Handbook of Basic Principles and Promising Practices on Alternatives to Imprisonment PDF
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2007
Dirk van Zyl Smit
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This handbook details basic principles and promising practices for alternatives to imprisonment. It explores various aspects of alternatives at different stages of the criminal justice system, including pre-trial, sentencing, and early release. It emphasizes the importance of considering the needs of vulnerable populations, such as children, drug users, and women, when creating alternatives to imprisonment. The document aims to reduce the prison population by providing guidance on implementation.
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Handbook of basic principles and promising practices on Alternatives to Imprisonment CRIMINAL JUSTICE HANDBOOK SERIES UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Handbook of basic principles and promising practices...
Handbook of basic principles and promising practices on Alternatives to Imprisonment CRIMINAL JUSTICE HANDBOOK SERIES UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Handbook of basic principles and promising practices on Alternatives to Imprisonment CRIMINAL JUSTICE HANDBOOK SERIES UNITED NATIONS New York, 2007 Acknowledgements The Handbook on Alternatives to Imprisonment was prepared for the United Nations Office on Drugs and Crime (UNODC) by Dirk van Zyl Smit, Professor of Comparative and International Penal Law, University of Nottingham, United Kingdom, formerly Professor of Criminology and Dean of the Faculty of Law, University of Cape Town, South Africa. The handbook was reviewed at an expert group meeting held at UNODC in Vienna from 31 October to 1 November 2005. UNODC wishes to acknowledge the valuable contribu- tions received from the following experts who participated in that meeting: Alvaro A. Burgos Mata, Yvon Dandurand, Curt T. Griffiths, Nashaat H. Hussein, Kittipong Kittayarak, Tapio Lappi-Sepälä, Benjamin Naimark-Rowse, Adam Stapleton, and Vera Tkachenko. Also contributing throughout the development of the Handbook were Mark Shaw, Ricarda Amberg, Anna Giudice, Claudia Baroni, Bernardo Camara, and Miriam Magala of UNODC. Following the expert group meeting, the handbook was revised by Suzanne Schneider and Sharman Esarey, consultants to UNODC. UNODC also wishes to acknowledge the support provided by the governments of Canada, Sweden, and Norway toward the development of the handbook. United Nations publication Sales No. E.07.XI.2 ISBN 978-92-1-148220-1 This document has not been formally edited. Contents Introduction 1 1. Introducing alternatives to imprisonment 3 1.1 Why consider alternatives to imprisonment 3 1.2 What is to be done? 7 1.3 Who should develop the strategy to alternatives to imprisonment? 9 1.4 Potential challenges 9 1.5 The role of the United Nations 10 2. Limiting the criminal justice system’s reach 13 2.1 Decriminalization 13 2.2 Diversion 14 2.3 Who should act? 16 3. Pre-trial, pre-conviction and pre-sentencing processes 17 3.1 General 17 3.2 Alternatives to pre-trial detention 19 3.3 Considerations in implementing alternatives to pre-trial detention 20 3.4 Infrastructure requirements for alternatives to pre-trial detention 22 3.5 Who should act? 23 4. Sentencing and alternative punishments 25 4.1 Sentencing 25 4.2 Possible alternatives to sentences of imprisonment 26 4.3 Specific non-custodial sentences 28 4.4 Infrastructure requirements for sentencing alternatives 39 4.5 Choosing alternatives to imprisonment at the sentencing stage 41 4.6 Who should act? 45 5. Early release 47 5.1 Forms of early release 47 5.2 Early release: concerns and responses 50 iii 5.3 Early release on compassionate grounds 53 5.4 Conditional release and its administrative infrastructure 54 5.5. Who should act? 56 6. Special categories 57 6.1 General 57 6.2 Children 57 6.3 Drug offenders 62 6.4 Mental illness 66 6.5 Women 68 6.6 Over-represented groups 71 7. Toward a coherent strategy 73 7.1 Knowledge base 75 7.2 Political initiatives 75 7.3 Legislative reform 75 7.4 Infrastructure and resources 76 7.5 Net-widening 76 7.6 Monitoring 77 7.7 Promotion of alternatives 77 7.8 The media and alternatives to imprisonment 78 7.9 Justice and equality 78 Conclusion 79 iv Introduction This handbook is one of a series of practical tools developed by UNODC to support countries in the implementation of the rule of law and the development of criminal justice reform. It can be used in a variety of con- texts, including as part of UNODC technical assistance and capacity building projects. The handbook introduces the reader to the basic princi- ples central to understanding alternatives to imprisonment as well as descriptions of promising practices implemented throughout the world. A companion Handbook on Restorative Justice Programmes is also available from UNODC. This handbook offers easily accessible information about alternatives to imprisonment at every stage of the criminal justice process; important considerations for the implementation of alternatives, including what var- ious actors must do to ensure its success; and examples of systems that have reduced imprisonment. The handbook has been written for criminal justice officials, non-governmental organizations, and members of the community who are working to reduce over-reliance on imprisonment; to improve the delivery of justice, including rehabilitation and reintegration; and to integrate international human rights-based standards and norms into local policies and practices. The handbook considers general strategies to reduce the reach of the criminal justice system and thus indirectly avoid the use of imprisonment. It also examines various aspects of alternatives to imprisonment that one may wish to consider when assessing the needs and demands of a country’s criminal justice system. Importantly, the handbook focuses 1 2 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT systematically on the implementation of alternatives at the following phases of the criminal justice system: Pre-trial; Sentencing; Early release of sentenced prisoners. The handbook also highlights strategies to reduce imprisonment in four major groups for whom imprisonment has especially deleterious effects and who can benefit from alternatives at every level: Children; Drug users; The mentally ill; Women. Finally, the handbook presents the critical components that must be con- sidered in developing a strategy for the development and implementation of a comprehensive range of alternatives to imprisonment in order to reduce the prison population, listing not only key factors and elements, but also potential pitfalls and ways to avoid them. The handbook is not intended to serve as a policy prescription for specific sentencing alterna- tives, but rather, seeks to provide guidance on the implementation of various sentencing alternatives that integrate United Nations standards and norms. 1. Introducing alternatives to imprisonment 1.1 Why consider alternatives to imprisonment? Prisons are found in every country of the world. Policy-makers and administrators may therefore simply come to regard them as a given and not try actively to find alternatives to them. Yet imprisonment should not be taken for granted as the natural form of punishment. In many countries the use of imprisonment as a form of punishment is relatively recent. It may be alien to local cultural traditions that for millennia have relied on alter- native ways of dealing with crime. Further, imprisonment has been shown to be counterproductive in the rehabilitation and reintegration of those charged with minor crimes, as well as for certain vulnerable populations. Yet, in practice, the overall use of imprisonment is rising throughout the world, while there is little evidence that its increasing use is improving public safety. There are now more than nine million prisoners worldwide and that number is growing.1 The reality is that the growing numbers of prisoners are leading to often severe overcrowding in prisons. This is resulting in prison conditions that breach United Nations and other stan- dards that require that all prisoners be treated with the respect due to their inherent dignity and value as human beings. 1 R. Walmsley, World Prison Population List, International Centre of Prison Studies, King’s College, London, 2005. 3 4 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT There are several important reasons for the primary focus to be upon alternatives that reduce the number of people in prison and for imprison- ment to be used only as a last resort:2 Imprisonment and human rights Individual liberty is one of the most fundamental of human rights, recog- nized in international human rights instruments and national constitutions throughout the world. In order to take that right away, even temporarily, governments have a duty to justify the use of imprisonment as necessary to achieve an important societal objective for which there are no less restrictive means with which the objective can be achieved. The loss of liberty that results from imprisonment is inevitable but, in practice, imprisonment regularly impinges several other human rights as well. In many countries of the world, prisoners are deprived of basic amenities of life. They are often held in grossly overcrowded conditions, poorly clothed and underfed. They are particularly vulnerable to disease and yet are given poor medical treatment. They find it difficult to keep in contact with their children and other family members. Such conditions may literally place the lives of prisoners at risk. Increasingly, human rights courts and tribunals have recognized that sub- jecting prisoners to such conditions denies their human dignity. Such conditions have been held to be inhuman and degrading. All too often, the majority of these prisoners may be low-level offenders, many of whom may be awaiting trial, who could be dealt with using appropriate alterna- tives instead of being imprisoned. Implementing effective alternatives to imprisonment will reduce overcrowding and make it easier to manage prisons in a way that will allow states to meet their basic obligations to the prisoners in their care. Imprisonment is expensive The cost of imprisonment worldwide is hard to calculate, but the best estimates are in the region of US$ 62.5 billion per year using 1997 statis- tics.3 Direct costs include building and administering prisons as well as housing, feeding, and caring for prisoners. There are also significant indi- rect or consequential costs, for imprisonment may affect the wider com- munity in various negative ways. For example, prisons are incubators of diseases such as tuberculosis and AIDS, especially so when they are over- crowded. When prisoners are released, they may contribute to the further spread of such diseases. 2 See also Matti Joutsen and Uglješa Zvekic, “Noncustodial sanctions: Comparative Overview” in Uglješa Zvekic (ed.), Alternatives to Imprisonment in Comparative Perspective, UNICRI/Nelson-Hall, Chicago, 1994, pp. 1-44. 3 G. Farrell and K. Clark, What does the world spend on criminal justice? (HEUNI Paper No. 20) The European Institute for Crime Prevention and Control affiliated to the United Nations,(Helsinki, 2004). chapter 1 Introducing alternatives to imprisonment 5 Targeting prison overcrowding Penal Reform International estimates nine million people are in prison or detained often in conditions below applicable international human rights standards and which seriously undermine the chances for their productive return to society. Overcrowding often poses public health hazards, undermines the control of violence inside prison, creates a dangerous environment for prison staff and makes it impossible to deliver United Nations-defined minimum standards of detention requiring adequate light, air, decency and privacy. The Ouagadougou Declaration on Accelerating Prison and Penal Reform in Africa 2002 calls for action against overcrowding: “Criminal justice agencies should work together more closely to make less use of imprisonment. The prison population can only be reduced by a concerted strategy.” Penal Reform International suggests a ten-point plan to reduce overcrowding: informed public debate, using prison as a last resort throughout all stages of the criminal justice system, increasing prison capacity, diverting minor cases, reducing pre-trial detention, developing alternatives, reducing sentence lengths and ensuring consistent sentencing, developing solutions to keep youth out of prison, treating rather than punishing drug addicts, the mentally disordered and terminally ill offenders and ensuring fairness for all. Source: Penal Reform International. The cost of imprisonment In Brazil: Average cost of a prisoner: R$ 800 per month Average construction cost per prisoner: R$ 12,000 (medium security facility) R$ 19,000 (high security facility) In comparison: Average cost of a public school student (south-east region): R$ 75 per month. Average cost of construction of a house for the poor: R$ 4,000 to R$ 7,000 Source: Public National Security Plan, National Secretary of Public Security, Ministry of Justice, Brazil, 2002 (English version, Instituto Cidadania) http://www.mj.gov.br/senasp/biblioteca/documentos/PUBLIC%20SECURITY%20NATIONAL%20 PLAN%20ingl%C3%AAs.pdf 6 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT Imprisonment is overused It is essential that policy-makers take a close look at who is being held in prison, why they are there, and for how long they are being detained. Where such data are not immediately available, steps should be taken to ensure that they are regularly reported to policy-makers and to other sen- ior stakeholders in the criminal justice system. Invariably the data will reveal that prisoners are disproportionately drawn from the poorest and most vulnerable groups in the community. Such prisoners may be serving sentences for petty or non-violent offences or may be awaiting trial for unacceptably lengthy periods of time. For them, imprisonment may not be suitable at all. Alternatives to imprisonment offer a variety of strategies for dealing appropriately with such persons that do not involve imprison- ment at all. Alternatives should therefore be the primary point of depar- ture in order to avoid over-reliance on imprisonment. Alternatives may be more effective Several social objectives are claimed for imprisonment. It keeps persons Most of the objectives suspected of having committed a crime under secure control until a court of imprisonment can be determines their culpability. Equally importantly, it punishes convicted met more effectively in offenders by depriving them of their liberty after they have been convicted other ways. of an offence, keeps them from committing further crime while they are in prison, and, in theory, allows them to be rehabilitated during their period of imprisonment. Finally, imprisonment may be thought to be acceptable for detaining people who are not suspected or convicted of having com- mitted a crime, but whose detention is justified for some other reason. Given that imprisonment inevitably infringes upon at least some human rights and that it is expensive, is it nevertheless such an effective way of achieving these objectives that its use can be justified? The reality is that most of the objectives of imprisonment can be met more effectively in other ways. Alternatives may both infringe less on the human rights of per- sons who would otherwise be detained and may be less expensive. Measured against the standards of human rights protection and expense, the argument against imprisonment, except as a last resort, is very powerful. What are the special justifications advanced for different forms of imprisonment? In the case of unconvicted prisoners, the loss of liberty requires particular justification, as they must be presumed to be innocent of the charges until proven otherwise. The question of effectiveness in this regard must be linked closely to why the detention is regarded as necessary. If there is reason to believe that the suspect will flee to avoid standing trial, for example, the question that must be asked is whether this could be pre- vented by other, less costly means that would not deprive the person of as chapter 1 Introducing alternatives to imprisonment 7 much liberty as imprisonment. If the justification for imprisonment is the concern that a suspect might intimidate potential witnesses, the same question should be asked, though the effective alternative may be a different one to that employed to ensure appearance in court. Moreover, imprisonment of persons who are awaiting trial may bring with it disadvantages for the criminal justice system as a whole. Preparation of a defence becomes more difficult when the accused is detained awaiting trial. Difficulty in gaining access to defence counsel and other resources to prepare for trial may cause delays and undermine the efficiency of the administration of justice. The vast majority of In the case of sentenced prisoners, the issue of effectiveness is complicated prisoners will return to by the multiple objectives that the sentence of imprisonment is designed the community, many to achieve. If the primary objective is to attempt to ensure that offenders without the skills to desist from future crime, there is no evidence that imprisonment does that reintegrate into society in more effectively than community-based alternative punishments. On the a law-abiding manner. contrary, studies on the comparative impact of different forms of punish- ment on recidivism suggest that imprisonment makes it hard for offenders to adjust to life on the outside after release and may contribute to their re- offending. Using imprisonment to incapacitate offenders works only to the extent that while they are serving their sentences, they are not re- offending in the community. However, the vast majority of prisoners will return to the community, many without the skills to reintegrate into soci- ety in a law-abiding manner. Offenders are incapacitated while serving their sentences, but on release are more likely to commit further crime than those who are not imprisoned as part of their sentence. Thus, relying on sentences of imprisonment to prevent criminal re-offending is not an effective strategy in the long term. 1.2 What is to be done? One of the challenges facing authorities who are seeking to develop the use of alternatives to imprisonment as a way of reducing the prison popu- lation is ensuring that, conceptually, alternatives should not be drawn too narrowly. Alternatives are an essential part of all levels and stages of the criminal justice system. How this handbook will help This handbook provides concrete help to authorities looking for guidance on the best practices in using alternatives throughout the criminal justice system to reduce imprisonment. The handbook: Considers general strategies to reduce the reach of the criminal jus- tice system and thus indirectly avoid the use of imprisonment and 8 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT examines different aspects of the issue that one may wish to con- sider when assessing the needs and demands of a country’s crimi- nal justice system (chapter 2); Focuses systematically on the implementation of alternatives at all phases of the criminal justice system: the pre-trial phase (chapter 3); the sentencing phase (chapter 4); and the phase at which early release of sentenced prisoners may be considered (chapter 5); Highlights strategies to reduce imprisonment in four major groups: children, drug users, the mentally ill and women, for whom impris- onment has especially deleterious effects. They can benefit from alternatives at every level (See the box below for an example of a country reducing imprisonment for drug addicts through the use of alternatives.) (chapter 6); Presents the critical components that must be considered in devel- oping a strategy for the development and implementation of a com- prehensive range of alternatives to imprisonment in order to reduce the prison population, listing not only key factors and elements, but also the potential pitfalls and ways to avoid them (chapter 7). Alternatives for drug addicts cut prison numbers Until a comprehensive reform initiative in 2002, Thailand relied heavily on imprisonment as a means of criminal sanction. By May 2002, some 260,000 inmates, more than double the total capacity, were housed in Thai prisons. Of these, two thirds had been convicted of drug charges and the majority of these inmates were also drug addicts. Of those suspected or accused of drug offences, nine per cent were held awaiting investigation; 14 per cent were held waiting trial; and 12 per cent held pending appeal. Statistics showed that 13 per cent of those convicted of drug offences received terms of less than one year, while 46 per cent were sentenced to from one to five years. With the implementation of successful drug addicts’ pre-trial diversion and early release programmes involving strong community participation; the increasing and innovative uses of probation and community- based treatment programmes; and restorative justice initiatives, the prison population has been reduced dramatically. As of August 2005, there were approximately 160,000 inmates, with the population continuing to decline. Source: For more information, see, e.g., Kittipong Kittayarak, Diversion Programs for Drug Addicts, Restorative Justice and New Community-based Treatment Measures in Thailand, a paper submitted to the nineteenth International Conference of the International Society for the Reform of Criminal Law held at Edinburgh, Scotland, 26-30 June 2005 (http://www.isrcl.org/ Papers/2005/kittayarak.pdf). See also the website of the Department of Corrections at www.correction.go.th. chapter 1 Introducing alternatives to imprisonment 9 1.3 Who should develop the strategy to alternatives to imprisonment? A particular challenge is to ensure that there is a coherent strategy to develop alternatives to imprisonment. Legislators, judicial officers, lawyers, and administrators all have a role to play. They must work together. There is no point in pressing courts, for example, to use alterna- tives to prison sentences if there is no law allowing such alternatives to be imposed and no administrative structure to implement them. Political leadership is essential; alternatives to imprisonment cannot be left only to the “experts”. Non-governmental organizations can help ensure that these issues are kept on the political agenda. Community involvement is equally important. There are many ways in which members of the community can assist in implementing community- based alternatives to imprisonment without putting the rights of offenders at risk. Involving members of the community has the additional advantage that they experience the benefits of keeping people out of prison wherever possible and become more supportive of alternatives to imprisonment generally. This handbook helps clarify what can be expected of these different actors at each level. 1.4 Potential challenges Alternatives to imprisonment, though comparatively inexpensive and effi- cient, may themselves treat offenders in inhuman and degrading ways and would therefore be fundamentally unacceptable.4 Others may not inher- ently infringe human dignity but may still be unacceptable when imple- mented inappropriately. The alternatives may be problematic not only for offenders. They may not, for example, pay sufficient attention to the con- cerns of victims of crime or to the legitimate interests of others in society. To help avoid these potential pitfalls, this handbook points out the trouble spots at every level. A second danger is that initiatives adopted as alternatives to imprison- ment may result not in fewer people being held in prison but in additional measures against suspects and offenders who would not otherwise have been subject to the control of the criminal justice system at all. (This is sometimes referred to as “widening the net”.) The handbook emphasizes 4 Dirk van Zyl Smit, “Legal standards and the limits of community sanctions” (1993), 1 European Journal of Crime, Criminal Law and Criminal Justice, pp. 309-331. 10 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT the importance of guarding against increasing social control in this way. Programmes that are designed to reduce prison populations must be carefully targeted to ensure that they have the intended effect and avoid unintended widening of the net of social control. 1.5 The role of the United Nations Given that imprisonment is a restriction, if not an infringement, of funda- mental human rights of the prisoner, it is not surprising that that major United Nations treaties limit carefully the circumstances under which imprisonment is justified. The International Covenant on Civil and Political Rights (ICCPR) is perhaps the most important of these multilat- eral treaties. Other multilateral instruments, such as the United Nations Convention on the Rights of the Child, contain stricter limitations appli- cable to specific categories of potential prisoners. Since the mid-1950s, the United Nations has developed and promoted standards and norms to encourage the development of criminal justice systems that meet fundamental human rights standards. These standards and norms represent a collective vision of how to structure a criminal jus- tice system. Although non-binding, they have helped to significantly pro- mote more effective and criminal justice systems and action. Nations use these standards and norms to provide the framework for and to foster in- depth assessments that may lead to needed reforms. They have also helped countries to develop sub-regional and regional strategies. Globally and internationally, they delineate “best practices” and assist countries to adapt them to their specific needs. The earliest of these, the United Nations Standard Minimum Rules for the Treatment of Prisoners,5 deals only with imprisonment. While imprisonment has remained an important aspect of the standards and norms, the range of instruments has increased to cover all aspects of the criminal justice system and crime prevention. Today, the standards and norms cover a wide variety of issues such as juvenile justice, the treatment of offenders, international cooperation, good governance, victims’ protection and violence against women. Of particular importance, as far as alternatives to imprisonment are con- cerned, are the United Nations Standard Minimum Rules for Non- Custodial Measures (the Tokyo Rules), which were adopted in 1986.6 These Rules have as one of their fundamental aims the reduction of the use of imprisonment.7 The specific proposals that the Tokyo Rules make 5 E.S.C. Resolution 663C(XXIV) of 31 July 1957 U.N. Doc. E/3048 (1957) and 2076(LXII)(1957). 6 United Nations Doc. A/RES/45/110. 7 Rule 1.5. chapter 1 Introducing alternatives to imprisonment 11 for alternative, non-custodial measures form the basis for a reductionist criminal justice policy. The development of non-custodial measures goes together with a call on States to “rationalize criminal justice policies, tak- ing into account the observance of human nights, the requirements of social justice and the rehabilitation needs of the offender”.8 At the same time the fundamental aims of the Rules recognize that States have consid- erable flexibility in deciding how to implement the Rules.9 They empha- size that States should “endeavour to ensure a proper balance between the rights of individual offenders, the rights of victims and the concern of society for public safety and crime prevention”.10 (For more on the Tokyo Rules, see the box below.) The Tokyo Rules The United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) were first discussed at the Seventh Congress on Crime Prevention and Criminal Justice and were later adopted by the General Assembly (resolution 45/110 of 14 December 1990). The Rules present a set of recommendations that take into account the views of legal scholars, experts in the field and practitioners. They emphasize that imprisonment should be considered a last resort and encourage the promo- tion of non-custodial measures with due regard to an equilibrium between the rights of individual offenders, the rights of the victims and the concern of society. The Rules set forth a wide range of non-custodial measures at various stages of criminal procedures. They also contain rules on implementation of non-custodial measures, staff recruitment and training, involvement of the public and of volunteers, research, planning, policy formulation and evalua- tion, thus providing a comprehensive set of rules to enhance alternative measures to imprisonment. The Tokyo Rules are not the only United Nations instruments that are directly applicable to alternatives to imprisonment. Others include: Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power11 Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters12 8 Ibid. 9 Rule 1.3. 10 Rule 1.4. 11 United Nations. Doc. A/RES/40/34. 12 Adopted by the United Nations Economic and Social Council on 24 July 2002, United Nations Doc. E/2002/99. 12 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT In specialist areas, considerable attention has been given to alternatives to imprisonment for: Juveniles: the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules);13 Drug users: the Guiding Principles on Drug Demand Reduction of the General Assembly of the United Nations;14 The mentally ill: the United Nations Principles for the Protection of Persons with Mental Illness;15 and Women: the Seventh United Nations Conference on the Prevention of Crime and the Treatment of Offenders. All of these instruments are considered in more detail in chapter 6. In addition, the United Nations has published practical guides. The Criminal Justice Assessment Toolkit, for example, contains a tool on alterna- tives called Alternatives to Incarceration as well as the cross-cutting issues tool, Juvenile Justice. There are also handbooks, such as the Handbook on Victims, that deal in passing with the issue of alternatives to imprisonment. This handbook is designed to build on all these United Nations sources, as well as regional and international best practices, in order to provide a basis for technical assistance on how best to introduce and sustain alternatives to imprisonment. 13 United Nations Doc. A/RES/40/33. 14 United Nations Doc. A/RES/S-20/3. 15 Principle 7.1 of the United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. General Assembly Resolution of 17 December 1991, United Nations Doc. A/RES/46/119. 2. Limiting the criminal justice system’s reach 2.1 Decriminalization The first question is: Since criminal justice systems are the main consumers of prison resources do particular types of throughout the world, the first question to ask when tackling the issue of conduct need to fall imprisonment is whether particular forms of conduct must fall within the within the scope of the scope of the criminal justice system. Not all socially undesirable conduct criminal justice system needs to be classified as a crime. Decriminalization is the process of at all? changing the law so that conduct that has been defined as a crime is no longer a criminal act. Various societies have decriminalized vagrancy in whole or in part, signif- icantly reducing rates of imprisonment. Even less-known offences, such as the illicit brewing of liquor, in some countries, may produce a dispro- portionate number of prisoners. In such cases, decriminalizing the behav- iour and dealing with it outside the criminal law does not produce a negative impact on public safety. Authorities must also take steps to ensure that decriminalization does not result in continued incarceration by an indirect route. Even where con- duct is completely decriminalized, there is a risk that officials may still arrest those who are “guilty” of it before handing them over to welfare or medical authorities. The box below highlights an example of a potential pitfall of decriminal- ization: 13 14 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT Unintended consequences of decriminalization Various countries have decriminalized public drunkenness in recent years. This should mean that drunks who once would have been detained pending prosecution are now referred to welfare agencies instead. Australia decided that indigenous people were grossly over-represented in the prison population and that the system should address this by decriminal- izing public drunkenness, a crime for which members of this group were often detained. However, the number of detentions related to public drunk- enness increased after the decriminalization. Why? Before handing those found drunk in public over to a welfare agency, authorities now arrested them more freely than in the past before because they did not have to prepare for prosecutions.* *R. Sarre, An Overview of the Theory of Diversion: Notes for Correctional Policy Makers, paper presented at the Best Practice Interventions in Corrections for Indigenous People Conference convened by the Australian Institute of Criminology Adelaide, 13-15 October 1999. 2.2 Diversion Under diversion strategies, authorities focus on dealing in other ways with people who could be processed through the criminal justice system. In practice, diversion already happens as a matter of course, without recourse to specific strategies. Criminal justice systems typically process only a small proportion of the criminal law offences committed in any country. If countries investigated, prosecuted, tried and convicted all offenders, the various parts of the system, including the prisons, would soon be unable to cope with the numbers. As a result, police and prosecu- tors, who introduce offenders into the system, have to exercise a degree of discretion in deciding whom to take action against and whom to ignore. The key question in all criminal justice systems is how to structure this discretion. Members of police services need to have clear instruction on when they can themselves issue warnings and take no further action, when they may be able to divert qualifying offenders to alternative programmes without referring the case to the prosecuting authorities, and when they must refer alleged offences to prosecuting authorities. Similarly, prosecu- tors need clear guidelines. Both police and prosecutors need to consider the views of victims of the alleged offences, although victims have no veto over state action in the criminal justice sphere. Strategies of restorative justice, the subject of a separate United Nations handbook, can play a crucial part in decisions about diversion. Where existing mechanisms allow for dispute settlement by restorative means, they may also encourage the use of alternatives to imprisonment. The use chapter 2 Limiting the criminal justice system’s reach 15 of mediation and alternative dispute resolution in meetings with offend- ers, victims and community members to deal with matters that would otherwise be subject to criminal sanctions has the potential to divert cases that might otherwise have resulted in imprisonment both before trial and after conviction. Community-based mediation diverts cases The legal system of Bangladesh is extremely formal, complex, urban-based, time consuming and financially draining. As a result, many Bangladeshis, par- ticularly the poor, illiterate and disadvantaged living in rural areas, have had difficulty enforcing their rights through the formal justice system. Where con- flicts arise and no means exist to resolve them within the community, even rel- atively minor issues may escalate into disputes involving criminal behaviour. To improve the situation, the Madaripur Legal Aid Association turned to a tra- ditional system of mediation and dispute resolution in rural Bangladesh. In this system, disputants, community members and village elders gathered to mediate conflicts. The Association agreed to revitalize and reform the system, which had fallen into disrepute, based on the principles of fairness, equality, and non-discrimination. Donor and support agencies collaboratively trained 1,500 mediation commit- tee members in 1999-2000. To ensure that mediation committees observe international human rights standards and maintain a high level of profession- alism in mediating disputes, the Association facilitates several training ses- sions each year. In 2001-2002, the Association handled 7,175 applications for mediation. Of these, 4,711, or 66 per cent, were resolved amicably by mediation, 26 per cent were dropped or remained pending at year’s end and eight per cent were referred for litigation. The successful mediations dealt with such issues as marriage and divorce, dowry, land ownership and financial disputes. Source: Alternative Dispute Resolution: Community-based mediation as an auxiliary to formal jus- tice in Bangladesh: the Madaripur Model of Mediation (MMM). Penal Reform International, 2003. The problem of determining which crimes to investigate and whom to prosecute is particularly acute in states where a new democratically elected government has replaced a repressive regime, members of which may have committed a wide range of serious crimes with impunity. Some of these crimes may represent grave offences against international human rights law, which all states have a duty to prosecute. On the other hand, it may be beyond the powers of the incoming government to investigate all the offences that its predecessors committed. 16 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT One solution is to have a truth commission investigate past abuses in gen- eral terms. In some instances such commissions have been combined with prospective conditional amnesties, which can be granted even to offend- ers who have not been convicted of any crime. Such offenders are required, however, to make a full and public disclosure of their crimes in order to qualify for an amnesty. The amnesty means that they will not be prosecuted. However, the disclosure means that crimes that they commit- ted do not go unrecognized, as would be the case if immunity from prose- cution were to be granted without requiring any response from those benefiting. Conditional amnesties of this kind are a radical form of diversion. They should not be confused with blanket amnesties that are not supported by international instruments.16 While not uncontroversial, they offer a com- promise solution that can be used in a period following regime change. 2.3 Who should act? The involvement of the following individuals and groups is essential: Legislators must be willing to introduce legislation to the law to decriminalize certain forms of conduct. Public advocacy groups and non-governmental organizations may bring public interest litigation in appropriate cases, helping trigger legislative reform of existing criminal codes. Such groups can be effective in driving change because they represent both the human rights interests of those whose conduct has been criminalized as well as the greater community’s interests in the improvement of the criminal justice system. Legal drafters and law reform commissions must ensure unneces- sary criminal provisions are not added to general legislation. National law reform commissions should also keep criminal codes under review and draw the attention of the political authorities to criminal provisions against forms of conduct than can be controlled just as or more effec- tively in other ways. In such cases, the legislature should repeal such criminal provisions and develop enabling legislation for alternative measures. Police and the prosecuting authorities should take the lead in diverting suspects out of the criminal justice system. Where the diver- sion is linked to mediation or even full restorative justice processes, a separate administrative structure is needed to facilitate these processes, provided either by the state or by non-governmental organizations partnering with criminal justice agencies. 16 2005/81. 3. Pre-trial, pre-conviction and pre-sentencing processes 3.1 General Despite decriminalization and diversion strategies, some persons accused of crimes will be formally charged and prosecuted. Authorities must decide whether to detain those accused prior to and during their trials. Rule 6.1 of the Tokyo Rules clearly states the relevant principle: “Pre-trial detention shall be used as a means of last resort in criminal pro- ceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.”17 The detention of persons who are presumed innocent is a particularly severe infringement of the right to liberty. The question of what justifies such detention is very important. While Rule 6.1 is somewhat vague in this regard and its qualifications incomplete, it is reinforced by the International Covenant on Civil and Political Rights (ICCPR), which pro- vides guidance for those involved in a criminal process but who have not yet been convicted or sentenced. Article 9.3 of the ICCPR provides that: “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.” 17 Rule 6.1. Emphasis added. There is a variation in state practice in this area. In some states prisoners are not regarded as sentenced prisoners until all avenues of appeal have been exhausted. In others they are treated as sentenced prisoners once a sentence has been imposed. For the pur- pose of this chapter, all prisoners who are not treated as sentenced prisoners are regarded as being in a form of “pre-trial” detention. 17 18 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT In addition, Article 14.3 of the ICCPR stipulates that those tried on a Using pre-trial detention criminal charge are entitled to a trial without undue delay. Requiring a as a preliminary form of speedy trial minimizes the period of pre-trial detention. In addition, punishment is never accused persons may only be detained before trial where there is reason- acceptable. able suspicion that they have committed an offence and where the authorities have substantial reasons to believe that, if released, they would abscond or commit a serious offence or interfere with the course of justice. The criminal justice system should resort to pre-trial detention only when alternative measures are unable to address the concerns that justify the use of such detention. Decisions about alternatives to pre-trial detention should be made at as early a stage as possible. When the decision is to keep a person in pre-trial detention, the detainee must be able to appeal the decision to a court or to another independent competent authority.18 Authorities must also regularly review the initial decision to detain. This is important for two reasons. First, the conditions that initially made deten- tion necessary may change and may make it possible to use an alternative measure that will ensure that the accused person appears in court when required. Second, the longer the unjustified delay in bringing a detainee to trial, the stronger such a detainee’s claim for release from detention and even for dismissal of the criminal charges against him or her. The decision to detain an accused person awaiting trial is essentially a matter of balancing interests. The suspect has a right to liberty, but the combination of cir- cumstances described above may mean that the administration of justice might require its temporary sacrifice. The longer the suspect is detained, the greater the sacrifice of that fundamental right. In applying constitu- tional or statutory guarantees of fundamental rights, including freedom and speedy trial, a reviewing body may well decide that continued deten- tion is no longer justified and order a detainee’s release or that the case be dismissed in its entirety. In many countries, unacceptably large numbers of prisoners continue to await trial and sentence inside prison. A highly effective way to reduce their numbers is to ensure that their right to a speedy trial, which is guaranteed in various international instruments, is observed in practice. How is this best achieved? Countries may need to review trial procedures to make the system func- tion more efficiently. The early disclosure of the prosecution case, for example, may eliminate many delays. 18 Rule 6.2. chapter 3 Pre-trial, pre-conviction and pre-sentencing processes 19 Speedy trials depend on inter-agency cooperation. Police and the prose- cuting services must communicate at the earliest possible stage of the criminal process. In systems that have investigating judges, they, too, need to become involved at that earliest possible stage. Administrative liaison can achieve a great deal, but countries may also need to amend the rules of criminal procedure to eliminate bottlenecks. Finally, judicial control of the criminal justice process allows the judiciary to ensure the right to a speedy trial by applying procedural rules strictly. Postponements of cases for further investigation or long delays in bringing them to trial should be the rare exceptions when the suspect or accused person is detained in custody. 3.2 Alternatives to pre-trial detention The focus up to this point has been avoiding unnecessary pre-trial deten- tion without necessarily putting anything in its place. In many instances, however, avoiding pre-trial detention requires that alternative measures replace it. Such measures ensure that accused persons appear in court and refrain from any activity that would undermine the judicial process. The alternative measure chosen must achieve the desired effect with the mini- mum interference with the liberty of the suspect or accused person, whose innocence must be presumed at this stage. Those deciding whether to impose or continue pre-trial detention must have a range of alternatives at their disposal. Tokyo Rule 6.2 mentions the need for alternatives to pre-trial detention but neither the Rules nor the official Commentary explains what such alternatives might be. Possible alternatives include releasing an accused person and ordering such a person to do one or more of the following: to appear in court on a specified day or as ordered to by the court in the future; to refrain from: interfering with the course of justice, engaging in particular conduct, leaving or going to specified places or districts, or approaching or meeting 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; 20 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT to submit to electronic monitoring; or to pledge financial or other forms of property as security to assure attendance at trial or conduct pending trial. 3.3 Considerations in implementing alternatives to pre-trial detention Alternatives to pre-trial detention do restrict the liberty of the accused person to a greater or lesser extent. This burden increases when authori- ties impose multiple alternatives simultaneously. Those deciding must carefully weigh the advantages and disadvantages of each measure to find the most appropriate and least restrictive form of intervention to serve as an effective alternative to imprisonment. In cases where a person is known in the community, has a job, a family to support, and is a first offender, authorities should consider unconditional bail. In all cases where the offence is not serious, unconditional release should be an option. Under unconditional release, sometimes known as personal recognizance, the accused promises to appear in court as ordered (and, in some jurisdictions, to obey all laws). Sometimes a monetary amount may be set by the court that would be paid only if the court deter- mines that the accused has forfeited what is known in some jurisdictions as an “unsecured personal bond” by failing to appear in court or commit- ting a new offence while in the community pending trial. In other cases, pre-trial release may be predicated upon additional requirements. Courts may require the accused, a relative or a friend to provide security in the form of cash or property, a measure designed to ensure that the accused has a financial stake in fulfilling the conditions imposed regarding court appearance and behaving in other specified ways. This form of bail affords an immediate sanction if the accused fails to obey the conditions set for releasing him from pre-trial detention: the bail money or property is forfeited to the state. In many countries, this security takes the form of monetary bail, or money that the accused pays to a court as a guarantee that he or she will conform to the conditions set for pre-trial release. Variations on this are possible. For example, the accused may not necessarily have to pay the money over directly to the court (or in some instances to the police), but rather pro- vide a so-called bail bond or surety that guarantees that he, or someone acting on his behalf, will pay the money if called upon to do so. Authorities should confirm that the accused person is able to meet the requirements that are set. If not, it is likely that the accused person will return to pre-trial detention. The following should be considered when evaluating the various requirements that might be imposed: chapter 3 Pre-trial, pre-conviction and pre-sentencing processes 21 A requirement to appear in court as ordered may appear on its face a minimal requirement. Even so authorities should ensure that required court appearances are not excessive in number and that the scheduled hearings are meaningful in that they move a case toward completion. Long delays in finalizing cases are unacceptable even when the accused is not in pre-trial detention. While common law countries in particular make widespread use of monetary bail as a precondition for release, it can be argued that the measure unfairly discriminates against the poor. Well-to-do accused persons are better able to post bail than the poor. Courts can help minimize this potential unfairness by setting realistically proportionate bail amounts to the accused person’s means, where bail is considered necessary to ensure the appearance of the accused for trial. In practice, however, courts tend to set the amount of bail with the seriousness of the offence in mind, so that those facing a long term of imprisonment may receive a higher bail requirement than they are able to meet financially. The result is that a court may decide that an accused person should be released subject to the post- ing of a bail, but in practice that person remains in jail, unable to meet the stipulated bail, even where the amount may seem modest but exceeds the accused person’s means. This undermines the court’s finding that, in principle, the accused person is not some- one who needs to be kept in prison pending trial. Orders restricting certain activities of the accused may effectively counter specific threats posed by the accused person in the com- munity. However, they may also hinder the accused person’s legit- imate activities. An order to refrain from certain forms of conduct or to stay away from a specific location or district, may, for example, make it difficult or impossible for the person to work while await- ing trial. Authorities should avoid such restrictions whenever pos- sible or tailor such restrictions as narrowly as possible. If necessary, they should search for a way to compensate for the loss of the ability to earn a living. A requirement to surrender identity documents such as passports is an effective tool to prevent the flight of an accused person. Such a requirement may cause unintended consequences. Authorities should consider whether the accused needs the documents to work, withdraw money, or interact with the state bureaucracy. In some countries, courts may order that the defence counsel for the accused take possession of such documents, with leave to allow their appropriate use. Direct supervision in the community by a court-appointed agency gives the authorities considerable control over the accused person, but it is an intrusive alternative that greatly limits freedom and privacy. Direct supervision is also expensive, as the agency that performs it has to provide a resource intensive service. 22 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT Electronic monitoring serves as an additional means of surveillance that can monitor compliance with other measures. It can determine, for example, whether a person is obeying an order to remain at a specific address or to keep away from a specific district. It is, how- ever, relatively intrusive, requires considerable technological sophis- tication to implement, and can be subject to legal challenges as to its proper functioning in the event of data associated with violations being used as the basis of revocation of pre-trial release. Finally, the collision of long trial delays with a lack of public under- standing of pre-trial release and of the presumption of innocence prior to trial as fundamental rights may produce, among develop- ing countries and elsewhere, the misapprehension that an accused has “gotten away” with the crime and will go unpunished. This has unfortunately led to some in the community to take justice into their own hands when the accused has been released pre-trial—sometimes with fatal results. In addition to the prompt and meaningful reso- lution of pending criminal cases, public education regarding pre-trial release and the presumption of innocence is essential to promote safety in the community. Pre-trial release in Latin America Some Latin American countries allow for the release of accused persons on their own recognizance. Although this measure may be available in theory, conditional release secured by cash or other property is used far more often. As a result, pre-trial prisoners unable to meet the terms required for their release make up a large proportion, sometimes even an absolute majority, of all prisoners held. Such a population can be reduced by careful examination of individual cases to determine who might qualify for personal recognizance pending trial.* Empirical research in Costa Rica suggests that to employ this measure successfully, courts need ready access to comprehensive information about the accused, set regular court dates, and maintain close and regular contact with the accused and, possibly, with their relatives.** *Elias Carranza, Nicholas J. O. Liverpool and Luis Rodriguez-Manzanera, “Alternatives to Imprisonment in Latin America and the Caribbean” in Zvekic (ed.) op. cit., pp. 384-438. **Elias Carranza, Mario Houwed and Luis Paulino Mora “Release on Personal Recognizance in Costa Rica: An experimental Research Study” in Zvekic (ed.) op. cit., pp. 439-462. 3.4 Infrastructure requirements for alternatives to pre-trial detention The advantages and disadvantages of various alternatives to pre-trial detention are often debated in the abstract, as if the deciding authority chapter 3 Pre-trial, pre-conviction and pre-sentencing processes 23 could choose freely among various options. But for alternatives to function properly, the state must first create the appropriate framework. For some alternatives, the state needs only a formal legal authorization that allows their use; in other cases, it must set up a more elaborate infrastructure. For a limited number of alternatives to pre-trial detention, a legislative framework is all that is needed. With that in place, an authority can release an accused person pending trial on the basis of a pledge that he or she will appear before a court. Similarly, no supervisory mechanisms are needed to impose requirements that the accused person not interfere with the course of justice, not engage in particular conduct, not leave or enter specified places or districts, not meet specified persons or remain at a specific address. In most cases, however, the authority that makes the decision to release a person into the community will want to ensure that there are mechanisms in place to assure compliance with the conditions set. These mechanisms also help reassure and protect victims of crime. Each of the following con- ditions for release needs some development of infrastructure: Reporting to a public authority requires that the authority—the police or the court, for example—is accessible at reasonable times to the accused person and that it has in place an administrative structure that is capable of recording such reporting reliably. Surrendering identity documents also requires a careful bureaucracy that can ensure that such documents are safely kept and returned to the accused when the rationale for retaining them is no longer supported by the circumstances. Direct supervision requires that there be an entity that can conduct such supervision. Electronic monitoring requires a considerable investment in tech- nology and the infrastructure to support it. Provision of monetary security requires sophisticated decision- making to determine the appropriate level of security as well as a bureaucracy capable of receiving and safeguarding monetary payments. 3.5 Who should act? The involvement of the following individuals and groups is essential: Law enforcement officials typically have the first contact with the suspects. They have a particular duty to keep any detention as short as possible. By conducting investigations speedily, they can ensure that the time for which suspects and persons awaiting trial are incarcerated in kept to a minimum. Prosecuting authorities also have an important role in ensuring speedy trials and thus minimizing pre-trial detention. They act as the 24 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT link between the police and the courts, which puts them in a crucial position to speed up the criminal process and to suggest or urge, where appropriate, the use of alternatives to pre-trial detention. Defence lawyers have the obligation to advocate vigorously on behalf of their clients and to assert their clients’ rights, including pre-trial release and prompt resolution of the investigation and any resulting charges against them. Where fully qualified defence lawyers are not readily available to represent criminal suspects and the accused, paralegals may perform this function. The judiciary must foster recognition of the right of accused persons to the presumption of innocence; that pre-trial detention should be the exception rather than the norm; and where detention is ordered, that the status of detained defendants and suspects must be reviewed; and finally that the conduct of criminal trials and related proceedings be expeditious, as required by law. Administrators have a crucial role to play in creating both an infra- structure that makes it possible to implement suitable alternatives to pre-trial detention and a case management system that provides suf- ficient resources for the timely and meaningful resolution of criminal cases. 4. Sentencing and alternative punishments 4.1 Sentencing Key questions at The sentencing of convicted offenders constitutes the most deliberate sentencing: and frequent use of imprisonment. The key guiding principle to be Is imprisonment used, if imprisonment is to be reduced, is that of parsimony, that is, absolutely necessary? the imposition of imprisonment as sparingly as possible, both less What minimum often and for shorter periods. A careful examination of each case is imprisonment period necessary to determine whether a prison sentence is required and, will suffice? where imprisonment is considered to be necessary, to impose the minimum period of imprisonment that meets the objectives of sentencing. The focus should not be only upon changing the practices of the judiciary in sentencing, however. Many criminal systems operate within a legal framework that imposes mandatory minimum terms of imprisonment for certain offences without further consideration of the facts of a case. As a first step in reducing the use of imprisonment, reformers should review the legal framework for sentencing. Not only should judges be encour- aged to consider alternatives to imprisonment, they must have the legal authority to exercise discretion in sentencing and the ability to consider alternatives under the law. Specific legislative reforms may also reduce the number of prisoners. For example, a legislative requirement to take into consideration at sentencing the time an offender spent in pre-trial deten- tion might promote shorter overall imprisonment. The box below details a practical example of revising legislation. 25 26 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT Legislating the use of alternatives A working group on alternatives to imprisonment in Kazakhstan, facilitated by Penal Reform International, brought together representatives from all relevant governmental departments and non-governmental organizations to formulate suggestions to amend criminal legislation. The group’s recommen- dations exerted significant influence on a new law that took effect on 21 December 2002, which increased the use of alternatives to imprisonment, rationalized sentencing policy, and relaxed the requirements toward gaining early conditional release, among other measures. The prison service, recognizing the need for public support for penal reform, to be successful, conducted a massive public awareness campaign on the harmful effects of imprisonment and the benefits of alternatives. The reform reduced the prison population and increased use of non-custodial sentences. Just as notably, during the period of decreasing use of imprison- ment (since 2002), the crime rate also steadily decreased with the rate in 2005 lower than the crime rate in 2000. The legislative basis for alternatives and other measures seeking to reduce the prison population should lead at least to a stabilization of the prison popula- tion in coming years, a significant achievement when prison population fig- ures are rising in many countries of the world. Parsimonious use of imprisonment can be achieved when courts impose “Non-custodial measures non-custodial sentences. Such alternatives will first be discussed in detail should be used in below, followed by a discussion focusing on the potential role such alter- accordance with the natives have on the sentencing process. It is important to note that non- principle of minimum custodial sentences should serve as alternatives to imprisonment, rather intervention.” than as additional penalties imposed on people who would not have been —Tokyo Rules sentenced to imprisonment in the first place. This principle is clearly stated in the Tokyo Rules: “Non-custodial measures should be used in accordance with the principle of minimum intervention.”19 4.2 Possible alternatives to sentences of imprisonment Alternatives to imprisonment, like imprisonment and other forms of pun- ishment, may not be cruel, inhuman, or degrading. Even if they are not inherently so, alternatives may violate human rights standards and norms if used inappropriately or improperly. Moreover, no matter what the 19 Rule 2.6. chapter 4 Sentencing and alternative punishments 27 motivation for the imposition of a particular alternative may be, it should be recognized that the offender receiving it will experience it as punitive. What is an acceptable punitive element for an alternative to a sentence of imprisonment? A penal philosopher has suggested that community sanc- tions, which make up an important part of such alternatives, should “be of a kind that can be endured with self possession by a person of reasonable fortitude”.20 As a general test, this is a sound point of departure. It excludes corporal punishment, for example, because it directly attacks the offender’s health and/or well-being. It would also rule out sanctions that, while they pose no threat to the physical integrity of offenders, would nevertheless humiliate them. The Tokyo Rules require that “[t]he dignity of the offender subject to non-custodial measures shall be protected at all times.”21 This Rule is complemented by a further provision protecting the right to privacy of both the offender and his family in the application of non-custodial measures.22 Imprisonment has an obvious punitive element: the loss of liberty. The punitive element of alternative sanctions may not be so easily identifiable, all the more so if the alternative sanction itself is not clearly defined by the legal framework. Where a court imposes a general sentence of community service, but delegates to another entity the extent and conditions of that service, the sentence is both undefined and unpredictable, undermining basic rule of law principles. The Tokyo Rules recognize the danger of such arbitrary sentencing and require, in peremptory terms: “The introduc- tion, definition and application of non-custodial measures shall be pre- scribed by law.”23 The rule limits the power of courts to create and impose what are known as bespoke sentences, that is, unique non-custodial punishments that do not derive from an established penal framework. The legal definition of sentencing alternatives also helps avoid excesses in otherwise acceptable sentences. Where the law provides for some form of community work as a non-custodial punishment, it should also require the court to determine total hours to be worked, and where an appropriate protocol (one that complies with human rights standards and norms) has not been approved by the judiciary, limit the maximum number of hours per day and week a person under such sentence may be required to work. The court should also stipulate precisely and communicate clearly the conditions that individual offenders must meet.24 Like other alternative sanctions, community service also requires the formal consent of the offender on whom it is being imposed. 20 A. von Hirsch, “The Ethics of Community-Based Sanctions” (1990) 36, Crime and Delinquency, pp. 163-173. 21 Rule 3.9. 22 Rule 3.11. 23 Rule 3.1. 24 Rules 12.1 and 12.2. 28 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT The Tokyo Rules list a wide range of dispositions other than imprison- ment for the sentencing stage and which, if clearly defined and properly implemented, have an acceptable punitive element: (a) Verbal sanctions, such as admonition, reprimand, and warning; (b) Conditional discharge; (c) Status penalties; (d) Economic sanctions and monetary penalties, such as fines and day-fines; (e) Confiscation or an expropriation order; (f) Restitution to the victim or a compensation order; (g) Suspended or deferred sentence; (h) Probation and judicial supervision; (i) A community service order; (j) Referral to an attendance centre; (k) House arrest; (l) Any other mode of non-institutional treatment; (m) Some combination of the measures listed above.25 The Tokyo Rules list alternative sentencing dispositions, but they neither describe the substance of these dispositions nor do they elaborate on the administrative structures needed to implement them as realistic sentencing alternatives to imprisonment, not the least of which is a decision-making process that is supported by key stakeholders in the criminal justice system as well as the public in general. Alternative dispo- sitions to sentencing will be discussed in greater detail in section 4.3 below, with a discussion in section 4.4, which follows, of the general umbrella of administrative support and infrastructure structure needed to implement sentencing alternatives so that they are readily available and accessible. 4.3 Specific non-custodial sentences Because the terminology used to describe non-custodial sentences varies greatly across the world, the terminology in this handbook is consistent with that used in the Tokyo Rules in describing the substance of alterna- tive sentencing dispositions and their administrative requirements. However, other terms, and indeed other non-custodial sentences, may also be acceptable if their punitive elements meet the standards of human dignity and the rule of law discussed above. 25 Rule 8.2. chapter 4 Sentencing and alternative punishments 29 These include: (a) Verbal sanctions, such as admonitions, reprimands, warnings or unconditional discharges accompanied by a formal or infor- mal verbal sanction are some of the mildest responses that a court may upon a finding of guilt or legal culpability. Where the appropriate legal frameworks are in place, such a sentenc- ing disposition may be imposed without further ado. Although they are formally sanctions, they have the effect in practice of ensuring that the criminal justice system is not further involved in the matter. They require no administrative infrastructure. (b) Conditional discharges are also easy to impose. However, authorities may need to set up some mechanism in the com- munity to ensure that the conditions that a court may set when discharging the offender without imposing a further penalty are met. If authorities task the existing police force with this responsibility, they should recognize the additional administra- tive burden it entails. (c) Status penalties deny the offender specified rights in the community. Such a penalty might, for example, prevent some- one convicted of fraud from holding a position of trust as a lawyer or director of a company. It might prevent a doctor convicted of medical malpractice from continuing to practice medicine. Status penalties should relate the loss of status to the offence and not impose restrictions on offenders that are unconnected to the offence committed. On their face, status penalties are also less expensive alterna- tives to imprisonment. The court can impose them easily if it has the relevant information about the status of the offender. Status penalties, however, can have hidden costs. They may prevent the offender from earning a livelihood, and, if the offender’s skills are scarce, the whole community may suffer from his/her professional ban. (d) Economic penalties are among the most effective alternatives in keeping many offenders out of prison. Fines also appear relatively simple to use, but the imposition of fines and their implementation require some administrative support. Some believe that setting fixed fines for specified offences avoids difficult questions about what the amount of the fine should be in a particular case. However, a fixed fine hits the poor much more harshly than the rich. Courts should there- fore reserve fixed penalties for relatively petty offences for which imprisonment would not normally be considered or where it may be assumed that all offenders have some income from which to pay the fines. Speeding fines—where the amount of the fine is linked directly to the extent to which the speed limit was exceeded—are examples of the latter. 30 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT In other cases, the requirements of equality demand that an attempt should be made to ensure that the fine is also related to the income of the offender so that the fine should have an equal “penal bite”. Often the court can manage this by inquir- ing into the income of the offender and then adjusting the fine upwards or downwards as warranted. This method can, how- ever, only provide a rough equivalence between offenders of differing financial means. The box below gives an example of how to deal with this issue. Striving for equality in fines: day fines A more sophisticated way of relating fines to the ability of offenders to pay them is by means of a system of day fines (sometimes also known as “unit fines”). In this form of fining, the seriousness of the offence is first expressed in terms of a number of “days” or “units”. The average daily income of the offender or the average daily surplus of the offender is then determined. The actual fine is calculated by multiplying the number of days (units) by the aver- age daily income or average daily surplus of the offender.* *Hans Thornstedt, “The Day-Fine System in Sweden”, 1975 Criminal Law Review, pp. 307-312; Gary M. Friedman “The West German Day-Fine System: A Possibility for the United States” (1983), 50 University of Chicago Law Review, pp. 281-304; Tapio Lappi-Seppälä “Public Perceptions of the Dayfine System; An evaluation of the 1999 dayfine reform” JFT 3-4/2004. The administration of a system of fines requires a relatively complex bureaucracy attached to the court system. The bureaucracy must provide for the receipts from fines as well as transferring payment to the state. Inadequate monitoring provides fertile ground for corruption. Further, for a day-fine system to function fairly, the bureaucracy must have an accu- rate way to determine the income of offenders. Where a state has a tax system that generates reliable data about individual incomes and where the law allows such data to be used by the courts, this might not be a problem. However, in many countries, accurate information of personal income is difficult to obtain without considerable effort and expense. Fine defaulters should not face automatic imprisonment if they fail to pay their fines. Authorities should pay attention to other possible solutions to deal with defaulters. For example, they may work in the community, or the state may provide them with work, so that they can pay their fines with the proceeds of their labour. chapter 4 Sentencing and alternative punishments 31 (e) A confiscation or an expropriation order is mentioned by the Tokyo Rules as a type of sentencing case disposition. However, many jurisdictions do not regard this as a sentence to be imposed by a court at all, but merely as a consequence that follows a crime. In some jurisdictions, the confiscation and forfeiture mechanisms may reside beyond the jurisdiction of the criminal courts. The statutory framework, wherever it resides, may direct that authorities confiscate the proceeds of crime and, upon liquidation of non-monetary assets, forfeit the money to the state. To implement confiscation orders fairly, however, courts need detailed evidence showing that particular monies found in the possession of an offender are the product of the crime rather than legitimate income from other sources. Expropriation orders must be linked closely to the crime or they can become problematic. In fact, expropriation is more comparable to a fine paid in kind rather than in money. For an expropriation order to be proportionate to the crime, a care- ful investigation must be made in the same manner as for a day fine (above). The attendant effort in assessing the mate- rial position of the offender is similar, but the state has the added burden of dealing with the goods or property that might be expropriated from the offender. (f) Restitution to the victim or a compensation order both overlap to some extent with a fine in that, from the perspec- tive of the offender, they are economic penalties. They are also subject to similar challenges in determining an amount pro- portionate to the ability of the offender to pay. The box below provides a practical example of compensation. Tradition favours compensation Research in Nigeria and other African countries shows that there is a long tra- dition of paying compensation to victims in lieu of other punishment for even the most serious of crimes. Often such compensation is simply paid outside the formal legal process and the criminal law is not invoked at all. In part, this happens because the criminal law is not flexible enough to recognize the need for compensation. Additional provision for such orders is required, which would also help avoid situations where offenders privately buy their way out of publicly taking responsibility for their crimes.* *Adedokun A. Adeyemi, “Personal Reparation in Africa: Nigeria and Gambia” in Zvekic (ed.) op. cit. pp. 53-66. 32 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT From a wider perspective, restitution and compensation fulfil other important criminal justice goals. Experts recognize pro- visions for victims as an important objective of criminal jus- tice. Of particular significance in this regard is the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, which provides that, where appropriate, offenders should make restitution to victims, their families or depen- dants.26 Such restitution, the Declaration explains, “should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of victimization, the provision of services and the restoration of rights”.27 The Tokyo Rules do not define compensation orders; how- ever, compensation orders can be taken to refer to victim resti- tution as well, in particular in a sentencing order in which a payment is required to be made to a state-run victim compen- sation fund. In this manner, the victim is guaranteed redress without having to wait for the offender to complete payment of the order. The Handbook on Justice for Victims elaborates on the general value of restitution and compensation, pointing out that this is a socially constructive sentence that also offers “the great- est possible scope for rehabilitation”.28 From the specific perspective of alternatives to imprisonment, the court must pay careful attention to the assessment of vic- tim loss when imposing restitution, whether directly or by for- mal compensation order to which the state must contribute. It can do this in various ways. The Handbook on Justice for Victims suggests the following: In some jurisdictions, the prosecutor negotiates directly with the defence counsel, after substantiating all losses with the victim. In other cases, assessments of the loss may be made solely by the probation officer as part of the pre- [trial] sic sentencing investigation. No matter how the process occurs, the victim is generally required to present receipts or other evidence to substantiate the actual losses suffered. In Canada, the Criminal Code provides that restitution can be ordered as an additional sentence to cover “readily ascertainable” losses.29 26 Article 8 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. 27 Article 8. 28 Handbook on Justice for Victims, p. 47. 29* Ibid. chapter 4 Sentencing and alternative punishments 33 In jurisdictions that follow a French or German model, the victim, represented as parti civile or Nebenkläger by counsel, assists the court at the trial. Such a representative should help provide the information on which such restitution or compen- sation can be based, but the court bears the ultimate respon- sibility in this regard. If compensation claims can be considered at the time of the criminal trial, this will bring vic- tims relief and means that they do not have to bring a subse- quent civil action. In some jurisdictions, however, there are legal obstacles to adopting this practice. The implementation of restitution to the victim may require a degree of supervision by the state. In practice, it may be dif- ficult for the court that orders such restitution to supervise its payment, and it may need the involvement of the probation service (see below) or a similar bureaucracy involved in the administration of sentences to put it into practice. Altern- atively, a court may be able to rely on the community to ensure that the compensation is actually made as ordered. Care must be taken however, to ensure that the authority given to a community to enforce compensation is strictly limited. A victim compensation scheme, particularly if it is paid by the state in the first instance, requires a major investment in administrative infrastructure. The form that this takes will vary according to the social welfare or criminal justice systems in place when such a scheme is introduced. It may be possible, for example, to make compensation payments through an existing system. Other countries have found it more effective to set up a separate victim compensation fund with its own administration. Such a fund can then consolidate payments from fines, compensation paid by offenders, and other sources, using them to guarantee compensation to victims. One draw- back is that offenders are very o
