Prison doesn’t work. So says David Gauke, former Secretary of State for Justice — but what does he mean by that?

His intervention comes after the announcement by the current Justice Secretary, Alex Chalk, that custodial sentences under 12 months will only be imposed for violent or sexual crimes. Instead, criminals will receive tougher community orders, like unpaid work. It’s thought the plans will mean 30,000 criminals a year will now avoid jail. However, those who repeatedly breach the terms of their community order would then face prison.

As Gauke notes, the motivation behind this is largely the size of the prison population, which has seen the number of available spaces in prison for men drop below 150. Not all of those cells will be appropriate for every offender either, meaning the true number of available cells is even lower.

Britain does indeed have a large prison population, with over 88,000 prisoners, which Gauke alleges is the highest in Europe. In fact, at a rate of 159 per 100,000, it is lower than several other countries such as Poland or Hungary. It is significantly lower than the USA, which has a rate of 531 per 100,000. It’s the highest of all the major Western European nations, though.

More importantly, the relevant comparison isn’t the number of prisoners per capita but the number of prisoners per crime. The USA has 6.8 murders per 100,000 people, whilst Britain has a rate of only 1 per 100,000 and Germany 0.8 per 100,000. Unsurprisingly, we have more prisoners than Germany but fewer than America.

There’s no doubt, however, that the swelling prison population has caused problems. The Chief Inspector of Prisons recently recommended that many prisons should be closed down, especially the inner city Victorian ones, as they are too old and over-crowded.

That has been exacerbated by Covid, which led to the suspension of courts. The backlog is now being cleared by allowing courts to operate outside of normal hours, but the result has been lots of criminals being sentenced at the same time, causing a huge demand for prison places. In order to alleviate the issue, crown courts were asked to delay sentencings, which means rapists and burglars being allowed out on bail for now.

Other plans include paying European prisons to house excess prisoners, something which other European nations have tried before successfully. All of which puts the Tories in a tricky position. It was they in the 1990s, under Michael Howard’s influence, who said that prison works. They then oversaw an almost doubling of the prison population.

This marked a major break with the prevailing trend since the 1960s, when Labour pushed through a range of progressive policies on crime. Although the post-war rise in crime had preceded these, it’s clear that they made things much worse. The prison population rose — although it would have been far larger if tougher pre-60s laws were still in place — whilst the dire economic situation led to the slowing of efforts to expand the prison estate.

The result was that by the 1990s crime was a major political issue, made worse by repeated riots in overcrowded prisons. I remember as a child how we always had to remove the CD player from our car after every journey because otherwise heroin addicts would smash the window to steal it and fence it to buy more drugs.

A majority of crime is committed by a minority of people

In the face of resistance from the press, civil servants and criminal justice charities, Howard pushed ahead with imprisoning more criminals. After steadily rising for decades, the amount of crime began to drop. Although it is still higher than it was before the 1960s, crime has never again risen to the same levels. It was popular enough that Tony Blair, first as Shadow Home Secretary and later as Leader of the Opposition, ensured that Labour also presented itself as “tough on crime, tough on the causes of crime”.

Although new technologies like DNA evidence and CCTV helped, putting more criminals in jail really did work. That’s because a majority of crime is committed by a minority of people, many of them repeat offenders. Instead of being driven by poverty or any of the excuses that Criminology departments like to find for them, many criminals choose a life of crime.

A major Swedish study looking at every person born between 1958 and 1980 — over two million people — found that just one per cent of them were responsible for 63 per cent of violent crimes. They often committed crime after crime, to the extent that if the Swedish state had imprisoned anyone with five crimes for life, then 39 per cent of all violent crime would be prevented. Much the same is true in Britain, where a 2019 paper by the think tank Onward found that nine per cent of criminals were responsible for 52 per cent of all convictions.

Whilst Gauke is focused on the poor rehabilitation rates of prison, which is entirely true, he fails to understand that the main preventative effect of prison is that a criminal in jail cannot commit crimes outside it. By locking these prolific criminals away from everyone else, under a more controlled environment, they massively reduce crime.

Imprisoning criminals for short periods is undoubtedly overly expensive for the results, but the electronic tags and community orders which Gauke posits as the alternative have been tried for years without success. Tags can be fooled, criminals often ignore their community orders, and many fines go unpaid and have to be written off. By leaving habitual criminals free to go and commit more crime, they actually become more expensive than prison. The costs of their new crimes, the repeat court appearances and police time all add up.

The pragmatic solution would be the reintroduction of corporal punishment, which is cheap and highly effective in Singapore. Failing that, the only remaining punishment for those who fail to turn up to their community order will be prison, necessitating more spaces being built anyway.

Making decisions about criminal justice based on the availability of prison spaces is a bad idea. An evidence-based approach would see the high utility of prisons and, where there aren’t enough spaces, work to make more. It’s true that building prisons is hard because of Britain’s sclerotic planning system, but there are ways to fix that. Instead of focusing on the number of prisoners or the poor rehabilitation rates — which have never been great anywhere — we should be focused on reducing the amount of crime, including by putting more people in prison, for longer periods if necessary. People deserve to be able to walk the streets safely, and prison is a key part of that.