(p. 162) 8. Community sentences
The aim of this chapter is to discuss the policy and practice of community sentences as alternatives to custody. The term ‘community sentences’ can—potentially—cover all court sentences apart from custody; all other sentences are served in the community. But while such an inclusive application of the term has its uses, it can also be confusing as community sentences can also be seen as only those sentences run by the probation service (this chapter does not deal with the youth justice system which is covered in Chapter 11 of this volume). Even this delimited use of the term, however, does not lead to clarity: in the first place, the number of disposals run by the probation service has changed over the years, so that community sentences would mean one thing in 1970, another in 1992, and something else again in 2008; and second, for at least 50 years, agencies and organisations other than probation have had a role in the provision of community sentences—the police and attendance centres being one early example, with the most recent significant case being the operation and organisation of electronic monitoring by private companies.
It is important to emphasise immediately that community sentences are more than just alternatives to custody; they are sentences in their own right. But the alternatives to custody debate has been a dominant theme in criminology and in criminal justice policy for at least 40 years and looks set to continue.
In the next section the precise focus of the chapter will be defined: some general definitional issues about what constitutes community sentences will be explored, as will the implications of the concept of alternatives to custody—on the surface, a fairly simple idea but one which is, in fact, rather complicated. The main body of the chapter is divided into three parts. The first provides a brief overview of the history of community sentences as alternatives to custody. The second examines the more significant pieces of research on this topic. The third explores the current situation with regard to community sentences and alternatives to custody, drawing on the most up-to-date research available, and also discusses the political environment in which the probation service finds itself. In the concluding section, the key issues around the topic will be summarised.
For the purposes of this chapter, community sentences will be defined as those court disposals that are—or have been—run by the probation service, as well as senior attendance centres (for the most part, run by the police) and curfew orders (run by the private companies that have been awarded contracts). All of these sentences, to a greater or lesser degree, involve the direct supervision of offenders aged 17 and older. Some are more likely to be used (or to have been used) as alternatives to custody than others, and over the years they have included:
• The probation order (renamed the community rehabilitation order under the Criminal Justice and Court Services Act 2000);
(p. 163) • The attendance centre order;
• The community service order (renamed the community punishment order following the 2000 Act);
• The combination order (renamed the community punishment and rehabilitation order under the 2000 Act);
• The curfew order;
• The drug treatment and testing order;
• The community order; and
• The suspended sentence order (legally a custodial sentence but, if all goes well, it is served in the community).
Thus, we will not examine here such sentences as the fine or the conditional discharge. It is unlikely that either of these sentences would be used as a direct alternative to a sentence of imprisonment, although if a general recalibration or de-escalation of the tariff were to occur, then they would operate as indirect alternatives to custody; so that as some offenders were shifted down-tariff from custody to community sentences a similar movement would occur from community sentences to fines and discharges (see Mair 2004).
As noted earlier, the idea of a sentence acting as an alternative to custody may not sound particularly problematic, but it carries with it a number of implications that need to be borne in mind when using the concept. Referring to a sentence as an alternative to custody—defining it in relation to something more important—immediately confines that sentence to the margins. It is difficult to have an identity in its own right if it acts only or primarily as an alternative to something else. Custody is thereby privileged; if a community sentence is an alternative to custody the clear implication is that custody is more important, it is custody that really counts. Second, because of the very obvious gulf between even the most rigorous and demanding community sentence and a sentence of imprisonment, it is difficult for a government officially to declare a community sentence as an alternative to custody. This would be seen as suggesting that dangerous offenders who should be in prison can be dealt with in the community—not a good move for any government, least of all at the present time when crime and fear of crime are such important policy issues. Third, the likelihood of custody is increased for an offender if, having served what is considered to be an alternative to a custodial sentence, there is a further reconviction. Fourth, efforts to toughen up community sentences in order to try to make them more demanding and—by implication—more like a custodial sentence and therefore a more realistic alternative to custody, have to face several immediate problems: the alternatives may become so demanding that offenders prefer custody; they may lead to offenders failing to meet their demands and thus ending up in prison as a result of breach proceedings; and they may lead to a blurring of the boundaries between custodial and community sentences, an important phenomenon that has been developing since the end of the Second World War.
Such blurring of boundaries can be seen with various developments in the second half of the twentieth century. For example, with the introduction of the attendance centre in the Criminal Justice Act 1948 (Mair 1991); in the concept of parole (whereby prisoners are released early and subject to probation supervision) and in the original suspended sentence, both introduced as part of the Criminal Justice Act 1967; and with the curfew order—marketed partly as offering the idea of home imprisonment—which was introduced by the Criminal Justice Act 1991. There is, therefore, a considerable history to a greater overlap between sentences of imprisonment and community sentences long before proposals about (p. 164) a ‘seamless sentence’ appeared in the Halliday report (Home Office, 2001a) and the suspended sentence order was introduced by the Criminal Justice Act 2003 (see below). While blurring the boundaries between custody and community could lead to offenders avoiding imprisonment, it is also likely to lead to tougher community sentences and an overall more punitive sentencing climate.
It is also important to emphasise that there are a variety of reasons for using alternatives to custody, and it is necessary to try to tease out which of these may apply in any given situation. Alternatives to custody may be used for humanitarian reasons—prison is considered to be a cruel and degrading punishment and this is reason enough to use an alternative to custody whenever possible. Secondly for cost reasons—prison is an expensive commodity and the cost of a custodial sentence is considerably more than a community sentence and this may be a good enough reason to use the latter. Thirdly, alternatives to custody may be used for reasons of effectiveness—prison may be adjudged to be a less effective sentence than a community sentence. Finally, prison overcrowding may result in the use of alternatives to custody—if prisons are bursting at the seams with prisoners (as they currently are), then this may be justification enough for resorting to alternatives to custody.
Given that it is difficult for a government to acknowledge openly that a policy of using alternatives to custody is under way, it may not be easy to pin down the reasons for such a policy. More often than not, more than one of the above reasons will be involved, and there may be a disjunction between the official reasons offered and more unofficial reasons. More than 20 years ago Michael Tonry (1990) argued that Intensive Supervision Programmes (ISP) in the USA, which were intended to provide alternatives to custody, had both stated and latent goals. The former were to reduce prison overcrowding, cut costs, and reduce reoffending, while the latter were to improve the credibility of probation, to make it more publicly visible, win public acknowledgement for its professionalism, and align it more closely with the popular politics of law and order. Tonry argued that while ISP was failing to meet its stated goals, it was meeting the latent ones and these were more significant.
In general, the direction of policy (and it would be an exaggeration to refer to it as a strategy) has been to introduce more community sentences, to make them more rigorous and demanding, and to move towards central control of them—all of which are designed to make community sentences more attractive to sentencers and to encourage their use.
It is worth noting that the organisational framework for the probation service has undergone radical changes in the past few years, with more in prospect. Prior to 2001, probation services had a fair degree of independence, but the introduction of the National Probation Service (NPS) in that year curtailed autonomy. In 2004, the National Offender Management Service (NOMS), comprising both the prison and the probation service, was introduced alongside an Offender Management Model which provided a framework for the management of offenders (NOMS, 2006). This framework split the supervision of offenders between offender managers who oversaw the supervision process as a whole and became case managers, and practitioners who actually worked with offenders. The potential for poor liaison and communication between the two is obvious, and while research suggested that the Model was welcomed in principle, clear practical problems were noted—particularly with regard to resourcing (Turley et al., 2011). The Coalition Government has moved to return some discretion to probation officers by relaxing National Standards, and it has also made it clear that the Trusts which now run local services will also have more freedom to manoeuvre and deliver services in what they believe to be the most appropriate way. This, however, is only likely to make parts of probation work more tempting to private sector involvement. The Coalition Government has clearly stated their intention to put many services currently run by the Probation Service out to tender thereby inviting private and voluntary sector agencies to participate in the (p. 165) provision of what have until now been the sole preserve of state agencies. Probation Trusts, as they are now known, will be required to commission probation services from a range of providers. They will also be permitted to compete to run services themselves but this is likely to require Trusts to set up separate organisations (Ministry of Justice, 2012a). As a result, the delivery of probation services in future may be very fragmented indeed, with the probation service reduced to a marginal role assessing risk, preparing court reports, dealing with breaches and supervising high risk offenders which private or voluntary sector organisations will not wish to deal with. The implications for diverting offenders from custody as an objective of community sentences are serious.
A brief history of alternatives to custody
While moves towards the development of alternatives to custody can be traced back to the first half of the nineteenth century (see Mair, 1991; Mair and Burke, 2012; Morrison, 1896; Russell and Rigby, 1906), for the purposes of this chapter we will begin with the 1948 Criminal Justice Act which introduced attendance centres. The centres rarely seem to have acted as an alternative to custody, but they do represent the first of the post-war efforts to find a sentence that could be used in such a way (Mair, 1991).
Probably the key driver for the development of alternatives to custody has been the prison population. Although the numbers are not comparable to those of today, the prison population began to increase considerably during the post-war period: between 1946 and 1955 it grew by 33 per cent (from 15,789 in 1946 to 21,134 in 1955) and by a further 28 per cent by 1960 (Rutherford, 1984). Policy-makers were particularly concerned by the number of 17–20 year olds being imprisoned and as a result the Advisory Council on the Treatment of Offenders (ACTO) was asked to inquire into the matter. The resulting report Alternatives to Short Terms of Imprisonment (ACTO, 1957) advocated setting up an attendance centre on an experimental basis for 17–20 year olds. The first such centre opened in Manchester in December 1958. It also led to the First Offenders Act 1958 which extended to adults a provision in the Criminal Justice Act 1948 that restricted the use of imprisonment for young offenders.
During the 1960s the prison population began to rise from 27,000 in 1960 to 39,000 in 1970, an increase of 44 per cent (Rutherford, 1984), and it is notable that Roy Jenkins, the then Home Secretary, when introducing the second reading of the Criminal Justice Bill 1966 to the House of Commons, stated that ‘The main range of the penal provisions of the Bill revolves around the single theme, that of keeping out of prison those who need not be there’ (738 H.C.Deb., 5s col 64, 12 December 1966). The Criminal Justice Act 1967 introduced two major provisions—parole (intended to get prisoners out of prison earlier) and the suspended sentence (intended to act as an alternative to custody). The Wootton Committee (ACPS, 1970), which proposed the introduction of community service for offenders noted that it was not easy to come up with satisfactory alternatives to custody: ‘…sentencers who were impressed with the futility of committing any offender to prison in many cases were generally baffled by the difficulties of devising any satisfactory alternative’ (ACPS, 1970: 3). The Criminal Justice Act 1972 introduced community service orders, probation and bail hostels for adults, day training centres (p. 166) and deferment of sentence—all intended to act as alternatives to custody. Community service (which became community punishment in 2001 and is now the unpaid work/community payback requirement of the community order) has often been seen as the archetypal alternative to custody, but many commentators (e.g. Pease and McWilliams, 1980; Young, 1979) have noted a lack of clarity about its role as a sentence—a confusion that began with the Wootton Committee report itself (see Mair and Canton, 2007).
Hostels and day training centres both represent a significant development of the probation order: adding requirements to the basic order to toughen it up, partly—and in the case of day training centres (DTCs) wholly—to make the sentence more attractive as an alternative to custody. Only four DTCs were ever set up but Vanstone and Raynor (1981) emphasise their importance as alternatives to custody. In the 1980s they mutated into probation day centres (see below). This rather ad hoc and pragmatic development of alternatives to custody was given a penological rationale of sorts in the mid-70s with the publication of Martinson’s controversial ‘What Works’ article (1974) in the USA, and the results of two Home Office studies published in 1976 (Brody 1976; Folkard et al., 1976). Widely assumed to show that rehabilitation was not effective, these studies—along with the national availability of community service—led to a change of mission for probation and community service. Now they were seen to be offering alternatives to custody. As the prison population rose through the 1970s and 1980s this was accepted as a perfectly viable aim.
The Criminal Justice Act 1982 introduced two more conditions that could be added to a probation order; a requirement to participate or refrain from participating in specified activities and a requirement to attend a day centre (both of which were for a maximum of 60 days). Day centres in particular grew rapidly and in 1985 it was estimated that there were more than 80 in England and Wales. They quickly became seen as the alternative to custody and for the second half of the decade one might be forgiven for thinking that they were the only part of probation that counted given the amount of research that examined their role (see, for example, Mair, 1988; Raynor, 1988; Vass and Weston, 1990). But probation officers were not all happy with the idea of providing alternatives to custody; they did not wish to be seen as ‘screws on wheels’. By this time, too, arguments about net-widening were becoming commonplace and thus naïve ideas about community sentences as alternatives to custody began to be questioned (see the next section).
The Criminal Justice Act 1991 called a halt to the idea of alternatives to custody by introducing a just deserts framework for sentencing which required that community sentences be seen as sentences in their own right. But the Act also introduced two new sentences that it was difficult to see as anything other than alternatives to custody: the combination order which—as its name suggests—combined probation supervision with community service; and the curfew order with electronic monitoring which could mean an offender having to stay at an address (usually his/her home) for up to 12 hours a day for up to six months. Both of these sentences could easily be seen as high-level alternatives to custody, and in addition more conditions were introduced that could be added to probation orders or combination orders thereby increasing their rigour. By this time, given the number of community sentences that were available as ‘alternatives to custody’, it could be claimed that the currency had been cheapened. Figure 8.1 provides a timeline for the development of community sentences in the twentieth century. (p. 167)
During the 1990s the prison population continued to grow: it increased by 42 per cent between 1992 and 1998 from 45,800 to 65,000 (Home Office 2003). And the Crime and Disorder Act 1998 introduced yet another potential alternative to custody with the drug treatment and testing order (DTTO). Alongside these developments a series of measures (p. 168) were underway to improve probations’ economy, efficiency, and effectiveness: the introduction of Performance Indicators in 1988; the introduction of National Standards in 1989 (for community service, followed by a full set in 1992); the introduction of cash limits on probation funding in 1992; the introduction of a national, actuarial risk assessment scale in 1996 (OGRS—the Offender Group Reconviction Scale); the introduction of a new training scheme in 1998 after a two-year gap when the old training scheme had been scrapped; the publication of Probation Circular 35/1998 heralding the effective Practice Initiative (Home Office, 1998); and the establishment of the Joint Prison/Probation Services Accreditation Panel (now the Correctional Services Accreditation Panel) in 1999. These initiatives culminated with the creation of the National Probation Service in 2001 which replaced the old, separate, local services.
All of these developments made the probation service generally more accountable and consistent, and thus led to community sentences being more rigorous. It was hoped that this would increase the confidence of sentencers in community sentences and, therefore, encourage their use for more serious offenders who might receive a custodial sentence.
During the first few years of the present century, the pace—if anything—quickened. The prison population continued to grow. The Labour government’s response—besides building more prisons (which is costly, time-consuming, and exacerbates the problem) was to toughen sentencing by pushing community sentences ever closer to custody and a variety of reports made the case for this: the consultation document Criminal Justice: the way ahead (Home Office, 2001b); the Halliday report Making Punishments Work (2001a) which advocated the ‘seamless sentence’; the White Paper Justice for All (Home Office, 2002); the Carter report Managing Offenders, Reducing Crime (Carter 2003); and the government response Reducing Crime—Changing Lives (Home Office, 2004). There has even been a major independent review of alternatives (Coulsfield, 2004) which, to its credit, took a much more balanced and holistic approach than government did.
The end result of all this activity has been the National Offender Management Service (NOMS), the community order and the suspended sentence order each of which will be discussed in more detail below. How far all of the initiatives discussed so far have impacted upon the prison population is the question to which we now turn.
Research into alternatives to custody
The major difficulty in researching the effectiveness of alternatives to custody is that there is no simple and accurate way of estimating how many offenders are sentenced to a community penalty as a direct alternative to imprisonment. Sentencers do not announce when passing sentence that an individual has received her/his sentence as an alternative to custody, and even if they did so, this could be to impress offenders with the seriousness (p. 169) of the case and to deter them from further offending, but there was no intention of using custody. Thus, research has to fall back on other ways of trying to estimate the effectiveness of alternatives to custody.
One could look at the use of custody over time and compare it with the use of the alternative(s). If the former decreases while the latter increases, then a case could be made for the alternative acting as an alternative to custody. But there are limitations to this approach, the most significant of which is that there may be no causal relationship whatsoever between the two variables. One might examine the characteristics of those given an alternative to custody and compare these with a group sentenced to imprisonment. But it is very difficult to take account of all the factors that might affect the sentencing decision; offence, age, gender, previous criminal record are relatively easy to collect but employment status, drug use, the details surrounding the offence, mitigating and aggravating circumstances, the defendant’s attitude are all much more problematic to get hold of. One might study pre-sentence reports that propose the alternative and examine the sentence that is passed when the proposal is not followed. This is time-consuming, would only be possible for small numbers and would still be no guarantee that the sentence in question was being used as an alternative to custody.
The problems are demonstrated in one of the first studies of a community sentence that was aimed at providing an alternative to custody. Ken Pease and his colleagues used four different approaches to estimate how often the community service order was being used in place of custody (for details see Pease et al., 1977). The conclusion reached from these four methods was that between 45–50 per cent of those who were sentenced to community service were diverted from custody. And this proportion was found in other studies of alternatives (e.g. McIvor, 1992 for community service; Mair, 1988 for day centres), so that it became something of a truism that alternatives to custody only act as such for at best half of those sentenced to them.
This finding raised the question of where did the other half of those who were being sentenced to alternatives come from? And the answer was that they are offenders who would not have been sentenced to custody and therefore had been pulled up-tariff to a more severe sentence than they would have received if the alternative had not existed. The implications of such a phenomenon are considerable, not just for offenders, but for the process of justice as a whole. Perhaps the key thinker with regard to this issue and the person responsible for coining the term ‘net widening’ is Stan Cohen (1979; 1985), whose work has contributed significantly to illuminating arguments around the dispersal of discipline thesis.
Put simply, the dispersal of discipline thesis claims that forms of social control (both formal and informal) have been emerging and spreading insidiously. Alternatives to custody—especially if they are not successfully diverting offenders from imprisonment—make control and surveillance more widespread. They offer covert coercion rather than the overt coercion of prison. Cohen, using his now-famous fishing net metaphor, explains how alternatives work in practice:
• Nets get bigger, thus catching more offenders
• They are cast in different parts of the sea, thus catching different offenders
• The mesh of the net is thinned, thus retaining offenders for longer
(p. 170) • The identity of the net may not be clear, leading to the blurring of boundaries so that ‘it is by no means easy to know where the prison ends and the community begins or just why any deviant is to be found at any particular point’ (Cohen, 1985: 57).
All of the initiatives discussed in the preceding section, therefore, may only have served to contribute to the extension of state control in general, and for particular offenders may have increased the demands of their sentence (and, failure to meet such demands can result in custody in any event). Net widening rapidly became the over-riding criticism of any alternative to custody so that ‘the conventional wisdom of the critical literature on community corrections is that the development of alternatives has been synonymous with a widening “net” of penal control’ (McMahon, 1990). In an important article published in 1990, after 10 years or so of research into alternatives to custody, Maeve McMahon argued that the pessimism associated with net widening was misplaced and pointed to various methodological problems with the research.
Worries about net widening led directly to another key development that has now become one of the defining features of community penalties—risk. How could an alternative to custody be sure that those who received the sentence were actually at risk of custody ? The clinical judgement of probation officers was based on unofficial, unarticulated, and highly personal methods of classifying offenders, and their discretion had come under sustained attack as a result of the ‘Nothing Works’ juggernaut. A better method was needed to try to ensure that alternatives to custody were restricted as far as possible to those who were likely to receive a custodial sentence, and in the early 1980s, such a scale was devised:
The scale is, therefore, used as a means of diminishing any net-widening which might occur around the Cambridge day centre; if potential day centre candidates score certain points on the risk of custody scale then it may be reasonably assumed that they are diversions from custody and not from another community-based disposal
(Mair and Lloyd, 1989: 3).
The development of risk prediction is beyond the scope of this chapter, but risk of custody scales developed into sentencing prediction scales which, by the mid-nineties became OGRS (the Offender Group Reconviction Scale) used to measure static risk factors and then OASys (the Offender Assessment System) used to measure dynamic risk factors (see Howard et al., 2009). These risk assessment instruments purportedly predict reoffending and are used comprehensively throughout prison and probation services. There are serious questions about the basis of the claims that the instruments predict reoffending, their accuracy and their applicability to sections of the population which are not White and male (Kemshall, 2003; Shaw and Hannah-Moffat, 2000; 2004). Alternatives to custody were, therefore, a crucial source for the rise of risk in probation work.
Even if a community sentence is acting effectively as a direct alternative to custody, there are dangers associated with such success. First, if a community sentence is dealing with high risk-offenders in a community setting it is—in effect—walking a tight-rope. It may have had to engage in protracted negotiations with local residents to set up the initiative in its location and one case of an offender absconding or reoffending could not only lead to a serious crime, but a threat to the existence of the initiative and questions about the abilities of the probation service as a whole.
(p. 171) Second, offenders who have been diverted from custody are likely to have committed fairly serious offences, have lengthy criminal records, and experience of custody. Unfortunately, these variables are also associated with high rates of reconviction so that success on one measure can mean failure on another. As Mair and Nee (1992: 332) argue ‘…a fairly high rate of reconviction…may be built into the very aims and objectives of day centres. If day centres aim to divert offenders from custody and are successful in this, then they will almost certainly be committing themselves to a high reconviction rate’.
Third, if a community sentence is seen to be successful at diverting offenders from custody it is quite likely that sentencers (and perhaps the local probation service itself) may feel that success should be celebrated and extended. Thus, pressure to expand the sentence in question in terms of numbers dealt with emerges. The target group is widened and the sentence becomes used for offenders who have little or no likelihood of a custodial sentence as well as the original group. The focus of the sentence is thereby weakened, and it becomes less effective with regard to its original aim.
Finally, as noted earlier, when a sentence is recognised as an alternative to custody, its own identity—as a day centre, for example—becomes weakened and it becomes seen predominantly as an alternative. The boundaries between custody and community are thereby blurred. This, as Cohen has argued, is not something to be welcomed. And with the introduction of the National Offender Management Service (NOMS) which blurs the organisational boundaries between custody and community sentences, it is even more relevant.
Two of the key issues in criminal justice then—net widening/dispersal of discipline and risk—have emerged from the alternatives to custody debate and have shaped and been shaped by it. And they remain pertinent today as the next part of the chapter will show.
Present and future
This chapter does not intend to discuss in detail the significance of NOMS for the probation service (see Bailey et al., 2007; Hough et al., 2006; Morgan, 2007; McKnight, 2009; Nellis and Goodman, 2009; Raynor and Vanstone, 2007), but it is worth noting a couple of vital issues associated with its development. First, almost a decade after its introduction, it remains a remarkably vague and nebulous organisation although it is clear that at a senior management level it is dominated by prison staff. Second, as an organisation it pulls community sentences and custody closer together, thereby blurring the boundaries even further but it has done nothing to curb or stabilise the rising prison population. While a combined prison and probation service would have many advantages in principle (and has worked well in practice in Sweden and Norway), in reality NOMS has proved messy. It was introduced very quickly which suggests little planning (p. 172) for such a major initiative, and the imbalance in size between its two constituent parts was ignored. In practice there is little sign of any co-ordination between the prison and the probation services. Pulling against the centralisation signalled by the creation of NOMS was the Carter report’s other big idea—that of contestability. Contestability essentially is another term for the market-testing of services in order to achieve greater cost-effectiveness, but it could easily lead to a mixed economy of public, private, and voluntary providers of community correctional services and therefore greater fragmentation of service delivery. Unpaid work is currently being subjected to contestability and the Coalition Government plans that the bulk of other probation services will follow—with significant implications for the probation service as an organisation. But this begs the question just how interested will private or voluntary organisations be in providing alternatives to custody?
Since 4 April 2005, for offences committed on or after that date, only two community penalties have been available to the courts; the Criminal Justice Act 2003 introduced the Community Order and the Suspended Sentence Order (SSO). Both orders are made up of one or more of 12 possible requirements. The Community Order could last for as short a time as a few hours (a very brief curfew requirement, for example) or as long as three years. The SSO is, legally, a custodial sentence and can only be used where the court proposes to pass a custodial sentence of less than 12 months but in the absence of breach is served in the community; it can last for between six months and two years. Although the two new orders are sentences in their own right, they are also intended to act as alternatives to custody as the Sentencing Guidelines Council (2004) made clear. The demands of both sentences could—potentially—be heavy depending upon how many requirements are passed. In addition, sentencers have less discretion with the new orders than they had previously to avoid imprisonment in cases of breach, which means that failure could add to the prison population rather than decrease it. Figure 8.2 sets out the requirements for the Community Order and the Suspended Sentence Order.
New Labour’s reaction to this was to do what government has always done in response to the perceived failure of an alternative to custody: make sentences tougher. While one might argue about the details, it is possible to discern a progressively more demanding series of alternatives to custody as we have moved through the second half (p. 173)2011: 3); each IAC had an average of 3.4 requirements and usually lasted for 12 months. The empirical evidence for the IAC programme acting as an alternative to custody is anecdotal, partial, and plays only a marginal report in the Ministry of Justice published evaluation of the pilots (see Hansbury, 2011).
A new Conservative/Liberal Democrat coalition government came to power in May 2010 and by the end of that year had published a Green Paper setting out their plans for sentencing and the punishment of offenders. Breaking the Cycle (Ministry of Justice, 2010) immediately made it clear that there was no intention of ending short custodial sentences—which, of course, had implications for community sentences that were intended to act as alternatives to custody. In terms of making community sentences more demanding, more intensive, more robust and rigorous it was very much business as usual, but the key proposals were radical: loosening central control over how offenders are dealt with, thereby returning some discretion to probation officers; and introducing (p. 174) the concept of payment by results. In the light of the government’s proposals, the House of Commons Justice Committee (2011) carried out an inquiry into the probation service. While endorsing the idea of more robust community sentences being used as alternatives to custody (but noting the need for effective targeting and adequate resourcing), the Committee was also in favour (in principle and pointing out the potential practical issues) of increasing discretion, payment by results, and contestability. Interestingly, the government’s response to the Committee’s report (Ministry of Justice, 2011a) failed to take the opportunity to agree with recommendations about the possibility of using community sentences as alternatives to custody. And this message about alternatives to custody was presented even more clearly in the government’s response to the Green Paper consultation:
Community sentences have not won public confidence as a punishment…Community sentences will not be pushed as a replacement for prison sentences—instead, tougher, better community punishments will help stop offenders in their tracks earlier to stop them committing more crime…We are not aiming to cut the prison population…
(Ministry of Justice, 2011b)
This message was further reinforced in the Consultation Paper Effective Community Sentences (Ministry of Justice, 2012b) where, despite proposing to have a punitive requirement in every community sentence, this is for its own sake rather than to increase sentence confidence and possible use as an alternative to custody.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes several significant changes to the community order and the SSO: an increase in the curfew requirement from 12 hours per day to 16 and the maximum duration from six months to 12; the addition of a foreign travel prohibition requirement and an alcohol abstinence and monitoring requirement; and the SSO to be available for custodial sentences of up to 24 months rather than 12 months. These changes will certainly strengthen the orders and possibly make them more attractive as alternatives to custody—although given all previous experience one might be forgiven a certain scepticism about this possibility.
Interestingly, alongside the government’s message that community sentences as alternatives to custody will not be encouraged, the Centre for Crime and Justice Studies has also recently examined the role of community sentences in controlling the prison population concluding that ‘the promotion and reform of community sentences will not fundamentally realise a longer-term vision for a significantly different, reduced custodial population’ (Mills, 2011: 22). A more considered and effective response to the number of prisoners lies in acknowledging the socio-economic and political factors that explain the use of imprisonment (Mills and Roberts, 2012).
Despite what may seem to be slight signs of movement away from the alternatives to custody concept, the ever-increasing prison population would seem to preclude any real changes to practice (and it is worth recalling that a similar move took place following the Criminal Justice Act 1991 but with little practical effect). It is costly and time-consuming to provide prison places and persevering with the objective of using community sentences to try to mitigate the pressure of prison numbers will no doubt continue. Whether even this can continue meaningfully will be to some extent determined by resources. Cuts in the probation budget are likely to make it even more difficult to provide effective, (p. 175) demanding community sentences that are perceived by sentencers as potentially offering a realistic alternative to a short term of imprisonment.
In addition, the possible fragmentation of the probation service as a consequence of contestability could also have implications for ‘alternatives to custody’. Would private or voluntary sector providers of community-based services for offenders wish to get entangled in trying to divert offenders from custody? This is a difficult and messy task which—as this chapter has noted—all too commonly ends in failure. It is also problematic to measure success in such a task—and this could have significant implications for the payment by results agenda which is driving much criminal justice activity. Indeed, there could be serious conflicts of interest; as this chapter is being written The Guardian reports (1 March 2012) that a prison governor has excluded all probation staff from the three prisons for which he is responsible because the local probation trust has teamed up with the private security company G4S which is tendering to run the three prisons involved as part of the prison privatisation programme. If a probation trust does become involved in running a prison, what kind of incentives might there be for trying to divert offenders from custody ?
The present situation is—to say the least—an interesting one.
If alternatives to custody are aimed at cutting the prison population, then their history is one of complete failure. But, as McMahon (1990) has argued, alternatives are usually condemned for failing when half of their cases would not have been imprisoned, but little is said about the remaining half which represent, presumably, successful diversions from custody. And it is possible to claim that the use of custody would have been even greater if alternatives did not exist. It must also be emphasised that the success of community sentences can be assessed by other measures of effectiveness. Their reconviction rates, for example, are certainly no worse (indeed, tend to be better) than custodial sentences and they are considerably cheaper than custody. In addition, they provide help with a variety of problems that are associated with offending, e.g. substance abuse, accommodation, employment and training, anger management (see Mair, 1997 for a wide-ranging discussion of the effectiveness of community sentences).
Perhaps it is more useful to think of alternatives as not having realised their full potential, although this is to view them as having only one simple goal. The problem here is that community sentences have always had other goals (e.g. rehabilitation, retribution, restoration) and it may be impossible to fulfil all of these goals equally effectively. This problem is exacerbated by the unwillingness of governments openly to define a community sentence as an alternative to custody. The outcome is that a community sentence (p. 176) is expected to act as an alternative in a half-hearted way, without the full-scale commitment necessary to succeed (and this is to ignore the necessity to have sentencers fully signed up to this aim). In addition, following Michael Tonry (1990) we may see community sentences—even where they are understood to be alternatives to custody—to have other latent aims that are at least as significant. Whether governments have been fully aware of it or not, there can be little doubt that one effect of what might be called the alternatives to custody industry has been to toughen up community sentences. This might have been much more difficult to achieve if government had simply set out to make community sentences more demanding and rigorous for their own sake (although this is exactly what is happening now). But by doing this with the intention of making the sentence a feasible alternative to custody—and probation traditionally has been opposed to custody—opposition has been muted. And toughening up community sentences could lead to greater public credibility and less criticism of them as soft options—although it must be said that there is scant evidence of this occurring as yet.
Other reasons for community sentences failing to act as alternatives to custody as much as they might can also be adduced. The development of alternatives to custody has never been a clearly constructed, carefully planned and co-ordinated policy. On the contrary, it has been fragmented, haphazard and usually a reaction to a perceived crisis in prisons. Thus, one can legitimately ask how sentencers are going to be convinced by the introduction of various community sentences—community service, day centre requirements, the combination order, the curfew order—all aimed at providing an alternative to a prison sentence. How can all of these act in such a way? Surely they would need to be categorised according to gradations of seriousness in the way that Ken Pease (1978) once argued should be the case for community service orders.
There has also been a failure to investigate the nature of the problem that an alternative is intended to resolve. Prison crowding, for example, could be an immediate result of too many fine defaulters being imprisoned, too many remands in custody, too many offenders being imprisoned, or too many long sentences. It may result from increases in crime, increases in punitiveness on the part of sentencers, or changes in penal policy. It is unlikely that a community sentence could be designed that might tackle all of these issues effectively.
In the end, community sentences have been asked to act as alternatives to custody as short-term reactions to pressing problems, as safety valves for issues that persistently threaten to explode. And from this point of view, they may have worked. But the problems of clouding the identity of practicable community sentences, of blurring the boundaries between prison and community, of inexorably ratcheting up the severity of community sentences, of net widening, have not been resolved. Although the Criminal Justice Act 1991 officially declared community penalties to be sentences in their own right, the community order and the suspended sentence order are widely acknowledged to be alternatives to custody. The constantly increasing prison population means that alternatives to custody will continue to be needed, even though the Coalition Government claims otherwise. And the new factors of contestability and payment by results will complicate further an already complicated situation.
Community sentences must be understood as more than alternatives to custody; indeed, in the past few years there has been an interesting renaissance of rehabilitation by way of research into desistance, although how far this will impact upon policy given current developments is another question (see, for example, Farrall and Calverley, 2006; McNeill, 2006; Ward and Maruna, 2007). But their role as alternatives has been a major issue for the last 40 years. It has contributed to important theoretical developments and been responsible for a great deal of research. Little of this seems to have informed the policy process, however, and there is little sign that the future will be any clearer.
1 What are the advantages and disadvantages of developing alternatives to custody?
2 Is net widening inevitable in relation to alternatives to custody?
3 What other ways might be tried to reduce the prison population and what kind of problems might they throw up?
4 Should community sentences be used as alternatives to custody?
5 Would officially defining certain community sentences as alternatives to custody be helpful?
Bottoms, A., Rex, S. and Robinson, G. (2004) Alternatives to Prison: options for an insecure society. Cullompton: Willan.
This is the most authoritative and up-to-date academic study of the issues surrounding community sentences and their use as alternatives to custody.
Cohen, S. (1985) Visions of Social Control: crime, punishment and classification. Cambridge: Polity Press.
An exceptionally well-written and readable account of the spread of social control. The ideas contained in this book have influenced countless studies and continue to do so.
Coulsfield Lord (2004) Crime, Courts and Confidence: report of an independent inquiry into alternatives to prison. London: Esmee Fairbairn Foundation.
Not an official report but the closest we are likely to have for the immediate future, this is a comprehensive study of the key issues.
McMahon, M. (1990) ‘“Net Widening”: vagaries in the use of a concept’. British Journal of Criminology 30 (2): 121–49.
An important empirical study that questions the negativity of research into the effectiveness of alternatives to custody.
Vass, A.A. (1990) Alternatives to Prison: punishment, custody and the community. London: Sage.
A detailed study covering theory, policy, and practice of alternatives to custody during the 1980s.
National Association of Probation Officers: Has useful information about the current issues relating to probation work and publishes a monthly bulletin Napo News—an invaluable source for keeping up-to- date.
Ministry of Justice: Responsible for probation. It provides probation and prison statistics, consultation papers, and recent research reports as well as information about the National Offender Management Service.
National Probation Service: This site describes what probation does and contains key policy documents.
Home Office: Contains an archive of all Home Office Research Studies, a number of which cover the issue of alternatives to custody.
Centre for Crime and Justice Studies: An independent charity that focuses upon crime and the criminal justice system. A series of studies of the Community Order and the Suspended Sentence Order are available on its website.
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