Alternatives to imprisonment

Conference “Penal enforcement system: present situation and future perspectives”

Vilnius, 10th of February 2009

Dr Fabienne Hariga

HIV expert, Prison

UNODC Vienna

Related UNODC mandates

1) CRIMINAL JUSTICE:

• Guardian of several international standards and conventions

established to encourage the development of criminal justice systems

that meet fundamental human rights standards

2) A CO-SPONSOR OF UNAIDS

• UNODC – Lead agency for HIV prevention, treatment and care in prison settings and for injecting drug users

3) Guiding Principles on Drug Demand Reduction of the

General Assembly of the United Nations: drug prevention, treatment, rehabilitation

TOOLS

Overview of content

• Importance of Alternatives to

Imprisonment

• UN Standards and Norms

• Strategies of Alternative Justice

• Implementation at Different Stages:

(Pre-trial- Sentencing -Early release)

• Special Categories (Drug Offenders)

• Economics of Alternatives to

Imprisonment

• Effectiveness

• Humanitarianism Aspect of

Alternatives

• Public Opinion

• Conclusion – Who Should Act?

Why consider alternatives to imprisonment

• imprisonment vs. public safety: often counter productive

• overcrowding

• no cost effective

• human rights infringement

• vulnerability to diseases, poor medical treatment (affecting the wider community)

• difficulty in rehabilitation and reintegration

• Special category: example drug dependants, mental diseases

ROLE OF THE UNITED NATIONS:

Standards and Norms

• Limitations on circumstances for imprisonment

– International Covenant on Civil and Political Rights

(ICCPR)

– Convention on the Rights of the Child

– Standard Minimum Rules on for the

Treatment of Prisoners

THE TOKYO RULES (1986)

• Aim: to reduce the use of imprisonment

• Imprisonment as a last resort

• Promotion of non-custodial measures

• States to “rationalize criminal justice policies,

taking into account the observance of human rights,

the requirements of social justice and the

rehabilitation needs of the offender.”

UN Standards and Norms:

Alternatives to Imprisonment

• Declaration of Basic Principles of Justice for

Victims of Crime and Abuse of Power

• Basic Principles on the Use of Restorative Justice

Programmes in Criminal Matters

STRATEGIES OF ALTERNATIVE JUSTICE

• DECRIMINALIZATION

– Process of changing the law so that conduct that has

been defined as a crime is no longer a criminal act.

• DIVERSION

– Dealing in other ways with people who could be

processed through the criminal justice system.

PRE-TRIAL, PRE-CONVICTION AND

PRE-SENTENCING

“Pre-trial detention shall be used as a means of

last resort in criminal proceedings”

Tokyo Rules: Rule 6.1

PRE-TRIAL, PRE-CONVICTION AND PRE-

SENTENCING

• Alternatives to pre-trial detention:

– appear in court on a specified day as ordered by the court

– refrain from interfering with the course of justice

– remain at a specific address

– report periodically to a court, the police, or other authority

– surrender passport or identification papers

– accept supervision as ordered by the court

– pledge financial or other property as security to assure attendance

at court

– submit to electronic monitoring

SENTENCING ALTERNATIVES

• All sentencing options, including Non Custodial measures

must be given with due regard to balancing the rights of

individuals offenders, the rights of the victim, and the

concerns of society.

• Judges must have the legal authority to exercise discretion

in sentencing and the ability to consider alternatives under the

law.

• Institutional infrastructure to ensure proper administration,

availability and accessibility of alternatives must be in place.

Specific Non-Custodial Sentences

• Verbal sanctions

• Conditional discharges

• Status penalties

• Economic penalties

• Confiscation or an expropriation order

• Restitution to the victim or a compensation order

• Suspended or deferred sentences

• Probation and judicial supervision

• Community service order

• Referral to attendance centre

• House arrest

EARLY RELEASE

• Reduction of prison numbers

• Ensuring that imprisonment is used as minimally as possible

• Forms of early release:– Furlough and halfway houses

– Work and Education Release

– Parole

– Remission

– Compassionate Release

– Amnesties

– Pardons

Special Offender Groups

• Mentally Ill

• Drug Users

• Children

• Women

• Over represented groups, i.e. Indeginous

populations, foreign nationals

DRUG USERS

• Large proportion of prison population are drug

offenders

• Decriminalization of the use of drugs

(and increase access to drug treatment)

• Diversion:

– treat offenders for drug addiction i.e., drug treatment

programmes

– “Drug Courts”: Monitoring and support of the offender

through comprehensive treatment programmes

Effectiveness

• Reduces Recidivism

• Facilitates successful reintegration into the

community

Humanitarinism

• Provides less serious offenders with alternatives

that let them continue with various aspects of their

lives

• Avoid the negative effects of incarceration

Public Opinion

• alternatives do not significantly increase risks to

public safety; and

• non-custodial sanctions are acceptable to the

public, criminal justice practitioners and victims.

TOWARDS A COHERENT STRATEGY

Who should Act

• Political leaders and legislators - create a procedural Framework.

• Defense lawyers, prosecuting authorities and the judiciary- ensure speedy trials and minimize pre-trial detention.

• Judges and courts/prosecution - exercise discretion to impose alternatives wherever possible

• Administrators - provide an institutional infrastructure

• Probation officers - ensure offenders they meet the conditions set for their release.

• Police – divert offenders and maintain contact with offenders who have been released conditionally

• Prison authorities - prepare offenders for release and refer them to early release decision making authorities

• Non-governmental organizations and members of the wider public - offering support for conditionally released offenders and assisting with their integration into the community.

• Media – responsible for formulating pubic attitude to imprisonment and alternatives

Conclusion

The more information the public has about the

circumstances of a case, the more accepting they are

of sentences, including non custody sentences, that

are handed out and early release decisions that are

made.

THANK YOU