THE presumption against prison sentences of three months or less, introduced in 2011, was a promising policy with sound aims, so it is disappointing to see that it has failed to have a significant impact on Scotland’s prison population. But could the answer be to extend the presumption from three months to 12 and effectively end sentences of less than a year?

A group of influential experts in criminal justice believes so and has called for the move as part of the Scottish Government’s consultation on the three-month policy. The group, which includes the Chief Inspector of Prisons for Scotland, the Scottish Association of Social Work, the Howard League for Penal Reform and a number of Scottish councils, says short sentences are useless at rehabilitating offenders and a move away from sentences of under a year towards community alternatives would succeed where the three-month presumption has failed and start to bring down the prison population.

That it needs to be brought down is undeniable – Scotland is a liberal society in most respects but on criminal justice it certainly is not and sends many more people to prison than many comparable countries such as Sweden and Germany.

The group of experts is also right to question the efficacy of short sentences. The vast majority of those sent to prison for a few weeks are reconvicted within two years, partly because a short spell in jail often leads to the prisoner losing his job and possibly some of his friends and family as well – precisely the social and personal factors that can keep people away from offending.

Shorter sentences also fail in another respect too, in that they are often too short to achieve anything that could be seen as rehabilitative. If a prisoner is behind bars for a number of years, he can properly engage in education and rehabilitative programmes – a sentence of a few weeks on the other hand means he or she is in and out before any meaningful work can be done (although the sentence could still be long enough to do damage to the prisoner’s support network and personal relationships on the outside).

All of these factors should incline the Scottish Government towards extending the three-month period and it would certainly mean the judiciary would find it harder to avoid the policy. Many judges initially appeared to react to the three-month presumption by simply increasing the use of sentences over three months and therefore driving the prison population up, not down as the policy intended. But a presumption against sentences of less than 12 months would force the judiciary to seriously engage with the policy and what it intends to achieve.

However, extending the presumption from three months cannot be done without also seriously reforming the community alternatives to prison. We do not know precisely why judges are continuing to hand out short jail sentences, but could it be that they, like many others, do not have confidence in the community alternatives? The Scottish Government needs to build that confidence by doing more to develop, fund and promote community sentences, such as tagging or drug treatment programmes; far too many local authorities are also still taking too long to impose them. Until those problems are fixed, it is likely that judges will continue to send people to prison for less than year, whether the presumption is extended or not.