Reducing the use of custody as a sanction: a review of recent international experiences

AuthorJulian V. Roberts
PositionReader in Criminal Justice in the Faculty of Law, University of Oxford and Assistant Director in the Centre of Criminology, University of Oxford
How might a legislature reduce the use of custody as a
sanction? Constraining rising – or reducing stable – prison
populations remains a challenge confronting most western nations. It
is now fully twenty years since the United Nations Standard Rules for
Non-Custodial Measures1(the so-called “Tokyo Rules”) were
adopted, the principal goal of which was to reduce the traditional
reliance on imprisonment as a legal punishment. Throughout the
1990s, however,prison populations rose in many common law
jurisdictions, particularly England and Wales and the United States.2
A recent Home Office survey, published in 2003, notes that prison
populations have risen in almost three-quarters of the countries
included since the previous survey five years earlier.3These trends are
particularly disconcerting when one considers that crime rates, and
hence the volume of offenders appearing before the courts, were
stable or declining during much of this period.
Anumber of explanations for the rise in prison populations
have been advanced.4Although these will not be explored in this
paper, the causes of high or rising prison populations include the
Judicial resistance to alternative sanctions;
Political and popular pressure on sentencers to get tough
2005] Reducing the Use of Custody as a Sanction:
A Review of Recent International Experiences
*Reader in Criminal Justice in the Faculty of Law, University of Oxford and Assistant Director
in the Centre of Criminology, University of Oxford. Text of address delivered at the IASD
Eighth Annual Conference, Kilkenny, 4th - 6th November 2005.
1UN Document A/RES/45/110.
2The adult prison population of England and Wales rose from 36,000 in 1991 to 62,000 in
2003, an increase of 71%; see Hough, Jacobson and Millie, The Decision to Imprison:
Sentencing and the Prison Population.London: Prison Reform Trust, 2003.
3Walmsley, World Prison Population List (5th ed.), London: UK, Home Office Research,
Development and Statistics Directorate, 2003.
4See the discussion in Garland, The Culture of Control. Crime and Social Order in
Contemporary Society.Chicago: University of Chicago Press, 2001 and in Roberts, Stalans,
Indermaur and Hough, Penal Populism and Public Opinion. Lessons from Five Countries.
Oxford: Oxford University Press, 2003.
with offenders;
Creation of mandatory minimum terms of custody.
The purpose of this paper is rather to review some of the
solutions that have been proposed or adopted around the world. This
exercise represents a step towards identifying the components that
make up a successful decarceration strategy. As will be seen, a
diversity of responses has been adopted in recent years. The focus
here is on the use of incarceration as a sanction; I do not address the
equally pressing problem of remand detention. The paper is restricted
to strategies that exist within the criminal justice system. A more
radical – and potentially more effective approach for appropriate
cases – involves diverting cases away from the justice system in the
first place. While this approach focuses primarily on less serious
cases, these individuals can represent a significant proportion of the
courts’ caseload. For example there is a growing movement
promoting the use of criminal mediation.5
Reducing prison populations in jurisdictions (such as many
American states) that employ a sentencing guidelines matrix is
relatively straightforward; it consists of moving more offences into
the community sanctions zone of the grid, or reducing the sentence
lengths prescribed by the guidelines. Matters are more complicated in
common law countries that do not employ formal sentencing
guidelines such as those found across the US. I do not deal with the
use of numerical guidelines such as those contained in the US-style
sentencing grids, for the sole reason that no other jurisdiction has
adopted this simplistic approach to structuring judicial discretion.6
Most of the strategies discussed here involve legislative
intervention in the sphereof sentencing. It is a regrettable fact that
many legislatures have proved reluctant to intervene in the sentencing
process, preferring to leave the determination of sanction to judicial
discretion, with very little guidance beyond the maximum penalty
structure. I say that this is regrettable, for as Professor O’Malley
points out “the legislature has a vitally important role in prescribing
punishments and other dispositions that areavailable to courts and
the factors that may or should be taken into account [at
22 [5:2Judicial Studies Institute Journal
5Palmer, “Justice in whose interest? A Proposal for Institutionalised Mediation in the Criminal
Justice System”, South African Journal of Criminal Justice (1997) 10 (1), 33-45.
6In November 2000, WesternAustralia introduced legislation to adopt a sentencing matrix,
although to date the legislation has yet to be proclaimed into law.

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