Alternatives to Custody in Ireland

on Wednesday, 25 October 2006. Posted in Issue 53 Rehabilitation in Irish Prisons: Are we for Real?, 2006

October, 2006

Article by Dr. Mairead Seymour

Ireland has seen a sharp increase in its prison population and a corresponding expansion of the prison estate over the last decade despite a reduction in the levels of recorded crime.  Indeed, since 1995 the prison population rate has grown from 57 per 100,000 of national population to 78 per 100,000 of national population in 20061.

It has been suggested that the politicisation of the crime issue since the mid-nineties fuelled by extensive media coverage of high profile crime cases are key factors in the growth2.  The prosperous economic conditions arising from the era of the Celtic Tiger are also identified as enabling a prison expansionist policy to become a reality3.  Despite numerous calls for a re-orientation of the system towards using custody as a last resort4 little change has occurred in almost 100 years (Probation of Offenders Act 1907) with the exception of the Criminal Justice (Community Service) Act 1983 and the Children Act 2001.  

Why Reform is Necessary?
In an international context the prison population rate in Ireland is mid-range.  It is higher than Finland (75 per 100,000 of national population) but lower than Germany (95 per 100,000 of national population) or Canada (107 per 100,000 of national population).  However, what is of most concern in the Irish context is that significant proportions of individuals are sentenced to custody for short periods of time and for relatively minor offences.  According to the Irish Prison Service almost 80% of all prisoners were committed under sentence for a period of up to one year5.  It is well acknowledged that fine defaulters do not generally pose a risk to society6; nonetheless, almost one quarter of committals to prison in 2001 related to fine default7.  

The cost of imprisonment in Ireland is a significant drain on public resources; prison expenditure reached €301.9 million in 2003; in contrast, the total level of resource provision for the Probation & Welfare Service was just €40.7 million.  In 2005 the average cost of keeping an individual in custody for one year was €90,000 – this ranged from €100,400 in Mountjoy Prison to €240,700 in Portlaoise Prison8.  In comparison, it is estimated that it costs approximately €1,500 for a community service order, €4,100 for supervision during deferment of penalty and €6,100 for an offender on a probation order9.  

Finally, prison has not shown to be effective in the ‘fight against crime’.  Indeed, according to the Halliday Report10 an expansion of the prison population by 15% would be required to achieve a 1% reduction in crime.  Furthermore, research in both Canada and the UK suggests that ‘fear of apprehension’ rather than the ‘severity of punishment’ has most impact on an offender’s decision to offend/re-offend.  In light of the above evidence, the high numbers of individuals serving short sentences in Irish prisons raises serious questions about the efficacy and effectiveness of the Irish criminal justice system especially when one considers the relative costs of the sanctions.

Is Reform Possible?  The International Experience

Based on the experience in other jurisdictions, it appears that there is wide scope for reducing the dominant position of prison in the Irish criminal justice system through penal reform incorporating the use of alternatives to custody.  Finland is almost unique in the western world in the extent to which it has pursued ‘a conscious, long term and systematic criminal policy’ to decrease the prison population11.  In 1975, it had a prison population that was almost twice the size of the other Nordic countries; today the prison population has been reduced to one of the lowest in Europe (75 per 100,000 of the general population).  In Canada, penal reform measures introduced in the mid-nineties have resulted in a decline of the prison population from 131 per 100,000 of national population in 1995 to 107 per 100,000 of national population in 200312.  Similarly, in Germany, while adult convictions have increased dramatically since the late 1960s, the numbers sent to custody remained stable with 42,122 convicted adults in prison in 1968, 43,476 in 199613 and 39,468 in 200314.  

Suspended and Conditional Sentences
Measures implemented in Germany to achieve the goal of reducing the prison population include the abolition of prison sentences of less than one month in lieu of fines, the decriminalisation of many offences and written justification for not suspending a sentence of less than a year.  All three jurisdictions mentioned above have in common a strong emphasis in the law on reducing the number of individuals in prison particularly those serving sentences of up to two years.  In this regard, Germany has relied heavily on the ‘suspended sentence’ and Canada and Finland on the ‘conditional sentence’ to reduce admissions to custody15.  The requirement that the court suspend a prison sentence of up to two years if the offender is not deemed a threat to public safety has had a significant impact on reducing and/or stabilising the prison population in Germany16.  Lappi-Seppälä describes the conditional sentence as ‘a powerful means in restricting the use of liberty’ and the most effective alternative to imprisonment in Finland17.  The introduction of the conditional sentence in Canada saw an immediate decline in sentenced custody admissions and a drop of up to 18% in admissions in 2000/0118 alone with only minor net-widening19 effects, due to the requirement to fulfil a number of statutory criteria.  The court must decide that no alternative sanction will fulfil the purpose and principles of sentencing:
absent this condition, judges would be free to impose a conditional sentence on cases which might otherwise have received a term of probation ... this outcome would defeat the parliamentary intention of reducing admissions to custody20.

The experiences from Finland, Germany and Canada strongly suggest that statutory provision to suspend or discharge prison sentences of up to two years in the community under supervision (and/or with other requirements e.g. rehabilitation, reparation etc.) results in a significant decline in the number of prison admissions.  It would seem that the adaptation of similar diversionary practice in Ireland would have a very significant impact on committals to custody given that 78% of committals to Irish prisons in 2005 were for one year or less.  Indeed, even if legislation only applied to those offenders sentenced to 6 months or less in prison it would mean that 59% of prison committals would potentially be eligible for a community sanction21.  

Community Service
Community service provides a promising alternative to custody.  Completion rates are high and outcome evaluation results suggest reductions in both seriousness and/or frequency of offending amongst participants22.  The increased use of community service orders has corresponded with a reduction in the number of custodial sentences in a number of jurisdictions.  

However, the national23 and international literature24 suggests that community service is sometimes used, not as an alternative to custody, but as an alternative to lower tariff community sanctions.  Finland is one of the few countries that have largely avoided the net-widening effect possibly due to adopting strict legislative procedures for its use.  A sentence of community service is only considered after the decision to impose a custodial sentence has been made.  The procedures are therefore designed to ensure community service is used only in the case where an offender would have received a custodial sentence.  In Ireland, a legal requirement of the Criminal Justice (Community Service) Act 1983 is that judges decide that imprisonment is the appropriate sentence before imposing a community service order.  That said, the evidence of net-widening in the use of community service orders25 highlights the necessity for measures to be taken by the Chief Justice and Presidents of the High Court, Circuit Court and District Court to ensure adherence to this legal requirement.

To ensure consistency and proportionality in its use, community service orders are calculated in Finland by guidelines that equate one day in prison to one hour of community service.  In contrast, the absence of guidelines in the Irish context has produced variances in practice ranging from a ratio of 63 hours of community service to one month of imprisonment in Donegal compared to 11 hours of community service to one month of imprisonment in Portlaoise26.  In conclusion, the evidence from Scotland suggests that community service produces lower reconviction rates amongst offenders than those given short prison sentences27.  Reporting on findings from the Scottish Executive28, McIvor concludes that ‘at the very least, community-based disposals are no less effective than imprisonment29’.  Based on the Finnish experience it would seem that if sufficient safeguards are put in place, the community service order has the potential to be an effective alternative to custody.  In light of such findings it is of concern to note a decline in the use of community service orders in Ireland from one in three orders made to just over one in five30.  

Probation Order
The nature of probation supervision and the manner in which the intensity of supervision may be targeted towards the needs of an individual offender makes it an appropriate intervention for a range of offenders.  Reconviction studies suggest positive results in reducing the seriousness and frequency of offending31.  Furthermore, research evidence32 shows that while an average of a 10% reduction in re-offending can be expected, this can increase to between 20-40% when programmes incorporate certain factors in their programme design and delivery. These factors include targeting high-risk offenders, matching programmes to offenders’ needs, a directive style, clear structure and using methods to develop offender cognitive skills and behavioural patterns33.  

The issue of enforcing probation and other community based penalties is an on-going problem for criminal justice personnel.  Vass argues if one enforces too readily and too strictly one risks broadening the net of social control34 – in contrast if the offender does not perceive that there are consequences for non-compliance it is likely to undermine the legitimacy of the order and reduce public and judicial confidence in alternatives to custody35.  High-risk offenders are likely to relapse36 and therefore relapse prevention and management is an important part of successful community supervision37.  Hedderman and Hough suggest that individuals are supported in completing interventions by not breaching them too easily, rewarding compliance and using a variety of techniques to promote compliance38. Finally, the effective management of enforcement in community orders is highlighted by the evidence that appropriate enforcement action creates lower than predicted re-offending rates for offenders39.

Fines
Non-payment of fines results in a significant number of individuals being committed to prison each year in Ireland.  Drawing on international literature, the Report of the Sub-Committee on Crime and Punishment on Alternatives to Fines and the Uses of Prison recommends that a package of measures are introduced to increase the use of fines and reduce the numbers going to prison for fine default including payment by instalments, an attachment of earnings (for those employed), a deduction from state benefits (for those unemployed) and supervised payments40.  

Research on the experience of managing fine default in England and Wales highlights the importance of considering all enforcement options before imposing a penalty for non-payment41.  Committal to prison for fine default dropped from 24,000 to 8,500 individuals in England and Wales between 1994-1996.  The significant decrease was attributed to a High Court ruling which reinforced the statutory requirement for courts to state, before sending a defaulter to jail, why each enforcement measure had failed or not been used.

While recommending that all of the enforcement options are considered before a sanction is given, the Report suggests that courts should not be limited to imposing a term of imprisonment for fine default and suggest alternatives including community service be considered.  Other jurisdictions have adopted such approaches including Germany where individuals who are unable or unwilling to pay a fine can attend community service and Scotland where the Supervised Attendance Orders (SAOs) was introduced to provide an alternative to custody for fine default42.

The Role of Politicians, the Media and the Judiciary
In additional to the provision of alternative sanctions to custody, the international experience suggests that the issue of penal reform must be examined within a holistic framework incorporating the role and significance of the political context, the media and the judiciary43.  

(i)  The Politicisation of Crime and Imprisonment
Coyle argues that ‘the inexorable rise of the prison population ... will only stop if society as a whole and politicians in particular choose not to go down that road’44.  Without such commitment the effort is likely to be doomed – a clear example of this is the Criminal Justice Act 1991 in England and Wales which was designed ‘to reduce the prison population by decentring the prison from penal discourse’45.  In the immediate aftermath of the legislation the prison population declined, however, by 1993 the political tide had quickly turned towards increased punitiveness.  This was echoed most clearly by the then Home Secretary’s claim that ‘Prison Works’ and supported by the media calls to ‘get tough on crime’ in the aftermath of the murder of a young toddler James Bulger by two young boys46.  

In contrast to the English experience, Lappi-Seppälä argues that the most decisive factor in the process of reform in Finland was probably ‘the political will and consensus to bring down the prison rate’47.  Finnish reforms were designed by a small group of professional experts supported and reinforced by a range of contacts with senior politicians and academic researchers.  This raises important questions about the Irish context and the extent to which political commitment will be forthcoming towards reforming the system away from a strong emphasis on custody and other punitive measures especially in the context of a pending general election?

(ii)  The Influence of the Media
Concern about crime and public attitude to crime is based not on actual crime rates, but on the extent to which politicians and the media highlight issues of crime48.  In Canada as in many jurisdictions the media can fuel the ‘soft and lenient’ debate on a regular basis.  In contrast, the media in Finland has maintained a reasonable attitude to crime and criminal justice policy issues and this has been linked to the maintenance of a rational attitude to crime and punishment amongst the general public.  The contrasting experiences indicate that the influence of the media particularly in countries where crime and punishment features prominently as an electoral issue cannot be under-estimated.  

(iii)  The Role of the Judiciary
Lappi-Seppälä describes the willingness of the judiciary to collaborate and assist in the process of penal reform in Finland as a key factor in its success49.  He also outlines how ongoing training courses and seminars organised for judges and prosecutors by the judicial authorities have been attributed as having an impact on sentencing and prosecutorial practice.  Penal reform is likely to incorporate changes that have direct significance to members of the judiciary.  In an Irish context any statutory requirements are likely to meet with fierce resistance from the judiciary given their unique position in constitutional terms.  The involvement of the judiciary would therefore be at the core of any proposals for change to the system.  Without statutory requirements, sentencing practice is likely to vary widely and yet without judicial commitment statutory requirement will be less meaningful.  

Sentencing Guidelines for Community Sanctions
There has been much discussion in the literature regarding the necessity of introducing very specific numerical type sentencing guidelines versus more general guidance for sentencers.  Tonry and Frase argue that the nature of the environment should determine the approach50.  For example, they suggest numerical type guidelines may be ‘the best among several undesirable choices’ in the United States given the punitive nature of the society.  In contrast, in the context of northern Europe where the severity of punishment is already restrained, they argue that such standards are likely to do ‘more harm than good’.

Reitz describes how guidelines are useful in identifying who should be detained and who should not but argues that ‘a far more subtle undertaking, however, [is] to prescribe the type and intensity of nonprison sanctions’51.  This is a particularly important question given concerns about proportionality, legitimacy and effectiveness and the concern that inappropriately targeted community penalties place offenders at greater risk of custody.  A system of structured sentencing designed by the North Carolina Sentencing Commission in 1994 ranks intermediate sanctions52 according to their level of intrusiveness53.  Since its inception, the confinement rate following felony conviction has decreased from almost one half (48%) in 1993 to just over one-third (37%) in 199754.  The prison population of North Carolina actually grew by 15% between 1994-1997 (due largely to increased penalties for violent offences) however the system succeeded in diverting low to moderate risk offenders to intermediate punishment than was previously the case and reallocating prison space to more serious long term offenders55.

Approaches to Avoid
Ireland continues to stumble in the dark with regard to developing alternatives to custody, largely because there is a dearth of research on sentencing, community sanctions and crime and justice related issues.  It is critical that policy direction does not unquestioningly follow practices in other jurisdictions without fully assessing the documented success or otherwise of such measures and exploring their suitability in an Irish context.  In particular, the evidence suggests that community sanctions with no rehabilitative element are unlikely to be effective.  The trend in England and Wales is towards ‘strengthening’ community service by making it more demanding for the offender and thereby inducing public confidence56.  However, despite a continuing ‘toughening up’ of community punishments in England and Wales the prison population remains at an all time high.  Indeed, the adult prison population of England and Wales has grown from 36,000 in 1991 to 62,000 in 2003 – an increase of 71%57.  Ashworth argues that in addition to an increasing tendency towards punitive measures an on-going feature of policy in England and Wales over the last 30 years is ‘the continued pursuit of the policy of proliferation’.  He warns against such a policy arguing that:
English courts have probably the widest choice of alternative sentences in any European nation, but it is not easy to suggest what benefits this has.  It certainly does not lead courts to use custody less frequently.  The courts themselves continue to ask for more alternatives and for wider discretion58.

There is also extremely limited data to suggest that punitive measures including electronic monitoring are effective in reducing recidivism.  It is therefore concerning that proposals for its use are included in the Irish Criminal Justice Bill 2004.  

Conclusion
As mentioned above, the legislative basis for alternatives to custody has remained unchanged for almost 100 years with few exceptions.  At a national level it is acknowledged that community sanctions are unlikely to meet the objectives of reducing recidivism and the prison population ‘if such sanctions are not introduced in an integrated manner and accompanied by a coherent sentencing strategy on a national and local level’59.  Furthermore, unless community based penalties are properly resourced and seen to operate effectively both public and judicial confidence is lost and ultimately replaced, particularly in populist societies, with harsher penalties.  

A range of factors make up the equation associated with the development of community sanctions to reduce recidivism and the prison population.  Any of the countries where positive outcomes arose from penal reform have identified more than one factor or sanction as attributing to the success.  To this end, legislative change, sentencing guidelines and the development of a range of effective community sanctions coupled with the commitment of policymakers and the judiciary are all essential components for the creation of an effective system.   

The potential for reducing prison numbers and prison expenditure is promising in light of the experience from other jurisdictions; whether that potential is realised remains to be seen.  As a society we must ask at what point is the conveyor belt of the prison factory that repeatedly turns out the most vulnerable and marginalized individuals halted and replaced with an effective and efficient system of alternatives to custody for those individuals who pose no risk to public safety?


Dr Mairead Seymour is a Lecturer at the Department of Social Studies, Dublin Institute of Technology


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