The McLeish commission has painted a radical vision of who should � and should not � go to jail. Douglas Fraser outlines the report�s main findings

Does jail work? It is a simple question, to which the Scottish Government's prisons commission yesterday delivered a simple answer: no.

Putting people behind bars puts dangerous people off the streets and punishes them, they found. But for the vast majority of short-term inmates, who pose little danger to public safety, a spell in a cell - on average lasting 24 days - offers no chance of rehabilitation, it disrupts anything going right in their lives, and it spills them back out on the streets and the same "old enemies" of rival gangs, drugs and alcohol, with a high chance of re-offending.

The commission, set up by Justice Secretary Kenny MacAskill, was led by former Labour First Minister Henry McLeish, and included Lothian and Borders' chief constable, David Strang, Sheriff Alistair Duff from Dundee and broadcaster Lesley Riddoch.

It was told to figure out what to do about Scotland's rising prison population, with a wide-ranging remit to spark debate and raise the public profile of some tricky issues. With some meaty analysis and controversial proposals, it didn't disappoint.

But having bought time for the SNP administration to prepare public opinion for some radical new thinking on the prisons crisis, it has left Mr MacAskill facing choices that risk making enemies for the SNP, and easy targets for political opponents. Making enemies is something Alex Salmond's administration has been keen to avoid so far, but this is an issue on which it may not have much choice. Among the main findings:

RE-THINKING PUNISHMENT
The Commission recommends prison should be reserved for people whose offences are so serious that no other form of punishment will do and for those who pose a threat of serious harm to the public. It says that it should be "the default position in dealing with less serious offenders" that they should be required to pay back for wrongdoing through community sentences.

PROSECUTION AND COURT PROCESSES
Whereas procurators-fiscal can now use warnings and fiscal fines to deal with minor offences, helping to reduce pressure on court time, it is reckoned prosecutors need a wider range of options. They could, for instance, require those facing charges to go through mediation with victims, or to have alcohol or drugs treatment.

There is a proposal that courts get smarter about "rolling up" charges. That means taking a series of offences and dealing with all of them in one hearing, with one punishment to fit them all. The McLeish Report points out cases of those doing their best to turn their lives around on a community sentence, who are then brought back to court for a charge connected to a previous crime, and then jailed - removing the incentive to bother with the community sentence.

Remand is a growing challenge. More than a fifth of those behind bars have not yet faced trial, and of them, around a third do not then get a custodial sentence. Often they are remanded because there is a lack of information about them or a lack of support for people on bail in the community.

The plan is to replace some remand orders with tagging, curfews and bail hostels, plus text alerts to remind those with chaotic lifestyles when their court appearances are due.

There is a recommendation those aged 16 and 17 should have specialist accommodation away from adult prisoners, and they should face specialist youth hearings instead of adult courts, while the minimum age of criminality should be raised from eight.

SENTENCING AND MANAGING SENTENCES
To help encourage sentencers into making court disposals more consistent, the plan is to set up an independent National Sentencing Council. This is not just to ensure a sentence in Kilmarnock Sheriff Court is proportionate to one in Dundee: it is also to sustain consistency over time, as there is clear evidence of "an upward drift in both the number and length of custodial sentences in Scotland in recent years".

Alongside that, and to boost sentencers' and public confidence in community sentences, McLeish recommends the setting up of a National Community Justice Council. It would lead the reform of community sentences and be responsible for ensuring others have an understanding of what they entail.

There had been an expectation that the McLeish Commission would generate ideas for more community sentences. But instead they want simplification. Only one non-jail disposal is proposed: the Community Supervision Sentence (CSS), though that can involve a wide range of different elements, mostly aimed at payback. That would include tagging and curfews, unpaid work, restorative justice or "paying back by working at change". The last of these might include drugs or alcohol treatment, education and training, mental health treatment, money management, family issues or "attitudes and values".

The Commission wants this CSS to be started on the day of a conviction, just as jail sentences do. That is to impress the link between crime and punishment on both offender and the public, avoiding weeks of delay for reports to the court, and putting the start of the community sentence onto the front page of the local paper's next edition.

The most controversial part of the plan is for an end to sentences of less than six months. That is unless the offence is for violent or sexual offences or a breach of bail conditions. Of the 83% of jail terms that are currently under six months, only around 2% are for crimes of violence or indecency.

Sentencers could be given the option of conditional sentences, meaning it is suspended so long as conditions are met on tagging unpaid work, fines or rehabilitation.

The current use of Home Detention Curfews as a means of reducing overcrowding should end, under Commission recommendations. But Tory critics point out a jail sentence partly served with a tag at home could be replaced by a term served entirely on a tag at home.

The end product of these changes could be to reduce the prison population from 7200 on average last year, and rising fast, to only 5000 within 10 years or so. That would leave the Scottish Prison Service more time to focus on inmates who could benefit from rehabilitation. It could do so, it is suggested, by trying smaller, local prisons, and with trials of drug-free wings.

EARLY RELEASE
A specific area on which the Commission was also asked to find an answer was the Custodial Sentences and Weapons (Scotland) Act 2007.

Passed just before last year's election, this should have ended the use of automatic release half way through jail terms on sentences ranging from four years down to 15 days. Under the law, prisoners should earn early release, they should all be fully assessed and they should have supervision and support after leaving prison.

The findings on this are an indictment of the ministers and MSPs who passed the Act, as it was found to be "simply not practicable" and failed to address the cost of extra prison places .

Although Alex Salmond has repeated twice recently that his government is committed to implementing it, the McLeish Commission recommends the law should only apply to sentences between two and four years.

That is one of the many difficult choices on which ministers now face their rivals' political pressure. But Mr McLeish presents the choice as a no-brainer: without radical action, he says, expect current trends worsening, crammed prisons, low professional morale, public distrust soaring, while the crime and punishment cycle keeps turning.