Decarceration without transformation

Scotland’s prison overcrowding crisis has prompted renewed calls to reduce short custodial sentences. But focusing on sentencing alone risks mistaking capacity management for structural reform. This piece examines why decarceration without social reinvestment cannot deliver lasting population change.

There is a revealing instinct at the heart of the Scottish Government’s latest attempt to address prison overcrowding: if the system is under strain, ask the system to process people differently. 

The proposal emerging from the Scottish Sentencing and Penal Policy Commission – to extend the presumption against short custodial sentences from 12 months to 24 – is framed as a pragmatic necessity. Scotland’s prison population has reached record highs. Facilities designed for roughly 7,800 people now hold well over 8,400. Emergency early-release schemes have already been deployed. Staff warn of safety risks. Ministers warn of capacity limits. Something, clearly, has to give. 

But what is striking is where the pressure is being redirected. Not toward the social conditions producing offending. Not toward the long-term sentence inflation driving population growth. Not toward the hollowed-out public services that sit upstream of criminal justice. Instead, the burden is being shifted onto sentencing practice itself – onto judges, asked to use custody less, justify it more, and seek alternatives wherever possible. 

This is not decarceration as transformation. It is decarceration as population management. And that distinction matters. 

Scotland’s overcrowded prisons are not fundamentally a crime problem. It is a state capacity problem being mismanaged through sentencing policy rather than solved through social policy. Prisons have become repositories for every other system failure. Addiction services cut, mental health provision overstretched, housing insecurity rising, community services hollowed out – prison becomes the institutional catch-all for failure originating elsewhere.

By the time someone reaches sentencing, the state has usually failed them repeatedly – in education, welfare, healthcare, housing, and employment. Custody becomes the place where accumulated institutional neglect is finally processed. Changing sentencing thresholds does not change that pipeline. It simply narrows the intake. Which is why the Commission’s framing risks treating symptoms rather than causes. 

There is a legitimate case against short custodial sentences. Evidence consistently shows that brief incarceration disrupts employment, housing, and family ties while doing little to rehabilitate. Reoffending rates are often higher among those given short prison terms than those given community disposals. On that narrow question, reform is justified. But overcrowding is not being driven primarily by short sentences. 

The data shows the opposite trend: the long-term prison population – those serving four years or more – has risen sharply in recent years. Sentence lengths have increased. Remand populations remain high. People are spending longer inside, not simply cycling through quickly.

So when ministers focus on discouraging sub-24-month sentences, they are intervening at the most politically manageable end of the system, not the structurally decisive one. It is easier to ask judges to sentence differently than to ask why so many people are arriving in court in the first place. Easier to recalibrate punishment than to rebuild prevention. This is where the debate often collapses into caricature. 

Critics – particularly on the right – frame the proposals as a ‘soft touch’ abandonment of public safety. A ‘charter of criminals.’ A reckless opening of prison doors. This is analytically thin and politically opportunistic. But it does not follow that the Government’s approach is sufficient, or even coherent. 

Reducing reliance on custody without building credible alternatives risks reproducing the very instability ministers claim to be solving. Because prison, for all its failures, still performs one brutal function: it contains. Removing custody without replacing containment, support, treatment, and supervision structures, the system simply displaces crisis back into communities. 

Which brings us to the deeper question: if not prison, then what? Here, the conversation becomes more interesting – and more neglected. 

One model receiving renewed attention internationally is the therapeutic community.  These are structured, residential environments focused on behavioural change, addiction recovery, and social reintegration rather than punishment. Residents live collectively, participate in daily therapy, undertake education and work programmes, and engage in democratic decision-making within the community. They are not easy spaces. Participation is intensive, emotionally demanding, and long-term. But they are designed around transformation rather than warehousing. 

Evidence from therapeutic community programmes – including those operating within and outside prison settings – suggests reductions in recidivism among certain offender groups, particularly among those whose criminality is linked to substance use or trauma. Crucially, they operate on a different philosophical premise. Prison asks: how do we punish wrongdoing? Therapeutic models ask: what produced the wrongdoing?

That shift matters because a large proportion of offending is situational, circumstantial, or structurally conditioned rather than purely predatory. Learned behaviour. Addiction. Poverty. Geography. Social networks. Lack of opportunity. None of which excuses harm – but all of which shapes its likelihood. 

“This is not decarceration as transformation. It is decarceration as population management. ”

I was reminded of this recently through a conversation with a trainee criminal defence solicitor, who described a client breaking down, begging for a custodial sentence – not out of fear, but relief. He had no housing. No stability. No way out of the networks he was tangled in. Prison, to him, represented structure, distance, and temporary safety. 

That is not a story about criminality. It is a story about state absence.  When prison becomes the only functioning welfare institution left, sentencing reform alone cannot solve overcrowding – because custody is being used to stabilise lives that collapse outside it. 

International comparisons reinforce this point. Norway, often cited for having one of the lowest recidivism rates globally, did not achieve this through sentencing tweaks alone. Until the 1990s, its prison system was relatively punitive. Reforms came through a systemic reorientation: smaller facilities, normalised living conditions, intensive rehabilitation, education access, and post-release reintegration planning. 

The aim was simply not to incarcerate fewer people, but to produce fewer future prisoners. That required investment far beyond justice budgets – into housing, welfare, health, and labour market integration. 

Michel Foucault once described prison as a ‘detestable solution which one seems unable to do without.’ Not because it works, but because it performs a stabilising function within unequal societies – segregating, managing, and containing marginalised populations produced by wider economic systems. From that perspective, overcrowding is not an anomaly. It is a predictable outcome of structural inequality meeting punitive institutional design. 

Which is why decarceration cannot succeed if pursued solely through courtrooms. If Scotland is serious about reducing its prison population sustainably, three parallel shifts are required. 

First, upstream investment: addiction services, mental health care, youth provision, and housing security. Crime prevention in its literal sense – reducing the conditions in which offending emerges.  Second, credible alternatives: therapeutic communities, intensive community supervision, restorative justice frameworks, treatment courts. Not rhetorical substitutes for custody, but operational ones. Third, sentence inflation scrutiny: examining why long-term incarceration has expanded, and whether public safety gains justify the population costs. 

Without these, sentencing reform becomes administrative triage. 

There is also a democratic risk embedded in the current framing. If the public experiences decarceration primarily through early release headlines and reduced custody optics – without visible investment in prevention and rehabilitation – trust in justice institutions erodes further.

Victims feel sidelined. Communities feel exposed. Political backlash intensifies. Sustainable penal reform requires legitimacy, not just necessity. None of this means prison has no role. There are individuals for whom incapacitation remains essential to public safety. But custody should be the endpoint of systemic failure, not the frontline response to it. 

Right now, Scotland’s prisons are overcrowded not because judges are too punitive, but because the state is asking them to process problems that were never criminal justice problems to begin with. 

Housing crises do not belong in prisons. Addiction epidemics do not belong in prisons. Untreated trauma does not belong in prisons. Yet prison is where they end up – because it is the last institution capable of keeping it contained. 

So yes, discouraging short sentences may ease immediate capacity pressures. It may even reduce some low-level reoffending. 

But without structural transformation, it risks becoming another sticking-plaster reform layered onto a system absorbing ever-expanding social failure. 

Decarceration, to mean anything, must be paired with social reinvestment. Otherwise, we are not reducing imprisonment. We are simply rearranging where – and how visibly – the consequences of inequality are managed. 

And overcrowding will return, because the pipeline producing it will remain intact.