02 Nov 2017
Recent events, including the 2011 riots that shocked our civilised jurisdiction,  coupled with the infamous comments made by Judge Peters Bowers that a burglar was "courageous" for breaking into someoneâ€™s property and that prison is rarely an appropriate course of action to remedy the harm caused (commenting instead that it can have an adverse impact on the offender),  have worked to elevate the public and political discussion on prison population, penology, and sentencing.
Figures plot the current prison population at over 85,000  and estimates of potential further increases peaking at around 92,500 by 2017.  Equating this with a basic estimated figure that the cost per annum of keeping someone in prison is in the region of Â£40,000  is likely to cause concern. There is an evident economic argument which favours reducing the number of prisoners and further ensuring that future sentences only consider imprisonment where it is deemed necessary whilst keeping an eye on the public purse. Marrying this increase in the number of prisoners and the astronomical costs of imprisonment with the fact that the level of crime has been gradually decreasing is somewhat perplexing.  However, the reality of practice and the task of sentencing is not confined to simplistic and bold philosophies. The aim of reducing public expenditure, especially in a globally economic recession where austerity has been deemed the appropriate saviour of national economies, cannot be exercised in a vacuum with a total disregard to the social aims and purposes for which sentencing and imprisonment are deployed.
The aim of this essay is to examine and critique the potential reasoning behind the recent growth in prison population. The next section considers the reasons for a rising prison population. The essay first considers the judiciary: assessing the role of judicial discretion, the interpretation and effectiveness of sentencing guidelines, and the potential for introducing a binding set of sentencing rules on the judiciary. The essay further considers the impact of public and social perception and its adaption to the current economic climate alongside the conflicting utilitarian and retributivist theories. The essay also provides a critical evaluation of the various reforms to the UKâ€™s sentencing structure. The final section concludes.
The final call as to the punishment which an offender is to sustain, having been found guilty of the alleged crime, lies with the judge. Here, there remains an element of discretion that is afforded to the judge and it is this discretion which some claim can lead to an increased prison population. Indeed, a recent working example of such an increase may be seen in the riots cases where it was claimed that the imprisonments given to the guilty rioters were more than normally expected.  There exist two different schools of thought. On one end of the spectrum are those who are for judicial discretion and argue it is important for judges to be given this discretion for a number of reasons, including, inter alia, the ability to consider mitigating and special circumstances which may mean prison is not the most appropriate form of punishment.  On the other hand, the opposing school of thought believes judicial discretion leads, inter alia, to inconsistent punishment for like or similar crimes,  and increases the likelihood of judges being influenced by their own values and prejudices. 
Given the concerns raised in relation to judicial discretion and the inconsistent results that emerged, a number of sentencing guidelines have been introduced by numerous bodies in the hope of curbing the negative externalities of judicial discretion. Starting with the Sentencing Advisory Panel, followed by the Sentencing Guidelines Council, and duly replaced, by virtue of the Coronersâ€™ and Justice Act 2009,  by the Sentencing Council, these guidelines have been issued in the hope of advising the judiciary on the sentencing of crimes including burglary, racially aggravated crime, and causing death by dangerous driving.
The question answer in relation to such guidelines is whether they are effective in curbing the excessive use of imprisonment as a form of punishment. To this end, there was a statutory requirement under the Criminal Justice Act 2003  that the courts must "have regard" to the sentencing guidelines.  This has been replaced with the seemingly more binding CJA 2009; which, under S.125 states that courts "must follow" such guidelines. Judicial interpretation of such guidelines has not always mirrored the philosophy of the statutes. Indeed Judge LJ  commented that crimes are committed under different circumstances, with unique victims and defendants, and the sentencing guidelines "are guidelines, no more, no less".  Research conducted into the judicial treatment of such guidelines also suggests the courts do not feel bound by them. It is shown that Magistratesâ€™ Courts, for example, are not following the guidelines in an appropriate manner which has in the past led to imprisonment of shoplifters who should have been given lesser punishments whilst more deserving offenders, such as serial burglars, have not been imprisoned â€“ detracting from uniformity and certainty.  This statement is rendered all the more concerning when one learns of the cold, but true, analysis that in certain circumstances the cost of imprisonment can grossly exceed the benefits of preventing the crime.  Research in this area has also shown that where offences are â€˜borderlineâ€™, and allow for both custodial and community sentences, sentencers will often look beyond the nature and severity of the case and focus on the characteristics of the offender â€“ often leading to imprisonment for minor offences as a consequence of judges employing their own prejudices to a sentencing decision.  On a similar note, certain commentators have also noted that courts also take note of the characteristics of the victim and the impact of the crime upon the subject victim when it comes to sentencing an offender, clearly outside the guidelines and a contributing factor to increased imprisonment and lack of uniformity. 
Considering the failure of the guidelines to achieve uniformity in the matter, there have been calls for implementing a mechanism that would encourage judicial adherence  â€“ this could possibly be guised as a binding guidelines. The main advantage of having a binding set of guidelines comes in the guise of certainty along with the ability for the control of the prison population numbers by the legislature, shifting control of both matters away from the sole jurisdiction of the judiciary.  However, an attempt to secure certainty in this manner, in the hope of controlling the rising prison population which is partly attributed the judicial discretion, may be problematic. The path of problems being with a lack of discretion afforded to the judiciary would mean relevant mitigating factors that may be unique to a particular fact situation will not receive their deserved attention and respect; this in turn may lead to increased plea bargaining â€“ where the offender agrees to plead guilty in return for a reduced punishment, sometimes agreed between prosecutors and defendants â€“ which would have the potential effect of increasing the prison population as opposed to decreasing it â€“ a situation that Jacobson et al outline in the US as a result of sentencing guidelines with little scope for judicial manoeuvre. 
Easton and Piper provide a historical timeline of social attitudes that fuelled various reforms of penal policy. One striking finding relates to the years between 1982-1990 where, the duo describe, a downturn in the economic climate led to a level of dissatisfaction with previous social welfare answers to punishment which were aimed at addressing concerns of a perceived growth of an "underclass", inherent with this dissatisfaction was a preference for notions such as "increased offender culpability", "individual responsibility" and "legal justice".  Given the current economic context, where unemployment and austerity continue to rise, one is led to believe that this link between economic climate and penology may have recurred in the context of the 2011 riots where commercial premises came under attack by what was again coined as a "social underclass"  - research shows these riots led to a substantial shift from social welfare towards greater punitive measures and a utilitarian approach.  Previous research has shown, however, that it is difficult to research and understand the chemistry between public perception and the influence it is capable of having on the mind of a judge when handing down a sentence. 
Retributivists may well find this approach difficult to handle. According to the theory of retributive justice, the punishment received by offenders should be proportionate to the offence committed.  This was expressed by the Lord Chief Justice in Attorney-General's Reference No 55 of 2008  , referring to the punishment of imprisonment for the protection of the public as being a "draconian" measure that should only be implemented in cases where other measures, for example community punishments, would not serve to punish appropriately and achieve the level of required protection.  However, there remains a problem in that discretion is still left in the hands of the judges in relation to deciding where the line is to be drawn between cases which are serious enough to require imprisonment and where a more appropriate punishment could be derived through community orders. 
To this end, it could be argued that the punishments handed down to the aforementioned rioters, and calls for more punitive measures marks out the rise of and desire for utilitarianism. Bentham, one of the god fathers of the utilitarian theory, argued that "the greatest happiness of the greatest number of people [â€¦] is the measure of right and wrongâ€¦".  In more detail, the theory encompasses several aims, including the deterrence of offences, the protection of the public by incapacitating the offender, and rehabilitation.  As an aside, it is appropriate to state that discretion exercised by the judiciary in relation to sentencing, and the consequential geographical differences in sentences experienced for similar crimes can reduce the effectiveness of general deterrence whereby punishment is used as an attempt to advise the wider society of the penal reprisals for following in the footsteps of the punished. 
The downfalls of judicial discretion aside, one is inclined to question whether the final decision of imprisonment and the impact of imprisonment is an effective deterrence mechanism given the quoted ever-rising prison population. The premise of the deterrence relies upon an assumption that criminals, or potential criminals present within society, are "rational actors" who will be able to weigh up the costs and benefits of committing a particular crime and decide if the risk of punishment is outweighed by the potential rewards that could be reaped through committing.  Barnes criticises the law and economics theory for making this assumption, claiming instead that not only are the majority criminals rarely "rational actors" but also that they often do not possess the requisite information enabling them to accurately weigh the costs of potential punishment against the valuation of the benefit of the crime  - and, at the risk of repeating previous stipulations,  this is exasperated by the lack of uniform decisions for like crimes. The effectiveness of incapacitation is also doubted. There are questions of how effective it can be where offenders are comingled with other, like-minded, offenders â€“ this could potentially increase the likelihood of future crime being committed and be dubbed the charter for an increased prison population.  Whilst the motives of the foundations of key pillars of utilitarianism may be well-placed in theory, their application within penal policy and the practicalities of prison may neglect to consider the common psychological trends present in many offenders through which prison may only cause/encourage them to reoffend.
Returning to consult Easton and Piperâ€™s timeline of penal reform, it is shown that a plethora of other forms of punishment were introduced in the 1990s and 2000s,  - most notably in the form of non-custodial sentences, such as community orders, compensation, and fines - straying away from the harsh realities of imprisonment. However, simply widening of the range of punishments available, by way of introducing non-custodial sentences, did little to encourage courts to favour these new penal tools over the traditional custodial sentences  even though research suggests lower re-conviction rates when compared to custodial sentences.  The main obstacles to effectively using the reportedly more advantageous non-custodial sentences are the lack of resources available to be deployed and public confidence that justice is being served by such sentences.  However, given the Â£40,000 average cost of imprisonment discussed earlier, one wonders how strong the lack of resources argument is in relation to lesser offences and whether this astronomical amounts would be better used if channelled to non-custodial sentences.
The final reason for rising prison populations to be considered is the imposition of tougher sentencing through statutory intervention. The CJA 2003 is just one of many legislative attempts to alter penal policy through introducing mandatory minimum prison sentences for certain crimes. Theoretically, mandatory prison sentences are deemed to be dangerous as they stop discretion where deserving mitigating circumstances should be considered, thus not guilty pleas are more likely to be deemed attractive and this will lead to an increased workload for the judicial system.  However, as noted by Ashworth and Zyl Smit, there are concerns that such a mandatory sentencing regime could be deemed grossly disproportionate and a breach of an offenderâ€™s human rights.  The duoâ€™s research offers some comfort, in the guise of the judicial interpretation and application of mandatory sentences and â€˜exceptional circumstancesâ€™ for derogation, to those concerned with the human rights of offenders; the Courts, notably the Court of Appeal in the case of Offen (No. 2)  where it was held a mandatory sentence in this case would have been grossly disproportionate and need not be applied if the court was sufficiently satisfied that the offender did not pose an unacceptable risk to the public, will derogate. 
It is noted that the increased prison population is a problem when considered from certain perspectives. Indeed prison may not be the answer to deterring certain crimes and the economic arguments estimating colossal figures demonstrate the downside of imprisonment. This essay has shown that no one single factor can be attributed to the rise in prison population. From a practice perspective, we have seen that discretion afforded to judges can lead to disparities where certain judges will over-sentence whilst other will under-sentence. This by itself cannot stand as an argument to abolish any judicial discretion as this will undermine the constitution and could potentially cause the harm which it seeks to remedy by over-sentencing where judges will otherwise have taken mitigating and special factors into consideration. Judicial discretion is influenced and coupled by penal policy shaped by the contextual situation at any given time. Indeed such contextual situations will give rise to political debate and bargaining as to how the electorate would be best pleased by a punishment system. The 2011 riots illustrate how the economic downturn, coupled with this perceived mindless violence against commercial entities increased the desire for stronger punitive punishment for offenders. Tools for reducing the prison population, most notably by way of greater use of non-custodial sentencing, exist; and it is argued greater population reduction would occur if resources were channelled here as opposed to prison.
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