have the skills: A couple of years ago Magistrates received training to hear more serious cases. From May 2022, for triable either way offences magistrates were permitted to sentence up to 12 months (up from the previous limit of six months).  But from 30 March 2023 their sentencing powers reverted to six months again. We should reverse this for the remand backlog. The government could additionally get the more senior judiciary to set up specialist remand courts to plough through the remand backlog.

3) In the short term, more could be done to create temporary places. The MOJ believes it has done all it can on this front, and has rolled out batches of Rapid Deployment Cells. But a government that didn’t want to let people out could surely go further. Prison operational capacity fell from 2018 to 2021 and has recovered, but in June 2023 it was still 3,247 lower than in 2012. There are operational complexities about what kinds of prisoners are safe to house where, but I do not believe that with a will and money this could not be solved. But this government - even more than the last - does not believe that prison works, so will let people out instead.

4) Deport lower-level foreign criminals. For people who are going to gum up the courts but not get a serious prison sentence (or any) at the end of a criminal process, we should focus on getting them out of this country above all else.

Conclusion

This whole debate has been a source of massive frustration for me. From a technocratic point of view the right thing to do to cut crime and keep people safe is to imprison prolific offenders for longer. But directing the courts to do so has been resisted by the MOJ and successive ministers and PMs. We should also have done more to find the money for more places. Whoever is our new leader MUST change this.

In 2008 we promised: "We will introduce honesty in sentencing so courts set a minimum and a maximum period, with no possibility of parole until the minimum has been served." The idea that the sentence read out in court should be the sentence you serve” is massively popular. But we didn’t do what we said we would. As a result of failures like this, the electorate burned the old Conservative party to the ground. We need to build a new party that can regain their trust.

But we now have a government that doesn’t believe in prison, and will simply let more dangerous people out earlier to reoffend and cause misery. Labour will simply blame the last government for something they clearly wanted to do anyway, given that the prison minister thinks only a third of prisoners should be there.

But this approach will fail, people will suffer as a result, and we need to be the people ready with a better plan.

1. A proven reoffence is defined as any offence committed in a one-year follow-up period that leads to a court conviction, caution, reprimand, or warning in the one-year follow-up or within a further six-month waiting period to allow the offence to be proven in court.

Declaration of interest - the Ministry of Justice are planning to build a large new prison in my constituency. The local council (led by Labour, the Lib Dems and Greens) refused it, and the Planning Inspector also said it should be refused. Michael Gove as DLUHC Minister overruled the Planning Inspector and allowed it to go ahead. Large numbers of local residents were angry at me about this. I have supported my local council in saying it is the wrong site (it’s not even the best site in Harborough) but I have made clear throughout that we do need more prison places.