The principle deficit in non-custodial sanctions

• Author: Dermot Walsh
• Position: Professor, School of Law, University of Limerick
• Pages: 69-79

THE PRINCIPLE DEFICIT IN NON-CUSTODIAL

SANCTIONS

PROFESSOR DERMOT WALSH*

INTRODUCTION

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.