Sentencing in a Rational Society - RSA

Sentencing in a Rational Society

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  • Picture of James Crabbe
    James Crabbe
  • Criminal justice
  • Prisons

“The reduction of prohibited conduct must be the main aim of any penal system, but must be tempered by both economic considerations and humanity if the system is to be practicable and tolerable”. So argued Nigel Walker in his book Sentencing in a Rational Society 50 years ago. James Crabbe FRSA asks how far we have really moved since.

In his influential book published in 1968 the British criminologist, Nigel Walker, set out what he believed should be the aims of a penal system: to protect offenders and suspected offenders against unofficial retaliation; and to reduce the frequency of the types of behaviour prohibited by criminal law. In seeking to meet these aims, Walker adds that the penal system should seek to cause the minimum of suffering (whether to offenders or to others) and be designed to ensure that it would not increase the incidence of offences. Reviewing Walker's now seminal book in 1968, The Law Society's Gazette concluded: " This is the best book on penology that I have read. Its style is so lucid that for anyone thinking in terms of communication it is a tour de force'.

So how far has our society moved in 50 years in terms of the penal system? Walker was keen on a 'sentencing authority to "control" of sentencing decisions. The Sentencing Advisory Panel created in 1999 and the Sentencing Guidelines Council of 2003 led, in 2010, to what is now the Sentencing Council. This now affords some of the consistency and regularity in sentencing that Walker encouraged. He felt that sentences of less than six months were undesirable and while less progress has been made in this respect, it is encouraging that the current Lord Chancellor and Secretary of State for Justice, David Gauke, has made a plea more community sentences and a reduction in the number of short custodial sentences. However, Gauke stopped short of suggesting that he would be addressing sentencing or setting out a strategy for reducing the prison population.

In other ways it is difficult to see much progress;, rather the opposite. In 1968 the prison population was 34,056 whereas in July 2018 it was 82,961. Her Majesty's Inspectorate of Prisons' Annual Report documented some of the most disturbing jail conditions it had ever seen.Inspectors at the rat-infested HMP Liverpool could not remember worse conditions, and the tragic toll of self-inflicted deaths at HMP Nottingham led the Chief Inspector of Prisons, Peter Clarke to describe the jail as "fundamentally unsafe."Wormwood Scrubs in London suffered from appalling living conditions, violence, poor safety and seemingly intractable problems over repeated inspections.

A recurrent theme was: 'The disappointing failure of many prisons to act on our previous recommendations, which are intended to help save lives, keep prisoners safe, ensure they are treated respectfully and to give them a chance of returning to the community less likely to reoffend.' Mr. Clarke summarises: "Some prisons, in very difficult circumstances, have made valiant efforts to improve. Others, sadly, have failed to tackle the basic problems of violence, drugs and disgraceful living conditions that have beset so many jails in recent years. I have seen instances where both staff and prisoners alike seem to have become inured to conditions that should not be accepted in 21st century Britain.."Apart from some signal efforts in prisoner welfare and rehabilitation, the overall picture goes against the four aims of a penal system that Walker put forward in his book 50 years ago.

As I have argued elsewhere, as a society we need to grasp the nettle of ignorance, develop education for those both in and out of prison. As Rachel O'Brien wrote for the RSA earlier this year: "productivity in relation to prisons is hugely dependent on how one group of human beings interact with others. We need a service that enables these connections to flourish." It is time to put the aims that Walker envisaged into effect. The Lord Chanceller needs not only to implement all the recommendations of both the Coates and Taylor Reviews into adult and youth criminal justice, but also to address sentencing by ensuring that rehabilitation, not punishment in prison, is at the heart of the criminal justice system. There need to be changes in sentencing practices to encourage the judiciary to sentence more creatively. This, together with reductions in recalls to prison, as well as to those in remand who have little likelihood of a custodial sentence, should result in a welcome reduction in the prison population, and help to put us at the forefront of societies with a rational and humane criminal justice system.

Professor James Crabbe FRSA is a Supernumerary Fellow at Wolfson College, Oxford University, Emeritus Professor at the University of Bedfordshire, and Chair of Governors at Central Bedfordshire Further Education College.

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  • My experience as a former Prison Governor in Scotland and New Zealand has led me to the conclusion that short sentences serve to take people off the streets for a few weeks or months, offering a degree of respite to the community and often their families. Prisoners' access to alcohol and drugs is reduced and there are a few, brief opportunities to identify emerging mental and physical health issues that often remain undiagnosed and untreated. Prison can provide structure and a degree of safety sometimes not found 'outside'. 

    Short sentences also serve to limit  individuals' ability to address the problems 'outside' that contribute to their offending.Pre-release arrangements are primarily concerned with arrangements for re-engaging with stretched community-based services. 

    Returning to the same environment with the same unresolved problems, behaviours and thinking should not be expected to reduce the frequency of the types of behaviour prohibited by criminal law . 'If you always do what you have always done.....'

    The economic considerations that Walker mentions might usefully be summarised as 'what am I getting for my money?' 

    Three questions to ask when examining 'Prisons':

    1. What are we trying to achieve? 

    2.  If my son was locked up in here, would I be satisfied with the way he was treated? 

    3. If this was my Business, would I run it this way?



  • I am delighted to see the discussion engendered by my short piece. It's fascinating the way that discussions can go.

    Just a couple of points: firstly, the complainant only becomes a victim if the accused is found guilty. Processes to support all victims of crime are growing, but there is still a way to go, as the discussion implies.

    Secondly, on short sentences. The Howard League for Penal Reform published a report 'No Winners: the reality of short term sentences'' in 2011. You can see it on the web at: Just a few highlights:

    • Serving a number of short prison sentences may reduce the ability of prisoners to take responsibility
    and leads them to believe that reoffending and a return to prison are inevitable.
    •  The majority of prisoners reported the day-to-day reality of serving a short prison sentence to be boring, leading to disillusionment and demotivation.

    •  Some prisoners were keen to complete courses but most reported that they were not available. 
    Prisoners expressed frustration at this on the basis that they left prison the same as they were when
    they came in.
    •  Many staff were upset at the damaging impact that short prison sentences could have on prisoners’ lives, especially where men had lost their homes, their jobs and it had led to family breakdown.


    • Professor Crabbe

      Thank you for engaging. But honestly! To invoke a report (2011???) about prison sentences from the HLPR is like asking a roomful of Brexiteers to list all the benefits of EU membership. The HLPR (with a clue in its old title) had a long established and perfectly clear attitude to such matters  -  as you surely know. 

      And as for the content which you summarise.... well, of course, a prison sentence causes disruption in people's lives. So, with exactly the same impacts as you list, do long sentences (which you do not seem to oppose  -  but, given your logic, why not?).  

      Many individuals are given short sentences after they have accumulated a record of misdemeanours and have refused, whatever the support on offer, to correct their ways. Yes, rehabilitating prisoners is hard work for all concerned and made harder when HMG cuts the MoJ budget/staff by 25% across this decade (I am sure you will agree NAO is a better source of intel than the old HLPR). Of course, short sentences are likely to be less successful if support services are cut so heavily and I did find it odd that this was not the focus of your original article. 

      It is preposterous for any minister or academic to argue that short sentences per se increase crime. Nobody likes the very concept of prison but there is no criminal justice system in Europe which does not persist with some version of it. I cannot prove to you that the prospect of prison sentences of whatever length does deter the criminal instinct. But would you really recommend that we empty our prisons overnight (even of the violent and the vicious) in confident pursuit of a more peaceful and orderly society?   

      And as for your scholarly upbraid : "the complainant only becomes a victim if the accused is found guilty". Well, I am sure that that captious nicety makes everyone following this thread feel a whole lot better. 

      Crime levels are too high. No-one can argue that it is a very vexed endeavour to bring them down. We will certainly not do it by slashing away the resources the issue requires. Nor by being super-nice to everyone who persistently bad things to his/her fellow citizens. Nor by cheering completely misleading initiatives from HMG (eg the Gauke reforms).

  • Hello Mr Smyth

    Thanks for commenting.

    Crime has become banalised in the UK; it's just not the political controversy it should be; there are too many victims (violence, burglary, theft...). Amid this, the Crabbe/Walker language is both lofty and jejune. What does "economic considerations and humanity" mean exactly?

    The MOJ is seeing its budget cut across this decade by 25%; staffing is being reduced by similar levels. Successful ministers have been told to squeeze spend as hard as possible -  you may recall the Grayling charge for court appearances, the privatisation of probation services (now regarded as a policy fiasco), the decommissioning of local courts, cuts to legal aid.... The money to effect meaningful rehabilitation in our prisons (in relation to sentences short or long) is simply not in play  -  and of course short sentences lose some value in such conditions. But now Ministers (Gauke, Stewart) are turning round and saying that short sentences actually cause crime  - aka  cost-cutting wrapped in yesterday's Guardian. The deterioration to which they refer is directly of their own making and I would applaud any Minister who said out loud : under Austerity, we just cannot afford a full anti-crime programme. This would have the virtue of honesty.

    Imagine there is a man living in your street. Persistently he drives his daughter to school when he is drunk, already disqualified and without insurance. He has been arrested and penalised three times but he will not correct his behaviour. On (say) his fourth appearance in court would you be content to see him not sent to prison for 6 months (out after 3 on license)? He refuses all help with his alcohol problem and remains a danger to his community and his family. A short sentence may not permanently solve the problem but I wonder what else might satisfy you and your neighbours.

    If you are against short sentences in principle  -  then why not long ones too?And if you believe (really?) that there is no relationship between the incidence of imprisonment and levels of crime then why not shut all prisons as they have ipso facto no deterrent effect? 

    You say the status of victim is a "hot topic at the moment". Well, maybe in a Senior Common Room somewhere  -  but not on the streets, not in our newspapers and not in our politics. Now that is what I call criminal.


  • Dear Professor Crabbe,

    Forgive me if I say that every emphasis you make here is wrong. For a start, the Gauke reforms are no more than a Treasury attempt to reduce the costs of the MoJ  -  a department which has been busy losing 25% of its staff in this decade and a similar percentage of budget. We now have Austerity Justice in the UK and this should not be mistaken for a new and progressive attitude to prison reform. 

    Short sentences are a necessary element in the treatment of offenders (specially repeat offenders); they do have a deterrent effect; their existence and application does reassure the public. 

    Finally, crime is too high in the UK and too many vulnerable people are its victims. This is the primary issue here. I notice you do not address it at all.

    • Hello Mr Murphy, 

      I find your response to Prof. Crabbe's piece an interesting one. You will, I hope, forgive me if I do not share the slight cynicism of your first paragraph: whilst I don't think many would argue that the CJ system is well-funded, I am more willing to believe that Gauke's reforms do represent a [more] progressive attitude [than we have seen for many years, especially from the Conservatives]. Perhaps I'm being naïve! 

      More importantly, though, I'd like to take issue with your second statement, around the function of short sentences. I would be (genuinely!) interested to hear more as to why you feel them to be 'necessary'; and whether you can evidence the claim that they 'have a deterrent effect'. (I'm happy to concede immediately that it is, of course, very difficult to count crimes that didn't happen; but that rather strikes at the heart of the problem of talking deterrence at all...). My colours, for what it's worth, are nailed firmly to the mast of short (custodial) sentences being an utter waste of time and money: 63% of those sentenced to 12 months custody or less reoffend within one year of release; that figure is higher (admittedly, not by much) than the reoffending rate for those who serve sentences in the community (56%). [Ministry of Justice (2017) Criminal justice statistics quarterly June 2017, London: Ministry of Justice] Now, I think we can probably both agree that neither of those figures are a cause for tremendous optimism; but if, as you state, one's starting point is that 'crime is too high' (as a side-issue, I would be interested to know what would represent 'acceptable' levels of crime), then it follows that you agree with Nigel Walker that  'The reduction of prohibited conduct must be the main aim of any penal system'. By any metric, sending people to prison for short periods is failing so to do. Indeed, long term (comparative) research [National Audit Office (2012) Comparing International Criminal Justice Systems, London: National Audit Office]  has demonstrated that there is absolutely no link between the prison population and levels of crime. 

      The question that arises, then, is: if the above is true, why? Why are reoffending rates stubbornly high; what is going on in the minds of that 63% who find themselves reconvicted less than a year after leaving prison? Some will claim that it's because prison isn't nasty enough; it's not enough of a deterrent. I disagree profoundly (as you probably expected...). I simply do not believe that it is possible to force someone to comply with the societal norms against which they have offended through exacting ever-longer and ever-nastier punishments at one remove from that society of which we would like them to be a productive, law-abiding part. There is nothing wrong with saying that the reduction of prohibited conduct should be the aim of a CJ system; but the way we're attempting to do it at the moment simply isn't working, and I am hugely encouraged that Gauke et al. seem to be looking at constructive, productive ways of addressing that - ways which seek to balance the (often competing) priorities of amending the conduct of the offender, and ensuring that society (inc. the victim) feels that 'justice has been done'. 

      I hope this can be an interesting dialogue!


      P.S - The 'status' of the victim is something of a hot topic at the moment; and I think it's probably the case that within academic criminology, unless the victim is the object of study themselves, they are often sidelined (mirroring the way in which the state takes ownership of the victim's grievance in the CJ system: it is (usually) the Crown vs. the defendant, rather than the victim vs. the defendant). But I think your reminder of their presence is an important one.    

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