ARTICULATING THE CUSTODY THRESHOLD?

There is no provision for the suspension of a prison sentence in Scotland. Courts have the option of either a custodial sentence or a community sanction.1 This article addresses the gray area between custody and community sanctions— usually called the custody threshold. When does an offense or a case become so serious that a custodial sentence is necessary? Scholarship on the custody threshold has focused on the lack of definitional clarity in statute and case law and has proposed a range of legal and jurisprudential reforms. This article suggests that the custody threshold is a social practice that distributes marginal cases to either custody or community sanctions. Drawing on two empirical studies in Scotland, this article argues that the custody threshold is produced by criminal justice professionals who share unarticulated understandings of deserved punishments.