Why I don't think the ban on short prison sentences is a good idea

I wrote before about the hopelessly flawed analysis which is used by those who want to ban short prison sentences of less than a year. That analysis compares reoffending from the start of a community sentence to reoffending from the end of a prison sentence - meaning it totally ignores the effect of the actual time in prison on reoffending. It is hopelessly flawed for that reason.

Though not as bad, the ban comes from the same anti-prison mindset as Scotland’s crazy decision to ban courts from locking up those under 18. Scotland’s “reform” has led to grotesque unfairness: to pick just one example, the case of a 17 year old who raped a 13 year old in a park but had to be spared jail.

Since my piece, a number of people have come back to say they accept this is not a good thing to do, but think there is no other choice.

What is and isn’t driving prison numbers?

It is definitely not the number of people on short sentences that are putting upward pressure on the prison population. The share of all sentences that are for a year or less has steadily declined since 2010.

As a result a smaller and smaller chunk of the prison population is accounted for by this group. In September 2011 there were 7,700 people age 18 and over on sentences of up to 12 months. By September 2019 it was 4,900. By September 2022 it was 3,700 and it is now 3,800 - marginally up on the year but still down by 3,900 on 2011 - roughly half as many as in 2011.

The proportion of the prison population serving a sentence of less than one year has fallen from 13% in 2008 to 6% in 2023.

Contrast that with the growth of remand. One of the biggest things putting upward pressure on prison places has been the growth in remand, which in turn has been the result of court delays, which are in turn the result of some absurdly antiquated practices in our courts.

There are about 6,600 extra people in remand than there were in four years ago. About two thirds are awaiting a trial, and about one third have been tried and are awaiting a sentence.

MOJ: Offender Management Statistics - Prison Population Data Tool

About one in eight prison places are taken up by foreign national offenders. This is little changed: it fell between 2015 and 2019 but since September 2019 is up by 1,200.

MOJ: Offender Management Statistics - Prison Population Data Tool

Looking at the other measures in the Bill on the prison population, the effect of whole life orders on the prison population is minimal - 30 more places towards the end of the century. The very welcome measures in the Bill to strengthen sentences for sexual offences will eventually increase the prison population by 1,500, though only over a decade, so the initial impact is much, much smaller. The changes to extend Home Detention Curfew as an alternative to prison are forecast to save between 750-900 prison places once in steady state.

Other than the growth of remand, the main thing driving numbers upward is the very welcome move to end automatic early release at the halfway point and shift it to the two thirds mark.

How much difference will the ban make?

The ban is not quite a ban: the Bill says it will not apply to people in breach of a current court order or where there is a specific individual who would be put at risk.  This exemption applies not where someone is a danger in general to the public, but only where there is a specific person at risk.

The Impact Assessment attached to the bill runs three scenarios (high, medium and low) based on different assumptions about how many of those convicted are presumed unsuitable by the courts; how many are “uptariffed” into a slightly longer sentence if a 12 month one is not available; and how many of those given a suspended sentence as a result of the ban will in fact breach their conditions and so end up in jail.

The impact assessment estimates that the ban on short sentences will reduce the prison population by between 200 and 1,000 in steady state, so a central scenario of 600 places.

This means the ban will save about a tenth as many places as the growth in remand has cost.

What are those on short sentences in for?

People who are on prison sentences of less than a year are not in there for trivial offences but serious ones.  In today’s criminal justice system it is routine for people to get numerous community sentences and suspended sentences before finally getting a custodial sentence. To get locked up, even for less than a year, you have to have done something pretty serious.

Of those getting an immediate custodial sentence over the last 12 years about 17% involve violence against the person; 2% sexual offences; 2% robbery; 20% theft; 9% drug offences; 7% possession of weapons; and 9% public order offences.

What could we do instead?

The MOJ prison population forecast has been too high more often than it has been too low: the Commons Library has charted them against the actual outturn:

As the IFG has pointed out, in November 2020, the Ministry of Justice forecast that the prison population would be 93,000 in September 2023² – more than 5,000 places higher than the actual figure recorded last month.

This does not mean to say the more recent forecasts are wrong. But it does but this measure in context. The central scenario is that the ban on short sentences will only cut the prison population by 600 in steady state.

To put that in context, total operational capacity was 88,925 in December - that’s 1,181 down from the 90,106 we had in June 2012.

I get that every little helps, but find it difficult to believe there is no alternative here.

Anti-prison campaigners and parts of the judicial establishment have been lobbying against prison sentences of less than a year for decades - from the Halliday Report of 2001, to the plans announced in 2019 but later scrapped.

The government managed to boost capacity by 1,900 places between September 2022 and summer 2023.

I don’t pretend to have a neat solution but things I would re-examine as alternatives include:

• What extra capacity we could get from rapid deployment cells (we need to do less than half of what we did over last winter to have the same effect as the ban).

• Anything further we could do to speed up the courts and reverse the growth of remand (which has sucked up 10 times more places than this ban will release).

• Anything further we could do to send more foreign offenders to their home country (removing 6% of them woudl do as much as the ban).

• Greater focus on super prolific offenders - to do more to cut crime for a given number of cells.

The previous attempt to abolish short prison sentences at the end of the May era was later overturned by Boris Johnson. I hope that once again we will have a rethink.