The Lord Chief Justice, Lord Thomas of Cwmgiedd, urges that fewer criminals should be jailed and tougher community punishments must be developed as an alternative to imprisonment. It is most encouraging to see recognition of the state of the prisons by such an authority. In England and Wales, (as in so many other countries) imprisonment is futile, the prisons bursting from overcrowding, drug-infested, chaotic, dangerous and damaging. Some good work is done for sure, but this is down to the commitment and professionalism of staff working in the most adverse of conditions.
The LCJ cautiously suggests: ‘I don’t know whether we can dispense with more [offenders] by really tough, and I do mean tough, community penalties.’ as an alternative to imprisonment.
Should sentences be ‘tough’? What sentences should be above all is just and wise. This is to say that they should correspond to the seriousness of the offence, reflect a respectful recognition of the distress caused to victims, show concern and humanity to offenders – two considerations, by the way, that are by no means in conflict with one another – and be as effective as they can be in reducing reoffending. There are other hallmarks of wise sentences. But none of this has anything to do with ‘toughness’. The term ‘tough’ should be left for politicians in search of a ready (and lazy) soundbite, for sensationalist headlines and for all other people who would rather fulminate than think. It is not a helpful expression for people who dispense justice.
The argument seems to be that the courts lack confidence in the providers of community sentences. In that case, however, providers of community sentences should work to gain the confidence of judges and magistrates by being clear about what they can (and what they cannot) achieve, explaining clearly why they undertake their work in the way that they do and then working reliably and diligently. They should also be responsive to criticism. This is how trust is won. It can never be gained by extravagant promises about rehabilitation or by claims to be ‘tough’ – claims that are unlikely to be believed in any case. Judges might also be more sceptical about the realities of imprisonment and of what it could achieve even in the best of circumstances. If we begin with a belief that prison is the standard for credible sentencing and that community sentences should therefore strive to be as prison-like as possible, we are already going in entirely the wrong direction.
The idea that tough community sentences would encourage sentencers to make less use of imprisonment is an aspiration with a very long history of failure, as Richard Garside has pointed out. Probation Services years ago tried to make their sentences tougher, with no discernible impact on the rate of increase in the prison population or on effectiveness in reducing reoffending. It could even be argued that tougher sentences can lead to more imprisonment. The tougher the sentence, the more demands that are made, the greater the chances of default; enforcement would have to be tougher as well (this is an inevitable corollary of tougher sentences – for an unenforced community sentence is no punishment at all) and the penalties for non-compliance would also be likely to be steeper – no doubt leading to more imprisonment. This is the formula:
Tough sentences + tougher enforcement = more breach = more imprisonment.
The most effective way to reduce the prison population is by reducing the length of sentences. This can be done without any compromise to justice or to public safety. Is this a challenge that judges can meet?