NEIL MACKAY’S BIG READ: Should Scotland decriminalise all drugs and only use prisons as a last resort for criminals?

Fraser, one of the nation’s leading criminologists, is director of the Scottish Centre for Crime and Justice Research, run by the universities of Glasgow, Edinburgh, Stirling and Strathclyde.

There are serious deficits in Scotland when it comes to the notion of justice – nearly all driven by inequality, with mostly the poorest people in society, often suffering from drink or drug problems, landing behind bars.

Scotland should consider decriminalising drugs, Fraser says, and also setting up a Citizens’ Assembly-style forum where those who have been at the sharp end of crime, poverty and imprisonment can advise the Government on how to create a fairer justice system. Jail should be a “last resort” as prison “perpetuates a cycle of harm”.

Doublethink

SCOTLAND is engaged in doublethink when it comes to justice: we believe we’re a just, equal society, but the reality is much different and darker. As Fraser says: “The temptation in Scotland is to say that we’re a just nation, that there’s something intuitively, instinctively just, fair and equal about us, that we’re all Jock Tamson’s bairns. But when you look at the evidence, I’m not really sure that stacks up.

“There’s a story we tell ourselves, a kind of national narrative about justice and equality, but when you look at the reality, when you look in the shadows, you see a lot of inequality and injustice. There’s this national story of ‘justness’ but also something happening underneath that’s darker.”

He adds: “In many cases, our criminal justice system doesn’t do anything for social justice, and often compounds inequality and perpetuates injustice.”

Prison problem

THE most glaring problem, Fraser believes, is the prison system. “There’s a comparatively high rate of imprisonment in Scotland,” he says. “Scotland is an outlier in Europe, with one of the highest rates of imprisonment. The Scottish Government says it’s committed to reducing that, but it’s not really moved anywhere. The Scottish Prison Commission looked at setting a target of reducing the prison population from 7,500 to 5,000 in 2008 – it’s not moved, it’s still the same.”

Scotland, he notes, “has increased the number of people under community sentences while not reducing the number of people going to prison, so the result is more people subject to some kind of state supervision”.

In Scotland, the poorest and most vulnerable tend to end up in jail. Fraser explains: “There are massive crossovers between the populations in prison and issues of mental health, addiction, social inequality and injustice. Prison tends to amplify and perpetuate the same sort of systems of social inequality that you see in society at large.”

The rates of suicides and drug-related deaths in prison, Fraser says, “are incredibly high, and the systems in place to respond to that are not fit for purpose”.

At the same time, as Scotland’s prison numbers remain persistently high, we’re also facing what Fraser refers to as “the scandal of legal aid”.

He says: “As a result of the diminishing amount of funding to legal aid solicitors, basically they’re just walking out on cases. There are people who are in need of legal representation and not able to get it. In terms of how just we are as a society, that’s quite telling.”

Fraser points to the Scottish Government publishing its Vision for Justice report last week – a five-year strategic plan. “Of course, that word ‘justice’ features frequently along with ‘fairness’ and ‘equality’, but what I found surprising is the way this has been phrased as a ‘vision’ because when you think of the word ‘vision’, you think of a bold, bright, shiny image of the future, and the steps which would be taken towards building this new future.

“ Reading through the document, I didn’t see much of that. I didn’t see much vision for the kind of radical change that conditions demand. What you see is rather more of the same.”

Small nation syndrome

FRASER wonders if “the reason for this is down to the fact we’re a small nation”. He adds that, in Scotland, “you hear and see a lot of people minimising and diminishing issues. We often bring things down to a level that takes the edge off issues in some way. Perhaps this is due to being a small nation and therefore in order to make anything happen we need consensus”.

That’s not how radical ideas emerge, however, and Fraser believes it’s radical ideas which are needed to make Scotland a more just nation. He’s quick to point out, though, that “there are also a lot of good things that Scotland is doing”. Fraser adds: “I don’t want to be a total downer.” He is a specialist in violence reduction and one of the big success stories, he points out, is that “over the last 15 to 20 years, rates of violence in Glasgow, and Scotland more broadly, have gone down so significantly”. In London, he notes, “rates have gone in the other direction”. His peers in England are “constantly in awe of what’s been achieved in Scotland” over tackling knife crime, gang culture and murder rates.

“So, it’s also important to recognise that while being a small nation sometimes may get in the way of change, it can also be a real asset too.”

Inequality

WHEN it comes to the question of “just how just is Scotland”, poverty and inequality are at the heart of the problem. “Societies that are more unequal tend to have higher rates of crime,” he says. “If we’re thinking about making Scotland a more just society, addressing social inequality first seems to be absolutely primary.”

Fraser worries that the criminal justice system itself “gets in the way” of tackling inequality. “The flaws in the criminal justice system are central to problems we see around social justice,” he says.

Perhaps the most intractable problem facing Scotland when it comes to crime, inequality and justice is the inability to break the so-called “cycle of despair”: the journey which sees someone experience abuse or neglect in childhood entering the care system, then as an adult getting locked into addiction, crime and jail, often ending in death.

Public health

FRASER believes that key to the success in reducing violence on the streets was “the shift towards a public health approach” to crime: tackling the causes of why mostly young men picked up knives. He explains the public health approach to crime like this: “The idea came from the outbreak of cholera in water systems in the Victorian era when it was discovered that rather than deal with the problem after the fact, we needed to treat the water.”

He adds: “There’s a need for that kind of ‘upstream’ approach to be broadened when it comes to crime.” A public health approach to offending – rather than just violent crime – could target the most vulnerable in society from a young age to prevent them entering that cycle of despair.

However, Fraser notes there are “dangers” in taking a public health approach to all crime. He warns that it could become a “catch-all the way that post-9/11 national security became the reason the state needed to intrude into your life and surveil you”. The same problems could arise around privacy and the use of “data for public health” as officials would use information from the NHS, education, police and the welfare system to get a “wraparound understanding of a person’s life to find the most appropriate upstream form of intervention, and that obviously has a potential conflict with a person’s right to privacy”.

Police, though, are already “talking much more in terms of public health approaches to crime. Crime takes up an increasingly smaller part of police time. They’re dealing with all kinds of different crises, such as mental health, that aren’t directly to do with crime”.

It’s also important, however, to remember that “poverty isn’t the cause of all crime”, Fraser says, pointing to “gendered violence and cyber crime” as just two examples.

Political will

THE short-termism of politicians working to election cycles and fearing accusations that they’re “soft on crime” is a “perennial problem”, Fraser says.

The one instance of politicians breaking out of short-term thinking came after 2004 when the World Health Organisation “released its report about rates of violence in Glasgow and the west of Scotland being at absolutely staggering levels”.

This was a time when Glasgow “had the reputation as the most violent city in Europe”. The sense of “national embarrassment” led to the setting up of the Violence Reduction Unit, which took a public health approach to knife and gang crime “over a 10-year agenda”.

Fraser adds: “Today, it feels that crime and justice don’t occasion the same degree of political and public embarrassment or attention that they once did.”

Clearly, with levels of incarceration so high, there’s still plenty of crime around, but, says Fraser, “a lot of the most egregious forms of crime that we’re talking about today happen behind closed doors – domestic abuse, online violence and abuse”. He says: “They’re more hidden from the public eye and so it’s more difficult to form a large enough critical mass to prompt action.”

Fraser adds: “In the scales of justice, visible crime has gone down but forms of injustice have gone up and there’s not sufficient public interest to demand action.”

Behind bars

COVID, Fraser believes, “exposed the existing cracks in our criminal justice system” particularly around the use of remand and short-term prison sentences.

Rates of remand “increased massively during lockdown due to delays in court hearings. So there was this huge, new population that was being effectively held without trial”. Those in prison “were spending up to 23-and-a-half hours in their cells without the hygiene protection we took for granted in outside society”.

When it comes to short-term prison sentences “there’s a whole population of people in prison who are trapped in a kind of revolving door – coming in and out for short sentences repeatedly.”

Most are poor, vulnerable and marginalised people jailed for petty offences. Although not all have addiction problems, when drink and drugs are involved it’s usually a means to “escape”. They aren’t guilty of “egregious crimes against society”. Repeated imprisonment “fragments their life, social relationships, their stake in society”.

Fraser adds: “Prison is an expensive and perhaps unnecessary way of responding.” During Covid, repeat imprisonment for these types of offenders meant even less contact with the outside world, and “what forms of support and education there are within prison fell by the wayside”.

Under lockdown there was also a spike in gang and youth violence. Scottish Government figures released this week showed violent crime up 7 per cent on pre-pandemic levels, sex crime up 3%, with overall crime down 5%.

However, Fraser says that we may never know the true facts around crime rates during Covid.

No victimisation surveys were conducted to show how many people experienced crime without reporting it to the police. This type of study shows what criminologists call “the dark figure of crime”, compared to police-recorded crime.

Citizens’ Assembly

FRASER says that a “hopeful way to look at Covid is that the cracks [in the justice system] have now been revealed and cannot be papered over, but should be repaired in such a way to rebuild a better society”.

He suggests that Covid may ironically have even revealed a possible fix for Scotland’s persistent problems around crime and justice. It was “grass roots community groups”, Fraser says, “who were there day in and day out, responding to harm in their local area, mobilising, reaching out to people. They filled the gaps which the state couldn’t reach”.

He suggests we need to involve these ordinary people who are on the “frontline” dealing with crime, inequality and addiction in a “Citizens’ Assembly-style forum” to advise the Government on how to change for the better.

“Radical steps need taken,” he adds. “Is there enough connection between the political class and these local areas? Perhaps not.”

Many organisations working in deprived areas “struggle for funding and face going out of business”, says Fraser, adding: “The voices of people with lived experience of the criminal justice system – who have been really at the sharp end delivering services and reducing harm – need listened to by Government, consulted, they need to be part of the conversation.

“Creating some sort of consultative forum where those who have seen the worst effects of the criminal justice system, and therefore know the best solutions, would be a very good step.”

Decriminalisation

ANOTHER key game-changer, says Fraser, would be decriminalisation of drugs. “This is me speaking personally, but I think looking seriously and critically at the decriminalisation of drugs would be a good place to start when it comes to the inequalities we see in the criminal justice system,” he believes. “Obviously, it would need to be done in a measured and evidence-based way but many of the issues around crime, justice and inequality are tied up with the drug trade.”

The biggest change in terms of a fairer justice system would be altering how Scotland uses prison. “Prison should be a last resort. Reduce the length of time people are in prison, increase the number of people dealt with via community sentences.”

Fraser points out that he has “many colleagues who take a much more critical line and would just abolish the prison system writ large as they feel it does more harm than good. For most people, prison exacerbates the challenges in their lives. When you take someone out of society, you take them away from relationships, families. In terms of maintaining a stake in society, prison often harms that and makes life very challenging post-release. It perpetuates a cycle of harm and harmful behaviours. Often when people are released there’s little support available for them.”

Many criminologists believe society should think “more about harm than crime”.

Does a shoplifter stealing to feed their children do the same harm to society as a violent mugger? Who should be jailed and who should be helped? Should only violent offenders face imprisonment?

“These are the kinds of logical conclusions that raising this question of ‘harm versus crime’ might lead to,” Fraser says. “A radical shift in our thinking would perhaps help us approach all these problems differently.”

The future

WHEN it comes to the future, the toughest questions regarding justice centre around technology: issues like governments using sophisticated online nudge techniques – via targeted adverts and prompts on social media – to get us to conform to various policies and campaigns, mostly around health. There are big questions to be asked how our data is used by governments to target us, and whether similar techniques might be used on matters less benign than health.

Technology also presents fears of state overreach when it comes to the use of artificial intelligence and police drones. Legislation to ensure the state doesn’t go too far in the use of new technology needs passed, Fraser believes.

At the moment, it’s something of a wild west. “The rise and rise of technology, that’s the new force shaping our world. At the moment, when it comes to the mechanisms of the criminal justice system, we’re just not equipped to deal with the new challenges to equality and justice which technology presents.”