Alternatives to Custody in Ireland by Dr. Mairead Seymour

15 June, 2006

SUMMARY OF FINDINGS

Ireland is a country with a strong orientation towards custody and with a largely underdeveloped scheme of community alternatives.

Although we are mid-league in an international context in terms of our "stock" of prisoners or our average daily population (85 per 100,000 population), the "flow" of people into prison or rate of prison entry places us considerably further up the international league. The disparity between these two figures is due to our reliance on short terms of imprisonment. This would suggest that we are a country with great potential for the use of non-custodial sanctions as a means of reducing the prison population.

The aim of the Report is to explore this potential by examining those alternatives to custody which have proved successful in other jurisdictions and evaluating their applicability to an Irish context.

In its opening Chapter, the Report locates the issue in a contemporary context. It observes that three fifths of all those sentenced to imprisonment in Ireland are sent to prison for periods of under six months. The vast majority of those committed to prison are sentenced to custody for non-violent offences against property or road traffic offences. Indeed, a significant proportion of committals to prison relate to fine default. This would suggest that greater use can be made of community sentences without seriously jeopardizing public safety. This would also make fiscal sense given that the average cost of keeping an individual in custody for one year is €87,950, which makes the Irish penal system one of the most costly in Europe.

The second and third sections of the Report examine penal reforms in countries such as Canada, Finland and Germany with a view to their adoption or indeed adaptation in Ireland. All three jurisdictions have succeeded in significantly reducing their reliance on imprisonment as a sanction (Finland; Canada) or have maintained their penal population at a steady rate, despite increases in the crime rate (Germany). Experience in all of these countries suggests that short terms of imprisonment (up to two years) can be successfully replaced with community sanctions such as suspended sentences without endangering public safety.

Applying this to Ireland, the Report suggests that all offenders should be sentenced to a community sanction for one year or less, a measure would drastically reduce the number of prison committalsIn relation to medium risk offenders, this could be achieved through greater use of suspended sentences for those sentenced to prison for one year or less. These offenders would be under supervision from the Probation Service and would be required to adhere to certain conditions such as attendance at a treatment programme or compensation of the victim. Another of the main recommendations of the Report for reform is greater use of community service orders which have assisted in the reduction of the prison population in Finland but which are declining in use in this jurisdiction. Care should be taken, however, to ensure that they are used only for offenders who would have received a term of imprisonment to avoid a phenomenon known as "up-tariffing".

For low risk offenders the Report proposes that consideration should be given to the adoption of a scheme of prosecutorial dismissal as a means of diverting individuals away from the court system. This scheme has worked well in Germany and Scotland and basically involves the dismissal of the case by a prosecutor if the defendant is willing to make the appropriate payment. This comes with the important caveat, however, that the incentive to enter a plea of guilty should not be so great as to place pressure on an innocent defendant to plead guilty.

Other specific initiatives advocated by the Report include increasing the use of fines while decreasing the numbers imprisoned for fine default; promoting the use of appropriately targeted probation orders; and, significantly, the adoption of the Law Reform Commission's recommendation that District Court judges give written reasons before sentencing someone to a custodial sentence. In this regard, it is of note that in Germany the Penal Code discourages the use of short sentences requiring written justification from a judge for not suspending a sentence of less than a year. More generally, the Report calls for a new legislative framework for community sanctions, increased investment in the Probation and Welfare Service, a greater commitment by the Government to sentencing research and judicial training in tandem with the development of a sentencing database.

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