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PART TWO: WHAT'S THE CHOICE?

HOW DO WE USE IMPRISONMENT?

2.1 Scotland's system of punishment is at a critical juncture: our prisons are overcrowded and expanding, reaching new highs in each successive year of the 21st century. This carries potentially devastating consequences for our communities and our nation. Prisons can increase the likelihood of reoffending more often than reduce it; they deepen the alienation of individuals from communities; they draw resources away from services and institutions that benefit all Scotland's citizens. It is an option to be used only as a last resort.

2.2 We now face a choice about how and for whom we will use prison. Scotland need look no further than its immediate neighbours to see how others have addressed prison populations and with what result.

• To the south, England is engaged in the most significant expansion of its penal system in UK history, where the addition of 30,000 prison spaces over the past decade has not reduced crowding. ²
• To the north, in Scandinavia, high levels of social equality and welfare go hand in hand with low imprisonment rates.
• To the west, in Ireland, a small nation has emerged to become an economic leader, while imprisoning offenders at half the rate of the UK.

2.3 Scotland shares features of all these places, having both a strong commitment to social welfare and economic improvement, but it also has high numbers in prison and some areas of persistent inequality.

2.4 We believe that there is a real opportunity here for Scotland to choose a distinctively Scottish path, one which builds on local practices and institutions while looking to the best practices from abroad that can make our approach to punishment more meaningful, more efficient and more effective.

2.5 We also believe that what we make of this opportunity will have consequences for our ability to fulfil our aspirations in other areas central to a just and inclusive society, ranging from education and health, to the environment and the economy.

2.6 This report presents the Commission's work and includes its recommendations. Our review has shown us where we are failing, where we are doing well, and identifies strategies - from around the world and in our own backyard - for doing better.

2.7 In his speech launching the Commission, Cabinet Secretary for Justice Kenny MacAskill established a fundamental principle of our deliberations when he stated that, '[t]he Government refuses to believe that the Scottish people are inherently bad or that there is any genetic reason why we should be locking up twice as many offenders as Ireland or Norway'. ³

2.8 Indeed, it is not inevitable that Scotland should have one of the highest incarceration rates in Europe. ⁴ Scotland can do better. It can do better to support the safety and strength of communities. It can do better assuring the public that crime will have serious consequences. These convictions are built into the Commission's work and specified in terms of several guiding principles.

FIGURE 1: PRINCIPLES GUIDING OURWORK

• Justice requires punishment to be visible, swift and fair.
• Punishment should work to secure public safety and support victim recovery.
• Communities can and should be at the centre of a strategy for working with offenders.
• We should stabilise and reduce current prison populations.
• Scotland should aspire to become recognised internationally for just and effective penal practices.

2.9 Our review shows that we are not using prisons mainly to tackle serious crime. Many in the current population are there for very short periods. This is often to provide communities with short-term respite. Sometimes this is because we find it more convenient to keep an accused in prison before trial because he has no fixed abode or finds it difficult to keep appointments. And sometimes we do not know what else to do with someone whose drug problem means they are unable to stick to the conditions of their parole licence or probation order. The problem is that none of these uses makes people better or communities safer.

2.10 These characteristic uses of our over-crowded prisons are mainly the result of creeping practices and system fragmentation, rather than any change in crime. But in this worrying fact lies also our greatest hope: the means of reducing the costs of imprisonment - to individuals, to communities, and to society - are within our control.

2.11 The Custodial Sentences and Weapons (Scotland) Act was passed last year in an attempt to improve practice and create more accountability in offenders and the criminal justice system. We have examined as part of our review whether implementing it in its current form would achieve these aims, and if not, how best to do so. We were also latterly asked to review the use of the Scottish Prison Service Open Estate. We present our coverage of these two issues in the last two sections of the report.

2.12 Our work has shown us that we have a unique opportunity to build a stronger and fairer system of punishment. We sensed a willingness among politicians and professionals, the public and the media to engage in discussing the reform of punishment in a way that transcends the culture of blame that has characterised earlier efforts. A rational public debate will strengthen our ability to take responsibility for our own failures and to implement a more successful approach.

How much are we using it?

2.13 Scotland imprisons more of its population today than it has since records of the imprisonment rate began. In 2006/07, there were 141 prisoners for every 100,000 people in Scotland. Less than ten years ago that figure was 118.

2.14 The Scottish imprisonment rate is near the top of European league tables for prison use. It should be of concern that Scotland's imprisonment rates are more similar to recent EU members and former Eastern-bloc nations such as Romania (176 per 100,000), Slovakia (158) and Bulgaria (148), than to members of the EU pre-2004 (Table 1).

TABLE 1: IMPRISONMENT RATES FOR SELECTED EU AND OTHER COUNTRIES IN 2005 OR 2006 ⁵ (Per 100,000 total population)

2.15 The prison population has grown by more than 20% since the start of the 21st century, increasing from an average daily population of 5,833 in 2000/01 to 7,183 in 2006/07. This growth has been unrelenting: while in the 1990s there were some decreases in the prison population, this century has seen the population rising inexorably year on year. The Government estimates that with no changes in current practices, the prison population will grow steadily to 8,700 in less than ten years (2016/17). It has already peaked at over 8,000 on a number of occasions.

Who are we using it for?

2.16 This increase in Scotland's prison population is being driven by increased incarceration of women, those on remand, those serving short sentences and prisoners recalled for violating the terms of their parole licence (Table 2). Between 1997/98 and 2006/07, females in prison have increased by 90% and remand prisoners by nearly 70%. Astonishingly, the number of people recalled on licences has soared by nearly 1,000% (and the recall rate for young people is double this). Not only have these groups, with the exception of short-term prisoners (discussed below), grown faster than the overall population, they have grown much faster compared to the overall increase.

2.17 The Audit Scotland (2008) review of the prison population noted that the only category of prisoner not driving prison growth is long-term prisoners. They made up less of the average daily population of the prison population in 2006/07 than they did nine years earlier.

TABLE 2: CHANGES IN POPULATION OF DIFFERENT CATEGORIES OF PRISONER (1997/98 TO 2006/07) ⁶ (Groups where growth exceeds average are highlighted)

2.18 What the table does not bring out is the significant growth in prisoners serving very short sentences, such as those for 6 months or less. The impact and significance of such short sentences for the prison population cannot be fully grasped by taking a snapshot of the prison population on any given day (which is what the average daily population measures and is shown in Table 2). ⁷ The picture is clearer if one looks at how much of the annual turnover of a prison is accounted for by those serving very short sentences. Figure 2 shows changes in receptions of prisoners sentenced to less than 90 days; in 2006/07 while there was an absolute decline in the numbers of prisoners directly sentenced to prison, the proportion of those going into prison to serve these very short sentences increased by more than 35%.

FIGURE 2: CHANGE IN RECEPTIONS OF PRISONERS SERVING VERY SHORT SENTENCES (1997/98 TO 2006/07) ⁸

2.19 It is the view of the Commission that prison should be used for those whose crimes are serious and violent, and for those who present a real risk to our safety. And yet this breakdown of data shows we use prison for a very different purpose. Instead of investing in a system that can secure stronger, safer communities, a series of problematic and largely unnecessary uses of prison are revealed:

The remand problem - people not yet convicted of any crime or awaiting sentence: More people went to prison in 2006/07 to await a trial or sentence (23,181) than to be punished (20,403). Too often the reason people are detained in this way is because of a practical concern about ensuring attendance at court or the need to complete paperwork to support a sentencing decision. ⁹

The short sentences problem - people who are more troubling than dangerous: Eighty-three percent of prison sentences in 2005/06 were for 6 months or less (and 57% of all prison sentences were for 90 days or less). ¹⁰ More than a third of the people receiving custodial sentences of 6 months or less in 2005/06 received them for miscellaneous offences including common assault, breach of the peace, drunkenness, and breach of a court order.

The warehousing problem - a place to hold the damaged and traumatised: Ninety percent of women in prison have drug and alcohol problems, and 75% have a history of abuse and major health problems. ¹¹ The picture for male offenders and young people is similar.

The compliance problem - people who have broken rules rather than committed new offences: The fastest growing prisoner group comprises those who have been recalled to prison for having failed to follow the rules of their parole, electronic tagging, or early release (a 258% increase since the start of the millennium, and nearly 1,000% higher than nine years ago). ¹²

The youth detention problem - those who fall outside the Children's Hearing System: Not only does Scotland allow for children to be criminally prosecuted at a younger age than anywhere else in Europe, the Scottish prison system holds over 200 under-18s in prison, which is 40% of the number held in Italy, a country ten times larger than Scotland. ¹³

The life-by-instalments problem - chronic reimprisonment of offenders: For thousands of offenders receiving custodial sentences in a given year it will be only the latest of many spells in prison. Nearly half of offenders receiving custodial sentences in 2006/07 had already been to prison three or more times; nearly one in six had been to prison more than ten times. ¹⁴ More than two-thirds of offenders are reconvicted within two years of a custodial sentence.

The revolving door problem - failure to deal with all outstanding charges: Just under a quarter of offenders who were reconvicted within 2 years were reconvicted for offences committed prior to their index conviction. ¹⁵

2.20 While overall recorded crime in Scotland has been on a downward trend, we see prisons around Scotland reaching record levels of overcrowding. The uses of imprisonment we have described partly explain why Scottish prison populations are moving in an opposite direction from crime. High recall rates, high use of remand, and the use of prison to tackle those with mental health and substance abuse issues mean prison is being used to deal with our own failures - in the criminal justice, social welfare and health systems.

2.21 It also means that there are fewer resources and less space to deal with serious offenders in need of treatment and punishment. Building more prisons, without taking action on its excessive use in the areas we have described, would significantly increase the financial and social cost of prison without improving its capacity to have an impact on reducing the reoffending of the most serious offenders.

FIGURE 3: HOW DO WE MEASURE IMPRISONMENT'S RETURN ON INVESTMENT?

Can we get more from what we are spending on imprisonment? The Scottish Prison Service had a net operating cost in 2006/07 of £280 million.It estimates that the annual cost of housing a single prisoner ranges from £31,000 to £40,000. ¹⁶ We want our prisons to hold dangerous and serious offenders safely and securely, and to support their ability to lead law abiding lives when they are released. Only about one-third of prisoners manage to avoid reconviction for two years after being released. Does this level of success justify the level of investment or are there other options where we would be more wise to invest?

• If the average number of people held in prison were reduced by even 500, this would represent a notional annual saving to the taxpayer of 15 million to 20 million. Conversely, increasing the prison system by 700 places will cost an additional 21.7 million to 28 million annually to operate.
• The notional savings resulting from reducing the prison population by 700 would for example, be enough to fund a nationalroll-out of an internationally recognised initiative to wipe out illiteracy across Scotland. ¹⁷
• Admitting and releasing prisoners entail significant costs. The high turnover in the prison population, added £2.5 million in administrative processing costs in 2006/07 compared to 2000/01, for a total administrative processing estimate of £8.8 million. ¹⁸
• Improving the return on investment requires sustained support of research that can provide robust evidence on the cost implications of policies. A strong evidence-based focus will also allow for effective planning for future needs rather than dealing reactively to manage current crises.

2.22 These existing uses of imprisonment are both extremely expensive and counterproductive. People imprisoned for short periods, whether to await a trial or to serve a brief sentence, cannot be engaged in programmes known to reduce reoffending. For this group, an ever growing proportion of the overall penal population, time in prison has only negative consequences. It removes them from access to any healthy and supportive social networks in their communities. It substitutes in their place a group of fellow prisoners with major deficits and anti-social tendencies. It houses them in the parts of a prison where the architecture and security requirements discourage responsibility and encourage the dependence that arises from being told when to eat, sleep and bathe. We were not surprised to discover a large body of evidence showing that when such people return to their communities, they are more likely than those on community sentences, to be reconvicted and reimprisoned. ¹⁹

2.23 We met a number of prisoners in Scottish prisons who had served more of these short sentences than they could count. In effect, we are expending on a prison system where offenders do life by instalments, and communities suffer from punishments that can offer no rehabilitation. While imprisonment will provide respite to a community for a short time, it can do very little to break the cycle of offending behaviour. Table 3 illustrates the extent of this phenomenon: more than half of offenders given a custodial sentence in 2005/06 had already been to prison; and nearly a third of all offenders had been to prison from three to ten times. This statistic alone provides stark support for the argument that short sentences have no impact on offending, and that many offenders are undergoing a lifelong process of institutionalisation.

TABLE 3: NUMBER OF PREVIOUS CUSTODIAL SENTENCES OF OFFENDERS GIVEN A CUSTODIAL SENTENCE IN2006/07 ²⁰

The social and economic geography of punishment

2.24 Recent research on the Scottish prison population reveals that the reach of imprisonment is much more evident in communities that are already experiencing multiple forms of disadvantage and deprivation. Former prison governor and criminology professor Roger Houchin discovered that half of the population in Scottish prisons on the night of 30th June 2003 came from home addresses in just 155 of the 1222 local government wards in Scotland; that although the overall imprisonment rate for men in Scotland at that time was 237 per 100,000, for men from the 27 most deprived wards the rate was 953 per 100,000; and that about one in nine young men from the most deprived communities would spend time in prison before they were 23. ²¹

2.25 The deprivation of their communities is reflected in prisoners' backgrounds (Figure 4). The severity and pervasiveness of drug and alcohol problems as well as histories of physical and mental health problems among the prison population is difficult to over-emphasise. These rates show how prison can act as the catchall for the social problems we have failed to deal with elsewhere. Although deprivation should not be accepted as an excuse for criminal behaviour, there is clearly a strong link between the two.

FIGURE 4: PRISONERS' BACKGROUNDS ²²

Compared to the general population, prisoners are:

• 13 times more likely to have been in care as a child
• 10 times more likely to have been a regular truant from school
• 13 times more likely to be unemployed
• 2.5 times more likely to have a family member who has been convicted of a criminal offence
• 6 times more likely to have been a young father
• 15 times more likely to be HIV positive

In respect of their basic skills:

• 8 out of 10 have the writing skills of an 11 year old
• 65% have the numeracy skills of an 11 year old
• 5 out of 10 have the reading skills of an 11 year old
• 7 out of 10 have used drugs before coming to prison
• 7 out of 10 have suffered from at least two mental disorders
• 2 out of 10 male prisoners have previously attempted suicide
• 37% of women prisoners have attempted suicide
• For younger prisoners aged 18-20 these problems are even more intense; their basic skills, rates of unemployment and previous levels of school exclusion are a third worse even than those of older prisoners

2.26 The picture of imprisonment's disproportionate impact on the least well off communities in Scotland is mirrored in international research. Prisons draw their populations from those areas having the highest levels of social and economic inequality. There are many neighbourhoods where almost everyone knows someone who has been to prison. And in prison inmates continue relationships they had on the outside, where these relationships support sustained criminal activity.

2.27 The regular flow of people going away to and coming back from prison fragments community life and creates a prison like environment for all community residents because of prisons negative impacts. We are aware of the impact of crime on victims and communities. But there is also an impact on the families ²³ of offenders through increased chances of losing one's housing, children going into care, engaging in further criminal activity, worse physical and mental health, poor educational attainment, reliance on public benefits, lowered life expectancy, and entrenching the cycle of crime and imprisonment through the generations. ²⁴

FIGURE 5: WHAT DOES IMPRISONMENT SAY ABOUT THE HEALTH OF A NATION?

Nations that invest the most in prison invest the least in general social welfare. ²⁵

'Higher welfare spending is always linked to lower imprisonment' and 'countries which increased the percentage of their GDP spent on welfare saw declines (or lower rate of increases) in their prison population. ²⁶

When we fail to invest in childcare, education and early intervention, we condemn ourselves to spending our money on prisons instead.

A robust and consistent body of research has provided strong evidence that political factors have more influence on high imprisonment rates than crime does. ²⁷

Imprisonment rates are higher in countries with two-party political systems where the parties try to out-bid one another in terms of tough penal policies. The role that the media play in the debate is important too. The multi-party system and a changing social and political landscape in Scotland since devolution provides an opportunity to escape these damaging dynamics.

Countries with high imprisonment rates may be reacting less to a real problem of crime than low levels of trust and high levels of social insecurity. ²⁸

The prison problem runs deeper than the penal politics and the penal system; it is also about relationships of trust or distrust between our political leaders, our public servants and our communities.

Scottish prisons are populated by people coming from the least well off communities. ²⁹

High imprisonment rates deepen social inequalities and make it more difficult to strengthen the communities with the most needs.

AN OPPORTUNITY FOR ACTION

2.28 We know that many of the ways in which we currently use imprisonment are not effective for reducing crime or supporting communities (even for the limited purpose of providing some respite from troublemakers). The challenge now is to make better use of imprisonment, and to do this we have to develop a more robust and effective system of punishment that encompasses both prison and community-based sanctions. There is no need to re-invent the wheel in the pursuit of change: we know what uses of prison work to support reduced reoffending and accountability, and we know how effective the most well-designed and implemented community programmes are. There is robust and plentiful evidence on these issues. The problem is not knowledge but action.

Taking crime seriously

2.29 The safety of communities requires that we target our resources to deal with the most pernicious and harmful acts. The first point of action must be assessing the significance of Scotland's crime problem. This will allow us to focus our resources accordingly.

Recorded Crime in Scotland

2.30 Police recorded slightly fewer crimes overall in 2006/07 than they did in 1997/98. ³⁰

2.31 Overall figures mask significant increases and decreases in specific categories of crime, though. There have been some remarkable declines. Records of crimes of dishonesty, the category for property crime, in 2006/07 declined for the ninth straight year with decreases for specific crimes as follows: housebreaking (-45%), theft from a lockfast place (-30%), and theft of or from a motor vehicle (-60%).

2.32 There have also, however, been increases in some areas of serious crime, although it is important to recognise that large percentage increases mask the fact that serious crimes are much smaller in number than other offences. Between 1997/98 and 2006/07, there has been an increase in recorded numbers of serious assaults (21% increase) and sexual assaults (including an increase in rapes of 47%). In addition, the police recorded 22 more homicides (for a total of 118) in 2006/07 than they did in 1997/98. The greatest growth has occurred in recorded crimes against public justice (94%), fire raising (84%), handling offensive weapons (63%), and 'other' crimes (63%). Drug crimes also rose (44%).

2.33 If these figures are an accurate reflection of changes in crime, then we are doing very well in some areas but must intensify our efforts significantly in other areas, particularly for violent crimes.

2.34 Crime statistics should be viewed through a very careful lens. 'Recorded' crime covers crime that is officially noted by the police, and will both under and over report changes in crime. For example, a concern about knife violence may lead to priority targeting of enforcement of weapons offences, meaning the rate of this crime will go up compared to earlier periods even if there are no more people carrying knives than previously. Similarly, some crimes, such as domestic abuse and rape are chronically underreported. The rising rate of recorded rapes may, however, reflect more willingness by victims to report it and better efforts by police and prosecutors in securing victim trust. Similarly, a crime against public justice is the kind of offence as likely to be affected by a change in policing priorities as it is by changes in actual behaviour. ³¹

2.35 Even if we approach these figures with all due scrutiny, we cannot ignore that there is an upward trend for some of the most worrying crimes. Homicide, rape and serious assault are acts which require society's most severe punishment. We must strengthen our ability to prevent and to punish in these areas.

2.36 The Commission finds that the current drivers of prison overcrowding are severely obstructing efforts to do this, and must be addressed if we are to take serious crime seriously. Overcrowding of prisons, which is almost entirely occurring in areas holding short term and remand prisoners, ³² necessarily strains prison resources and draws attention, and space, away from dealing with the issues presented by the most serious offenders. In addition, a series of short sentences increases the risk of a troubling offender becoming a very serious one. Tackling serious crime requires significant reduction if not elimination of the use of short custodial sentences in order to limit the criminal justice system's role in causing this to happen.

2.37 Figure 6 displays the relationship of recorded crime to prison population over nearly two decades, highlighting a consistent and worrying pattern: no matter what the crime rate was doing, the prison population was growing. When crimes increased ( e.g. 1990 to 1991), the prison population increased; when crimes decreased, the prison population increased ( e.g. 1992 to 1997/98); when crimes were stable ( e.g. 1997/98 to 2004/05), the prison population increased. This provides a striking illustration to our finding that we are not using prison in response to crime.

FIGURE 6: CHANGES IN RECORDED CRIMES vs. PRISON POPULATION, 1990 TO 2006/07 ³³

Scotland's Crime Rate in International Perspective

2.38 We must face up to the particular and in some ways quite persistent problems of crime facing Scotland. However, we should not lose sight of the reality that Scotland is a long way from being an especially dangerous country, and should be careful not to give in to iconic but inaccurate portrayals of the country and its cities as exceptionally 'hard'. A country that attracted 2.6 million visitors from overseas in 2006 and where 9% of all employment is in the tourism sector clearly has much to offer the world.

2.39 Table 4 puts Scotland's experience of crime into international perspective. The data comes from the UN's International Crime and Victimisation Survey ( ICVS). Victim surveys are another source of crime data and generally capture more crime than appears in statistics recorded by the police, since they include crime that is not reported to the police. ³⁴ Table 4 shows Scotland is well down the league table among developed countries for the latest available victim reports of sexual assault (with 0.6% of respondents reporting an experience of victimisation), and is only slightly above average for assaults and threats (3.8% reporting victimisation). The ICVS also reports on the rates of victimisation in major cities. City comparisons shows that Edinburgh (the designated ICVS city for Scotland) reported less sexual assault than New York, Helsinki, Copenhagen, Reykjavik, Istanbul, London, Zurich, Belfast, Oslo or Hong Kong. Assault and threat levels were similar to New York, Helsinki, Oslo and Berlin.

TABLE 4: INTERNATIONAL COMPARISONS OF CRIMINAL VICTIMISATION, 2003/04 ³⁵

2.40 The international picture shows Scotland is not the worst, nor is it the best, in terms of criminal victimisation. However, in terms of imprisonment rates, we are among the worst, and now is the time to bring our use of resources into line with the actual nature of our problems. Tackling serious, violent crime must be the priority for any society committed to the security and safety of its citizens.

Engaging the public through informed debate

2.41 We need public involvement and support in the effort to make punishment meaningful. There are promising signs that the public are engaging with the crime debate in a rational and informed manner.

Public Views about Crime

2.42 The Scottish Crime and Victimisation Survey ( SCVS) collected the views of thousands of people in Scotland about their experiences of and feelings about crime and criminal justice.

2.43 The most recent survey, in 2006, shows that some misunderstandings about crime persist, but reveals an important shift in how worried people are about it. Many believe that crime in their area has been stable or rising in the past two years, rather than declining as recorded crime statistics show, but the overall sense is that the public are vigilant of crime without being cowed by unwarranted fears of it.

Some key findings of the SCVS 2006 are:

• More people felt that drug (76%) and alcohol (65%) abuse are big social problems than felt this way about crime (56%). ³⁶
• Fear of crime is reasonably low in Scotland. Only 3 in 10 people surveyed felt unsafe walking alone at night (and only 1 in 10 felt very unsafe).
• Most people are not worried about being victimised by serious violent crime, nor do they believe such crimes are common in Scotland.
• Half of respondents, a larger group than for any other type of offence, felt drug abuse and drug dealing are common crimes. ³⁷
• In terms of victimisation, people worried most about having their vehicles vandalised than any other type of crime. ³⁸

Public Views about Criminal Justice

2.44 The data on public attitudes about the criminal justice system, however, show some signs of scepticism and uncertainty about whether or not the system works efficiently, either to reduce crime or produce justice. Slightly more than 60% of respondents felt the criminal justice system does not deal with cases promptly and efficiently. ³⁹ Providing the public with more information and more clarity about how punishment works would improve not just the realisation of justice, but its visibility as well. Some key research findings about public attitudes towards Scottish criminal justice have shown that:

• People have generally lenient attitudes towards first time offenders ( 'we all make mistakes'), but more hardened views of repeat offenders ( 'for making a mockery of the system'). ⁴⁰
• There is a high level of intolerance of and frustration with petty crime and anti-social behaviour.

2.45 These views help explain why we are using prison to deal with people whose misconduct is noxious but not fundamentally dangerous. Although use of community sentences is increasing, failures can be punished with prison, and may have a higher chance of resulting in imprisonment where a judge feels an offender's breach amounts to scoffing at the rule of law.

2.46 Two issues would significantly improve the public's level of knowledge of and faith in punishment: first, improving the visibility of the criminal justice system's activities and effectiveness, and second, raising awareness about the dynamic process involved in moving towards a life free of crime.

2.47 As to the first issue, a major barrier to public understanding is the lack of visibility in the criminal justice system. In a study of Scottish attitudes of community sanctions, the evidence showed that '[d]espite the general belief that courts are too lenient and inconsistent, when asked to consider specific scenarios, respondents' opinions in terms of which forms of sentencing would be appropriate were broadly in line with what the court rulings would be'. ⁴¹ This suggests that once the public has detailed information about the nature of problems an offender presents and the sanctions that are available, they would act as, and presumably approve of what, professionals already do.

2.48 The public also is provided little information about how effective, and just as important, what different punishments involve. Community punishment is often equated with picking up rubbish or some other activity generally viewed as marginal to paying back for the harm done or making a difference to community life. ⁴² Similarly, there is little awareness of what happens in prison and the level of sophistication and effectiveness that the latest programmes now offer.

2.49 The second issue requires broad dissemination of the advances in knowledge we have gained into the process of desistance, that is, the process by which someone gives up crime completely. Desistance rarely happens in a single moment or as the result of one punishment; it is better characterised as a process marked by numerous small successes and failures. A single failure punished with a major sanction can have the effect of tipping a person into a more serious pattern of offending. Knowledge of the patterns of offending and the process of desistance enables the public to see when and how a community sanction or a custodial sentence is more appropriate. It would also allow court professionals to more effectively address dealing with wayward behaviour, being in a better position to distinguish seriously regressive behaviour from minor missteps.

Using evidence to inform policy

2.50 Overcrowding and excessive use of imprisonment are not taking place because we have no other options. As use of imprisonment has increased in every year of this century, so has use of community sanctions. We are using all forms of punishment more, but we may not always be using them to their best effect. This is not due to a lack of information and knowledge. Our effort to make punishment work better, for offenders and for the communities in which they - and we - live, is amply supported by a large body of research on effectiveness of prison and community punishments. Improving our performance does not require a revolution in practice; it calls for a more simple and practical effort to enhance the ability of the criminal justice system to deploy the best practices that we already know can work.

2.51 The Commission's review also provides an opportunity to take forward significant recent work in Scotland that has expanded the evidence base on improving the system of criminal punishment. These efforts include:

The Sentencing Commission's Bail and Remand Review (2005), which documented the problem of remand populations and provided specific recommendations for bail supervision and more notices of court dates;

Reforming and Revitalising - Review of the System of Community Penalties (2007), which identified the qualities of the best community penalties as being high quality, effective, immediate, visible, flexible and relevant;

Audit Scotland's Report on Managing Prison Populations (2008), which documented the causes of overcrowding and identified the inability to overcome crowding solely through new prison construction.

Sentences in the Community

2.52 In Scotland we already have evidence that reconviction rates for those on some types of non-custodial sentences are lower than for those serving a sentence in prison. ⁴³ We also know that offender programmes are better provided in the community than in prison. ⁴⁴ The qualities of community sanctions identified in Reforming andRevitalising are supported by the research literature and are found in models of best practice. We found examples of best practice in Scotland, and were particularly impressed by the Falkirk Criminal Justice Service (see Annex C). This service:

• Arranges the court schedule to allow for a problem-solving approach - Thursdays are used to hear all cases that could be appropriate for community service orders.
• Provides an immediate response - once a Community Service Order ( CSO) is ordered, the person is given an appointment the same day to appear at a criminal justice office where the conditions of the order are explained to them. They begin the CSO the following Tuesday.
• Has partnered with local educational institutions and employers to provide relevant activities.
• Has achieved the support of local stakeholders and is staffed by enthusiastic personnel.

2.53 In developing proposals for change presented in the next section, we have taken account of research and practice to show how we might move from isolated cases of best practice to a nationwide system of effective punishment.

Prison Sentences

2.54 When does prison work? If prisons are to have a place in Scotland's system of justice we need to understand how and when they 'work', as well as when they do not.

PRISONS DO NOT WORK...

• To scare people straight. The use of short sentences to provide a 'short, sharp shock' is more likely to deepen criminal justice entanglement than to deter it. ⁴⁵
• Better than community sentences to deter, to punish or to provide reparations to victims. Many offenders would prefer a short prison sentence as an easier option compared to a community sanction. ⁴⁶ Those who have been in prison previously are more likely to prefer prison to a community sanction. ⁴⁷
• To reduce recidivism.⁴⁸ The prison setting itself can be an obstacle to change. Recidivism can be addressed only when effective forms of treatment programmes are provided in prison.
• To strengthen communities. In families where one parent is in prison, other members of the family are more likely to engage in criminal activity, to go to prison, to rely on public benefits, to be placed in care, and to experience high levels of emotional distress.
• When they are overcrowded. Crowding forces prison staff to focus on basic population management issues and reduces the ability to work productively with offenders.

PRISONS MIGHT WORK...

• To support reduced reoffending when proven effective rehabilitation programmes are made available to all prisoners who have been adequately assessed to participate in them. ⁴⁹
• When they minimise the disruption to community reintegration of offenders. A system of small, local prisons is one way to achieve this.
• To keep offenders away from the public. This would indicate its use where there is strong evidence that an individual presents a threat of serious harm or where the offences are so grave as to require isolation from the community.

FIGURE 7: CASE STUDIES IN IMPROVING AND REDUCING USE OF IMPRISONMENT

Finland

Finland moved from having one of the highest rates of imprisonment in Europe in the 1970s to having similar rates to other Scandinavian countries (which have some of the lowest rates in Europe) by the late 1980s and early 1990s. It is also considered a model for the operation of its prisons where prison life is normalised as much as possible to match life in the community; inmates have jobs and receive wages, may vote, and so on. It achieved reductions in its imprisonment rate through a range of factors including legislative change, judicial coordination and cooperation in issuing fewer custodial sentences, and political support ( Annex C).

Ireland

The Commission's visit to Ireland was instructive ( Annex C). It has a prison population around 3,200. This is less than half the size of Scotland's, although it has almost a million more people. Some of the key differences with Scotland include a legislative prohibition against imprisoning anyone under 18; strong judicial support for and use of alternatives to imprisonment and community sanctions; and probation supervision focuses on the keeping of appointments, reducing the likelihood of breaches. Plans for the construction of a 1,700-bed campus with housing for men, women and young people and a secure mental hospital may contribute to growth in the imprisonment rate.

Western Australia

The jurisdiction experienced a 43% increase in its prison population over ten years, had the highest reconviction rate in Australia, and spent the most on prison. The rising prison population was mainly caused by the use of short custodial sentences. The jurisdiction implemented a package of reforms designed to improve use of alternatives to custody and community sanctions. The reform anticipated to have the biggest impact on reduced imprisonment is the abolition of custodial sentences for 6 months or less. In the first 12 months following implementation of the first reforms, the Department of Justice reported a 13% decrease in the rate of imprisonment. ⁵⁰

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