Punishment in the Community as Alternatives to Prison - Literature review Example

?Alternatives to prison: punishment in the community I. Functions and purposes of alternative prisons and how they are achieved In the past years, prison population is exponentially increasing and this has posed considerable financial concerns for the government. Tewksbury and Demichele (2003) saw this as an attestation that the criminal justice system is more inclined in controlling and incarcerating offenders rather than a road of reforming them (04). Reports have shown that imprisonment has not achieved the alternative goals it seeks to reach (Custodial and Non-custodial Measures: Alternatives to Incarceration, 2006). Imprisonment has several objectives. It places under control offenders before their guilt or innocence is proved beyond reasonable doubt. When proven guilty, it punishes them by taking away their liberty after conviction, this will prevent them from committing the same crime and at the same time, in theory, imprisonment is supposed to rehabilitate them (Custodial and Non-custodial Measures: Alternatives to Incarceration, 2006). Rehabilitation, an alternative purpose of imprisonment is said to attend to the underlying reasons that lead people to commit transgressions and by focusing on these factors will decrease the possibility of committing the same offence. On the practical purview, it is said that the purpose of imprisonment is highly reductivist in nature and it endeavors to reduce the frequency of crime. In the more primordial level, imprisonment sustains the facade of public safety and order (04). Nevertheless, this is precisely an important goal of imprisonment that it has failed to fulfil. There has been an ample amount of substantiation showing the contrary. Imprisonment and its presumed rehabilitation effects do not at all rehabilitate offenders rather they criminalize an individual more and thus continuing the cycle of crime imprisonment should have put an end into; and worse, the increase in criminal offences squeezes prisons to date (Custodial and Non-custodial Measures: Alternatives to Incarceration, 2006). Movements that sought to totally eliminate crimes failed to balance this with the concept of reforming the criminal. At this perspective, it can be view that societies have opted to punish these felons rather than transforming them into better individuals. Resources are therefore invested into building prisons than to initiate programs that will diminish the needs of these prisons (04). Chiefly for the reason that there has been overcrowding in many prisons not only in UK and around the world as well, numerous jurisdictions has been exploring substitute methods to respond to crime (04). As early as 1980, in order to act in response to this difficulty, government came up with intermediate sanctions. These intermediate sanctions were supposedly designed to slowly eliminate overcrowding in penitentiaries, further promote public safety and order and ultimately cutting the cost of prison maintenance (04). The institution of alternatives to imprisonment is not focused solely to put an end to the problems of overcrowding in prison. Revisions on how crimes are being approached and handled are also primary concerns. Restorative justice and reintegration are major modification pit stops. Along with sufficient support to criminals and law violators, it opens the doors for these individuals to live a better life without the need of going back to their criminal lifestyle – this is long-term benefit towards a more secured society. But the promotion of alternatives to incarceration is more than just a stroll in the park. There are innumerable factors and variables that need deliberation. In addition, the psyche of the people on their portrait of a strong state that is able to maintain public security lies heavily on the number of criminals being incarcerated (01). Prisons, as physical structures, dominate the consciousness of the public of a fierce criminal system. II. Community-based alternatives There are variable definitions of community-based punishment alternatives and usually, it is defined based on how it is being applied in a specific locality. A widely accepted meaning refers these alternatives any court-ordered measure that occurs in the community, such that it provides a substitute to custodial sanctions (18). They are non-custodial punishments that would necessitate an delinquents to stay within the community and meet certain conditions as ordered. These alternatives to imprisonment includes the supervision of these offenders and offering various services to them that would persuade them to act in accordance with the terms of their sanctions such as paying of the fines and compensation of their victims, performance of community service and other forms of restitution instructions and orders that will simulate conditions of a punishment whilst providing constructive services to the community they are in (18). The principle of community-based punishment alternatives have developed and altered to fit the needs of a certain state, community or government. Its main premise is the belief that the prison is the not the best place to reform an individual for there is a tendency of re-offending after being released from confinement. III. Operational Issues and Limitations on Alternatives to Incarcerations It was in 2000 that a mounting awareness to the British penal system lead to the conclusion that the same is not working as it should be. To cite concrete example, the prison population has been escalating in a steady manner since early 1980s. This increase has been alarming particularly in 1992, where number of offenders who goes to prison in Britain was among the highest in Western Europe (Figure 1). Estimates showed that this number could reach to 100,000 by the year 2011 and early 2012. More startling is the fact that a high number of these prisoners, were shown to re-offend within a very short interval. To put it in figures, according to report published by Rethinking: Crime and Punishment, three fourths of these young prisoners and more than half of adult prisoners goes back to prison because of reconviction in just a span of two years after release. This is an indication that those who are released from prison are not well-equipped and prepared to perform a constructive place in the society (Rethinking Crime and Punishment: Report, 2004). Figure 1. Prison population from 1980 and projection from 2010 onwards. There are numerous factors revolving operational issues on imprisonment alternatives. At the broader standpoint, aside from understanding both the strengths and the weaknesses of the conventional and alternative imprisonment, it is also advisable to recognize prospects for reforms and development. Key points have been raised such as the expansion of training curricula for judges, magistrates, and on probation officers that are involved in the supervision and in the organization of these alternative to custody options. In order to make certain that these alternatives are being implemented to its fullest, the role of the judiciary must be underscored. Many studies have shown that the raison d'etre why imprisonment alternatives are not being put into practice is owing to the large distrust and disbelief of the magistrates and judges in the implementation of these community measures. Teamwork and mutual aid with the judiciary must be established at the earliest stages of the execution of these alternatives, criminal policy reforms and moreover, their insights about the whole framework must be incorporated in building strategies. For example, these community-based punishments, which requires the support of the pubic, have to be taken critically and it must be made definite that proper budget is given for better management (Custodial and Non-custodial Measures: Alternatives to Incarceration, 2006). Another significant aspect in alternative sentencing that requires operational changes in order to make it effective and sustainable is on enhancing the capacity of these implementing officers to engage in development and planning, as well as to conduct researches and information management strategies. The spotlight must also be focused on the enhancement of human and other technical resource aptitude of probation services and in monitoring these non-custodial sanctions. Raising the public awareness on the availability of these alternatives was viewed as affirmative insight, rather than the notion that it even encourages delinquency due to the leniency of community-based alternatives. Increasing public awareness would further stimulate public interest and participation on these alternatives (Custodial and Non-custodial Measures: Alternatives to Incarceration, 2006). Figure 2. Community sanctions and some classifications Figure 2 shows the different sanctions commonly used in community-based alternatives. Also shown are how they were classified. It can be said that community-based alternatives has been highly successful in European countries especially in Finland and in England, but such may not be true enough in other countries such as Portugal and Spain. The report Techniques in Enhancing Community-based Alternatives to Incarceration – A European Perspective release by the Director of the National Research Institute of Legal Policy in Finland, Tapio Lappi-Seppala, revealed possible pitfalls and limitations of the community-based alternatives. These limitations when left unattended and unaltered could magnify the large failure of the legal system and criminal policies in Great Britain. Among the limitations identified in the report are a) the unpopularity of the alternatives; b) net-widening; c) counter-productive effects; and d) social discrimination. Since alternatives are fairly unpopular, they may continue to be unimplemented. No matter how promising a structure is, without knowledge how it can be aptly applied to a particular situation, it becomes ineffectual. Like Finland, the phenomenon of net-widening is occurring in England as well. Even if these alternatives to incarcerations proved to be applied effectively, they are seldom used as a genuine substitute to imprisonment but as alternatives to other forms of non-custodial sanctions and to other kinds of community sentences. There are a quantity of community sanctions such as community service for example that has increased in number and along with this increase is an augmentation in prison population. These figures suggest that these sanctions are simply replacing other non-custodial substitute like fines (Mclvor, et. al., 2010). In the same manner, there are numerous unpaid work used as an option for the punishment of minor offences. The phenomenon of net-widening is of escalating concerns nowadays because of its ramifications. A more severe penalty is likely to be incurred in cases of possible infringement to community-based sanctions that what is warranted and required by the original felony. An implication of this scenario would be that it would be painstaking for the sentencing officers, the judges or the magistrates to decide how to deal for the community-based punishment breach (Carnie, 1990). These endorsed alternative options also have counter-productive effects. To cite a tangible example, many judges and magistrates perceive these alternatives as a feeble way of extracting discipline and in ensuring that the offenders do not redo their offences; because of this, pre-trial detention has become a more popular preference. Also, the possible non-compliance of these orders and community-based alternative requirements may pave the way to use imprisonment as a back-up penalty. In a nutshell, community-based sanctions may prove to be the best alternative to imprisonment, that is, if they truly replace imprisonment as a form of punishment. On the other hand, if they are implemented in its place to serve as an alternate for other community sanctions, then there is a danger of using imprisonment to back-up these sanctions. It therefore creates a placebo effect where instead of genuinely diminishing the number of offenders that goes to prison, the contrary occurs. What is not clear in practice is that community-based alternatives was not used as courts as an alternative to prison (Mclvor, et. al., 2010). Another cited limitation of community-based alternatives is the possible rise of social discrimination. Instead of using community-based sanctions for offenders that are involved in serious offences and needs thorough discipline, this type control is implemented to decent offenders who have done the offence, say out of negligence. Although there is a prohibition not to employ these punishments based on colour, race, nationality or ethnic origins among others, in reality these has been the categories are highly represented in many statistics (Kalmthouth, 2000) Community-based alternatives are termed as “slippery fishes”; this is largely due to the complexity in defining its clear delineation with other traditional non-custodial form of punishments (Criminal Proceedings in Scottish Courts, 2007). When the need for alternative imprisonment methods aroused, there came propagation and an explosion of different community-based sentences of anecdotal and often arbitrary premises. This, in reality, increased understanding of the judges and magistrates when and how to apply these punishments. On the other hand, this lack of clear guidelines amplified the unpopularity of this measure (Criminal Proceedings in Scottish Courts, 2007). There at one end of the breadth, we have other kinds of non-custodial punishments in place of imprisonment and on the other end, we have alternatives such as fines, admonition and compensation orders that are being used by many courts. Somewhere in the middle of this gamut are community-based alternatives and this is subjected to a hefty degree of discretion. When so much discretion by the implementing officer is solicited, these forms of punishment becomes highly arbitrary and will very much subject such practices to abuse and eventually, as a device of social discrimination. The determination of what punishment and sentence of impose to an offender is an exercise of judicial power and in general part and parcel of judicial processes. With this premise, it is now necessary to assess the different factors and variables that influence the judicial process – and this, in the recent years has not been identified. A discussion on sentencing guidelines will clarify certain questions of the amount of discretion left to judges and magistrates. Normally, a variable that could influence sanctions given by courts would be pre-sanction reports, for example, about an individual’s drug dependence history. However, a judge is not totally free to dispose of whatever decision he has reached based on certain standards of a particular crime because he is also bound by the “guidelines” set in alternative sentencing. Looking at the situation in different angles, case decisions must be attuned to the jurisprudence set and failure to observe such would lead to a successful appeal of the case (Walsh, 2002) 09. The predicament of this is, when the need to rely on jurisprudence arrives in order to effectively exercise jurisdiction, judges and magistrates will be pressed with the lack of judicial guidelines. “We put great store on the fact that each case must be considered in its individual frame, while being mindful that a sentence must be proportionate to the offence in question and to other sentences imposed in similar situations - though it needs to be emphasized, that very rarely will two cases be exactly alike” (Court of Criminal Appeal, 1997 as quoted in Charleton and McDermott, 1998) Difficulty of measurement due to substantial lack of data One of the major things why community-based alternatives were not evaluated and therefore not remodelled to answer compelling requirements of the criminal system is mainly due to the lack of data regarding these measures. The nonexistence of figures during the different phase of the system would mean that the challenging areas of the operation cannot be traced. Because of this failure, there are potential problems to the system as such a) it becomes highly impossible to track the data and number of the offenders; b) there is no standard information on these sentencing measures and c) there is lack of data in the recidivism rates. Although this data may be available, they may not be able to represent the whole thing using statistically sound methods. The implications of the lack of these kinds of data would point to a major flaw in the employment of reformation to these available measures. Moreover, there are a lot more factors that have been recognized in England as well as in Europe, relating the deficiency of data regarding these community-based alternatives and the improvement in criminal system. There is an advocate to the criminal system to improve on data gathering facilities and to invest in improving the same in order to enhance the applicability of possible changes into an overhaul of community-based alternatives. There are acknowledged criticisms on community-based alternatives, however, they remained not inculcated into current restructuring efforts, if there is any. The accessibility of these research data is vital especially in times of crises. Tendencies of public reaction against these non-custodial sanctions would be likely to rise in case of individual failure. During these cases therefore, it is vital that the authorities would be able to demonstrate to the public tangible figures that these alternatives are working effectively (05). The United Nations has developed standard and specified criteria in order to meet this. Evaluations on whether research has been made that address the problems encountered by the offenders, by the practitioners and by the policy makers. Investigations should also be conducted as to the reasons behind the overrepresentation of specific groups in prisons and lastly, identify if there are mechanisms that are built into the criminal system. Efficient data gathering efforts would point to the strengths of community-based alternatives and at the same time will attend to its weaknesses by providing flexibility, rationalization, effectiveness and immediacy (Rethinking Crime and Punishment: Report, 2004). IV. Conclusion: The future of community-based alternatives to imprisonment In Rethinking Crime and Punishment: Report, researches have shown that there are clear and numerous disadvantages of the over-use of imprisonment. Imprisonment has the potentials of harming an individual more that the goal of reforming it into a better person; it alters a person’s potential to re-contribute to the society. Aside from the personal effects of prison, it equally harms the family of a convict. When first used, prison can supply individuals with education and employment opportunities, but these prospects are not applied in reality the way it should have been. This is tantamount that a prisoner is stripped of its liberty without efforts of reforming him thus that individual is more likely to produce reductivists – defeating the objective of imprisonment. The report also suggested, that imprisonment could “reinforce” a delinquent and criminalizing a person more. Although there seems to be a thin delineation between community-based alternatives and other forms of non-custodial form of imprisonment, there are clear sensible and realistic claims that community-based alternatives can provide that these non-custodial sentences can never meet. These community-based alternatives are practicable on several conditions such cost reduction, stigmatisation, labelling, reduction on the negative impacts of imprisonment, and a very promising way towards restorative justice. A study released by the European Journal of Probation, stressed that the introduction of these community-based alternative has shifter the “penological climate towards increased punitiveness” (Mclvor, et. al., 2010). There are serious concerns on the operational nature of these alternatives. For one, there are not standards yet set by the judges References Carnie, J. (1990). Sentencers’ perceptions of community service by offenders. Edinburgh: Scottish Office Central Research Unit. Custodial and Non-custodial Measures: Alternatives to Incarceration. (2006) United Nations Office on Drugs and Crime. Vienna. Mclvor, G., Beyens, K., Blay, E., and Boone, M. (2010) Community service in Belgium, the Netherlands, Scotland and Spain: a comparative perspective Scottish Government (2009) Criminal Proceedings in Scottish Courts, 2007 Wilson, A. (2010) A Community Supervision Sentence: an effective alternative to custody. SCOLAG Journal Rethinking Crime and Punishment: Report. 2004 Read More