Currently, Scotland has one of the highest proportionate rates of imprisonment in Western Europe, which the Justice Secretary, Michael Matheson, has described as “totally unacceptable”. He wants to reduce radically the size of the prison population so that investment can be switched from incarceration to community penalties. Presently, extending the existing presumption against passing short custodial sentences appears to be the main tool in the Government’s box. Yet, will extending the Presumption work? If not, what else can be done

Tata, Cyrus

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How can prison sentencing be reduced?

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Strathprints Institutional RepositoryTata, Cyrus (2016) How can prison sentencing be reduced? Scottish Justice Matters, 4 (1). pp. 1-3. ISSN 2052-7950 , This version is available at http://strathprints.strath.ac.uk/55969/Strathprints is  designed  to  allow  users  to  access  the  research  output  of  the  University  of Strathclyde. Unless otherwise explicitly stated on the manuscript, Copyright © and Moral Rights for the papers on this site are retained by the individual authors and/or other copyright owners. Please check the manuscript for details of any other licences that may have been applied. You may  not  engage  in  further  distribution  of  the  material  for  any  profitmaking  activities  or  any commercial gain. You may freely distribute both the url (http://strathprints.strath.ac.uk/) and the content of this paper for research or private study, educational, or not-for-profit purposes without prior permission or charge. Any  correspondence  concerning  this  service  should  be  sent  to  Strathprints  administrator: strathprints@strath.ac.ukVolume 4 | Number 1 | March 20169 772052 795005ISSN 2052-7950REIMAGINING  PUNISHMENT AND JUSTICEScottish Justice Matters : March 2016 23CURRENTLY, Scotland has one of the highest proportionate rates of imprisonment in Western Europe, which the Justice Secretary, Michael Matheson, has described as “totally unacceptable”. He wants to reduce radically the size of the prison population so that investment can be switched from incarceration to community penalties. Presently, extending the existing presumption against passing short custodial sentences appears to be the main tool in the Government’s box. Yet, will extending the Presumption work? If not, what else can be done?Hitting the Target : Sentence Length or Case Seriousness?Importantly, the argument for reducing the prison population tends to be based not only on its relative inefectiveness compared to non-custodial sanctions in similar cases (e.g. Chiciros et al (2007); Scottish Government, 2011). It is also based on the view that imprisoning some people for some kinds of ofences is unnecessary and disproportionate. Indeed this view can be traced back at least as far as the 2008 Prison Commission report which argued for the reduction in the use of short prison sentences on grounds of proportionality and that prison should be reserved for those committing the most serious ofences and those posing a risk of serious harm (Scottish Prison Commission, 2008). So in other words the real problem is not short-terms of imprisonment per se. Rather, it seems that the Presumption policy is using length of imprisonment as a proxy for those cases deemed less serious or posing a lesser risk of serious harm. Yet sentence-length is a very crude proxy for ofence seriousness and risk of serious harm. Arguably, it would be a more direct and clearer method to specify the target directly: the kinds of cases which, as a matter of proportionality, should be normally non-imprisonable. This is the sort of careful work which could be led by the Scottish Sentencing Council (see the article on the SSC in this issue).That said, the immediate option being presented by the Scottish Government is to extend the presumption against short custodial sentences. Will it work?What diference will Extending the Presumption Make?Currently, there is a presumption against custodial sentences of three months or less. In its recent public consultation, the Scottish Government suggested that the Presumption should be extended from three to six, nine or even 12 months. According to the Government’s own commissioned research, the three month Presumption “has had little impact on sentencing decisions” (Scottish Government, 2015a). One reason is sentence inlation. Rather than passing sentences of say three months, some sentencers, appear to have passed slightly longer sentences. This phenomenon, predicted at the time of the passage of the legislation, has been found in other jurisdictions (Tata, 2013; Government of Western Australia, 2015).So should the Presumption be extended? No fresh legislation is needed: the current Presumption period could be increased by statutory instrument. So far so simple. But let us consider section 17 of the Criminal justice and Licensing (S) Act 2010:A court must not pass a sentence of imprisonment for a term of three months or less on a person unless the court considers that no other method of dealing with the person is appropriate (emphasis added).This caveat could hardly be more permissive: do not impose a sentence of x months or less unless considered appropriate. Does any sentencer make a decision which she or he considers inappropriate? HOW CAN PRISON SENTENCING BE REDUCED  IN SCOTLAND? Cyrus TataCURRENT ISSUES24 Scottish Justice Matters : March 2016Little wonder, then, that “there was little sign of [the Presumption] iguring prominently or explicitly in decision-making” (Scottish Government, 2015a).True, under s17 a reason must be stated for imposing a short sentence, but this is hardly a challenging requirement. In such circumstances, the reasons given are likely to be terse, bland, and uninformative.Therefore, an extension even to 12 months is unlikely to have much efect on sentencing practice: it will be a reminder to sentencers of the existing injunction that custody should be ‘the last resort’. So What Else Can be Done?Relinquish the Policy of ‘Custody as the Last Resort’ The prevailing approach that ‘custody is the last resort’ renders custody as the default. When other options do not seem to work, there is always prison. Prison is the only option which does not have to prove itself. While non-custodial sentences and social services seem so stretched, imprisonment appears as the dependable, credible and well-resourced back-stop. As one sherif interviewee put it: “really when I’m imposing short [prison] sentences, that’s when we’ve run out of ideas!” (Scottish Government, 2015b) The policy and mentality of ‘custody as the last resort’ is a central problem. We need to relinquish it. Little will change unless and until we invert that thinking by beginning to specify certain circumstances and purposes as normally non-imprisonable.Create a Public Principle Deining what Prison Sentencing is Not ForAlthough it is uncomfortable to admit it, many people end up in prison not because their ofending is particularly serious, nor because they are a risk of serious harm. They end up in prison because there does not appear to be anywhere else that can address their chronic physical, mental health, addiction, homelessness and other personal needs. While non-custodial sentences and social services are so stretched, imprisonment, on the other hand, appears as the dependable, credible and well-resourced default. Indeed, it is not entirely uncommon for people to say that they would prefer to be in prison because of a lack of help and support in the community. That is, surely, an indictment of our spending priorities.The result is self-perpetuating: resources are sucked into the seemingly credible, robust and reliable option of imprisonment at the expense of community-based programmes which appear as weak, unreliable and poorly explained.This phenomenon will become even more acute, unless action is taken to preclude it. We will soon see further deep cuts to community justice and community services. Meanwhile, prison regimes are improving. One cannot necessarily, therefore, blame individual sentencers, prosecutors, social workers for seeing imprisonment as the only ‘safe haven’ individuals presenting with deep-seated and complex needs. Yet in policy terms it is a senseless waste of resources and human potential.A way to counteract this is to articulate a two-part public principle. First, the test for imprisonment should depend on the seriousness of ofending and risk of harm. Secondly, addressing personal needs should not be a ground for imposing a prison sentence.. Such a principle could be set out in a Sentencing Guideline judgement and also through guidance to social workers. Importantly, this principle would also  concentrate policy minds: a clear target to ensure that there is suicient resourcing of community justice and services.Devise more creative ways of dealing with breach of community ordersIt is often noted that some individuals appear to choose not to comply with community penalties and so custody is inevitable to uphold the authority of the court. Yet, whether we suiciently understand the journey away from ofending is important here. The lessons from the desistance research are crucial: this shows us that the journey away from crime is far more contingent than we had previously realised. Ofending is not something which can be switched of like a tap. Lapses and relapses are inevitable, and the conidence of the individual that decision-makers really want him/her to succeed is important. Thus, the increased use of review hearings, (recommended by the Prison Commission and the Commission on Women Ofenders), may be valuable.Could Electronic Monitoring (EM) be used instead of custody in the case of many individuals deemed unwilling or unable to comply? Can the more imaginative use of EM be conigured as the ‘ultimate sanction’ to ill the space of prison? EM could provide some assurance about control and if combined with human and humane social work support be a less damaging (and expensive) way of responding to breach (Nellis, 2014). Nothing much will change unless and until we relinquish the policy of ‘custody as a last resort’ (of which the Presumption is one example). Such thinking  in fact renders custody as the default, a back-up when ‘alternatives’ are thought to fail. Instead, we need to exclude certain purposes (such as rehabilitation) as a ground for imposing imprisonment, and begin careful work to specify certain kinds of cases as normally non-imprisonable. Dr Cyrus Tata is professor of Law and Criminal Justice at Strathclyde UniversitySee also blog posts on http://scottishjusticematters.com/author/cyrus-tata/Chiciros T et al (2007) ‘The Labeling of Convicted Felons and its Consequences for Recidivism’ Criminology 45(3): 547-581Government of Western Australia (2015) Prohibition of the Six Month SentenceNellis M (2014) ‘Penal Innovation and the Imaginative Neglect of Electronic Monitoring in Scotland’ The Scottish Journal of Criminal Justice Studies 20: 14-38.Scottish Government (2011) What works to reduce reofending.Scottish Government (2015a) Consultation on Proposals to Strengthen the Presumption against Short Periods of ImprisonmentScottish Government (2015b)  Evaluation of Community Payback Orders, Criminal Justice Social Work Reports and the Presumption Against Short Sentences Scottish Prison Commission (2008) Scotland’s Choice.Tata C (2013) ‘The Struggle for Sentencing Reform’ in Ashworth and Roberts (eds) Sentencing Guidelines (OUP); CURRENT ISSUES

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How can prison sentencing be reduced?

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