Sentencing and penal policy in the new Scotland: consultation on extending the presumption against short custodial sentences

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Abstract

In post-referendum Scotland it is widely suggested that this may be a moment to move away from Scotland’s relatively heavy use of imprisonment. In its efforts to reduce radically the prison population there seems to be real intent by the Scottish Government to shift the emphasis from prison to community penalties. To try to achieve this, the Government has deemed it necessary first to restrict mandatory community support for and supervision of long term prisoners - a move which could make the overall task more difficult. Currently the major tool in the Government’s reform box seems to be the extension of the presumption against ‘ineffective’ and ‘unnecessary’ short custodial sentences. But will such an extension work? This paper argues that the extension of the presumption is likely to have little impact by itself. Additional options include: relinquishing the policy of ‘custody as a last resort’ and instead making other penalties ‘the ultimate sanction’ (including for breach); creating a public principle which ensures that no one goes to prison for want of anything to address their needs; more creative use of Electronic Monitoring; making certain kinds of cases normally non-imprisonable.

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Keywords

  • sentencing
  • penal policy
  • imprisonment
  • short sentences

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