The principle deficit in non-custodial sanctions

AuthorDermot Walsh
PositionProfessor, School of Law, University of Limerick
My basic premise is that custody should be used as a
punishment only when necessary to protect the public or as a last
resort. Non-custodial sanctions should be the norm. In my view,
however, we have been unreasonably slow in developing a broad
range of non-custodial sanctions and in promulgating transparent
principles for the application of those currently available.
There is a broad trend from brutal to more enlightened penal
policies in these islands over the past few centuries. In the 18th
centurythe death penalty and extreme forms of corporal punishment
werestill the norm. In the latter part of that century deportation
emerged as a ‘less severe’ alternative to the death penalty with the
opening up of the penal colonies in Australia and Tasmania. The
19th century ushered in new and more progressive thinking on
punishment with the realisation that imprisonment could and should
be used not just as a form of retributive punishment but also as an
opportunity to reform and rehabilitate the offender. This is reflected
in the development of new prison regimes. The twentieth century
carried this progress a step further with the realisation that
retribution, reformand rehabilitation did not have to be pursued
solely within the confines of the prison. They could be pursued
effectively in the community; thus the rise of non-custodial sanctions
such as probation and, much later, community service orders.
It would appear,however, that the progressive march from
brutal to enlightened penal policies stalled in the twentieth century,
at least as far as Ireland is concerned. Our embrace of non-custodial
sanctions as a means of dealing with serious offences or repeat
offenders has been sporadic, uncertain, half-hearted and lacking in
any clear and cohesive policy. We have not yet accepted the basic
principle that imprisonment is only necessaryand should only be
2005] The Principle Deficit in Non-Custodial Sanctions 69
*Professor, School of Law, University of Limerick. Text of address delivered at the IASD Eighth
Annual Conference, Kilkenny, 4th-6th November 2005.

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