Can we legislate to keep people out of jail?

Reaction to this week's Scottish Government announcement on sentencing reforms was pretty predictable, from "soft touch Scotland" frothing at the mouth in the tabloids (and from some politicians), to the more thoughtful pieces in other papers which recognise that there is a serious debate to be had.

Mr MacAskill has made much of the fact that short prison sentences amount to free bed and board at the taxpayer's expense, but offer little chance of rehabilitation and show a high rate of reoffending for those who have been through them. It is also more or less explicit in his remarks that there are a lot of people sentenced to prison who should not be there.

How is that so? We already have legislation that says an offender who has not been sent to prison before, should not receive a jail term "unless the court considers that no other method of dealing with him is appropriate". Unless this is not being used properly, those who have been through the system have already crossed this threshold. It is not so surprising therefore that judges are concerned that any further restrictions on their powers will amount to an undue interference with their decision making.

I do not doubt that more could be done by way of alternative programmes to try and change offending behaviour. The additional options proposed by the Government for deferred sentences etc must also be welcomed - judges should be encouraged to try any combination of measures they think might work in an individual case. But it will - or certainly should - take more than just another layer of legislation to make a significant difference to the prison population, and unless proper resources are made available to support genuine alternatives, the current proposals will prove no more workable than the attempts to date to reform early release.

The McLeish Commission recognised the need to back up its recommendations with resources. Does the Government?