One cannot legislate kindness? The development of European legal instruments governing non-custodial sanctions Dirk van Zyl Smit and Sonja Snacken.

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Presentation transcript:

One cannot legislate kindness? The development of European legal instruments governing non-custodial sanctions Dirk van Zyl Smit and Sonja Snacken

The high noon of rule making 1988 Standard Minimum Rules for the Implementation of Non-Custodial Measures involving the Restriction of Liberty (Groningen Rules) 1990 United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules) 1992 European Rules on Community Sanctions and Measures.

The apparent growing regional and international consensus about: ~ importance of alternatives to imprisonment; ~ increased legality and legitimacy of community sanctions; and ~ enforceable safeguards The significance of these Rules (1)

The significance of these Rules (2) Acceptance of the need for international standards involved questioning other strategies: ~ radical non-interventionism (Schur 1971) ~liberal scepticism (Bohan 1987) ~ classical purism of suspended sentences?

Post-high-noon ambiguities (Council of Europe): Shift of primary focus to promotion, while generally maintaining safeguards Recommendation on “improving” implementation of the ERCSM (2000) Provision for: * indeterminate community sanctions *expanded use and propagation of csm. Recommendation on conditional release (2003) Exclusion of release conditional only on not reoffending = traditional suspended sentence/parole Council of Europe Probation Rules (2010) Focus on establishment and proper functioning of probation agencies, not primarily on probation as csm Expansion of CSM into Central and South-Eastern Europe post-1992

The growing role of the EU Expansion of csm into Central and South- Eastern Europe (post 1992). Framework decision (FD 947) on the application of the principle of mutual recognition … to the supervision of probation measures and alternative sanctions EU funded research on csm.

Conclusion: The role of European academic penology Re-evaluate earlier critiques? Radical non-interventionism Liberal scepticism Virtues of suspended sentences with minimum conditions. Re-assert human rights restrictions? Rights-based rehabilitation The role of socio-economic rights. Understand the power politics of European policymaking on non-custodial sanctions?