7th November 2025
The way we think about custodial sentences is what needs to change
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Today’s news is about prisons:
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Let us take a step back.
There is a serious addiction problem which blights our prison and punishment system.
The relevant addicts only make it worse for themselves and for everyone else.
And they never seem any nearer to breaking free from the cycles of despair and misery.
The addiction, of course, is that of our political and media classes to custodial sentences.
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There are long-term, medium-term and short-term problems with our prisons.
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The short-term problem is the general lack of funding, lack of direction and lack of thought about how to manage the prison estate. At the moment this general mess is breaking through into the national news because of mistaken prisoner releases.
But those mistaken releases – treated by many in media and politics as a gotcha against the government – are in merely obvious manifestations of the ongoing chaotic and dangerous conditions of our penal system.
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The medium-term problem, at least in England and Wales, is the structural craziness of having the prison system as part of the ministry of justice, a small department (also responsible for courts and probation) that has little or no political gravity in Whitehall.
The decision of the Blair government in 2005 to create a “holistic” (vomit) MoJ by taking prisons and probation out of the Home Office and lumping it with the former Lord Chancellor’s department has led to our prisons being inherently underfunded ever since.
The Blair government made many bad decisions, but this is one of less famous but far more consequential ones.
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The long-term problem is the fundamental assumption in our politics that the norm for punishment should be lengthy (and expensive) terms of imprisonment.
It is a fairly recent notion in historical terms, and only really came about in the early 1800s, after the general moral turn against corporal and capital punishments and the practical turn against transportation.
As I once put in a paragraph of which I am still proud:
“Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime. What fiendish scheme would this diabolic agent devise?
“The demon could suggest a system where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them; where the offender is taken away from any gainful employment and social support or family network; where the offender is put in places where drugs and brutality are rife; where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and where all this is done at extraordinary expense for the taxpayer.
“A system, in other words, very much like the prison system we now have in England and Wales, as well as in many other jurisdictions.”
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Perhaps one day, like slavery and witchcraft trials, sensible humane people will wonder why we ever did such a thing.
That is not to say there is a group for which detention is appropriate for public protections, and (notwithstanding the sentiments of some other liberals) there is a place for full-life tariffs for certain crimes.
But generally prison is a costly system for worsening the social problem of crime.
Other than a hundred-or-so prisoners with full-life tariffs, the assumption is that the prisoners will be one day released. It is just a way of delaying a problem.
Whatever the solution to crime, it is likely to involve punishments that do not snap and effectively extinguish social, community, family and employment ties – for it is those bonds which are more likely to bind people to more constructive pursuits and lead to meaningful rehabilitation.
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But our political and media class are addicted to the bidding war of ever-heavier sentences, and the criminal division of the court of appeal and the sentencing council are content to nod-along with the wants of the addicts.
Yet we cannot afford this addiction.
We simply do not have the capacity to go along with what is demanded.
And so we get news stories like the ones that are now breaking.
Breaking news about a broken system.
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Thanks for taking the time to share your thoughts.
This piece is very true – and very depressing.
There seems to be an inevitable ratchet effect by which more and more problems are defined as crimes, these crimes demand more and more punishment, and the punishment is more and longer prison sentences.
Looking across the Atlantic, it is easy to observe the influence of a ‘penal industrial complex’ which openly advocates for more imprisonment and then bids for the contract to supply the prisons. I don’t know if there’s an equivalent interest in the UK or if it’s entirely political (meaning media) based) but it certainly feels like it.
In the regulatory world, the ‘one in one out’ principle, by which every new regulation has to be balanced by one withdrawn or annulled, is often proposed. Maybe the criminal justice polity should apply a similar rule, so that every new crime or increase of the punishment ‘tariff’ should be balanced by the reduction in another tariff, with the objective of stabilising, and ultimately reducing, the required prison estate.
It will never happen, of course.
As a magistrate (and therefore under an anonymous moniker) I can only agree. Imposing a custodial sentence – or rather, immediate custody – within our sentencing powers really is a last resort, since prospects of any rehabilitative activity happening in prison within an effective term of, say, eight or twenty six weeks is very low.
I’d be interested to read an objective evaluation of the relative cost, and value for money, of real support in the community for offenders compared with the cost of detention.
But for as long as we conduct debate on these matters through soundbite, it will be difficult to see how change happens.
I was on a prison monitoring board for seven years and there’s a lot of truth in your commentary.
I would say, though, that there is some good work done inside with prisoners. A big issue is on release they have little or nothing to return to other than their old survival methods. It’s like taking a fish out of a stagnant pond, cleaning it up a little before putting it back where it came from.
Yes there’s an issue with prisons but if there were a more equitable society, other than the few extreme cases, would there be a need for imprisonment at all? But that’s probably another question.
Yes.
I can’t be alone in thinking that the current media frenzy about two release mistakes reveals more about the media than about the prison system when you consider that there were 860 or more mistaken releases of prisoners from 2010 onwards.
However the simple view that there are alternatives with far better outcomes for society is not hidden knowledge. There is a vast literature and understanding of what to do and how to do it to achieve much more socially useful results. One example below;
https://www.intechopen.com/chapters/1178111
But if changing the way ‘we’ do things depends not upon reason, sense and understanding coupled with empathy how is the change to be made from where we are now?
Apologies for commenting again, but this is a really important – and timely – topic.
There are, I think, traditionally three tasks for the penal system: protection of the public (including deterrence of future offenders); retribution for the crime; rehabilitation of the offender. Capital punishment, at one extreme, satisfies two of those tasks but totally fails at the third. Probation (or equivalent) may have some success at rehabilitation but limited protection and (virtually) no retribution.
There are no obvious answers, only avenues of approach. I, and perhaps many followers of this blog, would want to put a lot of emphasis on rehabilitation but even this can be dangerous. He isn’t fashionable now, but C S Lewis, in his novel ‘That Hideous Strength’ puts the ‘rehabilitation’ argument like this (quoting from distant memory) “If we use prisons as punishment we can only go so far because at some point the public will say ‘that’s enough’. But if we say we are reforming the criminal then we can keep him as long as we want to because we decide when the criminal is reformed!” I should perhaps add that the speaker is NOT a hero of the story!
A deeply wise blog post, one of your best. From your lips to the Government’s ears, if I can modify that old saying. Alas I feel these addicts haven’t reached rock bottom yet, and are too afraid of the Daily Mail and similar media shenanigans to take a pathway that would release this addiction.
More enlightened Drug Therapy within the community, with GPS tracking and banned areas for the length of a sentence is much more likely to produce personal improvement than prison for current wave of minor crimes than any period in prison.
If you also wanted to keep more punishment factor, there are lots of jobs currently not done in the community for economic reasons, such as inspection of the contents of bins to ensure they comply with local council rules. That would waste an evening of anyone’s paid time, but it may increase recycling efficiency and volume.
Is there a case for returning to small, local prisons for all but the most dangerous offenders, allowing inmates to stay in touch with their families and employers? (That and jailing feewer.)
Dusting off my fabled PhD in the Bleeding Obvious, before we get to Police, Prisons and Punishment what about a ‘Crime Reduction Plan?’
Some of us will remember the days when the car key was just that it opened any car, however action by Government and the Insurers have made cars much harder to steal.
It can be done so why isnt it being done?
Another angle on this is that as sentences increase, more of them become effectively “infinite” from the perspective of your potential criminal, and thus you lose any sense of punishment proportional to the offences you committed.
Realistically, any sentence over 30 years imprisonment is enough that I will not come out of prison in reasonable health; at best, I will be afflicted by the inevitable infirmities of age. As I get older, that number will reduce.
As a result of this, if I think that what I’m doing will result in 30 years imprisonment (or longer) should I get caught, then it’s rational for me to consider it worth doing anything that I think will reduce my chances of getting caught, even if that is a more serious crime.
This, in turn, implies that the increasing ratchet of sentences must hit a point where it stops deterring crime, and is likely to hit a point where a longer sentence ends up increasing total offences committed (but not number of offenders).
‘Might as well be hanged for a sheep as for a lamb’, in fact.
The mad, the bad and the sad. Which one is which?
Reports from a recent killing spree suggest the psychiatrists are under the gun definitely not to find anyone mad. Not on our budget thank you very much. Sane as a minister.
My limited exposure to Home Office staff reminded me of ‘you pretend to have a system and we’ll pretend to run it’.
UK incarceration rates are high and the figures point to a societal problem. Even more chaotically (dis)organised places tend to have even higher incarceration rates. So fix that for a start.
Slightly tongue in cheek, turn the punishment regime upside down. Perhaps if we asked ‘can this offender read and write?’. If not the local director of education goes off to chokey for six months. ‘Does this offender live with abusive parents?’. Off to prison for the director of social services. ‘Does this offender live in a cold damp rathole flat?’. Off to prison with the director of housing. And so on and so on. The cost my dears, the cost, and finding directors of this and that might be a problem unless you fix the funding. The cost my dears.
There was nothing wrong with the reform that created the Department of Justice. It brought democracy to the justice system, with direct accountability in the House of Commons. The problem was that funding didn’t follow the shift in responsibility.
The real problem is that we have far too many people in prison. Most do not need to be there. Yet politicians of the main parties, and the popular press, call for ever longer prison sentences. Any attempt to reform the system are soon crushed in the name of public opinion. Michael Howard, then Home Secretary, famously said “prison works”. He couldn’t have been more wrong.
“There was nothing wrong with the reform that created the Department of Justice.”
What was wrong with it is set out in the post above. You may think that there were advantages that outweighed the disadvantages, but to say there was “nothing” wrong is erroneous. By insisting there were no disadvantages whatsoever, you undermine what could have been an otherwise interesting comment.
David, you are correct. My comment was imprecise. I should have said there was nothing inherently wrong with the reform. I also said “The problem was that funding didn’t follow the shift in responsibility.” Clearly I accepted there was a problem with funding as a consequence. The prisons budget should have been transferred from the Home Office to the DOJ. That way the DOJ would have become larger and more consequential.
Bannon’s one fair point, that culture is upstream of politics, surely bears on the compulsion so many have towards what they conceive of as severe punishment, regardless of the evidence for its ineffectiveness compared with more ‘enlightened’ regimes.
When it comes to culture, although most of us liberal softies have, if they have any faith, a fairly kind kind of faith, the Church doesn’t have a great track record. Several hundred years of Church and state being closely intertwined and mutually legitimating can’t help but leave a mark on culture. For folk who genuinely believe that God inflicts eternal conscious torment on those who offend, or that sin can only be forgiven on the basis of someone suffering particularly brutal execution .. you can’t really be surprised that their instinctive attitude towards offenders is ‘severity’, which in a world where torture is thankfully outlawed, can only mean long prison sentences.
God deliver us from evangelical demons. Or, God failing, then rational, empirical reasoning. Not sure which it’s more futile to place your hope in.
In trying to understand the full intent, is the suggestion that the outcome might have been different under the Home Office, or that the poorly conceived reorganisation itself caused greater harm than would otherwise have been likely?
Tony Blair’s administration caused significant societal harm by establishing Indeterminate Sentences for Public Protection (IPPs).
IPP is a continuing injustice, and an example of how misguided criminal justice policies carry on causing harms for decades.
Fewer than 9,000 IPP sentences were passed in the five or so years they existed between 2007 and 2012.
While the Victims and Prisoners Act 2024 has made a difference, the last (and no doubt slightly outdated) figures I have seen suggested there were still around 1,000 people with IPPs in prison who had never been released, plus around 1,500 who had been released and recalled. That is, around a quarter to a third of those given IPP sentences are in prison between 13 and 18 years later. Many very significantly beyond the original “tariff” sentence – in effect, a “life” sentence for what were in many cases relatively minor crimes.
I recall that in the ’60s it was regarded as a truism that, regardless of the opinions of law-abiding citizens, criminals were more interested in the probability of getting caught than in the likely length of sentence if they were.