ALTERNATIVES AFTER VERDICT
Some penologists regard various forms of pre-term release or changing the term of incarceration as an alternative punitive measure. Socially useful work plays an important role here. Law-breakers are released and work the rest of their prison term for the society.
Other variants are the permission to stay at home under surveillance, or to live in hostels, or releasing prisoners for some courses or service, or some ways of release on parole.
PROBLEMS CONNECTED WITH ALTERNATIVE MEASURES
The world practice in alternative to incarceration punishments shows that the alternative punishment often fails. The first problem is that of application. Judges, as experience shows, are unwilling to issue alternative sentences. The judges rather use such measures as alternatives to other measures, not requiring incarceration. Norman Bishop studied this question in Europe and he came to such a conclusion:
‘Statistical data clearly testify that alternative punishments are used much less often than it were possible, and when they are applied, they replace not incarceration, but other punishments (Bishop, 1988).
This is confirmed by the fact that new alternatives attempted during many years did not noticeably affect the steady growth of incarceration in many parts of the world. For example, in England and Wales after a long period of reforms the proportion of the incarcerated people older than 17 increased from 14% in 1977 to 19% in 1987.
So, one must analyze why all enthusiastic efforts directed at the replacement of incarceration by milder sanctions do not bring the expected results. The NACRO working group investigated this question and came to the conclusion that the development of milder sanctions was imperfect in three respects.
First, there were no distinct instructions about how to apply new kinds of punishment. The NACRO report lists both the drawbacks of the legislation and the appellation system with respect to distinct explanations about how new measures of punishment must be applied. As a result, some judges applied these new measures to petty law-breakers, others – to those who were unemployed, third – even to graver crimes, forth – with respect to women and younger people. So, these important questions were left for the decision of the judges.
The second reason why the alternative punishments happen to be the inadequate replacement of incarceration lies, according to the report, in the fact that ‘punishment without isolation from the society was badly organized and thus did not provide the complete and consistent application.
While the prison routine is simple and definite, the non-prison punishment was often organized by the local authorities in various ways, without a distinct national structure. Judges did not trust such forms of punishment and abstained in applying them.
At last the alternative to prison is considered as ‘softer measure that is not an actual punishment. According to the report, the organization of such sanctions was the responsibility of the probation service and public works, and they introduced much confusion to the process.
EXPENDITURES AND EFFICIENCY
Those who support the alternative measures of punishment often use two very practical arguments. They say that the alternative measures are less expensive and more efficient. Investigations were carried out in order to compare the recidivism level among those who stayed in prison and those who, for the similar crimes, executed public works. The results vary but upon the whole they show that after public sanctions the probability of recidivism is not larger that after incarceration, and some researchers found that the level after alternative sanctions is much lower.
Expenditures for alternative measures of punishment appeared to be clearly and unambiguously smaller than for incarceration. Thus, in England and Wales in 1994/95 a month of incarceration cost 2190 pounds, while probation and public works cost about 100 pounds. However, the state could not reduce the total cost of the combined punishment (in and out of prison). In order to decrease the cost significantly, it is necessary to reduce the number of the incarcerated to such a level which would permit the state to close separate prisons, because the main expenditures are directed to the maintenance of the buildings and paying the personnel.
That is one of the reasons why some countries that experience now the economic crisis did not try to introduce non-prison punishments, because it would not enable them to reduce expenditures.
The main international documents concerning the punishment of criminals in alternative forms is the UNO Minimal Standard Rules relative to measures of punishment without incarceration. These rules known as the Tokyo rules were adopted by the UNO General Assembly in accordance with Resolution 45/110 of 14 December 1990.
The Council of Europe developed its own rules on ‘public sanctions and measures of punishment adopted by the Committee of Ministers in 1992. In the explanatory notes to the European rules they say about the necessity to guarantee that ‘the introduction of new technologies and developments in the sphere of supervision and control, as well as the tendency to decrease expenditures, should not impinge the rights of law-breakers.
The countries that have just started to implement the system of alternative punishment can avoid the errors which were made by pioneers. One of such countries is Czechia.
In 1995 some corrections were introduced to the Penal Code of Czechia which admit the application of public works as a measure of punishment. These corrections became operable in January 1996. First, public works may be applied only in those criminal cases where the sentence of incarceration does not exceed five years. The judge giving a verdict of public works must pay attention to the character of the crime and the person of the law-breaker; he also must have reasons to suppose that the aim of the punishment can be achieved without incarceration. It is supposed that public works is a real alternative to incarceration and not to other alternative measures of punishment.
A person sentenced to public works must fulfil them gratis for the good of the society; the term varies between 50 and 400 hours, and all the hours must be worked during one year since the day of the verdict. The court has the right to sentence the law-breaker to additional restrictions. If the law-breaker does not lead a normal way of life or violates the restrictions imposed by the court, then the court may replace the alternative punishment or its remaining part with incarceration. The exchange rate is one day in prison for two hours of work.
A new variant of reconciliation of a wrong-doer with his victim has been introduced for the cases when the incarceration does not exceed five years. The accused must confess guilty and pay a certain compensation for public needs. The reconciliation is considered achieved if both the wrong-doer and the victim agree with the decision.
In order to realize these new sanctions the probation service was formed. The first probation officers got a special preparation and were appointed in January 1996.
Another attempt to implement non-prison sanctions was made in Zimbabwe. It was introduced in 1992 as a reaction to a fast growing number of the incarcerated. 60% of the incarcerated did the term up to three months, i.e. they were petty law-breakers. To keep such a number of convicts was a heavy load on the state budget: in 1980 the total expenditure for prisons was 1.2 million dollars, and in 1994 it reached 10.8 million dollars.
The National Committee on public works headed by one of the members of the Supreme Court was organized, and necessary laws were adopted. The National Committee contacted Penal Reform International (PRI) and with PRIs help got some financing for their experimental programme from the Council of Europe. From the beginning of the programme to August 1996 about 12,000 verdicts for non-prison punishment were issued with respect to those law-breakers who could otherwise get up to one year of incarceration.
The public works consist in working in social welfare organizations. The punishment appeared to be efficient: only 6% committed crimes. The punishment appeared to be cheap: the expenditures for one month per head were between 10 and 20 dollars, whereas the incarceration cost $56. The number of the incarcerated steadily growing in the past stabilized, in spite of the growth of crime and unemployment. When the financing from the Council of Europe terminates, the government of Zimbabwe intends to pay the expenditures itself, support and extend the programme. At present the Council of Europe finances similar projects in other four African countries – Uganda, Kenya, Malawi and Zambia – and plans to extend the experiment in five more countries.
The experience of Czechia and Zimbabwe deserve good marks. Maybe, these countries will show the way to other countries where the non-prison punishments are like poor relatives in the situation when the prison population is steadily growing and the public disregards any punishment except incarceration.
Certainly, alternative punishments will never have the image of a prison but they have, instead, attractive aspects. Compensation to the victim as a response to crime is as ancient as revenge. John Bratwait, an Australian criminalist, has developed a new concept: disgrace, ‘a reintegrative disgrace, according to his terminology. This is such a form of disgrace that reintegrates the law-breaker, i.e. forces the law-breaker to strive to be received back by the society, which he damaged. According to Bratwait, the sanctions will have a greater effect if they follow not from ‘a remote judicial body, but from those who are close to the law-breaker. Several groups try to develop this idea to such a form that it could become a part of the judicial system. Step by step this idea is realized. In New Zealand, for example, minors from 14 to 17 are tried by special courts for minors. At a first glance it seems to be the usual scheme with the remote antagonistic judicial agency, but when establishing the guilt another model, ‘a family group meeting, is used. This meeting is called by a state official from the department of social welfare, who is the chairperson at the meeting, but a large group of interested persons participates in the meeting as well. First, the accused must be present and members of his family. The family can ask the aid of a ‘lawyer in questions of minors and maybe some other persons whom they consider useful to be present. Friends of the suspect, witnesses, police officer, as well as a welfare worker may be present at the meeting, but a judge must be absent. All in all 6 to 12 persons are present, although their number may reach 20.
The purpose of this meeting is to work out a unanimous decision which could satisfy the wrong-doer, his victim and the police officer. If the meeting cannot achieve a unanimous decision, then the question is passed to the court. However, as a rule, the meeting makes a plan which consists in bringing excuses to the victim, some restitution to the victim in the form of money of services, some works directed at the public good, some restrictions on the recreations or contacts with those friends who are considered to exert bad influence. The plan is passed to the court and the court delays the case by several months. If by the time of the trial the plan was successfully carried out, the case is terminated.
This approach is promising and we hope that it will also take its toll from the ugly system of punishments inherited by Europe from the 18 thcentury