This module is a resource for lecturers
Topic one - Aims and significance of alternatives to imprisonment
What do we mean by non-custodial measures? Why are alternatives to imprisonment important? What are the aims and purpose of alternatives to imprisonment? What are the potential risks?
Sometimes referred to as 'community corrections', 'offender supervision' or 'community sanctions and measures', the penal subfield of 'alternatives to imprisonment' can be difficult to draw clear parameters around (McNeill, 2013). Some scholars have argued that it is preferable to refer to "ambulant sanctions" than alternatives to imprisonment. Graebsch and Burkhardt (2014, p. 15) suggest that the use of the term "alternatives" tends to "perpetuate the predominance of liberty depriving sanctions", leaving other sentencing options as the exception rather than the rule. Furthermore, the term "alternatives to imprisonment" fails to include sanctions that might be imposed "in addition or subsequent to a prison term" (Graebsch and Burkhardt, p. 15-16). Some key terminology is mentioned in Key Terms.
Why are alternatives to imprisonment important?
In 2018, the World Prison Brief reported that "more than 10.74 million people are held in penal institutions throughout the world, either as pretrial detainees/remand prisoners or having been convicted and sentenced" (Walmsley, 2018, p. 2). Furthermore, the world prison population total has increased by 24 per cent since the year 2000 (Walmsley, 2018, p. 17). Criminal justice systems around the world are having to manage record numbers of people in prison with far higher rates of substance abuse and mental health disorders compared to those of the general public (Penal Reform International, 2018; see also Module 6 in the E4J University Module Series on Crime Prevention and Criminal Justice).
Contemporary penologists have argued that "penal populism" and "tough on crime" policies have led to an era of over incarceration across many different jurisdictions (see for example: Zimring, 2001; Roberts et al., 2003; Pratt, 2007). In recent decades, politicians and the tabloid media have often called for punitive sentencing systems, and public policies that make imprisonment far likelier, in the belief that locking people up for long periods of time will lead to less crime in the community and will deter others from breaking the law. Yet, there is little evidence to suggest that lengthy prison sentences deter crime, or that public safety increases with higher levels of incarceration. Conversely, research has shown that while imprisoning people temporarily stops them from committing crime outside prison, it does not reduce recidivism and may increase criminality after release, with the unintended consequence of making society less safe (see for example: Cullen et al., 2011; Roodman, 2017). For further discussion on penal populism and punitive legal frameworks, see Module 1 in the E4J University Module Series on Crime Prevention and Criminal Justice.
Not only has the overuse of imprisonment been found to be ineffective, with limited public safety benefits, it has also led to significant human rights violations of many prisoners, such as the poor treatment of detainees, inhumane conditions, and prison overcrowding. As Mauer (2017, p. 1) identified in 2017: "With only a handful of exceptions around the world, the conditions of confinement in prison systems globally range from inadequate to torturous". Many prisoners, often from the most marginalized groups of society, are treated in inhuman and degrading ways, and subject to conditions that inherently infringe human dignity and their value as human beings (see Penal Reform International, 2018; see also Modules 1 and 6 in the E4J University Module Series on Crime Prevention and Criminal Justice). Furthermore, the "collateral effects" of imprisonment include adverse impacts on children and families on the outside, diminished civic engagement and trust in government, and the "fraying of community bonds and informal social control" (Mauer, 2017, p. 1). There are also significant economic costs involved in the administration of prison systems and institutions: prisons are very expensive institutions to run (see for example: Kincade, 2018).
In light of the detrimental and counterproductive effects of increasing prison populations, the international community has contended that while incarceration may be necessary in certain cases involving serious violent crime, it is important for societies to eschew tough on crime policies and consider implementing more meaningful, non-punitive alternative measures to imprisonment, at both the pre- and post-trial stages of the criminal justice process. Indeed, many scholars and human rights activists confirm that the deprivation of liberty should be considered only as a sanction of last resort, and for as limited a length of time as needed. Indeed, international legal standards hold that non-custodial measures should be considered a first resort, and implemented in a way that fulfils human rights requirements, driven by respect for human dignity, and in accordance with due process of the law. Alternative solutions which address the risk and needs of individuals who come into contact with the law will generate the greatest return to communities in terms of social cohesion, cost savings and long-term public safety (UNODC, 2007; UNODC, 2013a; Tonry, 2017; Penal Reform International, 2018).
What are the main aims of alternatives to imprisonment?
According to The Tokyo Rules and the Council of Europe's Recommendation on the European Rules on Community Sanctions and Measures (2017), the main aims and objectives of alternatives to imprisonment are to:
- Avoid unnecessary use of incarceration;
- Avoid the negative effects of imprisonment such as institutionalization;
- Rationalize criminal justice policies;
- Provide greater flexibility consistent with the requirements of social justice, the nature and gravity of the offence, the rehabilitative needs of the offender, and the protection of society;
- Encourage and enable changes in people's lives;
- Provide greater community involvement in the management of criminal justice;
- Develop a sense of responsibility to the community;
- Avoid institutionalization by promoting early release and reintegration into society;
- Enhance the prospects of social inclusion;
- Reduce recidivism;
- Reduce costs.
What are the potential risks?
- Community sanctions may be considered a 'softer' option by judges;
- The underlying ideological base, as well as the aims and objectives of non-custodial measures may not be clear;
- A lack of financial support and organizational infrastructure to support and oversee the implementation and monitoring of community measures;
- The problem of stigmatization when imposing alternatives to imprisonment;
- Lack of popularity among politicians and the media;
- Lack of public confidence in the effectiveness of community sanctions;
- Net widening effect and increased social control, which arises when community sanctions are imposed in cases where no sanction would have been imposed (adapted from Stefani et al., 2014).
Furthermore, in some jurisdictions, there has been a significant decline in the use of community sanctions following the privatization of service providers of alternatives measures to imprisonment. In England and Wales, for example, a 2018 report by the Centre for Justice Innovation highlighted that although sentencing authorities still considered community sentences a vital option, the courts had lost confidence in the implementation, delivery and monitoring of alternatives to imprisonment. Phil Bowen, Director of the Centre for Justice Innovation, stated in 2018 that, "the combination of cuts to justice budgets and the government's poorly implemented privatization reforms to probation means that [sentencers'] trust in probation's ability to deliver them has been dented over the past six years" (cited in Bowcott, 2018). Some scholars have also argued that the privatization and commercialization of prisons over recent decades has significantly contributed to the overuse of incarceration, underuse of alternatives to imprisonment, problems of prison overcrowding, and significant abuses of human rights (see for example: Aviram, 2015). For further information on the privatization of prisons, see Module 6 in the E4J University Module Series on Crime Prevention and Criminal Justice.