Earlier this month (May 2014) the Centre for Social Justice, an independent think tank, published the report ‘Sentences in the Community: Reforms to Restore Credibility, Protect the Public and Cut Crime’. The report puts forward the suggestion that prison sentences, initially one day in duration should be passed for any offender who breaches their community sentence.
The importance of community sentences should not be understated; they are the most common form of disposal for serious offences and can be much more effective than prison in addressing the root causes of offending behaviour, with it being easier and less expensive to provide tailored support to address underlying causes, such as alcohol and drug addiction, without the confines of the prison system.
The Centre for Social Justice claims that the effectiveness of community sentences is being undermined by their administration, and as a result they are failing to rehabilitate as intended. A third of offenders are caught reoffending within 12 months of being given a community sentence, committing approximately 160,000 further crimes in that time, and Ministry of Justice figures show that of those sentenced to custody in 2012, 37,019 (35 per cent) had previously received five or more community sentences. According to The Centre for Social Justice, these figures demonstrate that community sentences are currently no more than a stepping stone to prison.
The report claims that this is partly caused by a group of persistent offenders in so far as: the number of people who were given a community sentence for an indictable offence and had at least 15 previous convictions or cautions increased by 76 per cent, from 15,709 in 2003/4 to 27,632 in 2013.
Polling conducted in 2010 showed that 38 per cent of the public believed that community sentences were a ‘soft option’. It may not be the conditions imposed which make it so, which if properly carried out can be quite burdensome, but the improper enforcement of the sentences which result in their failed implementation and ineffective outcomes.
The report highlights that only two thirds of community sentences are successfully completed. 17,066 offenders (12 per cent of total terminations) had their sentences terminated for failure to comply with their conditions, and 18,129 offenders (13 per cent of total terminations) had their sentence terminated due to them being convicted of a further offence. Only 54 per cent of community sentenced offenders successfully completed Drug Rehabilitation Requirements.
The problems partly rise from the slow and bureaucratic nature of the justice system. One understands and can certainly argue that a degree of bureaucracy in a justice system is to be welcomed, however there are times when the ability to move and implement swiftly are of very great importance. Those sentenced can wait for up to five months for their community sentence requirements to begin, and the slow process by which offenders are returned to court for breaches leaves an opportunity for further offences to be committed in the knowledge that a prison sentence will most likely be imposed regardless of their intermediate offending.
Furthermore Magistrates are not given the appropriate information necessary to make good sentencing decisions, as they are not provided with details of whether those they sentence comply with the sentence, or whether they reoffend.
I would argue that this information may have an overly prejudicial effect on Magistrates’ decision making, particularly if they are informed that a large percentage of those given a community sentence do not comply with the requirements and/or reoffend. The Magistrate may become reluctant to issue any further community sentences and impose sentences which are unduly harsh based on the facts of the case before them.
It may therefore cause a reduction in the use of community sentences on the assumption that the sentences themselves are ineffective, where in fact it is the administration and enforcement of the sentences which is at fault. Caution is therefore required so as not to further stigmatise community sentences which, if properly carried out, provide far greater prospects of rehabilitation than the prison estate.
The Drug Rehabilitation Requirement (DRR) is highlighted for specific criticism. The report states that 56 per cent of community sentenced offenders given a DRR reoffended within a year. The report argues that the current system suffers from two main flaws: testing is not random, enabling those subject to them to avoid detection whilst continuing to take drugs; and that a positive test rarely leads to a breach of a community sentence, thus disincentivising the individual from any meaningful attempt to discontinue their drug use.
The Centre for Social Justice set forth how community sentences could be reformed and made the effective tool which they hold the potential to be. The most striking recommendation is the implementation of a ‘Swift and Certain’ (SAC) Programme, as is currently in operation in 20 States in the USA.
This would operate around three core principles: swiftness – when an offender commits a breach they are seen quickly by a judge, preferably on the same day and receive their sanction immediately; certainty – the consequences of a breach are clearly communicated at sentence, and every breach is sanctioned; and fairness – the harshness of the sanction is proportionate to the manner and frequency of the breach, with one to two days in prison being appropriate for a first breach.
The use of swift, certain, and proportionate punishment appeals as a sensible and supportably principled approach to what is secondary sentencing, in practice a chance to impose a different sentence because the first was ineffective.
However, this approach is different; it is not the resentencing of an offender, or the sentencing for a subsequent offence, namely breach of the original order, but the enforcement of the original order by a Magistrate or Judge using the sentencing principle of proportionality to redirect the individual when they deviate from what is required of them. It adds strength to the community sentence and demands compliance or consequences, leaving resentencing as a last resort.
The practicalities of such a scheme have also been considered. The report suggests staged implementation over four years which focuses on drug addicted offenders and those most likely to offend. The use of judges specifically designated to the Programme to ensure that breaches can be dealt with within 24 hours, and a template of appropriate sanctions, leading to resentencing if the previous sanctions are ineffective.
The most appealing aspect of this suggestion is that it has been proven to be successful in reducing reoffending by up to 50 per cent in the USA. That figure may be difficult to replicate in the UK but a reduction of any significance must be welcomed, or the potentially powerful community sentence could be discarded due to ineffective enforcement.