Time to debate Sentencing in Scotland?

I was reading today with great interest an article by Richard Baker MSP (Labour’s spokesperson for Justice in the Scottish Parliament) on the Website of The Firm around sentencing.  Mr Baker has argued the sentencing should become more transparent and suggested that there is a need for debate on sentencing.

Often many people will complain about the sentences handed down and about the way in which people spend very little time in prison when compared with the actual sentences handed down.  Recently, Sheriffs have also attacked the system and suggested that when they are sending a person to prison that even they are somewhat clueless as to how long the person before them will actually spend in prison.

If our legal professionals responsible for imposing sentences are unsure exactly how long a person will spend in prison then a lay member of the public has almost no hope of understanding it themselves and this is not good for justice.

Prison has, in our society, two main functions.  The first is to provide protection to the public.  Dangerous or prolific offenders can be sent there to prevent them from blighting their communities or doing any further harm for the period of their sentence.   Of course, this does not address the issue that when they leave prison they are simply likely to pose a danger to the public once again, and this is where the second function of prison comes in: rehabilitation of offenders.

The first element of prison is fairly straight forward to implement.  While a person is in prison they cannot commit any further offences and therefore the public is protected from them.  The second element is harder, and is hampered by very short sentences in which no work can be done to address the offender’s behaviour and also by the lack of provision of rehabilitation within the prison system to cope with the numbers being sent to prison.

The issue of rehabilitation could be assisted by changing sentencing rules, particularly when it comes to issues like early release.  If a prison receives a person sentenced to four years in prison then they know that they have four years in which to carry out work with the offender to try and change whatever it is within their life that is causing them to offend.  Currently, they receive a prisoner on a four year sentence and have 2 years as a maximum in which to work with the offender, but this time period could quite easily be shorter.

For our criminal justice system to work the public must have confidence in it.  When people are back out committing crime only a few months after receiving a sentence which was substantially longer confidence in the justice system cannot be maintained.

The system should be clear to all.  If a judge sentences a person to four years in custody the public expect, and indeed the reasonable person would, that the individual will not be back out on the streets for four years.

When time already served on remand is taken off a sentence it should be made clear what the sentence is.  If the judge is backdating a sentence by 2 months because this is the length of time the offender has spent in prison on remand then it should be clear that in this case a sentence of 4 years would actually mean 3 years and 10 months.  Again, the offender should serve all 3 years and 10 months of his sentence.

Of course, where an offender’s release date falls on a Saturday, Sunday or public holiday it would mean releasing them on the Friday before their release date, but this would simply be a matter of logistics as we cannot have people spending longer in prison than what they have been sentenced to.  You then have a situation of what is effectively unlawful detention and that would give rise to possible compensation claims (again something that would not give much confidence in the justice system).

When it comes to criminal justice I would probably be considered fairly liberal.  I am in support of appropriate community punishments, the abolition of very short prison sentences (which do not provide protection to the public nor do they provide a sufficient opportunity for rehabilitation to take place) and other justice measures often associated with the “hand wrangling liberals”.

When having this debate in the past individuals have argued that early release on an electronic tag for example allows a person to reintegrate to society.  My response to that is always to return to the rehabilitation aspect of prison.  What is rehabilitation if it is not about tackling the offenders behaviour in a way that prepares them to return to society and play an active and fulfilling role in that society?

For those who have maybe spent a considerable period of time in prison, for example a decade or more, it may be difficult for them to reintegrate themselves back into society having been subjected to the prison routine for such a long time.  However, there is little need to send them out of the prison before their sentence is up to complete such activities.  Alternatives may appear costly, but what will the saving be in the long run if the offender ends up not being on benefits(taxpayer saving) and not reoffending resulting in a trial and a return to prison (a further taxpayers saving).

The Probation service would be far better spending their time working with offenders upon their release from prison helping them to find work and housing, liaising with the National Health Service to ensure a streamlined switch of any treatment being received in prison and such like rather than ensuring that people who are out on licence are sticking to the rules.

The matter becomes somewhat more skewed when we begin to talk about Life Sentences though.  Many believe that life should indeed mean life and certain for some that is certainly the case.  However, we do have a justice system based upon the idea that a person can be rehabilitated.  If prison manages to rehabilitate an individual to a point where they no longer pose a threat to society then why should we not give them a chance to do so?  Of course, having been sentenced to life any evidence that they are once again a potential threat to the public should result in an immediate recall to prison.

Life sentences are where the system appears to be right.  Currently, a judge sentencing a person to life in prison must set a punishments part to the sentence.  This is the length of time that an individual must spend in prison before being considered for release.  Their release at the end of this period is by no means guaranteed and it is for the parole board to decide whether they should be released.  Prisoners serving a life sentence can and often do spend longer in prison than the minimum set by the judge.

However, in saying that, I would support giving judges the decision as to whether a person should be considered for parole.  For example, judges could have the option to pass a sentence of life with or without parole.  Some individuals have committed crimes so heinous that anything other than spending the rest of their life in prison would not be a punishment which fits the magnitude of their crime.

It does seem clear to me though that sentencing must be returned full to the hands of the judiciary.  If they issue a sentence it is because in their learned opinion the sentence is what the offender and the public deserve.  Politicians should not be trying to massage the numbers of prisoners by releasing individuals on licence before the end of their sentence.

The topic is of course a complex one that cannot possibly be adequate covered in a small blog post.  Mr Baker is correct when he suggests the need for a debate on the subject and I would add that such a debate must include canvassing the views of the public.  I suspect, the public would like to see a much more transparent system where a person serves the time they’ve been sentenced to.

Hopefully this will be something that can be revisited following the elections to the Scottish Parliament by whoever forms the next Scottish Administration.