The Trouble With Sentencing

I notice that in his latest blog post Rob Allen, as a result of some tetchy twitter exchanges, has been discussing the vexed question of sentencing:-

A Matter of Judgement

Earlier this week, Labour peer Lord Adonis shifted his fire from university bosses to judges. Both are often considered (and consider themselves) to be world class; but Adonis tried to use the large increase in the prison population since the 1990’s to claim that the judiciary were far from that. In a series of provocative tweets, he accused them of sins of commission – pushing up the going rate for offences - and omission - failing to stand up to illiberal government criminal justice proposals and the punitive tabloids.

Various legal tweeters rushed to the judges’ defence pointing out that it was New Labour’s criminal justice legislation which had driven up prison numbers while judges simply and faithfully applied the law as they must. As often on twitter, an interesting debate quickly descended into ridicule and abuse, albeit modest by the standards that prevail. I even got caught up in it myself. Having suggested to Adonis that the Sentencing Council – whose president and chair are senior judges - could have done more to limit prison growth since 2010, I retweeted his take that the Council “has followed the Daily Mail out of fear”. I was told by an Oxford academic that my retweet was fostering misunderstanding and I had an obligation to make clear that Adonis’s juvenile view was manifestly wrong.

Adonis may have been unfair on the Council, although it is arguable that of the matters to which they must have regard when producing guidelines, more attention has been paid to the need to promote public confidence than to the costs and effectiveness of sentences. But leaving to one side Adonis's combative and somewhat disdainful approach, what of his wider point. How culpable have the judiciary been in the matter of the spiralling prison population in England and Wales?

Mike Hough and colleagues’ detailed study of the 71% rise in the adult prison population from 36,000 in 1991 to 62,000 in 2003 found that tougher sentencing - longer prison sentences for serious crimes and more short prison sentences instead of community penalties - came about through the interplay of an increasingly punitive climate of political and media debate about punishment; legislative changes and new guideline judgements; and sentencers’ perceptions of changes in patterns of offending. So everyone’s to blame.

The study found that statistics did not lend support to sentencers’ beliefs that offenders were becoming more persistent, and committing more serious crimes, although more research was needed about that. Sentencers told researchers that they could resist pressures to ‘get tough’ from the media and the public, but at the same time, “they feel they have a duty to ensure their sentencing decisions reflect and reinforce the norms of wider society.” It’s not clear where they learn about those norms but the study does not wholly vindicate the legal tweeters who held the judges wholly blameless for booming prison numbers.

Since 2003, it’s Adonis’s former colleagues in the Blair government who have a good deal to answer for. David Blunkett’s monstrous IPP sentence was used far more than anticipated and new minimum tariffs for murder cases have hauled up the going rate for less lethal crimes of violence. While no doubt it’s the legislature in the dock for these prison boosting measures, could – and should - judges have done more to mitigate their baleful impact through more creative interpretation of the statutory provisions? Discuss.

One lesson from all this is that Twitter is unlikely to be the best forum for resolving complex legal and constitutional problems. Another is that there’s something of a two nations divide between lawyers and the rest of us. Some in the legal profession, by no means all, seem disproportionately touchy about criticism from outsiders. Those congratulating each other that their tweets had successfully “schooled” Adonis on his apparently uninformed barbs about the judiciary will I hope be prepared to engage with the bigger questions he raises. A proper debate about the roles and responsibilities of the legislature and judges in sentencing policy is long overdue.

Rob Allen

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Seen on twitter:-

"Nothing world class about our judiciary, which jails more people for longer than any judges in Europe & wash their hands of prison crisis" Andrew Adonis

"Andrew Adonis was head of the Number 10 policy unit when the Criminal Justice Act 2003 introduced Imprisonment for Public Protection" A Barrister

Following on from this twitter spat, I found it rewarding to listen to Clive Anderson's most recent Radio 4 Unreliable Evidence programme on the very subject of sentencing. I also notice that Rob Allen has reminded us of his piece in the Guardian from 2009:-

When prison doesn't work

Judges are prone to complain about the volume of change imposed on them by government. But it is the lord chief justice himself who has issued a tough new guideline in R v Saw and others which, while purporting to clarify existing policy, in practice is likely to harden the approach courts take to sentencing people convicted of burglary and add significantly to our record prison population.

The new guideline treats burglary as a more serious type of offence by defining it as a crime against the person as well as against property. Its six paragraphs on aggravating features (compared to three on mitigation) stress that in evaluating the seriousness of individual cases, courts should attend much more than before to the impact of the crime on those living in the burgled house, whether intended or not. Courts should also give more weight to any criminal record on the part of the burglar than in other types of case. While non-custodial sentences remain possible for young first-time offenders and those looking to turn their back on crime such a chance should, so the appeal court says, rarely come more than once.

Of course, burglary is often serious and for those of us unfortunate enough to have been subject to break-ins, greater attention to the personal rather than economic value of any loss may seem overdue. But whether this should translate into more and longer prison sentences is another matter. This is particularly true in respect of many burglars – including two of the cases whose unsuccessful appeals against severe prison sentences form the basis of the guideline judgment – who are addicted to heroin. Reductions in further offending are more likely to result from encouraging courts and the probation service to identify why it is that desperate people offend to support an addiction and putting in place robust and effective measures to get them off drugs.

Other appeals dismissed by the court include cases of a foreign worker who was homeless and hungry; a young adult with well below average intelligence and a young man who had himself been so victimised that a psychiatrist concluded that he would have real difficulty coping with imprisonment. Such factors do not excuse criminal behaviour that in many cases caused real and lasting suffering and for which offenders need to be held seriously to account. They do suggest the need for much better ways than simply increasing terms of imprisonment to bring home to offenders the consequences of their actions – while providing the intensive rehabilitation programmes in the community that can help them turn their lives around.

The court of appeal's tough talk and upholding of severe sentences produced predictable tabloid cheers, but unlike the guideline which it replaced, R v Saw says nothing about public attitudes. Research has long found that public calls for tougher punishments reflect a large underestimate of the degree to which imprisonment is actually imposed, and when asked about the appropriate sentence in particular cases (including burglary), people often propose one more lenient than that which is actually handed down.

The public seem keen to see a more constructive approach to crime problems. It is unfortunate that the court of appeal has joined the Ministry of Justice in supporting an approach that distorts a laudable wish to support victims of crimes into a more punitive policy towards offenders.

Rob Allen

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However, it's probably worth taking note of the first few comments at least on this article as they give both an indication of the uphill task we face on the subject, but most importantly, the reason why politicians find the subject just too tempting not to mess with for political advantage:-

I got burgled by a guy who lived a few doors down. He got caught and put away and couldn't burgle me (or any of his many other victims in the street) again. I spent a happy year or so not being burgled. It was nice. The day he was let out on a tag, he burgled me again. He had to stay close to home you see, because of the tag. From this I formed the conclusion that when he was in jail he couldn't burgle me, and when he wasn't he could. So yes, longer sentences please.

*****
One small point.Whilst they are incarcerated they won't be committing burglaries elsewhere, or any other crimes come to that. Victims first, scum bags last.

*****
Takes a lot to get sent to prison in the UK. Perhaps the solution may be to isolate people from their peer group far earlier in the cycle of offending and to focus intervention then rather than going through the whole cycle of warning, youth intervention, warning, fines, CSO's and then Jail. Perhaps jail should actually come in earlier in order to deter behaviour before it becomes set in stone.

*****
I guess it all depends on how you ask the question. Would I prefer a world in which people don't rob other people? Yes. Would I consider non-custodial remedies to help rehabilitate robbers? Yes What would I like to do to someone who robs me or my family? String them up by the balls and then set them on fire. But I'll settle for a long prison sentence as an alternative.

*****
Most people are in agreement that effective education, rehabilitation and drug treatment programs are a better option that just locking someone up. However, given that these programs do not currently exist, the only solution is imprisonment. Given that burglary is a career rather than a one-off event, the longer burglars spend in prison, the fewer houses will get burgled.

*****
"Other appeals dismissed by the court include cases of a foreign worker who was homeless and hungry; a young adult with well below average intelligence and a young man who had himself been so victimised that a psychiatrist concluded that he would have real difficulty coping with imprisonment" Oh bless those poor foreign criminals, I'm welling up here.

*****
Burglary is a crime for which prison is the best possible solution.
Arguments for:

* Any burglar in prison is incapable of stealing from anyone else.
* They will get a clear message that stealing is a very, very bad thing to do.
* Anyone who steals because they are addicted to heroin will be under constant medical supervision and can get off the drug without the tempation of crime.
* While inside, they can take o levels or NVQ's which might help them avoid crime in the future.

Arguments against:

* They won't be free to live in a squat, inject themselves with dodgy skag, and nick from vulnerable old ladies.

Gosh, really, this is a difficult one.

*****
Perhaps jail ought to be a place to be feared. That may just be a good deterrance in the first place. No Playstations, pool tables, Sky TV and other associated comforts. I am all for prisoners gaining PhD's whilst behind bars, but can they not fit in lots of hard labour in the meantime? It is not as if our streets do not need cleaning ........

*****
Interesting (infuriating). I was burgled by teenagers from the offenders' unit down the (expensive to live on) road. I only knew about the unit afterwards, from a neighbour. When the police came to write me a receipt, they made no mention of it. Can't help but feel that if they'd been locked up properly they wouldn't have been rummaging around in the room while I was asleep in there. Longer sentences would be excellent, especially if we could make them cheaper to the taxpayer. How about repeat offenders being given a one-way to that island that cost us so much in the eighties, down Argentina way?

*****
Tough new sentencing guidelines for burglary won't benefit victims or help rehabilitate offenders they are'nt meant to, there supposed to punish criminals. Many burglars...who are addicted to heroin unless I've missed a change in the law, heroin is still illegal, so those in question have commited two offences instead of one, and therefore logicaly should receive a longer sentence. This article merely proves how out of touch this paper is with the real world, where most people feel more sympathy towards the little old dear whose had her front door stoved in and her pension money nicked than they do with the piece of scum that robbed her.

*****
This is particularly true in respect of many burglars – including two of the cases whose unsuccessful appeals against severe prison sentences form the basis of the guideline judgment – who are addicted to heroin. Maybe we should also go soft on junkies who beat up old ladies for their pension money. After all they "can't help it" and prison won't deter them (well actually it will).

Although whiny liberals, criminologists, lawyers and the criminals themselves don't see it in this way, a house burglary is not really an offence against property. It is, like robbery, an offence against the person because of the way it affects victims. A home is where you are meant to feel safe and secure. Burglars undemine that. They should be punished for that more than the property element.

I can see the point of not routinely jailing people who break into unoccupied shops on their first offence but the starting point for domestic burglary should be prison. If there are exceptional circumstances then the burglar should escape prison but as a general rule of thumb domestic burglary should mean prison.

In truth the burglars would rapidly learn that stealing cars and breaking into shops is less risky. I would personally prefer my car to be nicked than the place where my wife children sleep be broken into. Unfortunately burglars are more likely to dabble in rape and murder than the general population. I wouldn't expect a first-time car thief to go to jail even if it is my car that is stolen but I would expect anyone who burgles my house to.

*****
Agreed but expect to have loads of stats thrown at you by the bleeding hearts who can't quite grasp the simple truth that Prisoners Don't Burgle.