Cliche Irony

Remaining on the theme of sentencing and politics, I guess we need to note the irony of the Centre for Justice Innovation publishing its Smarter Community Sentences report last week calling for an end to cliches, just before Boris Johnson indulged in classic cliche gesture politics of tougher sentencing. Politicians have learnt that it's a popular card well worth playing especially if you're not very popular. This from the Law Society Gazette:-

Thinktank backs smarter community sentences to cut reoffending

The government has been urged to move away from the old clichés of tough and soft justice and focus more on making community sentences ahead of a sentencing white paper due to be published shortly.

The Centre for Justice Innovation says in its latest report that evidence clearly shows community sentences reduce re-offending more than short custodial sentences. However, there has been a 46% decline in their use over the past 10 years in England and Wales. Those advocating for short custodial sentences as opposed to community ones ‘are, in short, recommending that communities and victims suffer more from crime, not less’.

The centre believes the forthcoming white paper and ongoing work to reform the probation system provide the government with real opportunities to reform community sentencing, and highlights successul initiatives in other jurisdictions.

Describing unpaid work as the ‘backbone’ of community sentences, the report cites 2016 inspectorate findings that 35% of probationers had not started their unpaid work within two weeks of being sentenced. The centre says reforms in Scotland to unpaid work within their Community Payback Orders have focused on improving the speed with which placements are commenced and completed. The report recommends ‘short, swift’ unpaid work orders and empowering courts to set time limits.

The ministry and probation service should shorten the overall length of community sentences given to low-risk offenders. This would free up time for probation staff to concentrate on supervising higher-risk groups. The report says the ministry could learn lessons from Northern Ireland’s Enhanced Combination Order, which includes psychological assessments in respect of mental health issues and family support work. The offending rate of ECO participants in the six months following sentence was 17.3% compared to a 57.7% re-offending rate in the six months prior to sentencing.

Probation officers should be given powers over electronic tag monitoring, including the ability to vary hours. The report says in the Netherlands, the private sector provides monitoring equipment but public sector agencies are responsible for installation, maintenance and decision-making.

A smarter approach to tagging would enable victims to have a say on restrictions. In the US, GPS tagging technology has been used to give domestic violence victims more control over their own safety.

The centre, which has supported the expansion of family drug and alcohol courts, also suggests the government implement a problem-solving suspended sentence for those with substance misuse issues as an alternative to longer prison sentences. It says Scotland, Northern Ireland, Australia, Canada, New Zealand and the US actively involve the courts in efforts to strengthen the accountability of community sentences.

Under the new suspended sentence, probationers would be required to comply with a 'demanding' order of treatment, supervision, monitoring and reparation. The same judge would regularly review progress. Non-compliance would result in prison.

The report concludes: 'We believe it is time to reform community sentences. In doing so, we need to move away from the clichés of the past about tough or soft justice.'

--oo00oo--

We believe it is time to reform community sentences. In doing so, we need to move away from the clichés of the past about tough or soft justice. Instead, the unification of the management of offenders within the National Probation Service and the forthcoming Sentencing White Paper are real opportunities for this Government to make community sentencing smarter.

Smarter community sentences mean giving probation practitioners the powers, the freedom and the flexibility to do their jobs. Smarter community sentences mean ensuring victims and communities who suffer from crime have more of a voice to see reparation done. Smarter community sentences mean leveraging the full resources of the Government, from the police, the courts, through to drug treatment and employment services and others to work with probation to deliver punishment and to give offenders the chance to turn around their lives.

Summary 

Effective community sentences are a vital part of a justice system in which crime is proportionately punished, the harms it has caused repaired and the underlying factors that lead to offending addressed. Moreover, the evidence is clear that community sentences reduce re-offending more than short custodial sentences. Those who advocate for offenders to receive short custodial sentences as opposed to community sentences are, in short, recommending that communities and victims suffer from more crime, not less. 

Yet, there has been an 46% decline in the use of community sentences over the past ten years in England and Wales. At the same time, the quality of supervision delivered by our probation services has deteriorated. We believe it is time to reform community sentences. In doing so, we need to move away from the clichés of the past about tough or soft justice. Instead, the unification of the management of offenders within the National Probation Service and the forthcoming Sentencing White Paper are real opportunities for this Government to make community sentencing smarter. 

Smarter community sentences mean giving probation practitioners the powers, the freedom and the flexibility to do their jobs. Smarter community sentences mean ensuring victims and communities who suffer from crime have more of a voice to see reparation done. Smarter community sentences mean leveraging the full resources of the Government, from the police, the courts, through to drug treatment and employment services and others to work with probation to deliver punishment and to give offenders the chance to turn around their lives. 

Specifically, we urge the Government to create smarter community sentences by: 

• Improving the delivery of unpaid work by giving victims and communities a stronger voice in choosing what work is completed so they can see that justice is done, and by delivering standalone unpaid work orders swiftly, so probationers get the punishment done and can move on with their lives, and so judges can see their rulings carried out. 

• Improving the delivery of supervision by working briskly with low-risk probationers, thereby freeing up probation to both deliver high-quality community sentences and to work with police in the management of probationers who pose a higher risk of re-offending, through a reinvigorated Integrated Offender Management (IOM) strategy. 

• Improving rehabilitation so that people have the best shot at turning their lives around, by increasing the overall level of funding available for drug and mental health treatment for probationers in the community in the next Spending Review. 

• Improving information to victims about community sentences via the court reform programme so victims are informed about what is being done in their case. 

• Improving tagging of probationers by giving probation officers powers to flexibly vary the monitoring of tags without having to go back to court and by giving victims of domestic abuse a voice in setting the restrictions on perpetrators to better guarantee their safety and the safety of their children. 

• Improving collaboration between the court and probation to divert vulnerable offenders away from court where necessary, to use judges to monitor repeat offenders and be more responsive to their behaviour, and to change the enforcement system so it responds more swiftly to failure and better rewards compliance.

The value of community sentences 

Criminal justice systems around the world use community sentences to deliver punishment, reparation and rehabilitation. Punishment - inflicting some form of pain or loss (‘harsh treatment’) and the communication of disapproval (‘censure’), because doing so gives voice to the standards we honour as a community. Reparation to ensure that victims and communities that suffer see and experience offenders’ atonement for their wrongs. Rehabilitation because it embodies our belief in the possibility of redemption for rule-breakers and our commitment to keep communities safer by reducing reoffending. 

Community sentences play a vital role in keeping the public safe. There is considerable evidence that community sentences are an effective means of reducing re-offending. Previous studies by the Ministry of Justice in England and Wales, which control for the differences in the offender characteristics of those on community sentences and those receiving short prison sentences (those that are less than 12 months), show that the proven reoffending rate of offenders on community sentences is consistently lower than for those who had served short-term prison sentences. A 2019 study found that “sentencing offenders to short term custody with supervision on release was associated with higher proven reoffending than if they had instead received community orders and/or suspended sentence orders.” It also found that “the average number of re-offences per sentencing occasion was also higher following short term custodial sentences of less than 12 months than if a court order had instead been given (by around 65 re-offences more per 100 sentencing occasions).” Those who advocate for offenders to receive short custodial sentences as opposed to community sentences are, in short, recommending that communities and victims suffer from more crime, not less. 

The deterioration of community sentences 

However, in England and Wales, the quality of the supervision of community sentences has deteriorated over the past decade. In 2018, the Chief Inspector of Probation found that, due to the Coalition Government’s Transforming Rehabilitation reforms, which split probation provision into a public-sector National Probation Service (NPS) and privately-owned Community Rehabilitation Companies (CRCs), probation services “are failing to meet some of their performance targets… In too many cases, there is not enough purposeful activity… the probation profession has been diminished… There is a national shortage of qualified probation professionals, and too much reliance on unqualified or agency staff…. in the day-to-day work of probation professionals, there has been a drift away from practice informed by evidence.” 

Moreover, there are fewer community sentences being given out by courts. There has been a 46% decrease in the number of community sentences in England and Wales over the past ten years. Our research into why this has found that it is, in part, because the relationship between courts and probation has been buffeted by a number of reforms in the past six years, most notably the split of probation, the underinvestment in probation by the CRCs, and the disruptions caused by court closures and court service efficiency reforms. 

The reality of community sentences Community sentences provide proportionate punishment for lower level offending through restrictions of liberty like curfews and electronic monitoring. They can provide reparation through things like unpaid work and restorative justice. They can also address the underlying issues behind offending, like drug addiction, through supervised community drug treatment. Yet these purposes of punishment, reparation and rehabilitation are not clean and separable: in practice, community sentences are a mixture of all three. Probationers can often feel that parts of community sentences that are intended to be rehabilitative are intrusive, even painful, while others experience ‘punitive’ sanctions such as unpaid work as motivating and even enjoyable. It is also worth remembering, for example, that individuals serving a community sentence can experience additional pains, such as restrictions on their ability to travel abroad, or the impact on their lives of a criminal record on their employment. These punishments, which often get forgotten in discussions about “the toughness” of community sentences, can often be experienced as far greater hardships than the terms of the court order itself. 

This means that the reality of community sentences as experienced by probationers is often different from what is intended by judges and lawmakers, and what is expected and imagined by the public. Moreover, probationers are not a homogenous group: community sentences are given to a wide spectrum of individuals, from affluent motorists who repeatedly speed to homeless people with complex substance abuse and mental health needs. Strengthening community sentences, therefore, requires us to grapple with the complex realities of how probation functions in practice.