Alternatives to jail

UNESCO Courier, June, 1998 by Jose Luis De La Cuesta Arzamendi

Despite efforts to improve the quality of inmates' lives, in most countries prison is still by and large a place of exclusion and segregation, synonymous with injustice and pointless suffering. The steadily rising prison population is straining the system's capacity to breaking point and hindering the application of more ambitious penal policies that look further than the immediate problems of imprisonment and overcrowding. Security requirements are so pressing in overcrowded prisons that the authorities do little to create effective rehabilitation and social reintegration programmes (although such programmes do exist). Add drug abuse in prison and its associated problems - Aids being the most serious - and the control of prison gangs over inmates, and the picture looks grim indeed.

The prison system's difficulties in achieving objectives such as rehabilitation and social reintegration are not exactly new. Deprivation of freedom, which was institutionalized in the European judicial system during the late eighteenth century, was intended as a more rational and humane response to criminal acts than the punishments that had previously been meted out. But its framework of application - prison - soon proved incapable of solving the individual and social conflicts that crime brings about or reveals. Since then, prison as an institution has always been in crisis. Its legitimacy has been called into question, and penologists have sought new ways of improving the situation and, at the same time, looked for alternative solutions. This trend has been gathering momentum since the second half of the nineteenth century.

A wide variety of alternatives to custodial sentences are currently in use in many penal systems. The most noteworthy include:

Attenuated execution of sentences, including detention at home, semi-liberty, freedom on licence, and various forms of discontinuous detention (e.g. during leisure time and/or at weekends);

Probation, which ranges from a suspended sentence to conditional remission of a sentence and a broad gamut of probationary and conditional release measures;

Alternatives to custodial sentences that benefit the offender as much as society. In addition to fining, as traditionally used in penal codes, many other alternatives now exist, including accessory penalties or penalties that restrict freedom or impose a ban on professional activities, the deprivation or suspension of certain rights and payment of damages to the victim by the offender.

Community service as an alternative to prison has been highly successful in many European countries.(1) Introduced for petty delinquents in the United Kingdom in 1972, this penalty deprives offenders of their free time but should not prevent them from fulfilling their normal professional commitments. Convicted offenders are required to do between 40 and 240 hours of unpaid, socially useful work over a period of one year to eighteen months. Community service is performed for charitable, humanitarian associations and could include such tasks as helping the sick or collecting blood or organs.

Community service is not applicable in every case. It is primarily suitable for teenagers and young adults who, though they have committed minor offences, have not had their sentences conditionally suspended. To become common practice, this type of penalty requires the creation of an assistance and supervisory service as well as sufficient numbers of community service jobs.

The search for alternatives to incarceration is no remedy for the prison system's shortcomings. The prison population includes many individuals who have not been sentenced, but who are being held for questioning or have been remanded in custody by a court decision and are awaiting trial. In many countries, they account for up to 50 per cent of the total number of inmates.

Theoretically, these prisoners benefit from the presumption of innocence, but their experience of prison life is not really different from that of convicted offenders. Methods other than incarceration must be found to ensure that they show up for trial. Some already exist, such as mandatory rules of conduct, surrender of certain documents, and bail. Judges should encourage these practices as alternatives to prison.

1 Community service as a main or alternative sentence is applied in European countries including Austria (for minors), Denmark, France, Germany, Ireland, the Netherlands, Norway, Portugal, Spain, Sweden and Switzerland.

JOSE LUIS DE LA CUESTA ARZAMENDI, of Spain, is professor of penal law at the university of the Basque Country in San Sebastian, and deputy secretary-general of the International Association of Penal Law. He is the author and/or co-editor of several works including El delito de tortura (1990, "The Crime of Torture").