The Punishment Paradox

Recent experience both in Northern Ireland and Scotland suggests that as far as less serious crime is concerned this is not just incorrect, but the wrong way around. That is why so many within the Justice system want to reduce and in some cases eliminate altogether prison sentences of less than 12 months.

If we want to reduce crime and make our communities safer it is important to understand the punishment paradox, examine the evidence for it, challenge the misunderstandings and act upon it.

It is certainly a significant challenge. In 2015 88% of prison sentences handed down by Northern Ireland courts were for 12 months or less. Yet re-offending rates for those on short term sentences is more than 50%. 

The Lord Chief Justice therefore asked the Probation Service of Northern Ireland to develop a demanding community sentence as an alternative.

The reason why people on short sentences are so likely to re-offend is simply that they do not provide enough time to address behaviours that lead them to commit offenders. So rather than a place for rehabilitation prison becomes a finishing school for criminals.

In response the PBNI developed the Enhanced Combination Order (ECO). A pilot in Ards and Armagh and South Down court divisions is now complete and outcomes so positive that it is to be continued and rolled out in other areas. Re-offending of those taking part reduced from 57% in the six months prior to sentencing to 17.3% afterwards. It saved money too – the cost per offender is £9,000 per annum, as opposed to £57,643 in prison. On top of that 124 participants took part in  community work to the value of £87,000 based on the minimum wage.

ECOs are a comprehensive programme which combines unpaid work within communities with intensive work with the Probation Service to address their offending. In addition there is further support if needed on potential problems such as mental health issues, parenting skills.

One really important element is to involve offenders in restorative justice programmes, ideally involving the victims of their crimes. Restorative justice involves bringing together victims and perpetrators. This typically involves victims being able to tell offenders the consequences of their offence and offenders taking responsibility, apologising and making amends, typically through unpaid work in the community. The programme was designed to give victims a say in what that work should be.

This aspect is crucial for victims and does help to build confidence in the process. However involving victims was one area where PBNI struggled. Only a handful came forward to participate. Evidence suggests that this was not because of misgivings about the process but a lack of awareness of the programme itself. Therefore considerable work will be required in future to ensure that victims know about the scheme and use it.

ECOs have reduced short prison sentences in the pilot areas by 10%. They are therefore making a difference but is it enough?

The issue has not caused any controversy here but it is proving highly contentious in Scotland. Since 2010 it has had a presumption against sentences of less than three months. Three years ago its Chief Inspector of Prisons called for the presumption to be increased to 12 months. The SNP government launched a consultation in response to his demand but has yet to publish the result, despite being supportive of it.

This may be linked to the staunch opposition of the resurgent Scottish Conservatives who have described the proposal as ludicrous and "could mean hundreds of people convicted of crimes like housebreaking, handling offensive weapons and common assault walking free".

And here we get to the nub of the problem. The idea that people who are not imprisoned are walking free is false. Yet there is a strongly-held view that punishment that falls short of prison is not punishment at all, even when it can be proven that prison does not work. Yet fears of a populist backlash are inhibiting necessary reform.

This is the punishment paradox. And resolving it is not simple. Penology is a complex topic, fraught with problems. This is because of the many different reasons for which we punish people, some of which can be mutually exclusive in practice: to deter others, to rehabilitate, to protect the public, to prevent acts of revenge and other actions outside the law, to express society’s disapproval of the crime and to make offenders suffer for their wrong-doing.  

Prevention of re-offending, rehabilitation, therefore is not the only purpose of the justice system. Take one example, the most serious crime of all, murder. According to the Office of National Statistics 44% of all female murder victims were killed by a partner ex-partner. We have to assume that the vast majority of these are one-off crimes and will not be repeated. But that is absolutely not an argument for not imposing life sentences.

In Northern Ireland there is no proposal for abolishing short sentences outright, but a shared understanding amongst the authorities that they are ineffectual in reducing crime. The pilot project saw a 10% reduction in short prison sentences. This is a small but significant step.

Perhaps in the present climate it is the most sensible way to go: rolling out the pilot elsewhere, gradually reducing the use of prison as more positive evaluations flow in, and most important of all ensuring that the victims know about the programme and participate in it. Building confidence in doing the right thing is more important than going too fast too soon.