Your agreement with the good professor and what you say in your answer are somewhat at odds, Andy.
From the professor’s pamphlet:
“…he rejects the idea that people who continually commit property offences should eventually be imprisoned, given that the offence remains non-violent, non-threatening and non-sexual and that there is no evidence to suggest prison would be a more effective punishment for such a person.”
But you recommend that “…if offenders persist, then punishments should increase in proportion, leading to prison. “
And this is precisely what happens at present. It is virtually unheard of for an offender appearing before Magistrates for the first time having been charged with a minor offence (let’s say one restricted to Magistrates’ sentencing powers of six months custody) to go to prison. In fact a large number of minor offences have to be committed and a number of different disposals tried before immediate custody for such offences is considered. I’m afraid the professor’s notion that the continual committal of low-level crime must not result in incremental sentences which ultimately lead to prison is totally at odds with most people’s notion of justice.
There is one other important fact which Professor Ashworth seems to have overlooked (either accidentally or wilfully) and that is this: every other sentencing option apart from custody requires co-operation from those convicted. Here’s a typical scenario: An offender is convicted of a crime for which six month’s custody is an available option. But it is fairly low level, it’s his first offence and so he is dealt with by way of a conditional discharge. All he has to do is stay out of trouble. But he reoffends, is brought to court, is handed a fine, to be paid at £5 per week. He refuses to pay and again reoffends. This time he is made subject of a community order with unpaid work. He fails to turn up for his work. He is brought back to court (having reoffended in the meantime) and makes it quite clear that he will not co-operate with any orders the court makes. So what does the court do now? All the offences he has committed fit into Prof Ashworth’s “purely property” category (and fairly low level at that) but thus far he has received no punishment whatsoever for any of them and is unlikely to do so under the professor’s regime. So the court’s options are limited to imposing a sentence which they know will not be complied with or sending him on his way. The scenario I described is is not an unusual situation for Magistrates to face and if their option of custody is removed we may as well close all the Magistrates’ courts and save even more money. Custody has to be an available option.
In the UK you are far less likely to go to prison for low level offences than you are elsewhere in western Europe. In relation to the number of crimes committed we sentence far fewer people to custody. The reason the UK has a high prison population is simply because we have a far greater number of people committing crimes. The deal between the State and the individual is that individuals cannot exact punishment from those who offend against them. Instead the State does so on their behalf. But if the punishment loses its credibility, as I believe it will if custody is not ultimately available, then that deal similarly loses its value.