Module 7: Alternatives to Imprisonment E4J Initiative

Module aims and structure Six key aims: To critically understand the aims and significance of alternatives to imprisonment. To identify and evaluate the five main justifications of punishment. To assess decriminalization policies, diversion strategies and alternatives to pre-trial detention as key mechanisms to reduce the use of imprisonment. To describe different types of non-custodial sanctions available at sentencing and post-sentencing stages of the criminal process. To examine critically the effectiveness of alternatives to imprisonment. To identify vulnerable groups who might benefit from alternative sanctions and demonstrate understanding of innovative practice around the world. Five key parts: Part I: Aims and significance of alternatives to imprisonment Part II: Justifying punishment in the community Part III: Pre-trial alternatives Part IV: Post-trial alternatives Part V: Evaluating alternatives

Part I: Aims and significance of alternatives to imprisonment

Non-custodial measures Some key terminology “Community corrections” “Offender supervision” “Community sanctions” “any decision made by a competent authority, at any stage of the administration of criminal justice, which requires a person suspected of, accused of or sentenced for an offence to submit to certain conditions or obligations that do not include imprisonment” (United Nations Commentary on The Tokyo Rules, 1993, p.3). Non-custodial measures Key question: To what extent should non-custodial measures be referred to as ambulant sanctions?

Why are alternatives to imprisonment important? More than 10.74 million held in penal institutions worldwide World prison population has increased by 24% since 2000 Problems of overcrowding Poor prison conditions Inhumane treatment Problems of reoffending Impact of ‘penal populism’ and media-driven ‘tough on crime’ policies Infringing human rights and the principle of human dignity

Key aims of alternatives to imprisonment (e.g.) Avoid unnecessary use of incarceration Avoid the negative effects of imprisonment such as institutionalisation Rationalize criminal justice policies Encourage and enable changes in people’s lives Provide greater community involvement in the management of criminal justice Develop a sense of responsibility to the community Enhance the prospects of social inclusion Reduce recidivism Promoting human rights and respect for the principle of human dignity Key question: But what are the potential risks?

Part II: Justifying punishment in the community

Justifications of punishment Retribution Incapacitation Deterrence ‘an eye for an eye’ offender should be punished because they deserve it punishment should fit the crime (proportional) tariff setting offender is (physically) prevented from reoffending by the punishment imposed public protection different approaches (from the death penalty to disqualification from driving) crime is reduced due to fear of punishment (makes you think twice!) individual deterrence: crime not repeated due to negative experience of punishment general deterrence: offenders are punished to deter others

Justifications of punishment cont’d… Rehabilitation Reparation 1960s ‘medical’ or ‘treatment’ model punishment as an opportunity to provide reform improving offenders’ behaviour will reduce reoffending offender should repair the harm caused restitution and compensation restorative justice interventions between offender, victim and the community Key question: To what extent can non-custodial measures achieve the different aims of criminal punishment?

Part III: Pre-trial alternatives

Decriminalization Diversion “The process of changing the law so that conduct that has been defined as a crime is no longer a criminal act” (UNODC, 2007, p.13) Any strategy that seeks to prevent the formal processing of an offender by the criminal justice system (UNODC, 2007) Key question: What types of behaviour should be classified as criminal? Can include a range of initiatives, but often results in the offender being given a warning or directed towards treatment or alternative interventions. Country examples… Decriminalization of sex work (New Zealand) Decriminalization of public drunkenness (Finland) Decriminalization of vagrancy (Philippines) Decriminalization of drug use and possession (Portugal) Decriminalization of abortion (Australia) For example, restorative justice interventions… Key question: Which agency might play a significant role in diversion strategies? Key question: What actions could be decriminalized in your country?

Alternatives to pre-trial detention “Long periods of pre-trial custody contribute to overcrowding in prisons, exacerbating the existing problems as regards conditions and relations between detainees and staff; they also add to the burden on the courts.” (UN Subcommittee on Prevention of Torture, 2011, para.158) “Pre-trial detention is one of the main causes of over-incarceration and overcrowding and it remains an enormous challenge for prison systems. Around 30 per cent of prison populations have not been convicted.” (Penal Reform International, 2018, p.11) Key alternatives (UNODC, 2006): To appear in court on a specified day Not to: engage in particular conduct, leave or enter specified places, or meet specified persons To remain at a specific address To report on a daily or periodic basis to a court, the police, or other authority To surrender passports or other identification papers To accept supervision by an agency appointed by the court To submit to electronic monitoring To secure financial or other forms of property as security to assure attendance at trial or conduct pending trial (e.g. bail). Key question: But what are the challenges in implementing alternatives?

Part IV: Post-trial alternatives

Alternatives at sentencing – ‘front door’ measures Rule 8.2 of The Tokyo Rules proposes a wide range of sanctions other than imprisonment that can be imposed by judges at the sentencing stage, to be administered humanely and with respect for human dignity. Retribution Incapacitation Deterrence Rehabilitation Reparation Key agencies? Judges and courts Legislators Administrators Probation officers Community leaders Volunteers (UNODC, 2007) Status penalties Monetary penalties such as fines Conditional discharge Verbal sanctions Confiscation or an expropriation order Non-institutional treatment Community sentences Restitution to the victim House arrest Suspended or deferred sentencings Referral to attendance centre Community service orders Probation and judicial supervision Key question: To what extent can ‘front door’ measures fulfil the purposes of punishment?

Alternatives post-sentencing – ‘back door’ measures Rule 9.2 of The Tokyo Rules states that there should be a wide range of post-sentencing alternatives made available, “to avoid institutionalization and to assist offenders in their early reintegration into society”. Furlough and half-way houses To enable short periods of leave from prison or to live in half-way houses before release into the community Work or education release To allow temporary release to work or attend educational courses Parole to facilitate early release from prison on conditions that remain in force until the full term of the sentence has expired Pardon to set aside the conviction or sentence, usually carried out by the head of state Key agencies? Judges and courts Legislators Administrators Probation officers Police officers (UNODC, 2007) Key question: What are the advantages and disadvantages of ‘back door’ measures?

Part V: Evaluating alternatives

What are the pros and cons? Observing human rights and human dignity Avoiding unnecessary use of imprisonment Preventing ill-treatment during detention Reducing overcrowding in prisons Reducing criminal justice costs Encouraging tailored, appropriate interventions Reducing stigmatization Protecting individuals, families and communities from the debilitating consequences of imprisonment But what are the cons? Unduly lenient? Poorly evaluated? Expanding social control? Net-widening? Additional financial costs? Key question: How can the ‘cons’ or shortcomings be effectively addressed?

Offenders with drug use disorders Who might benefit? The international community has identified certain groups who might be especially vulnerable to the negative impact of imprisonment. Offenders with drug use disorders Children Mentally ill Women “The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest period of time” (Article 37 (b) of the UN Convention on the Rights of the Child). “Every patient shall have the right to be treated and cared for, as far as possible, in the community in which he or she lives” (Principle 7.1 of the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care). “Appropriate resources shall be made available to devise suitable alternatives for women offenders in order to combine non-custodial measures with interventions to address the most common problems leading to women’s contact with the criminal justice system” (Rule 60 of the Bangkok Rules). “Drug use disorders should be seen as health-care conditions and should be treated in the health-care system” (UNODC and WHO, 2018, p.8). Key question: How can children, mentally ill persons, offenders with drug use disorders and women be kept out of the criminal justice system?

Innovative practice (e.g.) Community Service in Kenya Project aimed at disrupting the ‘poverty-prison cycle’ by offering entrepreneurial training as part of community service Innovative practice (e.g.) Women’s Re-entry Court in California Multi-agency approach providing gender-reponsive intensive treatment services instead of a term of imprisonment Dissuasion Commissions in Portugal Multi-agency regional panels whose main aim is to encourage individuals dependent on drugs to undergo treatment Key question: What examples of promising practice and alternatives to imprisonment exist in your country?

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