Do we need a new custody alternative?

Work with Offenders looks at a new report from the Centre for Social Justice

Over the weekend the Centre for Social Justice (a Think Tank created by Iain Duncan Smith in 2004) published a controversial new report. “Sentencing in the Dock: The case for a new sentence in the criminal courts of England and Wales”. The report calls for a radical new custodial sentence which would be served in the community, using electronic tagging to essentially put offenders under house arrest with lengthy curfew periods considered to be the norm.

The CSJ calls this proposed new sentence an “Intensive Control and Rehabilitation Order” (ICRO) and says that it would be aimed at individuals who would otherwise serve a sentence of immediate custody. The Think Tank’s graphic reproduced below shows this intention:

The purpose of the new sentence is to combine strict punishment and restriction of liberty while at the same time allowing someone to continue to live at home, maintain their accommodation and family relationships and either keep their job or participate in intensive rehabilitation via community services such as drug and alcohol treatment. The CSJ is proposing close judicial oversight in the form of periodic court reviews, in the form of a problem-solving court, which would be expected to monitor progress and make any changes to the conditions of the order as the sentence progresses.

The CSJ envisages the ICRO as a direct alternative to custody and says that the sentence would include judges or magistrates passing both an operational time period (how long the ICRO would run for) and a custodial period which is the period of time the defendant would serve in the conventional prison estate if the order is breached. The proposed operational period is between six months and three years.

The Think Tank suggests that anyone who breaches the tagging and curfew conditions (described as a primary condition of the order) would usually be sent to prison for the full length of time stipulated by the original sentencer. There would be more discretion allowed for anyone breaching the secondary conditions – those stipulating the rehabilitative activities which people sentenced to an ICRO are required to undertake.

There are a number of potential difficulties with this sentence, many of which the CSJ seeks to anticipate in its report.

The first of these is the very real potential for “net-widening”. In other words, history tells us that most sentences developed as alternatives to custody become, to a greater or less extent, alternatives to alternatives. In this case it seems likely that many people who would have received a suspended sentence or a community sentence with a drug, alcohol and/or mental health treatment requirement would receive an ICRO instead. Given the very strict and comprehensive range of conditions imposed on a standard ICRO, it seems probable that breach rates would be high and many would indeed be sent to prison, quite possibly for longer periods of time.

Other concerns are the practicality of imposing the sentence on the large number of people targeted by the sentence who do not have their own housing. There would also be a significant impact on family members of having someone in their household subject to such stringent conditions and basically required to be in the home at all times. This is of particular concern for those offenders with a history of (particularly domestic) violence and abuse.

The other primary challenge which faces all such proposed new initiatives in 2020 is that even if the sentence did reduce the number of people in custody and, eventually, reduce the huge costs of imprisonment, in the short term the sentence would require very significant investment. Not only would the probation service need more staff and resources to monitor more complex cases subject to such a complicated order, but there would need to be more community treatment resources than are currently available to enable people on the order to engage in the type of intensive interventions envisaged for the target cohort. Funding for drug and alcohol treatment has been cut by more than half in many areas in England and Wales over the last five years.

While the rationale for the proposed new sentence is robust – tackling reoffending in the community is proven to be more effective than interventions in custody – and the advantages in terms of retaining community ties and parenting responsibilities are clear, it is hard to see the current government finding the level of financial investment required.