How Courts Can Use Prison More Intelligently

It may seem paradoxical but by encouraging the courts to use prison more intelligently, the government might make real strides toward using prison less. And that should be a goal for prison reformers to cheer.

Prison reformers must feel this government gives with one hand and takes with the other. A few months ago, the government announced that all prisoners should be placed in prisons close to their homes shortly before release. This has long been a goal for prison reformers for a number of years. And yet, to the surprise of prison reformers, only weeks later Damien Green suggested that magistrates should have the power to impose short doses of jail time when offenders fail to comply with the rules they have to follow after being released from short prison stays. Inevitably, this has raised concerns that prison numbers will rise again.

However, and this may come as a surprise, this time the government may be following the evidence. In our recent new report, called Better Courts: Cutting Crime through Court Innovation, I outline the evidence that the use of short periods of custody as a sanction for failure to comply (when coupled with a return to rigorous community supervision) has been shown to significantly reduce re-offending and, over time, can actually reduce the use of custody. It may also, though there is less evidence for this, encourage judges to sentence people to more community supervision in the first place, knowing that the court has credible sanctions available to it later on.

It might not sound ground breaking, but this is in stark contrast with what we currently have in this country. Under our present arrangements, breaches of community supervision rules - missed appointments, positive drug tests etc - are often met initially with mercy, and then with severe and sometimes damaging consequences. The mercy is to be found in probation officers trying their best to keep an offender in compliance on a community order, recognising that the path out of crime is often a series of two-steps forward with one step back.

But when a probation officer gives an offender a second chance and then that offender breaches the rules again, they often have no option but to take the offender back to court. There, the offender is either faced with an adjustment of their community supervision (which can often be viewed as 'getting away' with it) or they can be met with substantial doses of prison - often for months and sometimes for years. This means our system is geared to applying the ultimate sanction - deprivation of liberty for extended periods - as the first and only sanction to what can be just a series of technical infractions. Offenders left in this position often have no route back out into community support until the end of their sentence.

The alternative, which Damien Green has hinted at in these new proposals, is to use of prison as a swift and certain sanction, but also a reasonably mild one. If offenders are clear what the rules are and what exactly will happen, every time and right away, when a rule is broken, the threat made by the court is credible, making severe punishment unnecessary. What would otherwise be months spent in prison following a failure to comply can actually be a couple of days, achieving exactly the same purpose - reprimanding the offender for not following the rules.

Initiatives such as drug courts and the HOPE programme in Hawaii have a pretty simple underlying theory: they highlight the consequences of an individual offender's own behaviour in what happens to them. If offenders are clear on the rules, they know it is their responsibility to follow them. When sanctions are applied, and where the court operates in a fair and transparent way, offenders can often recognise the link between their behaviour and the consequences it has for them. This is a substantial difference to the current and often confusing situation in which a severe sanction can result from behaviour, which on the face of it, may seem like a minor infraction.

Of course, short doses of prison on their own are not enough. Programmes like HOPE and drug courts use these sanctions within a supportive, community based framework. When the offender is released, they come back under the supervision of judges, probation officers and social service providers who have worked with that offender, know them and who can demonstrate renewed commitment to help them change despite their previous slip ups. To convince prison reformers this approach can work, the government does need to ensure that the deterrent of prison is coupled with the incentive of support.

It may seem paradoxical but by encouraging the courts to use prison more intelligently, the government might make real strides toward using prison less. And that should be a goal for prison reformers to cheer.


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