16.4.1 Custodial Sentencing

• Custodial sentencing refers to the sentence given by a judge which results in an individual being sent to prison/young offenders institution/secure hospital

• The type and severity of custodial sentence will depend on a number of factors e.g. the nature of the crime committed, the degree of remorse shown by the offender and the laws/legislation of the specific country (or in some cases like the USA the state) in which the crime was committed
• There is much debate as the effectiveness of custodial sentencing as a solution to the problem of crime: some people believe that prison is a barbaric way of dealing with systemic societal shortcomings whereas others have a ‘lock them up and throw away the key’ attitude
• The aims of custodial sentencing are as follows:
• Deterrence: crime is bad for society ergo any attempts to deter people from committing crime is good for everyone particularly if it prevents recidivism
• Incapacitation: criminals may be dangerous (and at the very least antisocial) so keeping them off the streets is done to protect innocent members of society and to ‘contain’ the danger in a secure environment
• Rehabilitation: criminals may need help in re-adjusting to life outside after prison so programmes such as social skills training, CBT, employment and educational opportunities are designed to help them turn away from crime
• Retribution: criminals have damaged society and may have wrought great suffering on victims and their families ergo they must be punished (and be seen to be punished) in an ‘eye for an eye’-type reaction (i.e. custodial sentencing as a form of revenge for the crimes of the offender)

Custodial sentencing: justice? Or evidence that society is unfair?

• Prison is not designed to have a calming and therapeutic effect on prisoners: it is generally an impersonal, regimented and stark environment in which the individual may find their sense of self, their dignity and their mental health suffering hugely (Bartol, 1995)
• Self-harm (particularly amongst female offenders) and suicide rates are much higher in the prison population than the general population (Hawton et al, 2013)
• Stress, depression and anxiety are present in large numbers of prisoners, particularly those who had been victims of domestic violence in childhood (Unver et al, 2013)
• The regimen of daily prison life provides a structure and routine that some prisoners come to depend on and which can result in them not being able to cope with the unpredictable, unstructured nature of life outside prison (this is known as institutionalisation)
• The world of the prison is its own world with specific unwritten rules and norms (i.e. ‘don’t be a grass’; ‘don’t back down from a challenge’) which may be very much at odds with the conventions of the outside world and which may change the behaviour and attitudes of the prisoner (this is known as prisonisation
• Recidivism rates may demonstrate one of the major flaws in custodial sentencing as the following statistics reveal (Ministry of Justice, 2021):
  • 25% of adult offenders go on to reoffend
  • Young offenders show a recidivism rate of 30.3%
  • 55.1% of adults released from prison who had been serving sentences of less than 12 months go on to reoffend
  • Adult reoffending rates increased by around 2% in 2021

Research which investigates custodial sentencing

• Apel & Diller (2017) - a review of research into custodial sentencing which concludes that if prison is viewed as a large-scale intervention, it lacks empirical evidence as to its effectiveness
• Marsh et al. (2009) - a meta-analysis which tested the hypothesis that prisons are an effective means of reducing recidivism and concluded that residential drug treatment programmes, educational/vocational training, community supervision, victim reparation, and community programmes with aftercare are all much more likely to prevent reoffending than simple incarceration
• Dooley (2000) - suicide in prisons is highest among prisoners who are on remand

Evaluation of custodial sentencing

Strengths

• Custodial sentencing may work as a ‘short, sharp shock’ for some people

Weaknesses

• Martinson (1974) made the (somewhat controversial) claim that, in terms of custodial sentencing, ‘nothing works’: he reviewed 231 studies of prison rehabilitative programmes and concluded that offender treatment was largely ineffective 
• Hollin (1992) found that some prisoners would rather be in prison for the regular meals and routine than in their own home which suggests that prison does not work as a deterrent and that some prisoners lack resources and a strong social support network outside of prison
• Custodial sentencing is extremely expensive: in 2021/22, the average cost of a prison place in England and Wales was £46,696 British per prisoner

Link to Approaches:

Custodial sentencing has its roots in operant conditioning (the Behaviourist approach) with its emphasis on negative reinforcement (offenders will, in theory, avoid future offending so as to avoid being imprisoned again). The role of punishment is also relevant to the Behaviourist approach i.e. learning by consequence.