Severe regime restrictions introduced to stem the threat posed by Covid-19 have had a hugely adverse effect on the lives of England and Wales’ 80,000 prisoners. Since late March, visits have been cancelled, inmates are confined to their cells for 23 hours a day and vocational, educational and spiritual provision has been curtailed. Prisoners and their families live with the constant fear of the virus taking hold. The latest figures show that 24 prisoners and nine staff have died from Covid-19. At least 16 prisoners have taken their lives since the regime changed. I will start this presentation by arguing that these regime restrictions have increased what Gresham Sykes referred to as the ‘pains of imprisonment’. Imprisonment has rapidly become more punitive.
This could not have been foreseen before the pandemic emerged. However, now that we do know what serving a prison term currently entails, a decision has to be taken as to whether this increased pain of imprisonment should impact on sentencing? Two distinct though inter-related questions can be posed: (1) Should the threshold for imposing a custodial sentence be raised to reflect the fact that imprisonment has become a more onerous punishment? (2) If a custodial term remains appropriate, should the term be reduced to maintain proportionality between the seriousness of the offence and the punishment? Consideration will be given to the different conclusions reached on these points by the appellate courts in England and Wales and in Scotland. Relying on desert theory, it will be argued that the restrictions in prison regime is not only a relevant sentencing concern but a vital one. Some of the practical implications of this argument will then be discussed.
Gavin Dingwall is Professor of Criminal Justice Policy at De Montfort University where he teaches courses in Criminal Law and Penology. He researches primarily in Criminal Justice, but has also written on aspects of Criminal Law, Criminology and Criminal Evidence and Procedure. He serves on the Howard League for Penal Reform’s Research Advisory Group. (@GavinDingwall)
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