Can modern suspended prison sentences function properly? The vicious cycle of scope broadening, sentence inflation and fewer defaults

Abstract

Suspended prison sentences are the most common sanction in many European countries, albeit being originally conceived as an exception. Their dominance was enabled by broadening of the original scope of prison sentences that may be suspended and by imposing them to offenders and offenses for which they might not be imposed originally.

The most important was the broadening of the length of prison sentence that may be suspended: In the beginning, only very short prison sentences of few weeks or months could have been suspended, today prison sentences of up to three years are regularly suspended. Due to a very different penal bite of suspended and non-suspended prison sentences of several years, sentence inflation took place; this presentation provides first experimental evidence of this phenomenon.

Sentence inflation, however, likely led to fewer defaults as judges were unwilling to incarcerate offenders for excessively long (originally suspended) prison sentences. Sentence inflation and fewer defaults also encourage legislators to further broaden the scope of suspended sentences to limit prison population, creating a vicious cycle within which suspended prison sentence is misused and produces harm.

I suggest this vicious cycle cannot be easily repaired unless a structural reform of suspended prison sentence takes place. Suspended prison sentences requires re-imagination of a suspended sentence consisting especially in enabling consideration of offense seriousness when deciding on suspension and fixing sentence length after the breach, not upon sentencing.