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  This module is a resource for lecturers  

 

Topic five: Evaluating alternatives

 

This final part of the Module aims to assess the main advantages and disadvantages of alternatives to imprisonment. It first considers the pros and cons of alternative strategies at the pretrial stage before assessing the effectiveness of community sanctions compared to the use of imprisonment. This final section also briefly looks at which groups might benefit most from alternatives to imprisonment as well as highlighting some examples of good practice from different jurisdictions.  

 

The pros and cons of alternative strategies at the pretrial stage

What are the pros and cons? Compared to the deprivation of liberty, the overriding benefits of alternative strategies and measures at the pretrial stage include:

  • Observing fundamental human rights and the right to be presumed innocent;
  • Avoiding unnecessary use of imprisonment;
  • Preventing ill-treatment during detention;
  • Reducing overcrowding in prisons;
  • Reducing criminal justice costs;
  • Encouraging access to appropriate and tailored interventions;
  • Reducing the risk of stigmatization, social isolation and exclusion from families, friends and communities as a consequence of pretrial detention;
  • Protecting individuals, families and communities from the debilitating consequences of imprisonment (adapted from Stefani et al., 2014; Inter-American Commission on Human Rights, 2017b).

Yet, alternative measures prior to sentencing have also been criticized for being unduly lenient, poorly evaluated, expanding social control over alleged offenders, widening the net of the criminal justice system, and for bearing additional administrative and financial costs in monitoring compliance (see for example: Gottheil, 1979).

 

Effectiveness of community sanctions

Given the multiple aims and objectives of community sanctions, as well as the differing rationales for imposing punishment, it may be difficult to establish the effectiveness of community sanctions. Should community sanctions be assessed in terms of the extent to which they provide an alternative to imprisonment? Should we carry out a cost-benefit analysis, and compare the financial cost of a community penalty with the cost of a prison sentence? Or should we assess the extent to which offenders are rehabilitated by alternative measures, and whether or not they are convicted of further offences?

The extent to which community sanctions provide an alternative measure to prison is difficult to ascertain. Limited data are available globally, but some recent studies reveal that prison populations have continued to rise despite the increase in the use and development of alternative measures. This has been shown across European countries and in the United States, where there is a trend towards "mass supervision" of offenders, as well as "mass incarceration", suggesting that community sanctions have been "serving as an add on, rather than an alternative to, incarceration" (Columbia University Justice Lab, 2018, p. 2; see also McNeill, 2018a and 2018b; McNeill and Beyens, 2016).

As noted earlier, enthusiasm for community sanctions can lead to the problem of net widening, whereby sanctions are imposed in addition to, rather than instead of, imprisonment. This has the effect of increasing, rather than decreasing, the total number of individuals in the criminal justice system (for critical discussion on the expansion of social control and net widening, see Cohen, 1985). For example, the introduction of the 'fiscal fine' penalty in Scotland in the 1980s, was set up as a diversionary mechanism to reduce the number of criminal prosecutions (see Croall et al., 2012). Public prosecutors in Scotland were able to offer alleged offenders the chance to avoid prosecution by paying an immediate financial penalty. In a study on the introduction of the fiscal fine in Scotland, however, Duff (1993, p. 491) found that most offenders who received a fine, "would previously have found their cases disposed of by a 'no pro' [no further proceedings] or a warning letter", and that "a considerable degree of net widening" was taking place. 

Another potential problem is 'back door' net widening whereby non-custodial measures also function as a back door to incarceration. In the United States, for example, offenders in the community who breach or fail to comply with the terms of their community sentence are often sent to prison without committing a further offence (O'Hear, 2017). Similarly, in several jurisdictions, released prisoners who are unable to meet the demands of their parole conditions can be recalled to prison for a technical violation or breach, without committing a further offence (see for example: Padfield, 2005; Appleton, 2010; Prison Reform Trust, 2018; van Zyl Smit and Appleton, 2019). Of relevance here, The Tokyo Rules state that, "the failure of a non-custodial measure should not automatically lead to the imposition of a custodial measure" (1990, Rule 14.3). Rather, efforts should be made to "establish a suitable alternative non-custodial measure", and imprisonment only imposed "in the absence of other suitable alternatives" (1990, Rule 14.4).

The development of community sentences has often been justified by arguments based on cost-effectiveness. For many years it has been argued that community sanctions cost less than imprisonment (McNeill, 2013). However, the creation of alternatives to imprisonment clearly requires new resources. Importantly, adequately funded and well-run treatment programmes have the potential to achieve positive results, whereas poorly funded and poorly run programmes do not (Tonry, 2017). As noted in the UNODC Handbook of basic principles and promising practices on Alternatives to Imprisonment (2007, p. 76): "To implement community sentences and treatment-based options, it is particularly important that authorities make sure the necessary infrastructure is in place and earmark the resources required, not only for its start-up but also for its continued operation." Without enough funds, communities may see high failure rates, increased victimization, and increased costs.

The effectiveness of alternative sanctions is often measured in terms of reconviction rates, despite their well-established shortcomings as a measure of success. A 2012 comparison of the rates of reconviction in several countries found that, in all countries, reconviction rates were higher for those leaving prison than those serving community sentences, and that, "a commitment to avoid higher levels of enforcement and punishment where possible helps avoid pulling individuals deeper into a system that creates a self-fulfilling prophecy of further involvement in the system" (Scottish Centre for Crime and Justice, 2012, p. 43). Furthermore, research evaluating particular treatment programmes has burgeoned in recent years. Under the general umbrella of 'What Works?' (see McGuire, 1995; 2013), there is now a large body of evidence to suggest that, "[u]nder the right circumstances, many kinds of programs can enhance participants' human capital and reduce their reoffending" (Tonry, 2017, p. 197). Yet, much more research is needed to understand why individuals desist from crime, with whom, and under what circumstances. Further, scholars have also highlighted the need to move beyond a focus on treatment programmes and towards an examination of the effectiveness of the different sanctions themselves, as well as the process of desistance from crime (see especially McNeill et al., 2010; McNeill and Whyte, 2007; McNeill, 2013).

For alternatives to imprisonment to be effective in reducing prison populations, researchers identify that a range of underlying requirements need to be met:

  • Alternatives to imprisonment should be a true replacement, not just a corresponding or additional activity;
  • Alternatives to imprisonment should have financial support and administrative infrastructure, as well as trained staff;
  • Alternatives to imprisonment should be nested within a coherent legislative framework that should include law enforcement, crime prevention, public safety, individualized sanctions and measures, and the social reintegration of offenders;
  • Alternatives to imprisonment need support not only from politicians and criminal justice professionals but also from judges, prosecutors and the general public;
  • Alternatives to imprisonment should be situated within the broader context of social and health care policies, with due regard for offenders, their social reintegration, and for victims and their needs and rights (adapted from De Vos et al., 2014, p. 30).
 

Special categories of offenders

In recent years, the international community has identified that certain categories of offenders may be especially vulnerable to the negative impact of imprisonment, namely, children, the mentally ill, individuals who commit drug related offences and women (see, for example, The United Nations Standard Minimum Rules for the Administration of Juvenile Justice ( The Beijing Rules); The Guiding Principles on Drug Demand Reduction of the General Assembly of the United Nations; The United Nations Principles for the Protection of Persons with Mental Illness; and The United Nations Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders ( The Bangkok Rules). Here, we briefly consider the extent to which alternatives to imprisonment may be more effective than incarceration for certain categories of offenders.

Alternatives for children - Article 37(b) of the United Nations Convention on the Rights of the Child (GA Resolution 44/25) makes clear that: "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." The United Nations Standard Minimum Rules for the Administration of Juvenile Justice ( The Beijing Rules) (1985), highlights how this can be achieved at different stages of the criminal justice process. For example: decriminalizing behaviour that is not regarded as criminal when committed by adults; diverting children away from the system when it is in the child's best interest; providing community-based alternatives which provide children with the appropriate treatment and services they require; and, granting conditional release at the earliest possible time. For further materials on the supports necessary to facilitate alternatives for children, see Module 13 in the E4J University Module Series on Crime Prevention and Criminal Justice.

Alternatives for the mentally ill - Prison populations have a disproportionately high rate of individuals suffering from mental illness, some of which may be present before admission, and some of which may develop during imprisonment. Over recent decades there has been a growing recognition that mentally ill persons should remain in their community, and that the criminal justice system should aim to divert people with mental disorders away from the prison system and towards more effective and appropriate care within the mental health system (see for example: United Nations Principles for the Protection of Persons with Mental Illness). 

Alternatives for offenders with drug use disorders - Individuals with drug use disorders comprise a significant proportion of prison populations in many countries, with many imprisoned for consuming or possessing drugs for their personal consumption or for low-level crimes, often linked to their drug use disorder. International instruments have recognized this and have called on states to more effectively address the public health problems associated with drug use disorders through a comprehensive, humane, effective and multidisciplinary approach. An important report published in 2018 by UNODC and WHO on the Treatment and Care for People with Drug Use Disorders in Contact with the Criminal Justice System emphasizes that "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). The Outcome Document of the 2016 United Nations General Assembly Special Session on the World Drug Problem recommends the adoption of "proportionate national sentencing policies, practices and guidelines for drug-related offences" ensuring that penalties are proportionate to the gravity of offences (United Nations, 2016, p. 16). In recent years, several countries have implemented alternative measures to more effectively address the problems associated with drugs. Strategies of this kind include: decriminalization of illicit drug use and diversion strategies; drug treatment courts that combine treatment and rehabilitation through a process overseen by a judge; probation or other supervisory mechanisms to ensure access to and compliance with drug treatment facilities; and alternatives to imprisonment for minor drug-related offences (see UNODC, 2008; Inter‐American Drug Abuse Control Commission, 2015).

Alternatives for women - While women comprise a minority of the prison population worldwide (seven per cent), female prison rates have escalated dramatically over recent years in certain states, partly due to increasingly harsh drug laws (Walmsley, 2017b; Penal Reform International, 2018). It should be noted that most female prisoners are "first-time offenders suspected of, or charged with, minor, non-violent offences, pose no risk to the public and should probably not be in prison at all" (UNHRC, 2018, para. 70; see also UNODC, 2014). Research confirms that prisons are hyper-masculinist institutions of punishment and control that are poorly placed to provide for the needs of female prisoners (see for example: Bandypadhyay, 2006). The need for alternatives to imprisonment for women has been identified internationally (UNODC, 2014). Rule 60 of The Bangkok Rules (2010) states that:

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. These may include therapeutic courses and counselling for victims of domestic violence and sexual abuse; suitable treatment for those with mental disability; and educational and training programmes to improve employment prospects. Such programmes shall take account of the need to provide care for children and women only services.

For further information on the needs of women in contact with the criminal justice system, see Module 9 in the E4J University Module Series on Crime Prevention and Criminal Justice.

 

Innovative practice

This final section highlights examples of alternatives to imprisonment that aim to reduce the use of imprisonment, and to promote that alternative sanctions and measures uphold human rights. Lecturers make choose to explore initiatives in their own countries and regions, to provide a basis for classroom discussion regarding innovative practice.

Example 1: Police Adult Diversion Scheme in New Zealand

The Adult Diversion Scheme in New Zealand "allows first time offenders to be dealt with outside the court system and avoid getting a criminal record, while still taking responsibility for their offending" ( Community Law Manual, 2018). The main purposes of the scheme are: to address the offending behaviour that has resulted in the offence; to balance the needs of victims, the offender and their communities; to give offenders an opportunity to take responsibility for their crime and to avoid conviction; and, to reduce reoffending. Cases are assessed individually for eligibility. The Police Prosecution Service considers the views of the victim, the police, the offender as well as the nature of the offence. If a case is deemed suitable, individuals may be required to make reparation to the victim, attend counselling, education programmes, addiction treatment or other therapeutic programmes, or to be part of a restorative justice process, where appropriate.

Example 2: Improving and increasing the use of community service in Kenya

Acute problems of prison congestion and overcrowding in Kenya have prompted calls for the introduction and expansion of alternatives to imprisonment. In 2014, Kenya Probation and Aftercare Service, together with Penal Reform International, implemented a project that was aimed at disrupting the "poverty-prison cycle" by improving the use of community service (Penal Reform International, 2018, p. 6). Poverty is frequently cited as a reason for individuals in Kenya committing minor crimes, and it serves as a major impediment to rehabilitation. The project sought to provide economic empowerment opportunities to former offenders who completed community service. Working closely with probation officers, offenders were offered entrepreneurial training, together with a small investment grant, to allow them to set up their own business to support themselves and their family, and to interrupt the cycle of offending (Penal Reform International, 2018). See also the UNODC initiative - A Second Chance: A Report on Alternatives to Imprisonment and the Social Reintegration of Offenders in Kenya - which aimed to assist "in preventing criminal recidivism and reducing prison overcrowding by the use of social integration programmes and alternatives to imprisonment" (UNODC, 2013b, p. vi).

Example 3: Second Chance Women's Re-entry Court in California

The Los Angeles County Women's Re-entry Court is an innovative alternative to imprisonment programme and resettlement support initiative aimed at women probationers who have been charged with a crime and face a term of imprisonment, or women who have left prison and are facing new criminal charges. Instead of a term of imprisonment, the programme aims to reduce recidivism and support community reintegration by offering a multi-agency approach and providing access to a wide range of gender-responsive intensive treatment services, "including substance abuse treatment, mental health services, housing, employment assistance, child reunification and domestic violence counselling" (Bloom, 2015, p. 18).                                    

Example 4: 'Dissuasion Commissions' in Portugal that decriminalize possession of drugs

In 2001, Portugal decriminalized the personal possession of all drugs. While it is no longer a criminal offence to possess drugs, it is still an administrative offence, punishable by a range of penalties. The specific penalty for drug possession is decided by 'Dissuasion Commissions' which are regional panels made up of legal, health and social work professionals. Although they have the power to impose punishment, including community sanctions and fines, their primary aim is to encourage individuals who are dependent on drugs to voluntarily undergo treatment, (individuals are rarely sanctioned if they choose not to). Overall, the evidence suggests that decriminalization of personal drug use and possession, and shift towards a more health-centred approach to drug use, has not caused a significant increase in the levels of drugs in Portugal, and that there is "no relationship between the punitiveness of a country's drug laws and its rates of drug use" (Murkin, 2014, p. 2).

Example 5: Specialized Mental Health Courts in the United States

Specialized Mental Health Courts have developed across the United States, with powers to divert offenders with serious mental health issues away from the criminal justice system and into community-based mental health treatment. Defendants voluntarily participate in community-based treatment in place of traditional court processing. Most Mental Health Courts take a multi-agency approach that includes intensive case management and judicial monitoring. They depend on community justice partnerships that involve mental health treatment and social services providers, including housing and employment services. The main objectives are to reduce recidivism, improve access to services, increase the well-being of defendants and enhance community safety. The reported success of these courts has led to their development elsewhere, including courts in the United Kingdom, Germany, Canada and Australia (for critical review see: Castellano and Anderson, 2013).

Example 6: Legal Representation for Children in Special Need of Protection in Cambodia

Having identified insufficient legal protection, in Cambodia, for children in conflict with the law. UNICEF supported the establishment of a Child Protection Unit within the Bar Association - to offer legal assistance to children identified as being in particular need of assistance. The project commenced in seven provinces, but now offers legal representation to children nationwide (24 provinces). Lawyers have specialisation in child protection and juvenile justice. While the program has not been formally evaluated, records show that this specialised legal representation has been effective in securing acquittals, for children, and release on bail (UNICEF, 2004).

 
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