As Scotland’s prison population spirals towards unenviable heights, passive acceptance of the status quo is increasingly at odds with notions of an effective and ethical justice system.
To try to address this, the Scottish Government are about to introduce plans to the Scottish Parliament of a presumption against prison sentences of up to 12 months.
This plan is likely to get cross-party backing at Holyrood, with the lone exception of the Scottish Conservatives opposing it.
Scottish Lib Dems Justice spokesperson Liam McArthur, MSP for Orkney, and Greens Justice spokesperson John Finnie – MSP for the Highlands and Islands – have championed penal reform, highlighting risks that crowded prisons pose and advocating better support for local authorities and charities to deliver community justice. Labour’s Daniel Johnson MSP has done similar.
Scottish judicial independence from politicians and policymakers means they will retain all sentencing options, including prison, if the plan passes. The presumption is not a ban, but an expectation that community sentences are preferred over short prison sentences of under a year.
Short prison sentences for crimes that aren’t serious are short-sighted. As a criminologist who researches and writes books on rehabilitation and justice, there’s plenty of research I can point to showing that people are more likely to leave crime behind and address its contributing causes if supervised and supported in the community. Community-based approaches have better outcomes than custody.
What’s the point of serving weeks or months behind bars for theft, vandalism or breaching bail by missing court only to be released to the same circumstances, exacerbated by the stigma and collateral consequences of a prison record? I’m not saying these crimes don’t matter, they do. But whether they should be routinely imprisonable is a valid question for debate when there are credible community-based approaches.
A clear-sighted look at who cycles through prison sentences reveals lives often characterised by inequalities and vulnerabilities. People with addictions, mental illness and trauma, disabilities, chronic ill health, histories of unemployment, poverty, being a care leaver, and their own experiences of victimisation.
Let’s consider the sentencing of people whose main crime is shoplifting. In 2017-2018, official statistics show that Scottish sheriffs sentenced 1,482 shoplifting cases to short prison sentences under 12 months. Over the past five years, the total is an eye-watering 9,020 prison sentences for shoplifting.
Arguably, this falls short of two oft-cited thresholds for imprisonment: shoplifting isn’t in the league of serious crime, nor does it constitute a risk requiring imprisonment on grounds of public protection. It’s hardly ‘hardened’ criminality.
Contrastingly, some short prison sentences are for violence, and judicial discretion for effective sentencing in these cases is important.
Opponents such as Scottish Conservatives MSPs have invoked deterrence-based arguments, suggesting the presumption will worsen crime, ‘embolden criminals’ and make them ‘even less fearful of ‘Scotland’s soft touch justice system’. These are understandable concerns, but not necessarily sound predictions. Crime rates and imprisonment rates aren’t directly causal of one another.
Does prison deter re-offending? No, not effectively, and this is well proven. Scots who serve short prison sentences of under a year have high reconviction rates. Half (52%) of those sentenced to three to six months in prison are reconvicted within one year. Facts are chiels that winna ding, if only they’d be heeded.
The work of leading international experts, such as Professor Daniel Nagin and colleagues, demonstrate that people are more likely to be deterred by the certainty of getting caught (by police) and punished, than by the severity of the punishment itself (i.e. prison v community punishment).
Some may find comfort in imprisonment as a common punishment. But what might make the public feel better doesn’t necessarily make us safer or better off in the long term. Deterrence doesn’t fully justify routinely cycling people in and out of short stints in prison if stats indicate half will commit more crime.
Thoughtful scrutiny of the SNP Government’s presumption and plans to shift further towards community justice should focus on ‘what’, ‘how’ and ‘why’ – granular details, guiding purposes, available evidence, and potential unintended consequences.
Such conversations should consider the extent to which local authorities, charities and communities have the resources and support needed to effectively implement it.
What’s needed is a pragmatic, principled plan and cross-party consensus to shift towards communities over custody for cases that aren’t serious crimes. It will take time, resources and a series of brave decisions and actions.