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The presumption against short prison sentences in Scotland could provide lessons for south of the border, says Dr Sarah Armstrong
On the very same day in June 2010 that the Lord Chancellor Kenneth Clarke QC MP argued for fewer short prison sentences in England and Wales, the Scottish Parliament passed a law to do just that. The Criminal Justice and Licensing (Scotland) Act 2010 creates a presumption against prison sentences of three months or less, culminating a major effort to reform the use of imprisonment here.
The focus on short prison sentences as a central element of sentencing and prison reform in Scotland may provide some lessons for what may be similar efforts underway south of the border.
In a typical year, 75 per cent to 80 per cent of all prison sentences handed down by the Scottish criminal courts are for six months or less (see (2009) Criminal Proceedings in Scottish Courts, 2008–09). It is becoming increasingly well known that Scotland, like England and Wales, has one of the highest imprisonment rates among western European countries. What is less well publicised is the extent to which short sentences are responsible for this.
The typical short sentence in Scotland is for a minor offence which might not ordinarily receive prison but for a persistent history (often linked to drug or alcohol dependency) of committing similar kinds of small time crime. It turns out that it is shoplifting in Greenock rather than murder in Glasgow which accounts for most of the criminal court business in Scotland.
We are obliged to ask what good do short prison sentences do for offenders, communities or society. The evidence suggests that the answer is: very little. They do not reduce the likelihood of offending; they are more likely to increase it. Short prison sentences also tend to reproduce themselves: having received one prison sentence any future offending, no matter its seriousness, will tend to be met with more short sentences of imprisonment. In Scotland this phenomenon is widely referred to as doing “life by instalments”. This cycle has contributed to the steady expansion of the prison population over the past two decades.
These findings all appear in the report of the Scottish Prisons Commission (known as the McLeish Report), published in July 2008 (and available online at www.scotland.gov.uk/About/spc). This independent Commission, chaired by former First Minister Henry McLeish, was appointed by the Scottish Nationalist government early in its tenure to investigate the use of imprisonment and how that use fits with Scotland’s “wider strategic objectives” of making the country wealthier and fairer, healthier, safer and stronger, smarter, and greener. The government thus linked the aims of imprisonment to larger objectives of society, extending its accountability beyond the criminal justice system.
It was the McLeish Report which first proposed creating a presumption against short sentences. In addition, the Commission argued for reducing the prison population by up to 40 per cent; creating a Scottish Sentencing Council (very similar in role and effect to the Sentencing Council for England and Wales); instituting a new “community payback order” that would subsume most other community-based sentences; raising the minimum age of criminal responsibility from 8 to 12 years of age; and prohibiting the imprisonment of 16 and 17 year olds for being “unruly”. All of these recommendations, bar setting a prison reduction target, were adopted by the government and incorporated into its Criminal Justice and Licensing (Scotland) Bill introduced to Parliament in March 2009.
The presumption against short sentences was originally meant to apply to sentences of six months or less. This was negotiated down to three months or less to obtain the support of the Lib Dem MSPs. One effect of this compromise is that over 6,000 prison sentences a year are removed from the Act’s ambit. The Bill was passed with the support of the Lib Dems, the two Green MSPs and the one Independent MSP, which provided a majority against the combined Labour and Conservative members. The Bill ultimately passed on a vote of 64 to 61.
What will happen next? Even if – and it’s a big “if” – the Act results in fewer people overall being sentenced to prison, this is not in itself proof that the criminal justice system has become more effective. Short prison sentences may not work, but something else has to work better in order to make their reduction sensible. The key issue is establishing what it means for a sentence to “work”.
In the world of research a sentence “works” when it causes someone to improve their behaviour. But we are coming to realise that this is a very narrow, let alone difficult to measure, meaning. A better definition would include the notion that a sentence works when it contributes to a larger social sense that justice is being done; a sentence has to work not only for an offender but for the polity, of which offenders, victims, communities and judges are all a part.
The new community payback orders are meant to form part of a broader vision of justice, by providing not merely an alternative to prison that is effective, in terms of reoffending rates, but credible as well. Both England and Wales and Scotland are hoping that the concept of “payback” will improve the credibility of punishment, but the two jurisdictions have defined it in strikingly different ways. The former has adopted payback to re-brand its system of community service in pursuit of an explicitly punitive agenda, responding most directly to anger about crime. In Scotland, a more reparative version of payback responds to the desire for punishment to restore the communities that crime damages. In both places, there is recognition that how people feel about punishment is as important an element of its legitimacy as the statistics on reoffending in which few outside the Home Office and the Howard League for Penal Reform are interested. Only time will tell whether anger or hope provides the stronger foundation for change.
Short prison sentences are not the only barrier to a credible penal system, but improvements in this area may help create momentum for the reform of other major contributors to prison growth such as increasing rates of parole recall, excessive use of remand and rising average sentence lengths. The overall focus in Scotland has been on minimising use of an institution for which there is plenty of evidence showing that people leave in worse shape – more damaged, more angry, and less employable – than when they went in. In this, the Scottish government is in implicit agreement with the English Prisons Commission that higher prison populations lead to less public safety not more (see Commission on English Prisons Today (2009) Do Better, Do Less: The Report of the Commission on English Prisons Today, London: Howard League for Penal Reform).
The similar timing of penal reform in Scotland and in England and Wales reflects at least two developments in common to both jurisdictions. First, global recessionary pressures have significantly reduced the resources which in the past were available to pay for significant expansion of penal capacity. However, it would be simplistic to assume reform is motivated mainly by the need to make budget cuts. Rather, a second development, the election of a minority government in Scotland (in 2007) and a coalition government in the UK (in 2010), has meant that policy change, at least in theory, now requires a greater degree of collaboration and consensus.
However, England and Wales have their own patterns of prison use and thus their own challenges to tackle in reform. Unlike Scotland’s churn of short-sentenced prisoners, a characteristic feature of prisons in England and Wales are the dominance of life-sentenced prisoners – there are more lifers in English prisons than in all the prisons of Europe combined. This is the direct consequence of the indeterminate sentence of imprisonment for public protection, which will need to face its own day of reckoning. Ultimately the relationship of sentencing to prison expansion reminds us that prison reform in both England and Wales and Scotland requires more successful strategies of working with and gaining the buy-in of judges, who control so much about population increases in prison but who themselves often feel a lack of control over its use.
Dr Sarah Armstrong, Senior Research Fellow at the Scottish Centre for Crime and Justice Research (Glasgow University), academic advisor to the Scottish Prisons Commission, and co-editor (with Professor Lesley McAra) of Perspectives on Punishment: The Contours of Control (2006, OUP)
A new legislative landscape
The Criminal Justice and Licensing (Scotland) Act received Royal Assent on 6 August 2010. New measures include:
The focus on short prison sentences as a central element of sentencing and prison reform in Scotland may provide some lessons for what may be similar efforts underway south of the border.
In a typical year, 75 per cent to 80 per cent of all prison sentences handed down by the Scottish criminal courts are for six months or less (see (2009) Criminal Proceedings in Scottish Courts, 2008–09). It is becoming increasingly well known that Scotland, like England and Wales, has one of the highest imprisonment rates among western European countries. What is less well publicised is the extent to which short sentences are responsible for this.
The typical short sentence in Scotland is for a minor offence which might not ordinarily receive prison but for a persistent history (often linked to drug or alcohol dependency) of committing similar kinds of small time crime. It turns out that it is shoplifting in Greenock rather than murder in Glasgow which accounts for most of the criminal court business in Scotland.
We are obliged to ask what good do short prison sentences do for offenders, communities or society. The evidence suggests that the answer is: very little. They do not reduce the likelihood of offending; they are more likely to increase it. Short prison sentences also tend to reproduce themselves: having received one prison sentence any future offending, no matter its seriousness, will tend to be met with more short sentences of imprisonment. In Scotland this phenomenon is widely referred to as doing “life by instalments”. This cycle has contributed to the steady expansion of the prison population over the past two decades.
These findings all appear in the report of the Scottish Prisons Commission (known as the McLeish Report), published in July 2008 (and available online at www.scotland.gov.uk/About/spc). This independent Commission, chaired by former First Minister Henry McLeish, was appointed by the Scottish Nationalist government early in its tenure to investigate the use of imprisonment and how that use fits with Scotland’s “wider strategic objectives” of making the country wealthier and fairer, healthier, safer and stronger, smarter, and greener. The government thus linked the aims of imprisonment to larger objectives of society, extending its accountability beyond the criminal justice system.
It was the McLeish Report which first proposed creating a presumption against short sentences. In addition, the Commission argued for reducing the prison population by up to 40 per cent; creating a Scottish Sentencing Council (very similar in role and effect to the Sentencing Council for England and Wales); instituting a new “community payback order” that would subsume most other community-based sentences; raising the minimum age of criminal responsibility from 8 to 12 years of age; and prohibiting the imprisonment of 16 and 17 year olds for being “unruly”. All of these recommendations, bar setting a prison reduction target, were adopted by the government and incorporated into its Criminal Justice and Licensing (Scotland) Bill introduced to Parliament in March 2009.
The presumption against short sentences was originally meant to apply to sentences of six months or less. This was negotiated down to three months or less to obtain the support of the Lib Dem MSPs. One effect of this compromise is that over 6,000 prison sentences a year are removed from the Act’s ambit. The Bill was passed with the support of the Lib Dems, the two Green MSPs and the one Independent MSP, which provided a majority against the combined Labour and Conservative members. The Bill ultimately passed on a vote of 64 to 61.
What will happen next? Even if – and it’s a big “if” – the Act results in fewer people overall being sentenced to prison, this is not in itself proof that the criminal justice system has become more effective. Short prison sentences may not work, but something else has to work better in order to make their reduction sensible. The key issue is establishing what it means for a sentence to “work”.
In the world of research a sentence “works” when it causes someone to improve their behaviour. But we are coming to realise that this is a very narrow, let alone difficult to measure, meaning. A better definition would include the notion that a sentence works when it contributes to a larger social sense that justice is being done; a sentence has to work not only for an offender but for the polity, of which offenders, victims, communities and judges are all a part.
The new community payback orders are meant to form part of a broader vision of justice, by providing not merely an alternative to prison that is effective, in terms of reoffending rates, but credible as well. Both England and Wales and Scotland are hoping that the concept of “payback” will improve the credibility of punishment, but the two jurisdictions have defined it in strikingly different ways. The former has adopted payback to re-brand its system of community service in pursuit of an explicitly punitive agenda, responding most directly to anger about crime. In Scotland, a more reparative version of payback responds to the desire for punishment to restore the communities that crime damages. In both places, there is recognition that how people feel about punishment is as important an element of its legitimacy as the statistics on reoffending in which few outside the Home Office and the Howard League for Penal Reform are interested. Only time will tell whether anger or hope provides the stronger foundation for change.
Short prison sentences are not the only barrier to a credible penal system, but improvements in this area may help create momentum for the reform of other major contributors to prison growth such as increasing rates of parole recall, excessive use of remand and rising average sentence lengths. The overall focus in Scotland has been on minimising use of an institution for which there is plenty of evidence showing that people leave in worse shape – more damaged, more angry, and less employable – than when they went in. In this, the Scottish government is in implicit agreement with the English Prisons Commission that higher prison populations lead to less public safety not more (see Commission on English Prisons Today (2009) Do Better, Do Less: The Report of the Commission on English Prisons Today, London: Howard League for Penal Reform).
The similar timing of penal reform in Scotland and in England and Wales reflects at least two developments in common to both jurisdictions. First, global recessionary pressures have significantly reduced the resources which in the past were available to pay for significant expansion of penal capacity. However, it would be simplistic to assume reform is motivated mainly by the need to make budget cuts. Rather, a second development, the election of a minority government in Scotland (in 2007) and a coalition government in the UK (in 2010), has meant that policy change, at least in theory, now requires a greater degree of collaboration and consensus.
However, England and Wales have their own patterns of prison use and thus their own challenges to tackle in reform. Unlike Scotland’s churn of short-sentenced prisoners, a characteristic feature of prisons in England and Wales are the dominance of life-sentenced prisoners – there are more lifers in English prisons than in all the prisons of Europe combined. This is the direct consequence of the indeterminate sentence of imprisonment for public protection, which will need to face its own day of reckoning. Ultimately the relationship of sentencing to prison expansion reminds us that prison reform in both England and Wales and Scotland requires more successful strategies of working with and gaining the buy-in of judges, who control so much about population increases in prison but who themselves often feel a lack of control over its use.
Dr Sarah Armstrong, Senior Research Fellow at the Scottish Centre for Crime and Justice Research (Glasgow University), academic advisor to the Scottish Prisons Commission, and co-editor (with Professor Lesley McAra) of Perspectives on Punishment: The Contours of Control (2006, OUP)
A new legislative landscape
The Criminal Justice and Licensing (Scotland) Act received Royal Assent on 6 August 2010. New measures include:
The presumption against short prison sentences in Scotland could provide lessons for south of the border, says Dr Sarah Armstrong
On the very same day in June 2010 that the Lord Chancellor Kenneth Clarke QC MP argued for fewer short prison sentences in England and Wales, the Scottish Parliament passed a law to do just that. The Criminal Justice and Licensing (Scotland) Act 2010 creates a presumption against prison sentences of three months or less, culminating a major effort to reform the use of imprisonment here.
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