It was, and remains, a sensible measure.
The introduction of a presumption against sentences of three months or less was designed to cut reoffending, based on persuasive evidence that low-level offenders given tough community-based sentences are significantly less likely to reoffend than those sent to prison for short spells.
However, the policy change, which came into force in February 2011, was also intended to help drive down Scotland's prison population and, on that score, the early indications are not encouraging. The latest available figures show that the average daily prison population stands at a record high of more than 8000, up 4% on last year and busting Scotland's jail capacity, while recorded crime in Scotland is at a 37-year low.
Members of the judiciary, dissuaded from handing out sentences of less than three months, now seem to be increasing sentences over three months and the use of remand.
This is unlikely to be a coincidence, but nor is it likely to be the case that sheriffs actively want to put more low-level offenders in prison. What will worry policy-makers is the possibility that scepticism among sheriffs and judges about community-based sanctions is partly to blame for the rise in short-term prison sentences of more than three months.
There is now a general presumption that low-level offenders, instead of going to prison for three months or less, will instead do manual labour in their community, backed by action to address underlying problems such as alcohol, drug or mental health issues.
However, little money is put into community sanctions compared to the ravenous beast that is the prison system. For this shift in sentencing to work, it is essential that the Scottish Government provides sufficient funding to ensure alternatives to custody for low-level offenders are effective and seen as being effective. To win the trust of the judiciary (and the public), community-based sentences must be tough, carried out swiftly and the offender must be seen as paying back his or her debt to their community.
In the midst of a recession, finding that money is easier said than done, of course, and with the prison population rising, it cannot be redirected from the prisons budget.
Yet a way must be found. If ministers are right, increasing the use of tough, high-quality community sanctions should bring down repeat offending and cost less money into the bargain, but can only work if the judiciary have faith in them as an alternative to prison.
As Dr Cyrus Tata of the University of Strathclyde notes, it may be that the rationale underlying the presumption against three-month sentences needs to be more clearly articulated. Whatever happens, the revelations of rising short-term sentences are likely to reignite calls for an independent Scottish Sentencing Council to issue guidelines on prison terms, a plan first proposed in 2006 but since apparently mothballed.
What is clear is that the curious paradox of having a rising prison population and falling crime rates needs to be addressed.
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