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Overcrowding is real, but so is wrongful deprivation of liberty

Scotland’s prisons are overcrowded. That is not a slogan or a talking point, it is a material condition that shapes everything that follows. It shapes staff safety, time out of cell, access to programmes, mental health, family contact, and the basic chance of rehabilitation being more than a word on a leaflet.

This article responds to a recent piece in The Herald arguing that Scotland must jail fewer people to protect the public. That argument is serious and worth engaging with. But the prison debate often treats “where people are managed” as the central issue. It rarely asks the more basic question: on what basis is liberty taken or delayed, and how often do untested claims end up doing the work that proof is meant to do. That omission matters, because overcrowding is not the only way a justice system can cause harm.

The public protection case for reducing imprisonment is not inherently “soft”. It can be pragmatic, evidence-led, and focused on long-term safety. Overcrowding strains staff, reduces stability, and undermines rehabilitation. Short sentences can disrupt housing, employment and family ties without creating any meaningful time or capacity for change. If the system increases reoffending, it creates more victims.

But reform that focuses only on headcount becomes shallow fast. A justice system can jail fewer people and still be unjust if it becomes casual about evidence, disclosure, and the right to challenge what is said about you.

What the “jail fewer” argument gets right

The core claim is simple: high imprisonment does not automatically equal a safer society. If custody is used too readily, especially for short periods, it can increase long-term harm rather than reduce it. Prevention matters. Stable housing matters. Treating addiction and mental ill health matters. Well-designed community disposals can be more constructive than short custody, and they can keep people connected to the very things that reduce reoffending: family responsibility, employment, services, and routine.

We don’t need to deny any of this. We can support decarceration and still insist that public protection requires something else too: procedural integrity.

The missing question: on what basis is liberty taken?

Most public discussion concentrates on where people are managed, prison or community. That matters. But it skips the more fundamental issue.

How does the system decide who loses liberty at all, and what safeguards ensure those decisions are grounded in testable truth?

And this is where a major blind spot appears. There is a group largely absent from mainstream reform debates: people who maintain their innocence and are still fighting to have that claim meaningfully examined. This is not a rhetorical device. Every justice system built on human memory, interpretation, incentives, and discretion will produce error. The question is not whether error exists, but whether the system has the humility and safeguards to detect it. In practice, the drift away from testable truth tends to show up in three recurring ways.

1) Narrative standing in for proof

Official language can harden into “facts” long before anything has been tested. Charging wording becomes a story, the story becomes a consensus, and the consensus becomes a substitute for proof. When that happens, the presumption of innocence stops being a safeguard and becomes a courtesy, granted or withdrawn depending on the temperature of the moment.

2) Risk standing in for proof

Risk assessment has a place, but risk language is easily inflated, especially under institutional pressure. Once “risk” becomes a catch-all label, it can justify restrictions without evidential discipline. It can shape conditions, supervision intensity, recall thresholds, and the practical reality of whether a person’s liberty is meaningful or merely nominal.

3) Untested allegations shaping outcomes

This is the quiet one, and it is often most visible at the margins of custody, in parole, temporary release, and progression decisions. Allegations may appear late, remain unproven, and never face sworn scrutiny, yet still delay release. Liberty is altered by material that cannot be properly challenged. This matters most for people who maintain their innocence. When an allegation has never been tested in court, or has collapsed, or was never capable of proof, but is still allowed to influence parole or progression, the system quietly abandons its own standards. For someone fighting to establish innocence, liberty is no longer determined by evidence, but by unresolved suspicion. That is not public protection. It is administrative containment.

This is not a marginal flaw. It is a structural vulnerability. A system that allows untested claims to delay liberty will always be tempted to choose the “safe” decision over the correct one.

Overcrowding creates pressure, and pressure erodes safeguards

Overcrowding does not only harm people directly. It also changes institutional behaviour. Under sustained pressure, systems tend to prioritise throughput over precision, rely on summaries rather than primary material, and treat challenge as disruption rather than as a safeguard.

  • Throughput begins to matter more than correctness
  • Summaries replace primary material
  • Challenge is treated as delay, not protection
  • Administrative convenience displaces proper scrutiny

This is not because individuals become malicious. It is because organisations under strain default to self-protection. In justice, self-protection often looks like avoiding the decision that could attract criticism later, even if it is the right one.

So yes, overcrowding is a crisis. But it can also become an alibi, a reason to prefer decisions that are easier to defend over decisions that are properly justified.

Community justice can help, but it can also widen the net

Prevention, diversion, and community sentencing can be valuable. Properly resourced, they can reduce long-term harm and outperform short custody. But there is a risk that reformers often understate: net-widening. When systems move away from prison, they do not always move toward freedom. Sometimes they move toward softer forms of control that reach more people, attach more conditions, and create more routes back into custody through breach and recall.

  • More conditions attached to disposals
  • More technical breaches and compliance traps
  • More recalls for non-criminal non-compliance
  • More surveillance and monitoring as default
  • More “engage or else” pathways that are coercive in practice

None of this means community sentences are wrong. Many are far better than prison. The point is that any restriction on liberty still requires justification, proportionality, and a meaningful right to challenge the basis of the decision.

What reform must include if it is serious about public protection

If Scotland is going to reduce imprisonment in a way that genuinely protects the public, reform must run on two tracks at the same time. Track one is familiar: prevention, stable housing, trauma-informed services, and consistent community provision. Track two is too often missing: procedural integrity. That means building rules that prevent liberty being altered by untested, unchallengeable material, whether that happens in prison, in parole, or through administrative decisions that never see the inside of a courtroom.

Minimum conditions for legitimacy:

  • Challengeable allegations: if an allegation is used to delay release or restrict progression, it must be disclosed in substance and capable of being meaningfully contested.
  • Evidence vs information: a clear separation between concerns, intelligence, and proved facts, with decision-makers required to state what weight is being placed on what.
  • Written reasons that can be appealed: not vague “risk” language, but specific reasons tied to material that can be checked.
  • Transparency: publish anonymised data on deferrals, late-stage allegations, recall reasons, and regional variation, so patterns cannot hide in silence.
  • Independent oversight: external scrutiny with the power to require change, not institutions marking their own homework.

These are not ideological demands. They are the basic safeguards a modern justice system needs if it expects the public to trust its decisions.

Why this article exists: Accused.scot exists because these procedural failures are not theoretical. They are lived by people who have lost years of liberty while still contesting the basis of the case against them. Many are not asking for sympathy or shortcuts. They are asking for something more basic: a system willing to test its own conclusions, disclose the material it relies on, and distinguish unresolved allegation from proved fact.

The ethical point that cannot be avoided

A society can hold two truths at once.

Real victims deserve dignity, seriousness, and protection. The accused deserve a process capable of distinguishing truth from error. If a system cannot hold both, it does not deliver justice. It delivers a moral hierarchy where some rights are conditional and others are assumed away.

Overcrowding is real. So is wrongful deprivation of liberty.

Any reform that reduces prison numbers while leaving innocent people trapped behind unresolved allegations has not made the system safer, only quieter. Scotland’s justice debate needs to stop treating these as competing concerns. They are linked. A system that cannot reliably test truth will always create unnecessary harm, whether it does that harm in prison cells or through quieter, less visible forms of control elsewhere.

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