A way forward on sentencing, rehabilitation and imprisonment

The Scottish Prison Service is transforming itself by focusing more on rehabilitation. This is a welcome development. Yet there is an unintended consequence of that transformation: custody may become a more alluring sentencing option.

Against a background of increasing cuts to budgets for community-based services, this creates a serious risk that more non-dangerous people will end up going to prison, not because the seriousness of their offending requires it, but because of a benign desire to address their needs. To preclude this unintended consequence, we need, as a society, to spell out that no one should be sent to custody for the specific purpose of rehabilitation.  

In his aspiration to build “the most progressive justice system in Europe”, the Justice Secretary notes that Scotland has one of the highest per capita rates of imprisonment in Europe. He points out that this is not the consequence of high crime rates, but a cultural attachment to imprisonment.

One of the reasons why we are so attached to imprisonment lies in its allure as an institution. Prison in our culture is not just about public protection, or to denounce serious crime. We also like to imagine that it is a way of making needy, if not dangerous, people better.

That non-dangerous people should be confined in large part for their own good is not a new sentiment. Victorian society believed strongly in the power of institutions to improve the individual. That legacy continues to this day. Prison offers a seductive combination of help, protection and control. Many vulnerable women and men, who have not committed serious offences, end up in prison because there appears to be nowhere else for them.

The Scottish Prison Service (SPS) has been embarking on a radical transformation of imprisonment. Prison conditions are becoming far less degrading than they used to be, and the regimes are running more purposeful activity than they used to. This is surely a very good thing. People are, after all, sentenced to imprisonment as punishment not for punishment.

And yet there is also a very real danger in this transformation. The danger is not in the welcome transformation of prison regimes, but in the unintended consequences for penal sentencing policy and practice. 

As the experience of custody is being re-imagined as a positive, constructive, even beneficial experience so it will be hardly surprising if prison becomes a more alluring place to send people – not because of the seriousness of their crimes, nor because they are a danger to the public, but in large measure for their own good.

In a context in which non-custodial sentences still struggle to gain credibility in the eyes of legal professionals, politicians and the public, and in which social services are being stretched, and in which third sector funding is precarious, there is always prison to fall back on. Imprisonment, unlike community-based sentences, appears as the dependable, credible and well-resourced default.

The result is likely to be self-perpetuating. Resources will be sucked into the credible, robust and reliable option of imprisonment at the expense of community-based programmes which appear as weak, unreliable and poorly explained.

So, you may ask, what is the problem? If prisons are now becoming places of rehabilitation isn’t that good? The problem is that for all the good work which may be done in prison and the aspiration of the prison service to do more to facilitate a reduction in reoffending, a prison is still a prison.

A prison is not, in essence, a hospital, addictions clinic, school, college, employment centre, friendship network, nor, a surrogate family. It is, by definition, first and foremost, a place of secure confinement.

For those people whose offending requires them to be there, prison can and should try to help them. But imprisonment can never really replicate the complexities and uncertainties of outside society.

So, to take a crude example, the seriousness of offending by those convicted of armed robbery may mean that they should be imprisoned and while they are there the prison service should do its best to help them change. Those convicted of much more minor offences should not be imprisoned, no matter how needy they may appear.

Put simply, you can never really prepare someone for the outside by keeping them inside – that is why community-based sentences have always been associated with lower levels of reoffending than custody. Indeed, when all else is controlled for, imprisonment has a criminogenic effect.

So what should be done? None of this is intended an argument for the abolition of imprisonment. Nor is it an argument for the mere warehousing, or humane containment, of prisoners. 

Rather it is an argument for confining the use of imprisonment in our society to the seriousness of offending. 

We should start by enunciating a fundamental principle: Rehabilitation, self-improvement and other forms of personal help intended to address an individual’s personal and social needs should be expressly excluded as grounds for recommending, suggesting or passing a custodial sentence.

This is, of course, only a start. Third sector and community-based funding and visibility have to be addressed.

Yet, if, as a society, we do not explicitly rule out the rehabilitation of the individual as a specific ground for a sentence of imprisonment, we will see growth in the use of custody – not because of a desire to denounce and exclude, but as the unintended consequence of a desire to help.

Dr Cyrus Tata is Professor of Law and Criminal Justice at the University of Strathclyde. This is an extract of a longer piece which is being published in Scottish Justice Matters and can be accessed here.