Handbook of basic principles and promising practices on Alternatives to Imprisonment CRIMINAL JUSTICE HANDBOOK SERIES UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Handbook of basic principles and promising practices on Alternatives to Imprisonment CRIMINAL JUSTICE HANDBOOK SERIES UNITED NATIONS New York, 2007 Acknowledgements The Handbook on Alternatives to Imprisonment was prepared for the United Nations Office on Drugs and Crime (UNODC) by Dirk van Zyl Smit, Professor of Comparative and International Penal Law, University of Nottingham, United Kingdom, formerly Professor of Criminology and Dean of the Faculty of Law, University of Cape Town, South Africa. The handbook was reviewed at an expert group meeting held at UNODC in Vienna from 31 October to 1 November 2005. UNODC wishes to acknowledge the valuable contribu- tions received from the following experts who participated in that meeting: Alvaro A. Burgos Mata, Yvon Dandurand, Curt T. Griffiths, Nashaat H. Hussein, Kittipong Kittayarak, Tapio Lappi-Sepälä, Benjamin Naimark-Rowse, Adam Stapleton, and Vera Tkachenko. Also contributing throughout the development of the Handbook were Mark Shaw, Ricarda Amberg, Anna Giudice, Claudia Baroni, Bernardo Camara, and Miriam Magala of UNODC. Following the expert group meeting, the handbook was revised by Suzanne Schneider and Sharman Esarey, consultants to UNODC. UNODC also wishes to acknowledge the support provided by the governments of Canada, Sweden, and Norway toward the development of the handbook. United Nations publication Sales No. E.07.XI.2 ISBN 978-92-1-148220-1 This document has not been formally edited. Contents Introduction 1 1. Introducing alternatives to imprisonment 3 1.1 Why consider alternatives to imprisonment 3 1.2 What is to be done? 7 1.3 Who should develop the strategy to alternatives to imprisonment? 9 1.4 Potential challenges 9 1.5 The role of the United Nations 10 2. Limiting the criminal justice system’s reach 13 2.1 Decriminalization 13 2.2 Diversion 14 2.3 Who should act? 16 3. Pre-trial, pre-conviction and pre-sentencing processes 17 3.1 General 17 3.2 Alternatives to pre-trial detention 19 3.3 Considerations in implementing alternatives to pre-trial detention 20 3.4 Infrastructure requirements for alternatives to pre-trial detention 22 3.5 Who should act? 23 4. Sentencing and alternative punishments 25 4.1 Sentencing 25 4.2 Possible alternatives to sentences of imprisonment 26 4.3 Specific non-custodial sentences 28 4.4 Infrastructure requirements for sentencing alternatives 39 4.5 Choosing alternatives to imprisonment at the sentencing stage 41 4.6 Who should act? 45 5. Early release 47 5.1 Forms of early release 47 5.2 Early release: concerns and responses 50 iii 5.3 Early release on compassionate grounds 53 5.4 Conditional release and its administrative infrastructure 54 5.5. Who should act? 56 6. Special categories 57 6.1 General 57 6.2 Children 57 6.3 Drug offenders 62 6.4 Mental illness 66 6.5 Women 68 6.6 Over-represented groups 71 7. Toward a coherent strategy 73 7.1 Knowledge base 75 7.2 Political initiatives 75 7.3 Legislative reform 75 7.4 Infrastructure and resources 76 7.5 Net-widening 76 7.6 Monitoring 77 7.7 Promotion of alternatives 77 7.8 The media and alternatives to imprisonment 78 7.9 Justice and equality 78 Conclusion 79 iv Introduction This handbook is one of a series of practical tools developed by UNODC to support countries in the implementation of the rule of law and the development of criminal justice reform. It can be used in a variety of con- texts, including as part of UNODC technical assistance and capacity building projects. The handbook introduces the reader to the basic princi- ples central to understanding alternatives to imprisonment as well as descriptions of promising practices implemented throughout the world. A companion Handbook on Restorative Justice Programmes is also available from UNODC. This handbook offers easily accessible information about alternatives to imprisonment at every stage of the criminal justice process; important considerations for the implementation of alternatives, including what var- ious actors must do to ensure its success; and examples of systems that have reduced imprisonment. The handbook has been written for criminal justice officials, non-governmental organizations, and members of the community who are working to reduce over-reliance on imprisonment; to improve the delivery of justice, including rehabilitation and reintegration; and to integrate international human rights-based standards and norms into local policies and practices. The handbook considers general strategies to reduce the reach of the criminal justice system and thus indirectly avoid the use of imprisonment. It also examines various aspects of alternatives to imprisonment that one may wish to consider when assessing the needs and demands of a country’s criminal justice system. Importantly, the handbook focuses 1 2 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT systematically on the implementation of alternatives at the following phases of the criminal justice system: ț Pre-trial; ț Sentencing; ț Early release of sentenced prisoners. The handbook also highlights strategies to reduce imprisonment in four major groups for whom imprisonment has especially deleterious effects and who can benefit from alternatives at every level: ț Children; ț Drug users; ț The mentally ill; ț Women. Finally, the handbook presents the critical components that must be con- sidered in developing a strategy for the development and implementation of a comprehensive range of alternatives to imprisonment in order to reduce the prison population, listing not only key factors and elements, but also potential pitfalls and ways to avoid them. The handbook is not intended to serve as a policy prescription for specific sentencing alterna- tives, but rather, seeks to provide guidance on the implementation of various sentencing alternatives that integrate United Nations standards and norms. 1. Introducing alternatives to imprisonment 1.1 Why consider alternatives to imprisonment? Prisons are found in every country of the world. Policy-makers and administrators may therefore simply come to regard them as a given and not try actively to find alternatives to them. Yet imprisonment should not be taken for granted as the natural form of punishment. In many countries the use of imprisonment as a form of punishment is relatively recent. It may be alien to local cultural traditions that for millennia have relied on alter- native ways of dealing with crime. Further, imprisonment has been shown to be counterproductive in the rehabilitation and reintegration of those charged with minor crimes, as well as for certain vulnerable populations. Yet, in practice, the overall use of imprisonment is rising throughout the world, while there is little evidence that its increasing use is improving public safety. There are now more than nine million prisoners worldwide and that number is growing.1 The reality is that the growing numbers of prisoners are leading to often severe overcrowding in prisons. This is resulting in prison conditions that breach United Nations and other stan- dards that require that all prisoners be treated with the respect due to their inherent dignity and value as human beings. 1R. Walmsley, World Prison Population List, International Centre of Prison Studies, King’s College, London, 2005. 3 4 HANDBOOK OF BASIC PRINCIPLES AND PROMISING PRACTICES ON ALTERNATIVES TO IMPRISONMENT There are several important reasons for the primary focus to be upon alternatives that reduce the number of people in prison and for imprison- ment to be used only as a last resort:2 Imprisonment and human rights Individual liberty is one of the most fundamental of human rights, recog- nized in international human rights instruments and national constitutions throughout the world. In order to take that right away, even temporarily, governments have a duty to justify the use of imprisonment as necessary to achieve an important societal objective for which there are no less restrictive means with which the objective can be achieved. The loss of liberty that results from imprisonment is inevitable but, in practice, imprisonment regularly impinges several other human rights as well. In many countries of the world, prisoners are deprived of basic amenities of life. They are often held in grossly overcrowded conditions, poorly clothed and underfed. They are particularly vulnerable to disease and yet are given poor medical treatment. They find it difficult to keep in contact with their children and other family members. Such conditions may literally place the lives of prisoners at risk. Increasingly, human rights courts and tribunals have recognized that sub- jecting prisoners to such conditions denies their human dignity. Such conditions have been held to be inhuman and degrading. All too often, the majority of these prisoners may be low-level offenders, many of whom may be awaiting trial, who could be dealt with using appropriate alterna- tives instead of being imprisoned. Implementing effective alternatives to imprisonment will reduce overcrowding and make it easier to manage prisons in a way that will allow states to meet their basic obligations to the prisoners in their care. Imprisonment is expensive The cost of imprisonment worldwide is hard to calculate, but the best estimates are in the region of US$ 62.5 billion per year using 1997 statis- tics.3 Direct costs include building and administering prisons as well as housing, feeding, and caring for prisoners. There are also significant indi- rect or consequential costs, for imprisonment may affect the wider com- munity in various negative ways. For example, prisons are incubators of diseases such as tuberculosis and AIDS, especially so when they are over- crowded. When prisoners are released, they may contribute to the further spread of such diseases. 2See also Matti Joutsen and Uglješa Zvekic, “Noncustodial sanctions: Comparative Overview” in Uglješa Zvekic (ed.), Alternatives to Imprisonment in Comparative Perspective, UNICRI/Nelson-Hall, Chicago, 1994, pp.