Fergus McNeill. The technical term at the Council of Europe level is “community sanctions and measures”. Practitioners working at the European level have preferred that terminology for a reason: the problem with defining everything as an alternative to prison is that you make imprisonment seem like the default sanction. If you do that you’ve already lost the argument, especially in Europe, where there are more people under community supervision than behind bars. In Scotland, the ratio is closer to three to one. And yet we keep talking about community sentences as if they were the exception.
Community sanctions and measures (CSM) covers both “measures” taken before or instead of a court decision, and “sanctions” imposed by a judge. Both measures and sanctions happen outside prison walls. In French law, the term is milieu ouvert, the “open environment”. In German they are sometimes referred to as ”ambulant” sanctions, in other words as sanctions that move with the person rather than confining to a place or an architecture. What CSM require can range from something that seems quite minor to something very severe. Conditions can include positive requirements to do something: unpaid work, drug treatment, regular meetings with a supervisor, offending behaviour programmes; or prohibitions like curfews, restrictions on movement, or bans on contact with certain people. In some places, CSM can go much further: for example, round-the-clock house arrest under electronic monitoring. And, of course, CSM with these kinds of conditions can include release measures that follow a prison sentence or that comprise a part of it.
Even in the most minimal case of supervision, the person lives under the permanent threat of a more severe sanction. The psychological effect of knowing that stepping out of line might lead to incarceration is what I would call systemically induced vulnerability and precarity.
In Scotland, we invested a lot of time and energy in trying to develop alternatives from the 1980s onwards, but history has taught us that they weren’t really alternatives to imprisonment: they became supplements to it. The population supervised in the community increased very significantly (around 8-fold by 2015), but the prison population also continued to rise; and crime rates were stable or falling in this period. So, despite out intentions to divert people from prison, we ended up massively expanding the total correctional population. The reason that this expansion of CSM went largely unnoticed was that it was assumed that such sanctions were a benign in their effects; that they helped people - or at least did them no harm. That turned out to be a toxic combination: if you think you are providing a diversionary alternative and that it is doing something good, there seems to be no reason to look carefully at the risks of drawing more people into the correctional system.
The biggest mistake that allowed this netwidening, in my view, was that policy makers did not engage directly with judges and sentencing. They designed new “alternatives”, but they did not do anything that significantly changed judicial decision-making around how both imprisonment and CSM should be targeted. The result was netwidening: judges used the new alternatives, often for people they might previously have fined, but also went on using imprisonment. This drew more people into the system and increased the potential for people to default on community sentences and end up in prison.
If you want community sanctions to reduce the prison population, you have to think carefully about who is getting the sanction and at what point, so that you are not drawing in people who would not otherwise have faced imprisonment. You also need to think about how compliance with CSM is managed. Because if you have a strict enforcement system and a legal framework that allows you to inflate the penalty when someone violates a condition, you can end up with what happens in some American states, where lawyers encourage their clients to refuse probation and take an immediate custodial sentence instead, rather than risking sentence inflation further down the line. In these kinds of circumstances, rather than an off-ramp from the system, you produce a conveyor belt into it.
If you want to send fewer people to prison, you have to send fewer people to prison, not proliferate the alternatives. Another deeply unpopular message: if you want your prison population to come down, you probably also need to make prison sentences shorter. In my country, there are hardly any politicians brave enough to raise that prospect. Instead, we have had sentence length inflation for decades.
