Too lenient upon imposition, too harsh upon revocation: Why suspended prison sentence cannot properly function
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 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 sentences that may be suspended: In the beginning, only very short prison sentences of a 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 the 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 the prison population, creating a vicious cycle within which a suspended prison sentence is misused and produces harm.
I suggest this vicious cycle cannot be easily repaired unless a structural reform of suspended prison sentences takes place. Suspended prison sentences require 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.