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

• Author: Julian V. Roberts
• Position: Reader in Criminal Justice in the Faculty of Law, University of Oxford and Assistant Director in the Centre of Criminology, University of Oxford
• Pages: 21-40

REDUCING THE USE OF CUSTODY AS A

SANCTION:

AREVIEW OF RECENT INTERNATIONAL

EXPERIENCES

JULIAN V. ROBERTS*

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

following:

• 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

21

*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.