The End to 'Dishonesty' in Sentencing? The Custodial Sentences Act will be Fogged by Confusion

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1 March 2007 The End to 'Dishonesty' in Sentencing? The Custodial Sentences Act will be Fogged by Confusion Summary The Custodial Sentences Bill will result in confusion, not greater clarity, as well as longer sentences and a substantial rise in the prison population. Author Cyrus Tata is Co-Director, Centre for Sentencing Research and Senior Lecturer in Law, Strathclyde University, Glasgow, Scotland. Contact: Cyrus Tata Introduction Recent high profile cases highlight that the release of prisoners and their supervision in the community is one of the chief public concerns about our legal system. Why, it is often asked, can someone sentenced to a period of imprisonment be released after half or two thirds of that sentence only then to commit a serious violent or sexual offence? So we have to deal with this apparent 'dishonesty' in sentencing and also protect the public. And this, according to the Scottish Executive, is what its new Custodial Sentencing and Weapons Act will do. Currently prisoners sentenced to less than four years imprisonment are normally released automatically and unconditionally after half their sentence. Those sentenced to four years or more are normally released on licence after up to two thirds of their sentence has elapsed. The new Act, passed after its Stage 3 debate on March 15th, aims to make the system more transparent. When passing sentence, the court will have to state that the sentence is comprised of a 'custody part' and a 'community part'. All persons sentenced to 15 days or more will be released 'on licence' after they have served between 50% and 75% of their sentence. The 'community part' will involve both closer supervision, and support for the needs of people leaving a period of imprisonment to help them rebuild their lives and go straight. Square Pegs and Round Holes The Bill does not make any real changes to life sentenced prisoners and only deals with determinate sentenced prisoners. However, readers familiar with the life licence system will note that the Bill seeks to import the logic of that system for indeterminate sentenced prisoners (lifers) into the system dealing with all determinate sentenced prisoners. The key difference is that determinate sentence prisoners must be released from all restrictions after the completion of 100% of their sentence. 1

2 The Bill does not make any real changes to life sentenced prisoners (e.g. for murder or other very serious crimes), and only deals with 'determinate' sentenced prisoners i.e. those sentenced to prisoners for fixed durations. The fundamental aims of the Bill are to increase transparency and public safety are contradicted by the detail of the Bill. There are a series of key questions and problems which proponents of the Bill have so far failed to address. The thinking behind the Bill is that it will lead to greater clarity, but the way it aims to do this suggests that there are a number of problems which belie this aim: 1. The Bill ends automatic unconditional release in name only Proponents of the Bill have proudly proclaimed that this Bill sees the complete abolition of unconditional automatic release. We are told that that under the new clearer, safer regime there will be 'tough, tailored' supervision in the community, based on risk assessment. However, the Executive has quietly had to concede that, in the case of most short term prisoners (especially those serving 6 months or less and probably more), risk assessment and individualised supervision will simply not be achievable. For most short-term prisoners, the licence will be merely nominal (for example to 'be of good behaviour'). The 'tough, tailored' licences, which proponents of the Bill promise, not only require much more funding but also more time: it is practically impossible to carry out proper risk assessment and individualised, 'tailored' supervision with people who have a few weeks of their sentence to go. As the Risk Management Authority and senior criminal justice Social Workers have reminded us, proper risk assessment is a complex process not a ten minute task ticking a few boxes. So the claim that the Bill will abolish unconditional, automatic release for all prisoners serving 15 days or more will not be matched by the reality a point quietly conceded by the Bill's background documentation. It seems that the Executive is hoping that no one will notice that a promise is being made which it knows cannot be kept. 2. Why does the proposed new system apply only to those serving 15 days or more? While those sentenced to 15 days or more will be released after between 50% and 75% has been served, those serving less than 15 days will have to serve their sentence in full. Thus, we will have the perverse situation in which someone sentenced to, for example, 14 days will end up serving more time than someone who is supposed to be punished more severely (for example, 21 days) who will be out after 50% of their sentence. Plainly this will be absurd. How does this assist the claim to make the system more intelligible to offenders, victims and the wider public? Moreover, this 15 day cut off contradicts the fundamental principle of proportionality in punishment. We might well expect that someone sentenced to a shorter headline sentence (i.e. 14 days or less) will wish to challenge the basis of a system which leads to such perverse results. The 15 day cut off gives rise to other dilemmas which lawyers and sentencers will have to face. To promote the best interests of clients, will defence lawyers see themselves in the unprecedented position of having to request that if a short custodial sentence is to be passed that it be made longer than the court would have otherwise passed? In considering a custodial sentence, should the courts be cognisant of the effective sentence to be served, or, should they ignore that the sentence passed will, in effect, be subverted by the perversities of the proposed release structure? Will different practices emerge among different sentencers? Given that the Scottish Executive acknowledges that between 15 days and 6 months the licence will be nominal, why have the 15 day cut off point at all? 3. Unintended consequences will lengthen sentences In a separate legislation recently passed (Criminal Proceedings (Scotland) Bill), summary sentencing powers were doubled to 12 months. When considering what sentence to pass, many sentencers will be attracted to the idea of support and 2

3 supervision following a short period in custody. Once it becomes clear, however, that those sentenced to shorter terms of imprisonment (e.g. 6 months) will not receive any real support and supervision upon release, many sentencers will feel that they have no option but to inflate artificially the overall sentence so that the person before them gets support upon leaving prison. 4. The 50% 75% rules are self-contradictory and will lead to even greater confusion Double sentencing Section 6 of the Bill aims to provide that the 'custody part must be a minimum of 50% of the overall sentence, but that this may be increased up to 75% if the individual sentencing judge considers it appropriate. On what grounds would this variation in the point of release be 'appropriate'? Section 6 states that an individual sentencer may increase the custody element up to 75% on three grounds: the seriousness of the offence/s; previous convictions; the timing and nature of a guilty plea. Yet all three of these criteria currently form (and will continue to form) the basis of determining the overall headline sentence. Why should individual sentencers now be asked to make the same assessment twice? At best, this provides for unnecessary duplication. It will also lead to other more substantive questions, such as the impact on the practice of discounting for a guilty plea should this to be done twice? Is an offender to be punished twice for the same criteria (once in terms of the overall headline sentence and again in terms of the minimum point of release)? Clearly this will lead to confusion and disparate approaches and practices emerging. Despite these problems having been pointed out, the Executive has found itself wholly unable to explain why this double sentencing practice is proposed. What is the rationale for allowing individual sentencers to increase the custody element up to 75%? Artificial distinction between 'seriousness' and 'protection of the public' will lead to more confusion not less. Section 6 provides that in setting the 'custody part', the court "must ignore any period of confinement which is necessary for the protection of public". Background documentation indicates that this is supposed to require sentencers only to include the 'punishment element' of sentencing and thereby subtract the 'risk element' from the sentence. This seems, as the Sheriffs' Association suggests, both confusing and odd. It might start to make some sense (at least in terms of incapacitation) if sentencers were allowed to consider 'public protection' in setting the 'punishment part'. But this is expressly ruled out and, as we saw above, sentencers can only set the 'punishment element' on the same grounds as the 'headline' sentence. In any event, it is hard to see how this strict separation between 'risk' and 'seriousness' will work. The categories of 'public protection' and 'seriousness' will continue to be very difficult to distinguish in determinate sentence cases. The Bill's attempt to draw this distinction will be seen to be artificial and confusing. 5. Will public safety really be trumps? Supervision and support in the community upon leaving the prison gates is, as the Executive says, important in helping people go straight, thereby increasing public safety. If we want people not to reoffend we need not only to monitor but to help them rebuild their lives. However, a different strand of the Bill allows individual sentencers to cut from 50% to 25% the very period of support and supervision which we are told is so vital to public protection. The reason for this provision is wholly obscure. The Bill says that the courts can reduce the period of time under supervision in the community on three grounds: the seriousness of the offence; previous convictions; and nature and timing of the guilty plea. Yet all three of these criteria are normal bases of setting the overall sentence! Why is the Bill asking sentencers to make the same assessment twice? It will only lead to confusion. More importantly, it allows the time available for support and supervision to be cut for those who will most need it. 6. Clear as Mud: the explanation in open court of what the sentence means Proponents of the Bill claim that it will finally ensure that offenders, victims, and the public will be given a clear explanation of what the sentence actually means. In fact, it 3

4 achieves less clarity and certainty. Currently, this lack of certainty is true of sentences of four years or more, but the Bill extends uncertainty of the point of release to all prisoners serving 15 days or more. The Sheriffs' Association has observed: "This situation would not appear to be conducive or consistent with a policy of clarity, certainty and transparency". This is because at the time of passing sentence it will not normally be possible to predict the duration a person will serve in custody such decisions will be in the hands of the Executive. 7. If S6 is retained then there will need to be a requirement for sentence recalibration (but there isn't) In its report Early Release from Prison and Supervision of Prisoners on Release (2006), the Sentencing Commission explicitly recommended that to take account of increases in real time served in prison, there should be a recalibration of sentencing: "We therefore recommend that, in any new statutory regime, Parliament expressly provides that a sentencer, when having regard to sentences imposed under the previous regime, must also have regard to the right to early release under that previous regime. Accordingly, it will be appropriate for sentencers acting under the new regime to recalibrate and reduce them by the extent necessary " [paragraph 5.8, sic] Currently, it is understood that the sentenced person would be released after 9 months (50%). However, section 6 of the Bill will allow the sentencer to pass the same headline/official sentence (18 months) for the same case, but to increase the effective period in custody to 75% (in this example 12 months). Thus, the effective (or real) custodial sentence will be 3 months longer, although the official/headline sentence remains the same. For reasons not explained by the background policy documentation to the Bill, this recommendation by the Sentencing Commission that "Parliament expressly provides" for recalibration, has been completely omitted. 8. 'The elephant in the room'. Increases in the prison population will undermine the overall aim of enhancing long term public safety Conclusion The overall consequences on the prison population of this Bill (in parallel with other legislation to increase maximum sentences in Summary Sheriff Courts) should be expected to be very large. Over crowding in prisons, and especially the high influx of persons sentenced to relatively short sentences, are two of the most important factors which undermine rehabilitative work in prisons. Furthermore, even if one could imagine a day when prison over crowding is eradicated, we should recall that incarceration is supposed to be a last resort for the purposes of protecting the public, not as an (extremely expensive) way of accessing social and educational services. Such services can be provided much more effectively (and less expensively) in the community, and without breaking social and familial ties which is a normal consequence of incarceration. This Bill misses the opportunity to improve public confidence in criminal justice. It makes grand claims which cannot be met and will create a further mismatch between appearance and reality. If our politicians really want to produce a more transparent system based on public safety, then we have to stop fiddling about with exit points from prison and start thinking about entry points. By ignoring the question of who we should send to prison (especially where persons are not a danger to the public) and for what, governments will continue to find that they have to manipulate release arrangements so as to relieve pressure on prisons caused by the throughput of huge numbers of very short term prisoners. Who needs to be in prison and who does not? For example, around half of the daily admissions into prison are fine defaulters. Many of the people serving short sentences end 4

5 up there not because their original offence warranted custody but because they failed to comply with non custodial orders for a minor offence. A pain in the neck for the courts, yes, but hardly a danger to the public. Are we using the precious resource of imprisonment wisely? Of course it is not for Parliament to tell individual sentencers what to do in individual cases, but it is entirely proper for legislators to set the overall shape of sentencing policy, rather than tinker around with back door release arrangements. Use and Copyright You are free to copy and distribute this text or extracts from it for all purposes (except publication in a work sold for commercial purposes) on condition that you identify the author and name as the source. Please apply directly to the author for permission to publish in a work sold for commercial purposes. Please include the following information in a reference when citing or using this article. Name of the author Title of the article Date of article URL (see below) Date of publication on the web site: The URL for this version is: tences/ If you can be persuaded to write for this series please contact Mary Munro mailto:munro@cjscotland.org.uk 5