By 25th July 2008, the prison population had risen to 83,964. Last year’s report by Lord Carter Securing the Future: Proposals for the Efficient and Sustainable Use of Custody in England and Wales suggests the prison population may well rise to 100,000 within the next six years and recommends building huge warehouse prisons – or Titans – to help to contain the extra numbers. This is a surprising departure from the line he took for years earlier in Managing Offenders, Changing Lives: A New Approach, when Carter’s team carefully analysed the reasons the prison population was rising and proposed a range of measures designed to use sentences more effectively to assist in reducing reoffending and protecting the public. This change of heart may reflect the fact that the measures proposed by Carter, and largely accepted by the government, have not brought about the seamless end-to-end management of offenders he expected. Nor have the savings in prison places, which were needed to pay for the new arrangements been realised.

Anyone who questions whether we need to be sending quite so many people to prison risks being labelled soft on crime and being more concerned with the rights and needs of offenders than the rights and needs of victims. That is why, while both political parties are only too happy to say who should go to prison, neither are prepared to say specifically who should not. We are already living with the consequences of that abnegation of responsibility, but the costs of it are largely obscured by spurious claims about the impact of the offences brought to justice initiative; a focus on the prison population rather than current sentencing practice; and a failure to consider what impact resorting to prison so frequently has had on reconviction.

Offences brought to justice

The idea that prison numbers are increasing because more offences are being brought to justice is not supported by the statistics. The numbers being sentenced fell successively from 1987 to 1995. The numbers being sentenced in the succeeding years did not reach pre-1995 levels again until 2003 when the total was around 1.5 million. The numbers then increased in 2004 and 2005 but dropped to pre 2003 levels again in 2006. In simple terms, the rise in the prison population began at the very point the numbers being sentenced were declining most sharply; and the prison population is continuing to increase despite a recent dip in sentenced numbers.

The lack of connection between the prison population and total numbers sentenced is not surprising given that most court cases involve comparatively trivial summary offences. It is more reasonable to expect the prison population to rise if the number of more serious (indictable and triable-either-way (TEW)) cases rises. However, the number of serious cases being sentenced has been relatively static (varying between 300,000-350,000) throughout most of the period over which the prison population has grown. The number of serious cases has even been declining since 2003.

The sentencing of serious offences has made a large contribution to the rise in the prison population, mainly because of the length, rather than the number, of custodial sentences being imposed. The largest numeric and proportionate increases in the sentencing of indictable offences occurred in relation to theft and handling. The number sentenced to custody rose by nearly a third (from 15,637 in 1995 to 20,472 in 2005) even though the overall number sentenced by the courts for these offences declined from 116,078 to 103,318 (RDS NOMS, 2007b). Given that the average length of sentences imposed for theft and handling has dropped from 6.3 to 4.3 months over the same period, it could even be true that those going to prison for this offence may actually have committed less serious rather than more serious offences than those sentenced to custody ten years earlier. Of course these cases do not add very much to the prison population because they involve such short sentences, but they do add very significantly to prison receptions and the associated costs. .

The offences brought to justice initiative may not have affected the number being sentenced but it may explain why the proportion of offenders with ten or more previous convictions coming to court is increasing, while the proportion of first-time offenders coming to court is stable. The most likely cause is that the ‘usual suspects’ are being recycled through the system more quickly leading them to develop longer records. This is the predictable – and possibly even intended – consequence of an objective framed in terms of bringing more offences, rather than more offenders, to justice.

The The costs of overusing custody
When reconviction results are used to compare the impact of prison and probation, statistical modelling is conducted to remove the effect of differences in the case mix each service is required to supervise. Recent analyses of ‘modelled’ data have been used to claim that the effectiveness with which the Prison and Probation Services supervise offenders is improving. While the causes of the change cannot be known for certain, it is reasonable to assume that better supervision has played a part in the fall in reconviction these analyses demonstrate. However, these modelled reconviction rates should not be used when assessing the impact of sentencing behaviour, as the effects they strip out include changes in the apparent characteristics of offenders which may be a consequence, rather than a cause, of changes in sentencing behaviour.



While it is laudable that the Prison and Probation Services are being more effective with those they are sent by the courts, the bald fact is that, for most of the period that our use of custody has been increasing, reconviction rates on release have also been rising. Looking at raw (unmodelled) figures reveals that whereas 53% of those released between 1990 and 1994 were reconvicted within two years, this had risen to 65% of those released between 2000 and 2004. The most obvious explanation for this increase – given that there is no evidence that the courts are dealing with more or more serious cases - is that sentencers are employing custody less effectively now than they were in the early 1990s. Sending significantly more minor offenders (e.g. those convicted of theft and handling and ‘other non-motoring’ offences) to prison for short periods of time disrupts offenders’ lives, so that they lose employment and accommodation and contact with support networks, without providing an opportunity in prison or in the community for any worthwhile rehabilitative work to be conducted.

In an age in which the financial cost of giving life-saving drugs to cancer patients is regarded as a legitimate consideration, it is surprising that so little public debate centres around whether sending more people to prison represents a cost-effective way of tacking crime and reducing re-offending. A recent analysis has assessed the financial value of the reductions in re-offending associated with different interventions and the cost of such interventions. It concluded that the savings to the taxpayer of using a community-based intervention rather than prison ranged from just over £3,000 to about £88,000, depending on the nature of the community intervention. When the calculation included the savings resulting from fewer victim costs, the savings were between £16,000 and £202,000 per offender.

Conclusion

The only connection efforts to bring more offenders to justice has with the prison population is that it has increased the proportion of offenders coming to court with high numbers of previous convictions. The increased use of custody has been affected by the sentencing of some serious offences but the biggest change in sentencing behaviour concerns the number and length of custodial sentences for less serious property offences and cases which are too trivial (summary only) to be sent to the Crown Court.

The fact that modelled reconviction rates show that the Prison Service is doing a better job is a testament to its hard work, despite increasing over-crowding. Raw reconviction rates suggest that this is in the face of custody being used less effectively by the courts. The cost of the change in sentencing behaviour cannot be measured simply in terms of extra prison places; the extra reconvictions which have resulted also carry a cost.

There are no new easy or quick fixes for constraining or reducing the size of the prison population. There are even fewer politically palatable ones. Acting immediately to limit magistrates’ powers to use custody for non-violent summary offences and specifically discouraging them from using custody for theft and handling may not be popular with sentencers. But those convicted of these relatively minor offences are surely not the offenders the public have in mind when they call for tougher sentencing, so this does seem like a worthwhile and viable place to start. Such a move would not solve prison overcrowding but it would slow down the rate at which it worsens and help to reduce reconviction rates. It would also save money not only because prison is an expensive option but because it is an ineffective response to less serious offending – as current reconviction rates demonstrate.