The prisons are full
.There cannot be anyone who has any passing interest in the news who remains unaware of the growing crisis of prison overcrowding. There is no doubt that this is a serious problem which needs to be urgently addressed. The latest indication, apparently based on a review of the Prison Service by Lord Carter and being considered by Prisons Minister David Hanson, is that limits on judicial custodial sentencing powers could be introduced based upon the prisons being full.
Whilst it is unclear as to how this will work in practice, the potential effects will be catastrophic. I will consider in a series of articles statistical analysis as applied (or rather not applied) to legislation and its effects. However even assuming that the prison overcrowding problem cannot be remedied, this must be entirely the wrong way to approach it. A mere moment's thought would show that the results could be completely anomalous. Take two persons charged with effectively identical offences. One pleads guilty and is sent to prison. The other fights a trial, but because overcrowding has increased during the delay goes off scot-free. That sort of thing would bring the entire system into disrepute. It would lead to the unedifying spectacle of defendants trying to assess prison overcrowding trends and seek to have their cases dealt with accordingly.
If there has to be a response to overcrowded prisons, it has to be an administrative response. Even if this involves releasing prisoners early on licence, then at least that will allow some coherent policy to be applied and give some rational basis for decision-making. Anything else reduces the sentencing system to some sort of lottery.
It will also seek to take the blame away from where it should lie. If judicial hands are tied, then it is likely that judges will bear the brunt of public ire for passing supposedly inadequate sentences which in fact are ones which represent their only available option. Judges are not public figures and in general cannot respond to criticisms. Ministers can. If there is an overcrowding crisis, then administratively they should make the decisions that deal with it (whether popular or not) rather than fobbing off the responsibility to the judges by changing the sentencing rules.
"The prisons are full" is a slightly peculiar sentencing mantra in any event. If the prisons were not full, I would doubt that anyone would seriously suggest that more custodial sentences should be passed because the available spaces were not being used. However logically there is no difference between the two positions. The logical size of the prison population should reflect levels of crime, levels of appropriate sentence, having regard both to what crimes have been introduced and how sentencing policy dictates that they should be dealt with. There is no abstract theory that the correct level of prison population is tied to the existing buildings. Administratively of course, if the extent of that prison provision is inadequate then there is a problem. That however is a governmental problem, not the responsibility of the judges. Foisting that problem on the judges would represent both a squalid attempt to avoid political responsibility for political decisions, and risk the important principle of judicial consistency and discretion being undermined. Neither is an attractive proposition.