This module is a resource for lecturers
Topic four - Post trial alternatives
At the core of most penal systems is a sentencing regime - namely, a system of imposing penalties according to the various justifications of punishment noted above. This Part of the Module examines the range of non-custodial sanctions and penalties that can be imposed at the sentencing stage - sometimes referred to as 'front door' measures.
Alternatives to imprisonment at sentencing
Rule 8.2 of The Tokyo Rules (1990) proposes that a wide range of sanctions other than imprisonment can be imposed by judicial authorities at the sentencing stage. These are:
(a) verbal sanctions such as admonition, reprimand and warning;
(b) conditional discharge whereby a person is released but required to avoid future offending;
(c) status penalties that deny an individual specified rights in the community;
(d) economic sanctions and monetary penalties such as fines;
(e) confiscation or an expropriation order whereby the authorities may confiscate proceeds of a crime or expropriate goods or property from the offender;
(f) restitution to the victim or a compensation order such as the return of property or payment to the victim for the harm or loss suffered or payment to a state-run victim compensation scheme;
(g) suspended or deferred sentencing where a sentence of imprisonment is pronounced but its implementation suspended pending compliance with conditions set by the court;
(h) probation and judicial supervision to provide information to the court and to monitor and supervise the offender's behaviour in the community, while assisting them with problems they may face;
(i) community service orders requiring released offenders to do unpaid work for a set number of hours or perform specific tasks for the community;
(j) referral to an attendance centre that offers, for example, treatment programmes or therapeutic interventions to address offending behaviour;
(k) house arrest whereby the offender is ordered not to leave home;
(l) any other mode of non-institutional treatment to develop new forms of non-custodial treatment;
(m) some combination of the measures listed above to ensure that the court is not limited to a single disposition (see also: UNODC, 2007).
International standards make it clear that sentencing authorities can impose alternative measures in a manner that meets the differing aims and justifications of punishment, in accordance with legal safeguards and the rule of law. The Tokyo Rules provide that the "introduction, definition and application of non-custodial measures shall be prescribed by law" (1990, Rule 3.1), and that the selection of non-custodial sanctions, "shall be based on an assessment of established criteria in respect of both the nature and gravity of the offence and the personality, the background of the offender, the purposes of sentencing and the rights of victims" (1990, Rule 3.2). Furthermore, the development of non-custodial measures must always respect and maintain the fundamental rights and freedoms of offenders, a requirement underlined by Rule 3.9, which states that, "the dignity of the offender subject to non-custodial measures shall be protected at all times". As such, the Commentary to The Tokyo Rules (1993, p. 13) states that Rules 3.9-3.12 require that alternative sanctions should not be imposed "in a way that would harass offenders, jeopardize their dignity or intrude on their privacy or that of their families".
For non-custodial measures to be implemented as "realistic sentencing alternatives to imprisonment", they must be supported by key stakeholders and agencies in the criminal justice system, as well as the public in general (UNODC, 2007, p. 28; see also Council of Europe, 1999). As a minimum, the key agencies include:
- judges and courts - to ensure that alternatives to imprisonment are imposed wherever possible;
- legislators - to create a legal framework that provides for the implementation and monitoring of alternative sanctions;
- administrators - to create suitable alternatives;
- probation officers - to supervise and monitor offenders in the community;
- community leaders - to encourage the public to become involved in the implementation of community sanctions; and,
- volunteers - to help implement punishment in the community (UNODC, 2007, p. 45).
Research evidence suggests that many jurisdictions have implemented different community sanctions over recent decades to address the overuse of imprisonment (see, for example, Wade et al., 2008). In some jurisdictions, electronic monitoring has been used to keep track of offenders serving sentences in the community. This may not be an option in low-resource countries, however, as the technology may be expensive and there may not be the technical support and infrastructure to implement it. A more fundamental human rights concern, however, raised by the international community is that, "the use of electronic bracelets adds an additional layer of supervision and restriction on the offender and, sometimes where not justified, thereby infringing excessively on the privacy and human dignity of the offender" (UNODC, 2013a, p. 111). International standards have stressed that the right to privacy of the offender and his or her family is of "special importance", and that "the utmost vigilance is required to ensure that undue intrusion does not take place" (United Nations, 1993, p. 14). Such considerations need to be carefully considered before introducing the use of electronic monitoring (UNODC, 2013a; see also Dünkel et al, 2017).
More traditional practices, however, can also serve as a model for alternative sentencing. The use of restorative justice approaches, for example, has increased in recent years, whereby the victim, offender and other individuals or community members affected by a crime meet to focus on repairing the harm caused and developing a plan to help compensate or assist victims. In some countries, restorative justice principles have been used as the dominant paradigm to solve problems of transitional justice and reconciliation. In Colombia, for example, a restorative justice model was put forward as "the best way to face the atrocities committed by paramilitary groups" (Uprimny and Sanín, 2005, p. 1). Similarly, postcolonial or indigenous perspectives that demand redress, reparations and compensation for historical injustices, significantly challenge the weaknesses and bias of mainstream criminal justice systems and enrich the debate on alternative sanctions to imprisonment (see, for example, Villa-Vicencio, 2000; Boraine, 2002; Cunneen, 2011; Cunneen and Taur, 2018).
Rather than focusing on the retribution versus rehabilitation debate, numerous jurisdictions have adopted restorative approaches as a valid third alternative (see Zehr, 1990; Hughes and Mossman, 2002). A 2017 survey carried out by UNODC with responses from 31 Member States, found that restorative justice programmes are an "effective and flexible alternative to formal criminal proceedings" and "can contribute to alleviating the burden on the criminal justice system as well as reducing the rate of recidivism" (UNODC, 2017, p. 43). It concluded, however, that restorative justice is still "underused or not well known in many parts of the world" (UNODC, 2017, p. 44). For further materials on restorative justice, see Module 8 in the E4J University Module Series on Crime Prevention and Criminal Justice.
Alternatives to imprisonment post sentencing
Over recent decades, many countries have also developed non-custodial measures at the post sentencing stage - sometimes called 'back door' measures - although they are not always recognized as alternatives to imprisonment. In contrast to front door strategies, back door measures aim to reduce prison overcrowding by releasing prisoners on parole before they complete their full term of imprisonment (see for example: Pitts, 2014; Bernardi, 2016).
Importantly, the use of early conditional release (parole) has been promoted as an effective way of preventing reoffending and promoting social reintegration, if release is accompanied with adequate support, assistance and supervision. Rule 9.1 of The Tokyo Rules (1990) states that there should be a wide range of post sentencing alternatives made available, "to avoid institutionalization and to assist offenders in their early reintegration into society." The Tokyo Rules also promote the idea of releasing offenders from an institution to a non-custodial programme at the earliest possible stage, and recommend the following post sentencing dispositions:
- Furlough and half-way houses - to enable short periods of leave from prison or for prisoners to live in halfway houses before release into the community.
- Work or education release - to allow temporary release from prison to work or attend educational courses.
- Various forms of parole - to facilitate early release from prison on conditions that remain in force until the full term of the sentence has expired.
- Remission - a form of unconditional release after the prisoner has served a fixed term of a sentence, sometimes dependent on good behaviour in prison.
- Pardon - the setting aside of the conviction or sentence, usually carried out by the head of state (1990, Rule 9.2; see also UNODC, 2007, p. 48-50).
The key agencies and actors required to implement these dispositions are similar to those required for the implementation of front door measures, namely, judges and the courts, legislators, administrators and probation officers. But police officers are also needed to support and monitor offenders who have been released conditionally, as well as heads of states in deciding to use their powers of pardon or amnesty (United Nations, 1990).
While there are some obvious advantages associated with back door approaches (such as cost saving, and a reduction in overcrowding and lengthy prison terms), there are also some concerns. Early release may undermine the authority of the sentencing court, and therefore public trust in the criminal justice process. It may reduce the protection of the public offered by imprisonment. Discretionary or arbitrary decisions may lead to an abuse of power, and a sense of injustice and discontent. Furthermore, the conditions imposed may impose an additional punishment on the sentenced prisoner (UNODC, 2007). Indeed, it has been recognized that non-custodial measures, like imprisonment, can restrict and infringe personal rights and liberties (see Morgenstern and Larrauri, 2013). On the other hand, experts have argued that early release helps deal with significant deficiencies in the criminal justice system, particularly the crisis in the number of prisoners. Moreover, parole has also been shown to reduce recidivism rates for those who receive it, and it allows prisoners to be released at a time when their risk to the public has diminished sufficiently (Cavadino and Dignan, 2007).
The Commentary to The Tokyo Rules (1993) emphasizes the importance of judicial authorities following formal decision-making procedures in reviewing previous sentencing decisions and making decisions on early release. Further, clear criteria should be established and explained to both prisoners and prison staff. By setting out such criteria, "abuses of discretionary power can be reduced to a minimum and prisoners can work towards release knowing what criteria they will need to satisfy" (United Nations, 1993, p. 21). At the same time, "measures of early release will be easier to explain to the general public, who may be suspicious of such measures" (United Nations, 1993, p. 21).