World-wide experience with alternatives to prison suggests that they
often do not fulfil the expectations placed upon them. The first major problem is one of
use. Judges have proved very reluctant to use them and when they are used it is frequently
not as an alternative to a prison sentence but as an alternative to another non-carceral
sanction. In the study on non-custodial penalties in Europe carried out by Norman Bishop
this pattern is clearly shown.
"Statistical evidence....shows clearly that non-custodial
alternatives are either used far less than they might be or, when used, are substitutes
for other non-custodial alternatives and not for imprisonment."(Bishop 1988) [2]
The Commentary to the Tokyo Rules suggests that
"Despite the obvious advantage of non-custodial measures, reforms
intended to promote the use of such measures contain potential dangers and may lead to
unintended consequences. For example, the use of non-custodial measures may be increased,
not at the expense of imprisonment but at the expense of other less onerous penalties.
This may lead to an increase in the total use of penal measures in society, an increase
that cannot be justified by a reference to a worsened crime situation. At the same time,
there may be no reduction in the use of imprisonment. This has been termed the
net-widening effect."
"Another possible danger is that new non-custodial measures may be
introduced that impose more intensive forms of control. Instead of replacing imprisonment,
they may replace non-custodial penalties that involve less control. More intrusive control
than the circumstances warrant may thus be introduced."
Why is this? In 1989, the English organisation, the National
Association for the Care and Resettlement of Offenders (NACRO) published the report of a
working party that had been looking for over a year at this question. In this report, the
terms "community based penalties" or "community penalties" were used.
"Alternatives to custody" and "non-custodial penalties" were both
rejected as terms because
"neither term dislodges custody from its central position and a
different vocabulary is needed for a penal system in which prison is an exceptional
sanction and other penalties are to be promoted in a more positive way." (NACRO 1989)
[21]
A similar point about language was made in a British Government White
Paper, Crime, Justice and Protecting the Public. The chapter on community penalties begins
"there seems to be an assumption that custody is the only
"real" punishment. This is reinforced sometimes by confusing references to other
penalties as "alternatives to custody". No other penalty can place the same
restrictions on liberty as a custodial sentence; if it did, it would be another form of
custody; so there can in reality be no "alternative" to it, only other ways of
punishing."(Home Office 1990a) [16]
These semantic distinctions may seem trivial but in fact they highlight
one of the significant reasons why, for many years, the burgeoning alternatives failed to
make any impression on the ever-rising use of imprisonment in many parts of the world.
Using England and Wales as an example, an examination of sentencing trends would show that
there is no clear relationship between the number of community-based penalties available
to the courts and the use of custody. Between the mid 1960's and the mid 1970's several
major new penalties were introduced in England and Wales, the suspended sentence in 1967,
community service orders on an experimental basis in 1972 and the deferred sentence in
1973. Over this period, custody rates did fall. The rate for adult males found guilty of
indictable offences fell from 27% in 1965 to 15% in 1974. However, community service and
senior attendance centres then became more widely available and in 1977 the partly
suspended sentence was introduced. In 1982 new powers in respect of compensation orders
and additional requirements in probation and supervision orders were introduced. However,
between 1977 and 1987 the proportionate use of custody for those aged 17 or over sentenced
for the more serious offences increased from 14 to 19 percent. Figures from the Council of
Europe for the rate of use of non-custodial sanctions bear out this interpretation. The
figures relate to seven countries in 1990 and show that per head of population England and
Wales had the highest rate of people undergoing non-custodial sanctions of all seven
followed by France and then Hungary. The lowest rates were to be found in Germany and the
Netherlands. When compared with information for the rate of imprisonment it can be seen
that high rates of imprisonment accompany high rates of use of non-custodial sanctions.
Those countries with low use of imprisonment also have low rates of non-custodial sanction
use.
It is worth considering why these admirable efforts to replace
imprisonment with community sanctions failed to make the impact expected of them. The
NACRO working party considered this question. It concluded that the development of
community-based penalties had been handicapped in three areas. First there had been a lack
of clear leadership and guidance in respect of how new penalties, once they had been
introduced, should be used.
The report drew attention to the failings of both legislation and the
appellate system to clarify how various community-based penalties should be used. 6 For
example, some judges used them for minor offenders, others for those who were out of work
and could benefit from community service work, others for more serious offenders while
others saw them as suitable mainly for women and young people. It was often, the report
points out, "left to sentencers to work it out for themselves."
The second reason the report put forward for the failure of
alternatives to replace prison was that
"community-based penalties have not been organised in a way which
ensures comprehensive and consistent provision."
Whereas prison had the advantages of simplicity, immediacy and
certainty, community penalties were often organised by local bodies with wide variations
and with no clear national framework within which to operate. The judge did not have
confidence in them and therefore was reluctant to use them, seeing many advantages in
prison.
Finally, alternatives to prison had suffered from their image as a "soft
option" or an unreal punishment. The report argued that since probation or social
work services were usually in charge of organising such penalties, their image is likely
to be confused in the mind of those without any clear knowledge of what these sanctions
involve.
