ALTERNATIVES TO CUSTODY - Irish Penal Reform Trust TO CUSTODY ... and the United States of America? In the USA, (when adjustments are ... & Auditor General, 2004). Furthermore,

ALTERNATIVES TO CUSTODYMAIRÉAD SEYMOUR PHD.

FOR BUSINESS IN THE COMMUNITY IRELAND

SUPPORTED BY THE CYRIL FORBES FUND

AT THE COMMUNITY FOUNDATION FOR IRELAND

IN ASSOCIATION WITH IRISH PENAL REFORM TRUST

Page

FOREWORD 4

INTRODUCTION 5

CHAPTER 1ALTERNATIVES TO CUSTODY IN IRELAND 6

CHAPTER 2ALTERNATIVES TO CUSTODY: INTERNATIONAL EXPERIENCES OF REFORM 11

CHAPTER 3APPLYING INTERNATIONAL EXPERIENCE TO THE IRISH CONTEXT 20

CHAPTER 4CONCLUSIONS AND RECOMMENDATIONS 24

TIMETABLE OF PROPOSED CHANGE 28

REFERENCES 29

Contents

ALTERNATIVES TO CUSTODY BUSINESS IN THE COMMUNITY IRELAND

PAGE 3

One of the little known facts aboutour "great little nation" is that wegreatly overuse imprisonment as ameans of punishment. And we aregrowing increasingly more punitive.

Viewing Irish rates of imprison-ment in an international context,many commentators rely on theaverage daily prison populationwhich would place us mid-way inthe European league (known asthe "stock" of prisoners).However, considering the (equallyvalid) measure of committal ratesor "flow" of prisoners through thesystem brings us much closer tothe top of the European table.Ireland has one of the highestrates of prison entry in theCouncil of Europe. The disparitybetween these two indices can beexplained by our excessivereliance on short terms of imprisonment. The Irish PrisonService Report for 2005 notesthat about three-fifths of all committals under sentence in2004 were for periods of less thansix months -a sign that somethingis badly awry in our criminal justice system. Most of these people have defaulted on fine pay-ments or committed road trafficoffences or other non-violent,minor offences. Even a short termof imprisonment can have harmful, criminogenic effects, disrupting family ties and severelydiminishing a person’s prospects

of gainful employment in later life.And this is not to mention the fiscal repercussions of such sentences with taxpayers payingover €1,600 per week to keep aperson in custody.

Two other points should be notedabout Ireland’s rate of imprison-ment. First, we appear even morepunitive when prison populationrates are correlated with ourcrime rates (which are low byinternational standards). When theprison population is expressed per1,000 crimes, our use of custody isthree times higher than that ofEngland and Wales and five timesas high as Finland. Secondly, sincethe mid-1990s our prison popula-tion has increased significantly(over 30% between 1997 and2002), at a pace which is wellahead of many other Europeancountries. It is time to pause, takestock and reflect on where we aregoing as a society. WinstonChurchill once said that the way inwhich a society treats its criminalsis one of the unfailing tests of thecivilisation of any country. Are wereally ready to proceed mindlesslydown the route already well trodden by the United Kingdomand the United States of America?In the USA, (when adjustments aremade for those under 16 andthose over 70) one in eightyAmericans wakes every day inside a prison and this bears particularly heavily on ethnic

minorities: one in eight youngblack males is in prison. I wouldsuspect that few in Irish societywould willingly embrace such adystopia without examining alternatives to custody for defendants who do not present adanger to society. Given the millions of euro that could besaved and reinvested in crime prevention or in the areas whichproduce so many of our youngoffenders, this option must surelybe worth exploration.

It is with these thoughts in mindthat I strongly welcome thisreport.

Claire HamiltonChairperson, IPRT

Foreword

ALTERNATIVES TO CUSTODY

PAGE 4

The remit of this report is toexamine the use and effectivenessof community sentencing as analternative to imprisonment in theRepublic of Ireland. The specificobjectives of the report are:

� To examine the existing alternatives to custody in Ireland and the potential for their use;

� To highlight the issues and difficulties with the operation of the existing range of alternatives to custody;

� To provide a comparative analysis of what alternatives have been effective in other jurisdictions and those that have been less successful;

� To analyse the comparative material on alternatives to custody;

� To provide recommendations based on national and interna-tional research and current Irish sentencing conditions.

Chapter 1 begins by discussing theuse of and expenditure on custodyand alternatives to custody inIreland. After outlining the currentrange of such alternatives, thesecond part of the chapter provides an analysis of the factorsthat impact on the operation ofthe alternatives to custody inIreland.

Chapter 2 draws on the interna-tional experience of penal reformto identify the successful and lesssuccessful approaches adopted toreduce the prison population. Thenature of penal reform and themore specific community sanctions associated with changedare examined in this context. Anydiscussion on the development ofalternatives to custody must becontextualised within the structural, social, administrativeand judicial boundaries that existin the jurisdiction. To this end, thelatter part of the chapter examines such factors includingthe political climate, the role ofthe media, the influence of thejudiciary and the provision of sentencing guidelines.

Chapter 3 applies the lessonsfrom comparative international experience of penal reform toIreland. It discusses the core messages to emerge from theanalysis and evaluates their applicability to the Irish context.Based on the analysis from eachof the preceding chapters.

Chapter 4 draws on the lessonsemerging to provide a comprehensive set of recommendations.

Introduction

BUSINESS IN THE COMMUNITY IRELAND

PAGE 5

Ireland has seen a sharp increasein its prison population over thelast decade despite a reduction inthe levels of recorded crime.Analysis of the literature on theexpansion of punitive interventionsuggests that the politicisation ofthe crime issue since the mid-nineties (Cotter, 1999; O’Donnell,2004) fuelled by extensive mediacoverage of high profile crimecases1 and the ensuing moralpanic were key factors in thedevelopment. Furthermore, the prosperous economic conditionsarising from the era of the CelticTiger enabled a prison expansionist policy to become areality (Kilcommins et al., 2004).An ambitious prison expansionprogramme has seen the creationof a number of new prisons acrossthe state since 1997. Other factorscontributing to a rising prisonpopulation include the reductionin the use of early release as amechanism to manage over-crowding and an increase in thenumbers remanded in custody2.This chapter discusses the use ofand expenditure upon custody andcommunity sanctions in Ireland. Itoutlines the existing types of community sanctions availableand highlights the issues thatimpact on the operation of thecurrent system of alternatives tocustody.

I. The Use of Custodial and CommunitySanctionsO’Donnell (2004:257) documentsthat there is ‘a strong orientationtowards custody among Irishjudges’ and imprisonment has beenthe dominant sanction in Ireland.Almost as many individuals areimprisoned each year as are supervised in the community – in2002 approximately 4,100 individuals were under supervisionin the community compared to3,200 individuals in custody, repre-senting a ratio of 1.3:1 (Comptroller& Auditor General, 2004).Furthermore, the prison populationrate in the Republic of Ireland is 85per 100,000 of national population,growing from 57 in 1995 to 71 in1998 and 78 in 2001 (www.prison-studies.org, Sept 2005).

In an international context theprison population rate in Ireland ismid-range. It is higher than Finland(66 per 100,000 of national population) but lower thanGermany (97 per 100,000 ofnational population) or Canada (116per 100,000 of national population)(www.prisonstudies.org, Sept2005). ). However, Ireland has oneof the highest rates of prison entryin the Council of Europe (299 per100,000 inhabitants). It is signifi-cantly higher than Finland (143)which is a comparable country toIreland in terms of population andnotably higher than the averageprison entry rate for Council of

Europe member states (248 per100,000 of population) (Council ofEurope, 2003.12). The disparitybetween these two figures can beexplained by Ireland's excessivereliance on short terms of impris-onment. The average prison sen-tence in Ireland of just over threemonths is short.

Of those prisoners committedunder sentence in 2003, over onethird ( 38%) were sentenced toperiods of less than three months;just over one-fifth (21%) werecommitted under sentence forthree to six months and over one-quarter (27%) were committed fora period of six months up to oneyear (Annual Report of the IrishPrison Service, 2003). The highturnover of prisoners, due to aheavy reliance on short prisonsentences amongst other factors,may impact particularly harshlyupon certain types of offenders. Arecent report on homeless offend-ers in Dublin highlighted that 78%of prisoners, homeless on committal, had spent more thantwo years in prison in their lives.Almost two-thirds of such prisoners had been in prison morethan twice in the five years priorto the current committal andalmost one-quarter had been insix or more times over the sameperiod thus suggesting a patternof ongoing short term committalsto prison (Seymour and Costello,2005).

Alternatives to Custody in Ireland

Chapter 1


PAGE 6 CHAPTER 1.


CHAPTER 1. PAGE 7


Prison statistics indicate that significant proportions of individuals are sentenced to custody for relatively minoroffences. The Annual Report ofthe Irish Prison Service (2003)also states that of the total com-mittals under sentence (males andfemales) 28% were for road trafficoffences. Furthermore, court service statistics for 2004 suggestthat immediate imprisonment wasmore likely than probation andcommunity service combined inboth Limerick and Dublin3 for allroad traffic offences and larceny.Given that the majority of roadtraffic offences are of a relativelyminor nature it brings into question whether prison really isan appropriate sanction for suchoffences. Further, the report onhomeless offenders discussedabove notes that the most common charges made againstidentified homeless persons in theDistrict Courts were minor innature, namely, intoxication in apublic place (30%), threatening/abusive/insulting behaviour(24%), theft (21%), failing toappear (bail) 15% and failure tocomply with a Garda directive(13%).

It is well acknowledged that finedefaulters do not generally pose arisk to society and do not requireimprisonment or rehabilitation(Expert Group on the Probation &Welfare Service, 1999). This is evident from the very fact thatthe judge has decided the matteris minor enough to attract such apenalty in the first instance.Despite this, almost one quarter ofcommittals to prison in 2001 related to fine default (O’Donnell,2004). In almost half of casesimprisoned for fine default anamount less than £300 (€381)was owed and the majority werecommitted for non-payment offine in relation to a single offence4

(Redmond, 2002).

II. Expenditure on Custodial andCommunity SanctionsAccording to the Annual Report ofthe Irish Prison Service (2003)prison expenditure reached €301.9million in 2003 (Irish PrisonService, 2003). In contrast, thetotal level of resource provision forthe Probation & Welfare Service in2003 was just €40.7 million. Thehigh numbers of individuals serving short sentences in Irishprisons combined with the knowl-edge that ‘most offenders commit-ted to prison for periods of undertwelve months do not represent athreat to the community’ (Roberts,2003:244) raises serious questionsabout the cost efficacy of the Irishcriminal justice system. This isobvious when one considers therelative costs of the sanctions. Theaverage cost of keeping an individual in custody for one yearis €87,950 – this ranges from€70,100 in the Curragh Prison to€97,900 in Mountjoy Prison(including Dochas Centre) and€232,100 in Portlaoise Prison(Irish Prison Service, 2003). Incomparison, (based on spending in2001) it is estimated that it costs€1,500 for a community serviceorder5, €4,100 for supervision during deferment of penalty6 and€6,100 for an offender on a probation order7 (Comptroller &Auditor General, 2004).

III. Existing Community AlternativesThe following section outlines themain community sanctions available in Ireland:

(i) Dismissal and ConditionalDischargeAn offender may be dismissedunder the amended Probation ofOffenders Act 1907 where s/he ischarged and the court thinks thecharge is proved, but either thetrivial nature of the offence or personal or extenuating circum-stances deem a dismissal to be themost appropriate response[Section 1(1)]. A number of conditions may be attached to aconditional discharge including

supervision, payment of compen-sation to the victim, residencyand/or treatment requirements.Under the Act a dismissal or discharge can be granted in theDistrict Court without convictionhowever, in the higher courts theoption of dismissing the chargedoes not exist.

(ii) Probation OrderAn offender may be made thesubject of a Probation Orderunder the Probation of OffendersAct 1907 for a period of up tothree years. The purpose of theorder is to rehabilitate the offender, protect the public andprevent re-offending. A number ofrequirements8 may be added tothe recognisance however in reality the use of many of therequirements is restricted due tothe limited availability of services(Expert Group on the Probation &Welfare Service, 1999). TheProbation of Offenders Act 1907 isnot confined to first time offenders (O’Malley, 2000:304).However, it is not applicable todrink driving, revenue relatedcrimes or particular offencesunder the Road Traffic Act 1994.

1These included the murder of a crime investigation journalist

Veronica Guerin in June 1996. 2

O’Donnell (2005:102) describes how in the past the grounds for sanctioning bail were based only on a concern around witness interference or non-attendance at the subsequent trial; however aconstitutional amendment now allows courts ‘to deny bail to preventthe commission of offences’. 3

Computer technology systems were introduced in Dublin andLimerick courts in 2002. 4

Redmond (2002) notes that there were some differences betweenthe prisons included in the study (Limerick Prison, Cork Prison,Mountjoy Complex and Loughan House). 5

The lower cost of the community service order relative to otherorders is largely due to the infrequent use of treatment or trainingprogrammes as part of this order. 6

Based on the typical length of three months – the ‘higher’ cost relative to the community service order is due to the concentration ofintervention during the deferment.7

The estimate assumes that the average length of such sentence is15 months.8

Conditions may include residence requirements (at a specifiedaddress or approved hostel, psychiatric unit or other institution),treatment conditions (to attend for residential or non-residentialaddictions or psychiatric treatment) reporting requirements (to a particular person at a particular place) and/or other activity requirements.


PAGE 8 CHAPTER 1.


Deferment of Sentence/AdjournedSupervision: Despite not being atrue sentencing option, deferredsentencing/adjourned supervisionis a common judicial practicedespite having no statutory basisin Irish law. During the defermentthe offender may be required toremain under the supervision ofthe Probation and Welfare Servicewho are obliged to furnishprogress reports to the courtregarding the offender’s progress.A court may decide to defer sentencing for a period of timeusually not exceeding one year toallow the offender address offend-ing related issues, to make repara-tion (O’Malley, 2000) or to assessthe offender’s capacity to engagein a community based programme(Expert Group on the Probation &Welfare Service, 1999).

(iii) Compensation OrderA compensation order requiresthe offender to pay recompense tothe victim in acknowledgement ofthe harm caused by the offence.The compensation order may beused in a number of guises including being imposed of itself,in combination with a fine, as partof a conditional discharge, as acondition of a suspended sentenceor as part of a sentence adjourn-ment. O’Malley (2000) points outthat there is an assumption that ifthe offender complies with thecompensation order and does notre-offend during the adjournmentperiod that s/he will be dealt withleniently by the court in subsequent proceedings.

(iv) Order of RecognisanceThis order requires an offender toundergo treatment for an addiction in a residential or non-residential centre. This order isused very infrequently becausethe necessary rules have not beenmade (Expert Group on theProbation & Welfare Service,1999).

(v) FinesA majority of offences are punish-able by a fine unless ‘fixed by lawor unless there is a provision tothe contrary’ (O’Malley, 2000:313).Consideration of the offender’smeans and proportionality regarding the gravity of theoffence are factors in deciding theamount of the fine. Fines are generally payable within 14 daysof the order being made. If anoffender does not pay within thestipulated period a warrant isissued automatically by the courtand executed by the Gardaí forcommittal to prison for a periodup to 90 days.

(vi) Community Service OrderThe Community Service Order(CSO) was introduced under theCriminal Justice (CommunityService) Act 1983. The aim of theorder is ‘to reintegrate the offender into the communitythrough positive and demandingunpaid work’ (Expert Group on theProbation & Welfare Service,1999). It is intended as an alterna-tive to custody for offenders aged16 years and over, where in theopinion of the court the offencemerits a custodial sentence. Anumber of pre-requisites must bemet before an order is made9 ,most notably from the point ofview of the present inquiry, thecourt must find that the offenderwould otherwise have received aterm of imprisonment. An offender is required to performunpaid work for a specified number of hours – the minimum is40 hours and the maximum 240hours10. It is applicable to the

majority of offences other thanthose with sentences fixed by lawe.g. murder.

(vii) Suspended SentenceThere is no statutory basis for thesuspended sentence in Irish law.The sentence involves the imposi-tion of a custodial sentence withsuspension on condition that theoffender does not re-offend withina specified period. A number ofrequirements including treatment,exclusion or curfew may beattached to the sentence.

(viii) Drug Treatment CourtThe Drug Treatment Court is apilot programme set up in Dublinto provide ‘a workable alternativeto custodial sentences’ (CourtService, 2004). This recent inno-vation provides a multi-agencyprogramme of rehabilitation, education and training for offenders under the control of thecourt to address their offendingbehaviour and drug dependency.The level of attrition is high, but itis to be expected given the experi-ence of engaging drug dependentoffenders in other jurisdictions.Indeed, research from the UKfound completion rates of only28% for offenders sentenced toDrug Treatment and TestingOrders (Worrall & Hoy, 2005). Theimpact of the Drug TreatmentCourt is also limited at presentbecause it is restricted only todefendants living in Dublin 1 andDublin 711.

IV. Issues Relating to the Operation ofExisting Alternatives to CustodyThe data presented to date high-lights the fact that reform of thesystem of sentencing could signifi-cantly impact on the prison population given that such highproportions of committals toprison are for short periods oftime and for relatively minoroffences. The experience in otherjurisdictions (see Chapter 2)strongly suggests that communitysanctions provide an effective

9The offender must consent, the court must be satisfied that having

considered the person’s circumstances the offender is fit to performcommunity service work and there must be arrangements in place forthe execution of the order. The court must also explain the obliga-tions of the order, the consequences of non-compliance and that thecourt may review the order on the application of the offender or aprobation and welfare officer. 10

An evaluation of community service orders in Ireland identifiedthe average sentence length as 141 hours (Walsh and Sexton, 1999). 11

According to court statistics there were a total of 90 cases in2004, 30 cases are progressing, a total of 11 cases have graduated and49 cases were terminated (Court Service, 2004).


CHAPTER 1. PAGE 9


alternative to short term imprisonment. There have beennumerous calls for a re-orienta-tion of the system towards usingcustody as a last resort (NationalCrime Forum, 1998; NESF, 2002),however, with the exception of legislation such as the ChildrenAct 2001 no change has occurred.The following section provides ananalysis of the existing issues thathinder the effective use of com-munity sanctions in Ireland.

(i) Limited LegislativeDevelopmentWith the exception of a small number of legislative develop-ments (e.g. Criminal Justice(Community Service) Act 1983)there have been no major legisla-tive change governing alternativesto custody in Ireland since theProbation of Offenders Act (1907).Legislation to provide a statutoryframework for the Probation andWelfare Service is necessary forthe implementation of an effectivesystem of alternatives to custodyin Ireland. In comparison to otherjurisdictions the range of commu-nity sanctions is limited. The FinalReport of the Expert Group on theProbation & Welfare Service(1999) recommends that new legislation could also introduce arange of more diverse communitysanctions including treatmentorders; mediation orders; repara-tion orders; counselling orders;and combination orders. As aresult of the limited range of alternatives to custody, much ofwhat currently takes place in sentencing offenders to community sanctions operates ona non-statutory basis with no limitations on the use or intensityof interventions e.g. suspendedsentence, adjourned supervisionor the court poor box12. There areno limits to the range of condi-tions attached to the suspendedsentence or on the time for whicha sentence is suspended13. This isparticularly concerning given thehigh-tariff nature of the sentence.

Indeed, it has been suggested thatthe practice may be contrary tointernational practice particularlyin relation to the European Ruleson Community Sanctions andMeasures14 (Kilcommins et al.,2004).

(ii) Limited Resources forAlternatives to CustodyFigures highlighting the significantdisparity between spending on theprison system and the Probationand Welfare Service outlined earlier in the chapter supportO’Donnell’s (2005:121) view that‘the bias towards custody that hastraditionally characterized theIrish system has become moreingrained and the peripheral status of probation has been reinforced’. Indeed, it appears thatthe current level of resources provided to the Probation andWelfare Service is not sufficient todeliver and develop an effectivesystem of alternatives to custody.The Comptroller & AuditorGeneral’s report (2004) outlineshow requests from the courts forpre-sanction reports and offenderreferrals for supervision are some-times left unallocated by theSenior Probation and WelfareOfficer on a team because thecaseloads of staff are full15. InJune 2002, it was shown that 14of 31 community based teams(approximately 45%) experiencedthis difficulty (ibid, 2004). In lightof such difficulties in fulfillingtheir basic obligations to thecourts, it would appear highlyunlikely that the Probation andWelfare Service is in a position todeliver a credible range of com-munity sanctions to satisfy judicialand public confidence withoutsubstantial government invest-ment. In contrast, while there havebeen some recent attempts to sta-bilise the prison budget, it is diffi-cult to dispute that expenditure on prisons ‘seems to be an area ofpublic policy that is insulated fromconsiderations of cost-effective-ness’ (O’Donnell, 2005:126).

(iii) Absence of SentencingGuidance and PrinciplesBacik (2002) argues that it isimpossible to establish patterns ofsentencing practice in Irelandgiven the dearth of sentencingdata. However, the limited available data suggest that thereare significant discrepancies in theuse of sentences for similaroffences. This is reflected in thedifferent sentencing outcomes forbroadly similar offences in Dublinand Limerick (Court Service, 2003,2004). Even within the same area,differences exist in sentencingpractice - findings from a study ofsentencing in the BridewellDistrict Courts raised concerns‘about the perceived inconsisten-cies in sentences handed down bydifferent District Court judges’(IPRT, 2004/5:2). There are anumber of possible explanationsfor such variation including differences in attitudes amongstmembers of the judiciary and theavailability of appropriate commu-nity based resources, however itwould seem that the absence ofsentencing principles or any typeof sentencing guidance is a significant contributory factor.

12An Irish Penal Reform Trust (IPRT, 2004/5) study on sentencing in

the District Courts in 2003 found that of 356 cases 20% were dealtwith by a requirement to contribute to the court poor box. Referringto the non-statutory sentencing options used in Ireland, Kilcomminset al. (2004:261-2) suggest that ‘judicial creativity may have emergeddue to the lack of expressed concern by politicians. Or perhaps it is aresponse to the lack of action taken by them, especially in terms oflegislative reform and the provision of adequate funding for the PWS’. 13

O’Malley (2000) points out that occasionally suspended sentencesof nine or ten years have been handed down. He argues that this leadto two queries; firstly why was the sentence suspended if such alengthy sentence was imposed in the first place and secondly whatare the implications for an offender breaching a sentence towards thelatter part of the suspension – he asks ‘would it be just to activatethe full sentence (as a court is entitled to do) so long after it wasoriginally imposed?’ (ibid, 2000:291). 14

Recommendation No. R (92) 16 of the Council of Europe Committeeof Ministers15

A caseload agreement on the number limit of cases to be held byeach Probation and Welfare Officer was established between manage-ment and staff of the Probation and Welfare Service in 2000. TheComptroller & Auditor General’s Report (2004) outlines how the case-load agreement was considered necessary because the Service wasunable to adequately supervise the numbers of individuals referred toit by the courts.


PAGE 10 CHAPTER 1.


The lack of sentencing principlesand guidance is likely to increasethe risk that an offender receivesa sentence which is disproportion-ate to the circumstances of theoffence (up-tariffing). Limited evidence exists on the extent ofup-tariffing in Ireland, however astudy by Geiran et al. (1999) foundthat over one-fifth of offenders(21.3%) aged 16-21 years servingsentences in St. Patrick’sInstitution or Shanganagh Castlehad not had any contact with theProbation and Welfare Serviceprior to their first sentence.Another clear example of up-tariffing is found in Walsh andSexton’s (1999) study ofCommunity Service Orders.Despite the legal requirement inthe 1983 Act which ensures theyare used only where a sentence ofimprisonment would have beenimposed, almost half of the recipi-ents in the study had no previousconvictions. Given that the mostcommon offences inviting a CSOwere mainly property offences(41%) and road traffic and vehicleoffences (24%) it would appearthat offenders were not at risk ofcustody in the first incidence.

(iv) Lack of ResearchCurrently, the dearth of available,reliable and consistent data‘makes it difficult to establishclearly the extent to which community-based sanctions areavailable to, and being chosen byjudges in their sentencing decisions (Comptroller & AuditorGeneral, 2004:21). With somenotable exceptions (e.g. Walsh &Sexton, 1999) there is very limitedinformation on community sanctions in Ireland. The call forindependent, critical and evalua-tive research as well as the avail-ability of statistics on crime, sen-tencing and procedure has beenechoed by numerous individualsand groups in the criminal justicefield (Expert Group on theProbation & Welfare Service, 1999;IPRT, 2004-5; O’Mahony in theReport of the Joint Committee,

2004). In the absence of such datathere is a high risk that inappropri-ate interventions may be incorpo-rated into Irish criminal justice policy, particularly from Englandand Wales, without adequate con-sideration being given to their rele-vance and/or potential effective-ness in this jurisdiction as well asdifferences in our culture. UnlikeEngland and Wales, Ireland is aconstitutional democracy with asmall population and a very differ-ent education system and demo-graphic mix to Britain, as well as aweaker welfare state. These influ-ences make our crime problemidiosyncratic and less acute thanthat in Britain.

VI. ConclusionFrom the analysis presented aboveit is clear that imprisonment is stillthe dominant sanction in manycases in Ireland and the potentialfor using community sanctions isunder-developed. Moreover, it isimpossible to have an in-depthunderstanding of the operation ofcommunity sanctions in Ireland ortheir potential to reduce recidivismor the prison population largelybecause they have been under-researched.

It is clear, however, that significantreform of the penal system isrequired to promote the use ofcommunity sanctions and reducethe prison population. Legislativechange to provide a statutoryframework for the expansion anddevelopment of a system of com-munity sanctions is necessary,accompanied by an appropriatelevel of resources to implementsuch change. There is evidence ofsentencing disparity, thus highlight-ing the need for sentencing guid-ance and ongoing training. Therehave also been calls for greateraccountability from the judiciary byway of introducing a legal require-ment that District Court judgesprovide written reasons whenimposing a custodial sentence(IPRT, 2004/05; Law ReformCommission, 2002). It could also be

argued that this is a requirementof Article 6 of the EuropeanConvention on Human Rights.

The picture regarding the use,development and expansion ofcommunity sanctions in Ireland ispessimistic. While there have beensome more innovative develop-ments such as the drugs courtand significant legislative changeregarding community sanctionsfor children less than 18 years(Children Act 2001), the slowimplementation of the ChildrenAct 2001 shows legislative devel-opment without the resources toexecute it is effectively useless.However, the Children Act pro-vides an model of innovativechange and gives examples of howthe present system could movefurther in the direction of alterna-tives to custody. Notable featuresinclude the sentencing principlesincluded in s.96 such as the princi-ple of last resort, a statutory mandate for a pre-sanction reportprior to sentence and a widerange of diverse communityresponses.

To date, we have been largely protected from the punitive andcontrol interventions associatedwith community sanctions in otherjurisdictions particularly Englandand Wales because of a generalinaction at a policy level to devel-op community sanctions. Indeed,Kilcommins et al. (2004:290)points out that ‘there is no evi-dence that the punitive ‘bite’ ofcommunity sanctions in Ireland isbeing ratcheted up to keep pacewith imprisonment’. The challengein developing the system of com-munity sanctions in Ireland is toavoid the mistakes of other juris-dictions by drawing instead on evidence based policy and prac-tice approaches. It is within thiscontext that thefollowing chapterfocuses on the international experience of alternatives to custody.

This chapter draws on the litera-ture from a range of countries toidentify both the positive and negative approaches that havebeen adopted in attempting toreduce the prison populationinternationally. The first part ofthe chapter focuses on penalreform and some of the specificcommunity sanctions associatedwith such change. The main sanctions include conditional andsuspended sentencing, communityservice, probation and conditionaldismissal. The discussion alsobriefly addresses some of the lesssuccessful alternatives to custodyincluding electronically monitoredcurfew orders and punitive community orders.

Numerous commentators arguethat the issue of alternatives tocustody must be examined in aholistic framework incorporatingfactors such as penal reform, sentencing policy, the role ofpoliticians, policy-makers, the judiciary and the media as well asthe range and delivery of commu-nity based alternatives to custody(Lappi-Seppälä, 1998; Mair, 2004;Roberts, 2003). To this end, thesecond part of the chapteraddresses the role of these broader factors in bringing aboutsuccessful penal reform.

I. Penal Reform in Canada, Finland andGermanyThe need to reduce the prison

population has been a focus ofcriminal justice policy in manyjurisdictions at various points overthe last fifty years. The followinganalysis focuses on some of thereforms that have occurred in arange of countries includingCanada, Finland and Germany, andto a lesser extent Spain16 and theUnited Kingdom. Reform in themajority of the jurisdictionsoccurred in the context of anacknowledgement that the level ofcustody needed to be reduced.Finland is almost unique in thewestern world in the extent towhich it has pursued ‘a conscious,long term and systematic criminalpolicy’ to decrease the prison population through ‘changes inpenal theory and thinking relatingto criminal policy ... [and] changesin penal legislation, in sentencingand prison enforcement practices’(Lappi-Seppälä, 1998:2). The system of statutory sentencingprinciples providing general andspecific sentencing guidance wasintroduced in Finland in 1975, at atime when the prison populationwas almost twice the size of otherNordic countries. Since this period, Finland has reduced itsprison population to one of thelowest in Europe (66 per 100,000of the general population). Finlandprovides a useful comparison forIreland as a country on the fringesof Europe with a similar popula-tion size. It has four times thecrime rate of Ireland, yet it has a

much lower use of custody(O’Donnell, 2001).

In a similar manner to Finland,Canada addressed the issue ofreform at a time when it had oneof the highest imprisonment ratesin the western world. It is a common law country which hasmade a deliberate choice not toincarcerate as many individuals asits neighbour in North America17,therefore highlighting that neigh-bouring punitive influences maybe resisted in favour of morereformative approaches and evidenced based community sanctions. Reform of the law inGermany in 1969 sought to limitthe use of custody to the mostserious cases. Examples from thejurisdiction usefully demonstratehow penal reforms including alter-natives to custody have stabilisedthe number of individuals sent toprison over a 30 year period.

Alternatives to Custody: International Experiences of ReformChapter 2


CHAPTER 2 PAGE 11

16The Spanish experience is confined to some discussion in

relation to the suspended sentence. 17

United States has a prison population rate of 702 per 100,000 ofgeneral population.


PAGE 12 CHAPTER 2.

ALTERNATIVES TO CUSTODY: INTERNATIONAL EXPERIENCES OF REFORM

Finally, it appears that Ireland hasoften been influenced by criminaljustice and associated policiesthat exist in England and Wales(for example, recent proposals tointroduce Anti-Social BehaviourOrders). The evidence from allareas of the United Kingdom suggests that despite numerouslegislative and policy changes particularly over the last 15 yearsbeginning with the CriminalJustice Act 1991 the prison popu-lation continues to grow. Indeed inmany respects the experience ofthe United Kingdom highlightswhat not to do in terms of planning prison reform especiallyin light of a prison population raterising from 90 per 100,000 ofnational population in 1992 to 145in 2005 (www.prisonstudies.org,Sept 2005).

II. Reducing the Prison Population:International ExperiencesAll three jurisdictions (Canada,Finland and Germany) have incommon a strong emphasis in thelaw on reducing the number ofindividuals in prison particularlythose serving sentences of up totwo years. Canada has a widerrange of sanctions at its disposalthan either Finland or Germanywho rely on a narrow range ofcommunity sanctions. Overall,however the main sentencingoptions in these three countriesare unconditional imprisonment,conditional imprisonment (withprobation or other conditionsattached) and fines.

In Germany, measures implement-ed to achieve the goal of reducingthe prison population included theabolition of prison sentences ofless than one month in lieu offines and the decriminalisation ofmany traffic and public orderoffences. Furthermore, the PenalCode in Germany also discouragesthe use of short sentences requiring written justification andfurther explanation for not suspending a sentence of lessthan a year. The result of penal

reform in Germany is that despitea significant increase in the number of adults convicted incriminal courts since 1969 thecapacity of the prison estate hasnot been expanded as the numbers sent to prison remain relatively static in the long-term.Adult convictions increased from526,813 in 1968 to 656,895 in1996 and yet the numbers sent tocustody remained stable with42,122 convicted adults in prisonin 1968, 43,476 in 1996(Statistisches Bundesamt Reihe 9in Weigend, 2001:191) and 39,468in 2003 (Jehle, 2005). Cynics mayargue that the system has a staticproportion of individuals in custody, however, this is largelyexplained by the increasing numbers of offenders servinglonger sentences for more seriousoffences particularly drugoffences (reflecting internationaltrends) which increased from12,754 in 1986 to 28,361 in 1996(Statistisches Bundesamt Reihe 3(1988) in Weigend, 2001:194).Another positive effect of penalreform in Germany is the impact itis likely to have had on decreasingpublic demands for punishment.Despite substantial increases incrime from the 1960s, Weigend(2001) suggests that it has notresulted in demands by the publicfor a more draconian policy onpunishment. He argues that suchdemands may have been allayedbecause ‘the system was able toadjust to the substantial rise inconvictions without need of moreprison space’ and thereby createthe impression that rising crimelevels were under control (ibid,2001:193). This reinforces theargument that ‘even if crime ratesare not rising, increased punitive-ness can result from the percep-tion that crime, or serious crime,is increasing’ (Frase, 2001:27).

Penal reform in Finland includingthe introduction of communityservice and conditional sentencingas well as a plethora of measuresincluding sentencing guidance has

dramatically reduced the prisonpopulation rate to one of the lowest in Europe (66 per 100,000of national population in 2004).Changes in sentencing practiceregarding theft resulted in 11% ofoffenders who committed larcenybeing sentenced to imprisonmentin 1991 compared to 38% in 1971(Lappi-Seppälä, 1998:11). Prior tothe 1970s when the reform processbegan, drink drivers in the countrywere largely dealt with by uncondi-tional prison sentences. Changesto the law relating to drink-drivingand theft were central issues inreducing the prison population inFinland by resorting to communitysanctions (Törnudd, 1993). Lappi-Seppälä (1998) highlights the dra-matic change in the statisticsamongst drink drivers with 70% ofdrink drivers receiving an uncondi-tional sentence of imprisonment in1971 compared to just 12% in 1981.

Following the introduction of penalreform measures in the mid-nineties in Canada, the prison population rate has declined from131 per 100,000 of national population to 116 per 100,000 ofnational population in 2001(www.prisonstudies.org, Sept2005). The number of incarceratedfederal offenders has declined by12.5% between 1996/7 and 2003/4(Public Safety & EmergencyPreparedness Canada, 2004).Furthermore, since the introduc-tion of conditional sentencing (seebelow) in 1996/7 sentenced cus-tody admissions have declined onan annual basis to reach 18% in2000/01. Other reform measureswhich have been associated withthe reduction in custodial admis-sions include the decision to nolonger place offenders guilty offine default in custody in Ontario(Canadian Centre for JusticeStatistics, 2002:20).

The following section outlines inmore detail types of sanctionsused to reduce the prison population.


CHAPTER 2 PAGE 13


III. Alternatives to Custody: Suspendedand Conditional SentencesA number of countries have reliedon suspended sentences (e.g.Germany and Spain) and conditional sentences (Canada andFinland) to reduce admissions tocustody. This section focuses onthe use and impact of the suspend-ed and conditional sentence inreducing the prison population in anumber of jurisdictions, examinesthe differences in how the sentence operates in practice andanalyses the extent to which varying approaches may impact onits effectiveness.

(i) Suspended SentenceWeigend (2001) attributes the stabilisation of numbers in custodyin Germany between 1968 and1996 to the use of the suspendedsentence. He argues that ‘theexpansion of suspended sentenceshas the beneficial effect of absorbing the increase in convic-tions for offences of medium seriousness without overburdeningthe corrections system’ (ibid,2001:196). As noted earlier in thechapter despite the number ofadults convicted in the criminalcourts rising steadily since 1968,the capacity of the prison systemhas not been expanded as 42,122convicted adults were in prison in1968 (Statistisches BundesamtReihe 9 in Weigend, 2001:191) and 39,468 in 2003 (Jehle, 2005).Jehle (2005) notes that suspendedprison sentences accounted for aremarkable two-thirds of all prisonsentences in Germany in 2003. InSpain also, a dramatic increase inthe use of suspended sentenceshas been noted, rising from 10.2%in 1996 to 44.1% in 2003 as well asa corresponding decrease in unsuspended prison sentencesfrom 89.8% to 55.9% over thesame period (Cid, 2005). Thisincreased use of the suspendedsentence in Spain has beendescribed as ‘a powerful device forreducing admissions into prison inthe period 1996-2003’ (ibid,2005:177).

Following on from the recommen-dations of the Home OfficeSentencing Review (2001), theCriminal Justice Act 2003 introduced a suspended period ofimprisonment described as ‘a formof conditional sentence forEngland and Wales’18 (Roberts andGabor, 2004:92). The sentence ofimprisonment is suspended(between 28 and 51 weeks) oncondition that the offenderengages in a demanding pro-gramme of activity19 (ibid, 2004).The impact of the ‘new’ suspend-ed sentence on prison admissionsin England and Wales remains tobe seen, however, evidence fromother jurisdictions suggests it canhave a positive effect on reducingthe level of imprisonment.

(ii) Conditional SentenceDescribing the key differencebetween the suspended sentence(in England and Wales) and theconditional sentence (in Canada)Roberts (2003:233) points outthat under a conditional sentence‘the custodial period is actuallydischarged in the community, andnot suspended for possible activa-tion at a later date’. Research inboth Canada and Finland haslinked the use of conditional sentences with reducing theprison population. Lappi-Seppälä(1998:6) describes the conditionalsentence as ‘a powerful means inrestricting the use of liberty’ andthe most effective alternative toimprisonment in Finland. The conditional sentence in Canadawas introduced in 1996 as part ofa range of statutory reforms tosentencing (Roberts and Cole,1999). It was specifically createdto reduce the use of imprisonmentas a sanction. Research fromCanada suggests that the condi-tional sentence has succeeded increating a significant reduction inthe numbers admitted to custodywith only minor net-widening20

effects because a number ofstatutory criteria are required tobe fulfilled. The court must decidethat no alternative sanction will

fulfil the purpose and principles ofsentencing:

absent this condition, judges would be free to impose a conditional sentence on cases which might otherwise have received a term of probation ... this outcome would defeat the parliamentary intention of reducing admissions to custody(Roberts and Gabor, 2004:96).

(iii) Operation of the Suspendedand Conditional SentenceA number of differences in practice in the execution of suspended and conditional sentences are noteworthy andmay impact on the effectivenessor otherwise of the sanctionacross jurisdictions. The threemain factors include:a) Eligibility criteriab) Conditions attachedc) Response to Breach

(a) Eligibility – Suspended andConditional SentencesIn Finland, Canada, Spain and to amore limited extent Germany,

18The Criminal Justice Act (2003) also contains other forms of

custody for sentences of up to one year. These include ‘Custody Plus’which provides for a supervisory period after custody and the intermittent sentence of imprisonment where the sentence is servedat weekends and on overnights (for more detail see Robert, 2003). 19

The sanction is made up of a number of elements: the first is acustodial element which is suspended; the second is a period ofsupervision (between 6 and 24 months) during which the offender isrequired to comply with a number of conditions including communitywork, treatment or a curfew. The third element is a period of time (theoperational period) during which the custodial element may be activated if the offender fails to comply with the order or commitsanother offence (Roberts, 2003). The extent to which the order will bedemanding varies from case to case and is largely dependent on theextent to which the court adds requirements to it.20

Net-widening is a term used to describe the impact of measureswhich draw more offenders into the criminal justice system or whichresult in the greater involvement of those already in the system(www.justice.govt.nz/pubs/reports/1996/restorative/index.html, Nov2005).


PAGE 14 CHAPTER 2.


offenders with sentences of lessthan two years may be eligible fora suspended and/or conditionalsentence (depending on the country). In Canada, because theconditional sentence is applicableto all sentences less than twoyears, it covers 95% of sentences21 (Roberts, 2003). Incontrast, the upper limit of eligibility for a suspended sentence in England and Wales isunder one year.

It is in the countries where thelimit of consideration stands attwo years that the suspended andconditional sentence have had themost significant impact on admis-sions to custody. Cid (2005:174)argues that the limit of considera-tion for a suspended sentencefrom one to two years imprison-ment in the Spanish Penal Code1995 is ‘the main reason for thereduction in prison admissions’.Similarly, in Germany the use ofsuspended sentences in lieu ofcustodial sentences of up to twoyears is seen as a significant

factor in reducing the prison population22 (Weigend, 2001).Since the introduction of condi-tional sentencing in Canada in1996 the incarceration rate hasdecreased in contrast to mostEuropean prison population rateswhich have remained stable orincreased over the same period(Public Safety & EmergencyPreparedness Canada, 2004).Furthermore, according to theCanadian Centre for JusticeStatistics (2002:18), sentencedcustody admissions dropped con-sistently on an annual basis fol-lowing the introduction of condi-tional sentences and continued todecline. Despite this, there waspublic discontent at the notionthat 95% of offenders couldpotentially receive a conditionalsentence due to the two year eligi-bility rule. Based on this experi-ence, Roberts and Gabor (2004)argue that in jurisdictions wherethe issue of crime is highly politi-cised, the two year ceiling of eligi-bility for a conditional/suspended sentence is likely tocreate much adverse publicity forbeing too lenient. This point willbe expanded further in terms ofexamining the Irish situation inthe context of the international literature in Chapter 3.

(b) Requirements Attached toSuspended and ConditionalSentencesThere is wide disparity in theextent to which requirements maybe attached to suspended andconditional sentencing rangingfrom unsupervised probation inFinland for one to three years to acomprehensive range of reporting,treatment, restorative, rehabilita-tive and/or control interventionsin Germany, England/Wales andCanada. A common theme in lat-ter two jurisdictions is the need totailor the sentence to the offend-er’s needs. This is achieved byattaching conditions such as treatment, control or reparativerequirements to the sentence. It

could be argued that the extent towhich requirements are added maybe reflective of the ‘considerablepopulist and media pressure tomake sentences harsher’ (Roberts,2003:230). A more optimisticobserviation is that provision toadd requirements to suspended orconditional sentences enables thesentence to be tailored appropriately to the needs of theoffender.

(c) Response to Breach ofSuspended and ConditionalSentencesIn the UK, breach of the require-ments of the suspended sentencecan, in theory, result in the offender being imprisoned for theentire suspended period even ifs/he had complied with supervisionfor a lengthy period in the commu-nity23. Even if the offender is notsent to custody for breach, thealternatives are punitive andinclude ‘more onerous communityrequirements; ... extending the peri-od of supervision ... [or] the opera-tional period’ (Criminal Justice Bill,2002 in Roberts, 2003). In contrastin Canada, there is wider scope todeal with a breach aside fromimprisonment including amend-ment of the order or a warning(Roberts, 2003). Roberts(2003:240) argues that the need torespond to a breach in an appropri-ate way is ‘a question of balance’ –he argues that too punitive aresponse from the courts willundermine the goal of keeping indi-viduals out of prison. One queriesthe benefit of ‘tough’ penalties forbreach of conditional and suspend-ed sentences given that the evi-dence suggests that it is not theseverity of the punishment butrather the perception of apprehen-sion that impacts on re-offending(Doob & Webster, 2003).

IV. Alternatives to Custody: ConditionalDismissal/Prosecutor’s FineA four year reconviction study ofcases from the Central FederalRegister in Germany found that

21Because it can be used with offenders serving sentences of two

years less a day, it means it can be used with all offenders minusthose serving on charges of first and second degree murder. 22

While the Penal Code states that a court must suspend a prison sentence of less than one year (if there is an expectation that theoffender will not re-offend) there is provision to suspend sentences ofone to two years if there are special circumstances. In reality, itseems that the courts have adopted a generous approach to the special circumstances provision because two of three prison sentences between one and two years were suspended in 1996(Weigend, 2001:196). 23

Roberts (2003:239) argues that the Criminal Justice Bill 2002(now the Criminal Justice Act 2003) does not have the flexibility toremove a requirement of the suspended sentence ‘which has placedunforeseen and unfair impediments to compliance’. The only flexibilities provided for by the suspended sentence in England andWales is the system of executing a formally recorded warning to anoffender prior to breach.


CHAPTER 2. PAGE 15


only one third of persons sanc-tioned by the criminal law orreleased from prison re-offendswithin the 4 year reconvictionperiod (Jehle, 2005:53). Thisclearly demonstrates that a significant proportion of offendersdo not come to the attention ofthe criminal justice system and perhaps may even have beendiverted at an earlier stage beforeappearing before the courts.Research into the effectiveness ofsuch measures has been limitedhowever to date the existingresearch suggest that ‘the recon-viction rates associated with themdo not suggest ineffectiveness’(Mair, 2004:157).

The conditional dismissal inGermany is described as the ‘sanction of choice’ for a plethoraof minor offences and a measure‘to expand the area of depenaliza-tion’ (Weiberg, 2001:197). It is aprocedural rather than a criminaltool and does not require a trial ora court judgment. According toWeiberg (2001) if the offender iswilling to make the appropriatepayment the prosecutor dismissesthe case. The disposal appears tobe used regularly because in 1996it accounted for 17% of caseswhere a sanction was given to asuspect. It can also be used withmore serious offences (particular-ly white collar crime), however,court approval is required.

The prosecutor’s fine in Scotlandis similar to the conditional dis-missal in Germany. An offer ismade to the offender whereby ifs/he agrees to pay an agreed sumof money24 within a specified timeperiod, no criminal proceedingsare brought against them.According to Duff (1993) this con-ditional offer has succeeded indiverting thousands of offendersfrom prosecution; furthermore ithas not led to net-widening in thesense of increased state interven-tion. In line with most sanctions,however, there are someconcerns25 particularly regarding

the degree to which the suspect’sco-operation is voluntary:

Prosecutors may offer attractive deals in cases wherethe evidence is weak and conviction unlikely, and even an innocent suspect may be tempted (or persuaded by counsel) to make a payment rather than take even the small risk of a conviction at trial (Weigend, 2001:199).

The overall benefit of a prosecu-tor’s fine/conditional dismissal isthat if it is executed by the prosecutor’s office it effectivelyremoves thousands of cases fromthe court system and leaves courthearings and disposals for morehigh risk offenders (Mair, 2004).Weiberg (2001) argues that fromthe suspect’s perspective theadvantages are that trial andjudgment is avoided.Furthermore, because receiving aconditional dismissal/prosecutor’sfine is not contingent on anadmission of guilt, the suspectcan, to some extent, maintaintheir innocence.

V. Alternatives to Custody: CommunityServiceOne of the most cited sources oncommunity service is McIvor’s(1992) research on communityservice in Scotland. This studyfound that 85% of offenders sat-isfactorily completed their orderand while 57% were reconvictedafter two years, reconviction ratestended to be slower and for lessserious offences. According toMcIvor (2004:167) despiteattempts in the legislation to keepcommunity service as a high-tariffoption only imposed on an offender who would otherwise goto custody it appears that ‘the legislation had not been success-ful in ensuring that all communityservice orders replaced prisonsentences (McIvor and Tulle-Winton, 1993)’. In other words, evidence of net-widening wasdetected.

In contrast to the Scottish experi-ence, there does not appear to bea net-widening effect regardingthe use of community service inFinland. Lappi-Seppälä (1998) out-lines that the majority (90%) ofpersons sentenced to communityservice would have received a cus-todial sentence. Trends also showthat as the number of communityservice orders increased there wasa corresponding decrease in thenumber of unconditional prisonsentences. The two step procedureintroduced in Finland to ensurethat community service is usedonly to replace a period in custody(unconditional prison sentence) islikely to be one of the contributingfactors to this success. The courtis firstly expected to make a sen-tencing decision using the regularsentencing criteria and principleswithout taking the possibility ofcommunity service into considera-tion. If the decision is a sentenceof unconditional imprisonmentonly then may a court translatethe sentence into community serv-ice (one day in prison is equatedto one hour of community service). In effect, this systemstrongly intends that communityservice is used only in the casewhere an offender would havereceived a custodial sentence.Furthermore, there are a numberof prerequisites for sentencing anoffender to community serviceincluding that the offender con-sents, the sentence is not longerthan eight months and that theoffender is deemed capable of carrying out a community serviceorder (Lappi-Seppälä, 1998)

24Some flexibility exists whereby a one-off payment may be made

or by instalment on a fortnightly basis. Any non-payment is followedup through civil debt procedure rather than the criminal courts. A failure to pay cannot result in imprisonment and most cruciallyacceptance of the prosecutor fine does not result in a criminal conviction.25

See further Deweer v. Belgium (1980) 2 ECHR 439 where theEuropean Court of Human Rights held that in certain circumstancesthe use of a conditional dismissal can constitute ‘constraint’ in choicein breach to the rights to fair trial.


PAGE 16 CHAPTER 2


In conclusion, the evidence fromScotland suggests that communityservice produces lower recon-viction rates amongst offendersthan those given short prison sentences (Killias et al., 2000).Reporting on findings from theScottish Executive (2001), McIvor(2004:176) concludes that ‘at thevery least, community-based disposals are no less effectivethan imprisonment’. Based on theFinnish experience it would seemthat if sufficient safeguards areput in place, the community service order has the potential tobe an effective alternative to custody.

VI. FinesThe fine is the most commonlyused sentence in most jurisdic-tions for example in Germany itrepresented 79.9% of all courtsentences (Jehle, 2005). As aresult it has played a significantrole in the movement towardsreducing the prison population.There have been numerous calls(Flood-Page and Mackie, 1998;Goldblatt and Lewis, 1998) for theincreased use of the fine on thebasis that it appears to be no lesseffective than more expensivecommunity penalties. Mair(2004:157) argues that ‘fines, conditional discharges and cautions have been marginalisedfor too long; they need to bereconceptualised as relevant disposals and not as low-level orshallow-end – such terminologydoes them no favours’. The diffi-culty particularly in a punitiveenvironment is that fines are oneof the only sanctions that are notdirectly targeted at the offender(in the sense that another personmay pay) and therefore there is anon-going dilemma regarding theextent to which such a sanctionholds the offender accountable.

VII. ProbationWith regard to probation supervi-sion, commentators (Bottoms,2004; Lewis, 2005) have arguedthat using a rehabilitativeapproach has the potential toreduce recidivism amongst offenders. The expansive literatureon effective probation practice isbeyond the remit of this reporthowever there are a number ofkey principles that are noteworthyin using probation appropriatelywith offenders. Firstly, the intensity of probation supervisionshould be commensurate to theoffender’s risk of re-offending.Inappropriate targeting of offenders for interventions, sanctions and treatment programmes is likely to have anadverse effect in terms of re-offending (Hollin, 1994; McIvor,1992a).

The content of supervision shouldaddress the offender’s needs andbe meaningful to the offender.Outcome evaluations and meta-analyses (Antonowicz and Ross,1994; Vennard et al., 1997) link thetargeting of ‘criminogenic needs’with successful treatment pro-grammes. Evidence suggests thatoffenders are more likely to com-ply with the terms of supervisionif they perceive that they will gainfrom such engagement. McIvor(2004) and Rex and Gelsthorpe(2002) identified the offender’sperception of the value of theircommunity service placement tothemselves and their recipients asthe most important factor inchanging the offender’s attitude.Finally, Killias et al. (2000) discov-ered a relationship between theperceived legitimacy of the sentence and reconviction.

The issue of enforcing probationand other community basedpenalties is an on-going problemfor criminal justice personnel.Vass (1996) argues if one enforcestoo readily and too strictly onerisks broadening the net of social control – in contrast if the

offender does not perceive thatthere are consequences for non-compliance it is likely to under-mine the legitimacy of the orderand reduce public and judicial confidence in alternatives to cus-tody (Roberts and Gabor, 2004).Travis and Petersilia (2001:307)recommend a graduated responsesystem for violations. High-riskoffenders are likely to relapse(Sontheimer and Goodstein 1993)and therefore relapse preventionand management is an importantpart of successful communitysupervision (Chapman and Hough,1998; Vennard and Heddermann,1998). Hedderman and Hough(2004) suggest that individualsare supported in completing inter-ventions by not breaching themtoo easily, rewarding complianceand using a variety of techniquesto promote compliance. Finally,the effective management ofenforcement in community ordersis highlighted by the evidence that appropriate enforcement actioncreates lower than predicted re-offending rates for offenders26

(May and Wadwell, 2001).

VIII. Alternatives to Custody: LessPromising Approaches?

(i) Community OrderThe focus to date has been oninterventions and sanctions associated with reducing the numbers in custody. The followingparagraphs provide a brief discussion on some practices thatresearch suggests may be lesssuccessful in achieving a reduc-tion in the custodial population.

The trend in England and Walesseems largely towards punitive-ness in community sentencing andaway from rehabilitation (Lewis,2005). Under the Criminal JusticeAct (2003) in England and Wales asingle community sentence knownas a community order replaces allother community orders.

Community sentences havebecome tougher and more

26‘The reconviction rate for high risk offenders against whom all

appropriate enforcement action was taken was considerably lower(64%) than the rate for high risk offenders against whom not allenforcement action was taken (87%)’ (May and Wadwell, 2001:2).


CHAPTER 2 PAGE 17


challenging but appear to be tailored to the offender’s needsthrough a selection of require-ments including unpaid work,accredited programmes, curfew,exclusion, activities, supervision,drug, alcohol and/or mental healthtreatment. While acknowledgingthe aspects which appear toaddress the needs of the offender,critics of the order caution againstthe extent of intervention in anoffender’s life. Worrall and Hoy(2005:68-69) explain how underthe new Act:

The role of the community has been enhanced ... but this has not made the community an inclusive place for offenders. It is a place where they are singled out to report, be tested,attend courses and pro-grammes, do unpaid work, be assessed for risk, register with the police and be excluded from having the freedom to go where they choose.

The effectiveness of such anapproach remains to be seen,however, it appears from researchto date that the punitive anddemanding nature of these sentences may be counter-produc-tive in terms of reducing offendingand keeping offenders out ofprison. Underdown (1995:7)reporting on intensive supervisionprogrammes found evidence of ‘nileffectiveness on reconviction,except for the minority of pro-grammes which were primarilyrehabilitative in intent’ (ibid,1995:7). Most recently in an evalu-ation of two intensive regimes foryoung offenders, Farrington et al.(2002) concluded that theseregimes did not deter offending byapplying tough ‘boot camp’regimes. Furthermore, research onCommunity Service Pathfinderprojects in England and Walesreported that projects whichfocused on pro-social modellingand skills accreditation werepromising ‘while projects focussedon using community punishmentwork to tackle other offending-

related needs did not appear toproduce positive outcomes overall’(Rex et al., 2004:1).

(ii) Electronic MonitoringWith approximately 100,000 and10,338 people respectively in theUS and England and Wales dailyexperiencing electronic monitor-ing, it is not surprising that Nellis(2004:240) suggests that ‘a newmodality of community supervi-sion has emerged’.

Electronically monitored curfeworders were legislated for inEngland and Wales in the CriminalJustice Act 1991 but were not putinto operation nationally until1999 (Worrall and Hoy, 2005).Electronically monitored curfeworders as they operate in Englandand Wales require the offender toremain at a specified address for astipulated number of hours over agiven time period (the maximumorder is for six months and for 12hours per day). Nellis (2004:239)argues that in order to gain credi-bility ‘community penalties had tobecome more tangibly enforce-able’ and in many respects thismay be achieved through the useof electronic monitoring. Shouldthe offender not comply with theconditions of the order, the electronic tag on their ankle isactivated thereby informing themonitoring operator who in turnalerts the police about the breach.

Home Office research shows littledifference in the reconviction ratebetween offenders under curfewwith electronic monitoring (73%)and a comparison group sen-tenced to community penaltiesother than curfew orders (74%)within two years of sentencing(Sugg et al., 2001). This suggeststhat curfew orders with electronicmonitoring have no more of animpact on reconviction than exist-ing community penalties.

Furthermore, Renzema and Mayo-Wilson (2005:227) considered allavailable recidivism studies of

electronic monitoring that includ-ed a comparison group between1986 and 2002 for moderate tohigh-risk offender populations27.They concluded that the use ofelectronic monitoring as a tool forcrime reduction is not supportedby existing data, arguing that‘there are virtually no data sup-porting the use of EM’. An exami-nation of the effect of electronicmonitoring on crime during theperiod of monitoring and the fol-low up period after discontinua-tion of monitoring among moder-ate to high-risk offenders foundthat it:

has not demonstrated superiority to options such as penal code reform, intensive probation, or psychotherapy in reducing the burden of impris-onment or in reducing recidivism among moderate to high-risk offenders (Renzema and Mayo-Wilson, 2005:216).

IX. Penal Reform: The Role of Politics, theMedia, the Judiciary and SentencingGuidelinesIt was outlined at the beginning ofthe chapter that sentencing andpenal reform measures are onlyone part of the equation forchange. The international experi-ence suggests that key playersincluding politicians, the judiciaryand the media have a central roleto play in driving reform forwardin a positive and holistic manner.

27381 articles or abstracts on electronic monitoring were reviewed.

While 154 of the 381 pieces of literature claimed to include evaluation,only 119 were accurately classified as evaluations according toRenzema and Mayo-Wilson (2005). Of the 119 evaluations, 100 wereexcluded because they lacked an essential component (comparisongroup included etc.). Of the remaining 19, only three were included inthe review (7 were excluded because they included low-risk offenders,9 were excluded for a range of other methodological reasons, seeRenzema and Mayo-Wilson, 2005). This highlights the absence of thorough research in the area of effectiveness with electronic monitoring.


PAGE 18 CHAPTER 2.


The following section identifiesthe influence of political populism,the role of the media and judiciaryas key factors in the successfuldesign, implementation and prac-tice of any penal reform.

(i) The Politicisation of Crimeand Imprisonment Lappi-Seppälä (1998:18) arguesthat the most decisive factor inthe process of reform in Finlandwas probably ‘the political will andconsensus to bring down theprison rate’. Finnish reforms weredesigned by a small group of pro-fessional experts supported andreinforced by a range of contactswith senior politicians and aca-demic researchers. Furthermore,a number of Ministers of Justicehad been involved with researchwork and as a consequence ‘crimecontrol has never been a centralpolitical issue in election cam-paigns in Finland’ (ibid, 1998).There appeared to have been astrong conviction amongst thosewho planned the reforms that itwould be possible to reduce thenumbers sent to prison and thelength of sentences without hav-ing a detrimental effect on thelevel of criminality in the country.In addition, this belief appearedalso to be held by the prisonauthorities, civil servants and thejudiciary at least to the level thatthey did not oppose the reformproposals.

In reference to the Scottish expe-rience, Coyle (2003:3) argues that‘the inexorable rise of the prisonpopulation ... will only stop if soci-ety as a whole and politicians inparticular choose not to go downthat road’. Without such commit-ment the effort is likely to bedoomed – a clear example of thisis the Criminal Justice Act 1991 inEngland and Wales which wasdesigned ‘to reduce the prisonpopulation by decentring theprison from penal discourse’(Worrall and Hoy, 2005:43). In theimmediate aftermath of the legis-lation the prison population

declined, however, by 1993 thepolitical tide had quickly turnedtowards increased punitiveness.This was echoed most clearly bythe then Home Secretary’s claimthat ‘Prison Works’ and supportedby the media calls to ‘get tough oncrime’ in the aftermath of themurder of a young toddler JamesBulger by two young boys(Conservative Party ConferenceSpeech, 1993).

(ii) The Influence of the MediaThe influence of the media, partic-ularly in countries where crimeand punishment features promi-nently as an electoral issue, can-not be under-estimated. Evidencefrom Canada suggests that themedia can fuel the ‘soft andlenient’ debate on a regular basis.Concern about crime and publicattitude to crime is based, not onactual crime rates, but on theextent to which politicians and themedia highlight issues of crime(Roberts, 1992). In contrast tomany other western jurisdictions,the media in Finland has main-tained a reasonable attitude tocrime and criminal justice policyissues. This has been linked to themaintenance of a rational attitudeto crime and punishment amongstthe general public.

The above evidence reinforcesTonry and Frase’s (2001:7) argu-ment that ‘there are stark differ-ences in the political salience ofcrime and punishment issues invarious countries and those differ-ences fundamentally shape sen-tencing policies and punishmentpractices’. Furthermore, it sup-ports Frase’s (2001:276) conclu-sion from comparative criminaljustice research that:

Nations where criminal justice is not politicised should endeavour to maintain and preserve such arrangements. Such countries are not as affected by media sensation-alism of crime and political pressure and expediency.

(iii) The Role of the JudiciaryCoyle (2003:5) argues that theinvolvement of the judiciary iscentral to the process of designingsentences as alternatives to custody:

sentencing is carried out by the judiciary and if the judges and other sentencers have no confidence in the alternative penalties they will not be minded to use them.

He suggests a number of ways forsentencers to be involved includ-ing devising a structure of alterna-tive sentencing or through mem-bership of committees that exert asupervisory role relating to theimplementation of penalties.

Lappi-Seppälä (1998:19) describes"attitudinal readiness" among thejudiciary in Finland as one of thefactors for change arguing that‘collaboration with and assistancefrom the judiciary was clearly anecessary prerequisite for thechange to happen’. A commonproblem throughout all jurisdic-tions is the extent to which mem-bers of the judiciary are informedabout community penalties. Thereis also the added difficulty of pro-viding guidance to judges - Lappi-Seppälä (1998:9) describes how inthe mid-1970s judicial training onthe new sentencing provisions wasundertaken successfully by judgesthemselves and ‘turned out toprovide an excellent means ofreaching informal agreement onnew sentencing practices’. Morerecently, regular training coursesand seminars organised for judgesand prosecutors by the judicialauthorities have been attributedas having an impact on sentencingand prosecutorial practice.

(iv) Sentencing Guidelines forCommunity SanctionsThere has been much discussionin the literature regarding thenecessity of introducing very spe-cific numerical type sentencingguidelines versus more generalguidance for sentencers. Tonry


CHAPTER 2. PAGE 19


28Reitz (2001:249) defines such punishments as ‘sanctions in-

between the harshness of prison and the laxity of regular probation’.

and Frase (2001:7) argue that thenature of the environment shoulddetermine the approach. Forexample, they suggest numericaltype guidelines may be ‘the bestamong several undesirable choic-es’ in the United States given thepunitive nature of the society. Incontrast, in the context of north-ern Europe where the severity ofpunishment is already restrained,they argue that such standardsare likely to do ‘more harm thangood’.

Reitz (2001) describes how guide-lines are useful in identifying whoshould be detained and whoshould not but argues that ‘a farmore subtle undertaking, however,[is] to prescribe the type andintensity of nonprison sanctions’(ibid, 2001:249). This is a particu-larly important question givenconcerns about proportionality,legitimacy and effectiveness andthe concern that inappropriatelytargeted community penaltiesplace offenders at greater risk ofcustody. A system of structuredsentencing designed by the NorthCarolina Sentencing Commissionin 1994 ranks intermediate sanc-tions28 according to their level ofintrusiveness (Reitz, 2001). Sinceits inception, the confinement ratefollowing felony conviction hasdecreased from almost one half(48%) in 1993 to just over one-third (37%) in 1997 (Wright, 1998in Reitz, 2001). The prison popu-lation of North Carolina actuallygrew by 15% between 1994-1997(due largely to increased penaltiesfor violent offences) however thesystem did succeed in divertinglow to moderate risk offenders tointermediate punishment thanwas previously the case and real-locating prison space to moreserious long term offenders(Reitz, 2001).

Having discussed the underlyingfeatures and impact of penalreform in Canada, Germany andFinland, the following chapterdraws together the national and

international literature in a discus-sion of the potential for change inthe Irish criminal justice system.


PAGE 20 CHAPTER 3.

Tonry and Frase’s (2001) analysison sentencing and sanctions inwestern countries provides com-pelling evidence that differences inimprisonment rates and patternsoccur as a result of differences inpolicy as well as differences incrime rates. On the basis of thecomparative data presented in thisreport, it is clear that reductions insentenced committals to prison areachievable through appropriatereform of the system. Since 1975,Finland has reduced its prison pop-ulation rate to one of the lowest inEurope (66 per 100,000 of generalpopulation). Similarly, althoughCanada continues to have a highprisoner population rate vis-à-vissome European jurisdictions, therate has consistently declined sincereform in the mid-nineties.Germany too has succeeded in stabilising its prison populationsince 1969 despite significantincreases in the crime rate. Basedon the experiences of the threemain countries included in thestudy there are important lessonswhich should be considered indeveloping any process of penalreform in Ireland.

I. Alternatives to Custody for Offenders atRisk of Custody: Community Service,Suspended and Conditional SentencesCommunity service orders appearto provide a promising alternativeto custody. Completion rates arehigh and outcome evaluationresults suggest reductions in bothseriousness and/or frequency ofoffending amongst participants(McIvor, 1992). Furthermore, inFinland the increased use of com-munity service orders has corre-sponded with a reduction in thenumber of custodial sentences. Inlight of such findings it is of con-cern to note a decline in the use ofcommunity service orders inIreland from one in three ordersmade to just over one in five29

(Comptroller & Auditor General,2004). Another concern noted inthe national (Walsh & Sexton,1999) and international literature(McIvor, 1992) is that communityservice is sometimes used, not asan alternative to custody, but as analternative to lower tariff commu-nity sanctions. Finland is one ofthe few countries that have largelyavoided the net-widening effectpossibly due to adopting strict leg-islative procedures for its use. Asdescribed previously, a sentence ofcommunity service is only consid-ered after the decision to impose acustodial sentence has been made.The procedures are thereforedesigned to ensure communityservice is used only in the casewhere an offender would have

received a custodial sentence. InIreland, a legal requirement of theCriminal Justice (CommunityService) Act 1983 is that judgesdecide that imprisonment is theappropriate sentence beforeimposing a community serviceorder. Given the evidence of net-widening in the use of communityservice orders (Walsh & Sexton,1999) it would appear necessaryfor measures to be taken by theChief Justice and Presidents of theHigh Court, Circuit Court andDistrict Court to ensure adherenceto this legal requirement.

To ensure consistency and propor-tionality in its use, communityservice orders are calculated inFinland by guidelines that equateone day in prison to one hour ofcommunity service. In contrast, theabsence of guidelines in the Irishcontext has produced variances inpractice ranging from a ratio of 63hours of community service to onemonth of imprisonment in Donegalcompared to 11 hours of communityservice to one month of imprison-ment in Portlaoise (Walsh &Sexton, 1999).

The requirement that the courtsuspend a prison sentence of up totwo years if the offender is notdeemed a threat to public safetyhas had a significant impact onreducing and/or stabilising theprison population in Germany,Canada and Finland (Weigend,

Applying International Experience to the Irish ContextChapter 3

29According to the Expert Group on the Probation & Welfare

Service (1999) the decline in use may be due to the perception thatcommunity service is not a suitable option for offenders with addic-tions. Similarly, while numbers are small and therefore caution mustbe exercised a recent report on homeless individuals before thecourts in Dublin analysed Probation and Welfare Service records andfound that no homeless individuals were recommended for communityservice (Seymour and Costello, 2005).


CHAPTER 3 PAGE 21

APPLYING INTERNATIONAL EXPERIENCETO THE IRISH CONTEXT

2001). Suspended sentences haverisen dramatically over the period1970-2003, while non-suspendedprison sentences have remainedstable in Germany30. The introduc-tion of the conditional sentence inCanada saw an immediate declinein sentenced custody admissionsand a drop of up to 18% in admis-sions in 2000/01 alone (CanadianCentre for Justice Statistics,2002). The clear message from theinternational literature is thatstatutory provision to suspend ordischarge prison sentences of upto two years in the communityunder supervision (and/or withother requirements e.g. rehabilita-tion, reparation etc.) results in asignificant decline in the numberof prison admissions. Similar tothe Finnish experience with com-munity service, it is the statutoryrequirements and sentencingguidelines and principles whichhave ensured that suspended orconditional sentences are used asintended. For example, courts inCanada are required to make adecision that custody is an appro-priate sanction before imposing aconditional sentence. In Germany,a written explanation must be pro-vided outlining reasons why a sus-pended sentence is not ordered fora sentence of 12 months or less.Such conditions place an onus onthe judiciary to provide evidenceof rationale for sentence choice.The German reform finds a partic-ular resonance in light of recom-mendation by the Law ReformCommission (2003) and the IrishPenal Reform Trust (2004-5) tointroduce a legal requirement ofwritten reasons where a defendantis sentenced to custody.

The experiences from Finland,Germany and Canada strongly sug-gest that short term sentences ofimprisonment (up to two years)can be successfully replaced withcommunity sanctions. Even if alower limit were adopted, theadaptation of similar diversionarypractice in Ireland would have avery significant impact on

committals to custody given that86% of committals to Irish prisonsin 2003 were for one year or less.Indeed, even if legislation onlyapplied to those offenders sentenced to 6 months or less inprison it would mean that 58% ofprison committals would potentially be eligible for a community sanction.

II. The Judiciary, Legislative Change andResourcesIn theory, the logic of reformseems unquestionable given theprospect of reducing the numberof committals to prison and result-ant cost savings. However, thechanges required in implementinga system similar to the jurisdic-tions discussed above would besubstantive, and likely to includethe development of new statutoryguidelines and the establishmentof clear sentencing principles. Anystatutory requirements are likelyto meet with fierce resistance fromthe judiciary given their uniqueposition in constitutional terms.The discretion of judges in sen-tencing has been staunchlydefended in the decision in People(DPP) v. Tiernan [1989] ILRM 149.Resistance is also likely against thesuggestion that written reasons begiven by judges for not adoptingthe least punitive approach. Thewritten reasons requirement hasalready been rejected by thejudges at various levels in theReport of the Working Group onthe Jurisdiction of the Courts(2003). The involvement of thejudiciary would therefore be at thecore of any proposals to developwhat would be a major departurefrom standard judicial practice todate. Without statutory require-ments, sentencing practice is likelyto vary widely and yet withoutjudicial commitment statutoryrequirement will be less meaning-ful. Indeed, the experience of thesuspended sentence in Englandand Wales throughout the 1980sand 1990s suggests that despite astatutory proviso to retain sus-pended sentencing for those at

risk of custody, the sentence wasused for lower tariff offenders(Bottoms 1981, 2004). Sentencingguidelines may indeed be benefi-cial. The Finnish experienceinforms us that one of the key fac-tors in the success of penal reformin the country was an attitudinalreadiness to change by the judici-ary and policy makers (Lappi-Seppälä, 1998). This provides fur-ther evidence of the absolutenecessity of involving the judiciaryfrom the earliest stages in thedevelopment of reform.

Sentencing principles and guide-lines are essential factors associat-ed with the appropriate use ofcommunity sanctions in the major-ity of jurisdictions included in thisstudy. Furthermore, Roberts(2003:230) argues that a range ofapproaches are required to reducethe prison population including theprovision of ‘statutory directionsto courts to sentence offenders tocustody only when certain condi-tions are met: the creation of for-mal sentencing guidelines, and thecreation of new alternative sanc-tions to replace some custodialsentences’. It would appear thatthe provision of a new statutoryframework setting out principlesand guidelines is necessary giventhat one of the main pieces of leg-islation (Probation of OffendersAct 1907) governing communitysanctions is over 100 years old.Furthermore, many existing alter-natives to custody do not exist ona statutory basis and as a resultthere are few limitations on thenature, frequency or intensity oftheir use. That said, O’Malley(2000:447) makes a very validpoint urging caution in relation toadopting strict guidelines in theabsence of research evidence indicating the suitability of measures:

30As noted in the previous chapter 42,122 convicted adults were in

prison in 1968 (Statistisches Bundesamt Reihe 9 in Weigend, 2001:191)compared to 39,468 in 2003 (Jehle, 2005).


PAGE 22 CHAPTER 3.


the introduction of guidelines would be singularly inappropriate … partly because of the absence of data on existing practices and partly because of the injustices which rigid guideline systems are prone to produce.

Given that Ireland has lived with-out updated legislation up to now,it may be more appropriate toconcentrate on gathering dataover the coming years while devel-oping draft legislation and adapt-ing provisions appropriately as thedata analysis emerges. In theinterim, in the absence of a majoroverhaul of the system, it may bepossible to adopt O’Malley’s(2000:461) proposals for change.Such proposals include guidancewhich is ‘descriptive’ rather than‘prescriptive’ and would include ‘asentencing information system forthe benefit of sentencing judges,and a more robust approach onthe part of the Court of CriminalAppeal and the Supreme Courttowards the provision of sentenc-ing guidance’. Other commenta-tors have recommended the use ofa Sentencing Board that wouldgather and analyse information onsentencing (see O’Mahony, 2002).The provision of training is anoth-er useful initiative and could servethe dual purpose of informing thejudiciary in the short-term as wellas involving them in the longerterm process of reform.

Most jurisdictions included in thecurrent study require offenders tocomplete additional conditions orremain under probation supervi-sion as part of the suspended/conditional sentence. If Irelandwere to consider incorporatingsuch a model, consideration wouldneed to be given to how such

requirements would be super-vised. In all likelihood, it wouldrequire input and supervision foroffenders from the Probation andWelfare Service. Clearly, given thelimited resourcing of the serviceto date, any legislative changewould necessitate correspondingfinancial input. Numerous reports(NESF, 2002; Final Report of theExpert Group on the Probation &Welfare Service (1999:9) recom-mend that additional resourcesare put in place to support thedevelopment and implementationof community sanctions.

III. Alternatives to Custody for Low-RiskOffenders: Conditional DismissalThe analysis has focused largelyon suspended/conditional sen-tences and community service asthe main alternatives to custody.However, in developing a systemof community sanctions equalconsideration needs to be given tooffenders at the lower end of thetariff scale. Currently, an offendermay be dismissed or conditionallydischarged under the Probation ofOffenders Act 1907. However, theprocess still requires an offenderto be processed by the court service. The introduction of a conditional dismissal similar tothat which exists in Germany orScotland would effectively removea significant proportion of low-riskoffenders from the court system.

IV. Alternatives to Custody for Low toMedium Risk Offenders: Probation OrderThe nature of probation supervi-sion and the manner in which theintensity of supervision may betargeted towards the needs of anindividual offender makes it anappropriate intervention for arange of offenders. Reconvictionstudies suggest positive results inreducing the seriousness and fre-quency of offending31 (Farrall,2002). Furthermore, research evi-dence (Underdown, 1995) showsthat while an average of a 10%reduction in re-offending can beexpected, this can increase tobetween 20-40% when

programmes incorporate certain factors in their programme designand delivery. These factors includetargeting high-risk offenders,matching programmes to offenders’ needs, a directive style,clear structure and using methodsto develop offender cognitiveskills and behavioural patterns(McGuire, 1992).

One of the main dangers withalternatives to custody is that ifthey do ‘not’ work offenders maybe at a greater risk of a custodialsentence. In addition, unless com-munity based penalties are seento operate effectively both publicand judicial confidence is lost andultimately replaced, particularly inpopulist societies, with harsherpenalties. The risk with all commu-nity sanctions including probationis that failure to comply may placethe offender at risk of custody.Vass (1996:164) argues that crimi-nal justice professionals have arole to play in determining theoutcome of a community sanctionas a ‘success’ or a ‘failure’. Heargues that ‘supervising officersare capable of determining ‘out-comes’ by either shielding offend-ers from further penal sanctions(thus increasing the arithmeticaloutcomes of ‘success’) or uncover-ing and reporting their infractions(thus increasing the arithmeticaloutcomes of ‘failure’)’.Recognition of the problem inother jurisdictions e.g. UK led tothe introduction of national stan-dards for community sanctions.There are obvious concerns thatsuch standards will succeed inproviding greater structure tocommunity sanctions and at thesame time place offenders atgreater risk of custody by theirfailure to comply with them.

V. Increasing the Use and Effectiveness ofFines as a SanctionAs noted earlier in the report,non-payment of fines results in asignificant number of individualsbeing committed to prison eachyear in Ireland. Drawing on inter-

31Farrall (2002) argues that we must measure success regarding

reconviction not in absolute terms i.e. has an individual persisted ordesisted with offending? Rather he suggests that success is measuredby degrees i.e. has offending reduced in frequency and/or seriousness?


CHAPTER 4. PAGE 23


national literature, the Report ofthe Sub-Committee on Crime andPunishment on Alternatives toFines and the Uses of Prison(2000) recommends that a pack-age of measures are introduced toincrease the use of fines andreduce the numbers going toprison for fine default.

It suggests that a range of enforce-ment options are put in placeincluding payment by instalments,an attachment of earnings (forthose employed), a deduction fromstate benefits (for those unem-ployed) and supervised payments.Research on the experience ofmanaging fine default in Englandand Wales highlights the impor-tance of considering all enforce-ment options before imposing apenalty for non-payment (Moxon &Whitaker, 1996 in Report of theSub-Committee on Crime andPunishment on Alternatives toFines and the Uses of Prison,2000). Committal to prison for finedefault dropped from 24,000 to8,500 individuals in England andWales between 1994-1996. The sig-nificant decrease was attributed toa High Court ruling which rein-forced the statutory requirementfor courts to state, before sendinga defaulter to jail, why eachenforcement measure had failed ornot been used.

While recommending that all of theenforcement options are consid-ered before a sanction is given, theReport suggests that courts shouldnot be limited to imposing a termof imprisonment for fine defaultand suggest alternatives includingcommunity service, be considered.Other jurisdictions have adoptedsuch approaches includingGermany where individuals whoare unable or unwilling to pay afine can attend community service(Weiberg, 2001) and Scotlandwhere the Supervised AttendanceOrders (SAOs) was introduced toprovide an alternative to custodyfor fine default (Scottish Executive,2005).

The introduction of a day fine orunit fine system is also recom-mended in the Report. There hasbeen mixed views about the intro-duction of unit fines in Ireland withsome commentators suggestingthe approach is unworkable (LawReform Commission, 2002) whileothers highlight the potential mer-its of the system in terms of equityand deterrence (O’Malley, 2000).On the basis of experience fromEngland and Wales where unitfines were introduced with theCriminal Justice Act (1991) andabolished with the Criminal JusticeAct (2003) Mair (2004:141) arguesthat ‘unit fines would probablyhave led to better assessment,reduced inconsistencies, and lowerlevels of default’.

VI. Alternatives to Custody: LessSuccessful ApproachesIn many respects Ireland is stum-bling in the dark when it comes tocommunity sanctions, largelybecause there is a dearth ofresearch on sentencing, communi-ty sanctions and crime and justicerelated issues. It is critical that pol-icy direction does not unquestion-ingly follow practices in other juris-dictions without fully assessing thedocumented success or otherwiseof such measures and exploringtheir suitability in an Irish context.In particular, the evidence sug-gests that community sanctionswith no rehabilitative element areunlikely to be effective. The trendin England and Wales is towards‘strengthening’ community serviceby making it more demanding forthe offender and thereby inducingpublic confidence (Worrall and Hoy,2005:122). However, despite a con-tinuing ‘toughening up’ of commu-nity punishments in England andWales the prison populationremains at an all time high. Indeed,the adult prison population ofEngland and Wales has grown from36,000 in 1991 to 62,000 in 2003 –an increase of 71% (Hough et al.,2003). Similarly, despite beingmore expensive than other sentencing alternatives, there is

extremely limited data to suggestthat punitive measures includingelectronic monitoring is effective inreducing recidivism. It is thereforeconcerning that proposals for its useare included in the Irish CriminalJustice Bill 2004. Finally, Ashworth(2003:298) argues that in additionto an increasing tendency towardspunitive measures an on-going feature of policy in England andWales over the last 30 years is ‘thecontinued pursuit of the policy ofproliferation’. He warns against sucha policy arguing that:

English courts have probably the widest choice of alternative sentences in any European nation, but it is not easy to suggest what benefits this has. It certainly does not lead courts to use custody less frequently. The courts themselves continue to ask for more alternatives and for widerdiscretion (ibid, 2003:298)

ConclusionThe evidence suggests that a largenumber of factors make up the equation associated with the devel-opment of community sanctions toreduce recidivism and the prisonpopulation. At a national level it isacknowledged that community sanctions are unlikely to meet theobjectives of reducing recidivism and the prison population ‘if suchsanctions are not introduced in anintegrated manner and accompaniedby a coherent sentencing strategy ona national and local level’ (ExpertGroup on the Probation & WelfareService, 1999:29). Any countrieswhere positive outcomes haveresulted from penal reform haveidentified that no one factor or sanction of itself can be attributed tothe success. To this end, legislativechange, sentencing guidelines andan expansion in the range of commu-nity sanctions coupled with the commitment of policymakers and the judiciary are all essential components to create an effectivesystem of community sanctions andreduce the prison population.


PAGE 24 CHAPTER 4.

This report seeks to provide anoverview of the existing alterna-tives to custody in Ireland includ-ing an analysis of their potentialuse and an account of the issuesand difficulties related to theiroperation. Secondly, it examinesapproaches and interventions withregard to the provision of alterna-tives to custody in a variety ofother jurisdictions with a view toidentifying ‘effective’ as well asless successful interventions.Thirdly, the national and interna-tional literature is discussed withthe purpose of identifying key les-sons that may be incorporatedinto any system of penal reform inthe future. The final section bringstogether the national and interna-tional literature presented in thisreport to form conclusions andrecommendations on the mosteffective direction for developingthe system of alternatives to custody in Ireland.

The cost of imprisonment inIreland is a massive drain on pub-lic resources given that the aver-age cost of keeping an offender inprison is €87,950 per annum andthe total expenditure on the IrishPrison Service exceeded €300min 2003. Despite the costs, custody remains the dominantsanction in many cases and trendssuggest a parallel rise in the useof custodial and community sanctions. It would appear on thebasis of evidence presented in this

report that the ability to use anddevelop alternatives to custody isrestricted by the limited resourcesavailable to the Probation andWelfare Service to provide pre-sanction reports and supervisionfor offenders. Expenditure for theProbation and Welfare Service was€40.7m in 2003. Existing datasuggest that requests for pre-sanction reports and offendersupervision are sometimesdelayed due to the pressure onallocated staff resources in theProbation and Welfare Service.The unbalanced nature of the sys-tem is highlighted therefore by thevery fact that the preparation of apre-sanction report (which costs€800-900) and the supervision ofan offender in the community(costing from €1,500 for aCommunity Service Order to€6,100 for a Probation Order) maybe restricted by resource implications. In contrast, asidefrom attempts to reduce the costof prison overtime, the cost ofsentencing an offender to custodydoes not appear to be a consideration.

It would appear that there is widescope for reducing expenditure onprisons especially in light of theexperience from other jurisdic-tions where the majority of indi-viduals sentenced to two years orless in prison are considered eligible for a sanction in the community. Even if a lower limit of

one year were adopted in Ireland,it would have a very significantimpact on committals to custodygiven that 86% of committals in2003 were for one year or less.Indeed, even if legislation onlyapplied to those offenders sen-tenced to 6 months or less inprison it would mean that 58% ofprison committals would potentially be eligible for a community sanction.

Further evidence of the need toquestion the efficacy of investingheavily in punitive sanctions isprovided in Bottoms’ (2004)analysis of the relationshipbetween the severity of penaltiesand its impact on deterrence.Bottoms draws on a number ofresearch studies (Doob andWebster, 2003; von Hirsch et al.,1999) and concludes that althoughthe research evidence is limited,there is no basis for a causal relationship between harsher sentences and sanctions andreduced crime rates. As Doob andWebster (2003:143 in Bottoms,2004:64) outline ‘a reasonableassessment of the research todate ... is that sentence severityhas no effect on the level of crimein society’.

It is widely acknowledged in theliterature (e.g. Home Office, 2001)that even to achieve a smallreduction in crime would require asubstantial increase in the

Conclusions and Recommendations

Chapter 4


CHAPTER 4 PAGE 25

CONCLUSIONS AND RECOMMENDATIONS

numbers imprisoned. According tothe Halliday Report (Home Office,2001) the prison population wouldneed to expand by 15% in order toachieve a reduction in crime of1%. Furthermore, as Bottoms(2004:68) outlines when describ-ing the situation of increasing theprison population to reduce crime:

the early increases [in the numbers imprisoned] ... can beexpected to ‘catch’ a reasonable proportion of prolific offenders. However, when further increases in imprisonment are pursued, it is almost certain that more lower-frequency offenders will be caught in the incapacitativenet, with diminishing returns for the policy.

This report concludes that thereare five key factors relevant to thedevelopment of an effective system of alternatives to custody.These include sentencing reform,sentencing guidance, resources,research and commitment to evidence based practice.Conclusions and recommenda-tions relating to these themes are integrated throughout the following sections.

I. Legislative FrameworkIt is clear that legislative reform isrequired to re-orientate the system towards promoting the useof custody as a last resort. Whilesome of the current alternativesto custody are provided for underthe Probation of Offenders Act1907 many others exist on a non-statutory basis. It is recommend-ed that consideration be given tothe development of a new legislative structure to provide astatutory framework for community sanctions. The particular sanctions which shouldbe included in this framework arediscussed below.

II. ResourcesAdequate resources are requiredby the Probation and WelfareSystem to create an effective

system of community sanctions.Delays by the Service in allocatingrequests for pre-sanction reportsand supervision from the Courtsdue to resource constraints haveadverse effects across the systemincluding increasing the time tosentence. It is recommended thatenhanced resources are directedto the Probation and WelfareService to execute its role inrelation to the preparation ofpre-sanction reports and thesupervision of offenders in thecommunity.

It would appear that the Probationand Welfare Service needs toexpand and develop to supportthe effective delivery of the current system and any furtherdevelopment that may arise. Theslow pace at which the ChildrenAct 2001 is being implementedhighlights the futility of legislativedevelopment without theresources to support it. It is recommended that any plannedchange with regard to the expan-sion in the delivery of communitysanctions is accompanied by theappropriate level of resources tofund it.

III. Judiciary Lappi-Seppälä (1998) describesthe ‘attitudinal readiness’, co-operation and assistance of thejudiciary as being central to mak-ing change happen in reducing theprison population in Finland. Thisis a key challenge for any systemattempting to move towards a system of using custody as a lastresort. On the one hand in Irelandthere is evidence that judges areorientated towards custody, butthere are conflicting accounts tosuggest that mechanisms such asthe court poor box are judicialinnovations in response to the limited custodial options available(Kilcommins et al., 2004). Theimportance of ensuring the co-operation and contribution of thejudiciary in structural reform iswell acknowledged in the research(Frase, 2001). It is recommended

that consideration be given todeveloping mechanisms for judicial participation in any subsequent structural development.

In the short-term in the absenceof data on existing practice inIreland it would appear that sentencing guidance to judgesmay be more appropriate thanspecific guidelines. It is recommended that considerationis given to developing an appropriate mechanism for gathering and analysing sentencing data and cases as atraining and guidance resourcefor members of the judiciary.Judicial training on sentencingand awareness-raising amongprofessional groups, lawyers andjudges about the availability andfeatures of various communitysanctions is recommended. TheJudicial Studies Institute of theCourts Service are both ideallyplaced to train judges and todevelop a sentencing databaseand ultimately guidance.

IV. National and InternationalComparative ResearchThe lack of research and accessible data in the criminologi-cal and criminal justice area isechoed by almost every commentator of such matters(Bacik, 2002; O’Malley, 2000;O’Donnell, 2005; O’Mahony,2002). The following recommen-dations therefore echo many ofthe previous calls for research andstatistical information:

Accurate, comprehensive andtimely statistical information tomonitor the use of alternativesentences is essential in develop-ing an understanding of sentencing practice in the country.It is recommended that suchinformation is released in a timely fashion on an annual basisby appropriate bodies includingthe Court Service and theProbation and Welfare Service.


PAGE 26 CHAPTER 4.


Criticism of the dearth of crimino-logical research and the demandfor further research in the field isreiterated in this report. It is recommended that furtherresearch is commissioned intothe operation of the criminal justice system particularly withregard to sentencing practice,evaluations of community sanctions and programmes and,follow-up outcome studies.

Frase (2001:259) argues that ‘comparative research is … valu-able for what it tells us not to doabout crime and sentencing’.Important lessons may be learntfrom empirically groundedresearch on effectiveness fromother jurisdictions in the develop-ment of alternatives to custody inIreland. However, it is equallyimportant that the system isbench-marked against develop-ments in other countries. To date,Ireland has had limited participa-tion in international comparativeresearch studies. It is recommended that the participa-tion of the Republic of Ireland ininternational studies continues tobe supported by governmentfunding thus enabling the juris-diction to develop and monitorpolicy and practice using an evidence-based approach on anongoing basis.

V. Community Alternatives to Custody(i) Suspended SentencesSuspended or conditional sentences as they operate inGermany, Spain, Canada andFinland have been linked to areduction in the custodial popula-tion. While slight variation existsin most of the jurisdictions mentioned (with the exception ofGermany) a suspended or condi-tional sentence may be imposed(subject to a number of condi-tions) on an offender sentenced toless than two years in prison.Generally a custodial sentence isfirst imposed and then considera-tion is given to the eligibility of asuspended or conditional

sentence. In some of the jurisdic-tions conditions to attend treat-ment, pay restitution or undertakereparation are added. The suspended sentence is already apopular sentence in Ireland, however, there are major concernsabout the absence of guidanceprovided regarding its use. It isrecommended that the suspended sentence is placed ona statutory footing and consider-ation be given to creating morespecific guidelines regarding itsuse. In particular, considerationshould be given to introducing arequirement in the legislationthat, save for exceptional circum-stances, it be used for offenderssentenced to custody for a periodof one year or less.

(ii) Community Service OrdersCommunity service orders haveshown potential to reduce theprison population in Finland,although net-widening effects aremore common in other jurisdic-tions including Scotland and theRepublic of Ireland. In Finland, astrict procedure protects theorder from the effects of net-widening – judges are firstrequired to make a sentencingdecision based on sentencing prin-ciples and criteria, if the decisionis immediate custody, only then(subject to a number of pre-requi-sites) may the sentence be trans-lated into a community serviceorder. It is recommended thatcommunity service orders do notreplace other ‘lower tariff’ sanc-tions, but are retained as alterna-tives to custody. Further, it isrecommended that measures betaken by the Chief Justice andPresidents of the High Court,Circuit Court and District Courtto ensure adherence to the legalrequirement for judges to decidethat imprisonment is the appro-priate sentence before imposinga community service order.

The evidence suggests wide variation in the use of communityservice orders in Ireland in terms

of the way in which they areimplemented. There is also varia-tion in the number of hours ofcommunity service that equate toa term of imprisonment acrossareas. In the interest of equity, itis recommended that considera-tion be given to drawing upguidelines around the use ofcommunity service orders and anequivalency scale of hours ofcommunity service relative totime in custody (the Finnish system equates one hour of custody with one day in prison).

(iii) Electronic MonitoringInternational evidence stronglywarns against the use of electronic monitoring on the basisof limited evidence of effective-ness (Renzema and Mayo-Wilson,2005). It is acknowledged thatelectronic monitoring is an attrac-tive intervention for governmentbecause it is a cheap alternative,relative to the costs of custodyand serves to allay concernsabout the protection of the public.Given the absence of sufficientdata to confirm the effectivenessof electronic monitoring as amechanism to reduce recidivismor its superiority to other optionsto reduce the prison population,it is recommended that electron-ic monitoring is not introduced toIreland.

(iv) FinesIt is recommended that furtherconsideration is given to notusing imprisonment as a defaultsanction for fines. This has anup-tariffing effect and alsoresults in scarce prison resourcesbeing wasted on a high flow ofshort term fine defaulters.Overall, it is recommended thatthe recommendations of theJoint Oireachtas CommitteeReport on increasing the use offines and decreasing the num-bers imprisoned for fine defaultare adopted.

(v) Adjourned SupervisionThe practice of adjourned


CHAPTER 4 PAGE 27


supervision whereby sentencing isdeferred to assess the offender’sability to engage in communitysupervision is a common practice.The deferment period is intendedto provide an opportunity to theoffender to engage in supervisionwith the Probation and WelfareService. However, the effectivepractice literature suggests thatclear boundaries and expectationswithin defined limits provide thebest environment in which tomeaningfully engage with offenders. It is recommended thatdeferred supervision is thereforereplaced with a statutory community based order.

VI. Expanding the Range of CommunitySanctions?The Expert Group on theProbation and Welfare Serviceamongst others have called for anexpansion in the range of commu-nity options available. Given thedearth of information on the oper-ation of existing alternatives it isdifficult to identify what particularsanctions are required and forwhom. It is therefore recom-mended that further research iscarried out before any additionalcommunity sanctions are adopt-ed to avoid the English experience of a proliferation ofalternatives to custody without asubsequent decrease in theprison population.

VII. Community SanctionsA concern with the developmentof community options is that theymay turn out to be more punitivethan custody especially if additional requirements areattached such as attendance at atreatment programme, curfew,reparation etc. It is recommendedthat consideration is given toappropriately targeting the levelof intervention of a communitysanction according to theassessed risk level of the offender.

(i) Poor Box, ConditionalDismissal and ProsecutorialDismissal Mair (2004) highlights the impor-tance of effective low-tariff sanc-tions to divert offenders out of thecriminal justice system and from apractical perspective to free upresources for the more intensiveinterventions required by morehigh risk offenders. Despite beinga common practice in Irish courts,there is no specific law governingthe use of the court poor boxes.A recent Law Reform CommissionReport on the Court Poor Box:Probation of Offenders (2005)recommended it be placed on astatutory basis. This reportendorses this recommendation.Further, it is recommended thatmechanisms for dismissal anddischarge are retained in anyreplacement of the Probation ofOffenders Act 1907 as a usefulmeans of diverting individualsaway from the formal justice system. A prosecutorial dismissalsimilar to the prosecutor’s fine inScotland is recommended as ameans of diverting individualsfrom the court system. It is suggested, however, that theincentive to plead guilty shouldnot be too great as to underminechoice and the right of access tothe courts.

(ii) Probation Orders The research evidence suggeststhat the most effective probationsupervision consists of targetedlevels of appropriate supervision,provide positive and meaningfulengagement to the offender andholds the offender accountable. In order to avoid expanding thenet of social control it is recommended that offenders areappropriately assessed bytrained personnel prior to anyrecommendation for an intensiveand/or demanding communitysanction. It is recommended thatin designing community sanctions (primarily probationprogrammes) attention is givento the extent to which it will

provide positive and meaningfulengagement to the offender.

VIII. Final CommentTörnudd (1993:13) argues that inFinland it was ‘attitudinal and ideological readiness to bringdown the number of prisoners’ onbehalf of the government, judiciary and others, rather thanthe specific technique used thatwas the most influential factor. Asoutlined earlier political rhetoricand sentencing practice in Irelandappears to be strongly orientatedtowards custody, ignoring the evidence that community serviceproduces lower reconviction ratesamongst offenders than thosegiven short prison sentences.Furthermore, they are no lesseffective than imprisonment buthave the potential to be an effective alternative to custody,thereby offering potentially hugefinancial savings to the IrishExchequer.


PAGE 28

Short Term Action

� Hold round table discussion on alternatives to custody including members of the Judiciary, Courts Service, Probation and Welfare Service, Garda Síochana, National Crime Council, Law Reform Commission, Department of Justice, Equality and Law Reform, non-governmental organisations to gain support for the development of reform.

� Seek the adoption of the Law Reform Commission recom-mendation that District Judgesgive written reasons before sentencing someone to a custodial sentence.

� Approach the government for the release of crime statistical information in a timely fashion,increased judicial training and the development of a sentencing database as a resource for the judiciary.

� Seek the adoption of legisla-tion which provides alternatives to imprisonment for fine defaulters.

Medium Term Action

� Draft a schedule for a programme of research identifying the main areas where research is required e.g. the use and outcomes of suspended sentencing and submit to the Department of Justice, Equality and Law Reform and other bodies such as the Law Reform Commissionand the National Crime Council.

� Draft outline of proposed legislation (this would be updated and altered as research findings and evalua-tion studies produce evidence based results that will inform legislative development).

� Seek increased resources to execute any proposed system of community sanctions.

Long Term Action

Drafting legislation to include:� All offenders sentenced to a

community sanction for sentences one year or less.

� Suspended sentence placed on a statutory footing.

� Community service retained as an alternative to custody and used as a genuine alternative to custody.

� Imprisonment to be removed as the automatic default sanction for fines and commu-nity service orders or other appropriate alternatives to be available as alternatives.

� Expansion of probation order options to meet the needs and risk level of offenders include Probation Order, Probation Order (Intensive Supervision), Probation Order (Mentoring) etc.

� Retention of provision similar to the Conditional Discharge under the Probation of Offenders Act 1907.

� Introduction of a prosecutorial dismissal to divert adult offenders pre-court.

Timetable of Proposed Changes


PAGE 29

� Antonowicz, D. H. & Ross, R. R.(1994) Essential Components ofSuccessful RehabilitationPrograms for Offenders,International Journal of OffenderTherapy and ComparativeCriminology, 38, pp. 97-104.

� Ashworth, A. (2003)Sentencing and Criminal Justice3rd Edition. London: ButterworthsLexis Nexis.

� Bacik, I. (2002) The Practice ofSentencing in Irish Courts in P.O’Mahony, (ed.), Criminal Justicein Ireland. Dublin: Institute ofPublic Administration.

� Bottoms, A.E. (1981) TheSuspended Sentence in England1967-1978, British Journal ofCriminology, Vol.21, pp.1-26.

� Bottoms, A.E. (2004) EmpiricalResearch Relevant to SentencingFrameworks in A. Bottoms, S .Rex& G. Robinson (eds.), Alternativesto Prison Options for an InsecureSociety. Cullompton: WillanPublishing.

� Canadian Centre for JusticeStatistics (2002) ConditionalSentencing in Canada: AStatistical Profile 1997-2001.Canada: Centre for JusticeStatistics

� Chapman, T & Hough, M. (1998)Evidence Based Practice: A Guideto Effective Practice, London:Home Office HM Inspectorate ofProbation.

� Cid, J. (2005) SuspendedSentences in Spain: Decarcerationand Recidivism, Journal ofCommunity and Criminal Justice,Vol. 52, No.2, pp.169-179.

� Comptroller & Auditor General(2004) The Probation and WelfareService: Report on Value forMoney Examination. Dublin:Government of Ireland.

� Cotter, A. (1999) The CriminalJustice System in Ireland in S.Quin, S., P. Kennedy, P., A.O’Donnell, A. & G. Kiely, (eds.),Contemporary Irish Social Policy.Dublin: University College DublinPress.

� Court Service (2003) AnnualReport of the Court Service.Dublin: Court Service

� Court Service (2004) AnnualReport of the Court Service.Dublin: Court Service

� Coyle, A. (2003) Joining upCriminal Justice Services:Scotland in an InternationalContext. International Centre forPrison Studies, University ofLondon: ADSW Criminal JusticeConference 20 November 2003.

� Doob, A.N. and Webster, C. M.(2003) Sentence Severity andCrime: Accepting the NullHypothesis, Crime and Justice AReview of Research, Vol 30,pp.143-195.

� Duff, P. (1993) The ProsecutorFine and Social Control: TheIntroduction of the Fiscal Fine toScotland. British Journal ofCriminology, Vol. 33, No. 4, pp.481-503.

� Expert Group on the Probationand Welfare Service (1999) FinalReport of the Expert Group on theProbation and Welfare Service.Dublin: Stationery Office.

� Farrall, S. (2002) RethinkingWhat Works with OffendersProbation, Social Context andDesistance from Crime.Cullompton: Willan Publishing.

� Farrington, D. P., Ditchfield, J.,Hancock, G., Howard, P., Jolliffe,D., Livingston, M. S. & Painter, K. A.(2002) Evaluation Of TwoIntensive Regimes For YoungOffenders (Home Office ResearchStudy No. 239). London: HMSO.

� Flood-Page, C. and Mackie, A.(1998) Sentencing Practice: AnExamination of Decisions inMagistrates’ Courts and theCrown Courts in the mid-1990’s.Home Office Research Study No.180. London: Home Office.

References


PAGE 30

� Frase, R.S. (2001) ComparativePerspectives on Sentencing Policyand Research in M. Tonry and R.S.Frase (eds.), Sentencing andSanctions in Western Countries.New York: Oxford University Press.

� Geiran, V., McCarthy, M.,Morahan, M. & O’Connell, V. (1999)Young Offenders in PenalCustody. Dublin: Research andStatistics Unit, Probation andWelfare Service.

� Goldblatt, P. & Lewis, C. (1998)Reducing Offending: AnAssessment of Research Evidenceon Ways of Dealing with OffendingBehaviour, Home Office ResearchStudy No. 187. London: HomeOffice.

� Hedderman, C. & Hough, M.(2004) Getting Tough or beingEffective: What Matters? in G.Mair(ed) What Matters in Probation.Cullompton: Willan.

� Hollin, C. R. (1994) DesigningEffective RehabilitationProgrammes for Young Offenders,Psychology, Crime & Law, 1, pp.193-199.

� Home Office (2001) MakingPunishments Work: Report of areview of the sentencing frame-work for England and Wales(Halliday Report). London: HomeOffice.

� Hough, M., Jacobson, J. &Millie, A. (2003) The Decision toImprison. Key Findings. London:Prison Reform Trust.

� Irish Penal Reform Trust(Winter 2004/5) Research Brief:Sentencing in the District Courts,2003 in Penal Reform News No.22pp.1-4 www.iprt.ie

� Irish Prison Service (2003)Annual Report of the Irish PrisonService. Dublin: Irish PrisonService.

� Jehle, J-M (2005) CriminalJustice in Germany 4th Edition.Berlin: Federal Ministry of Justice.

� Joint Committee on Justice,Equality, Defence and Women’sRights (2000) Report of the Sub-Committee on Crime andPunishment of the JointCommittee on Justice, Equality,Defenceand Women’s Rights onAlternatives to Fines and the Usesof Prison. Dublin: Houses of theOireachtas.

� Joint Committee on Justice,Equality, Defence and Women’sRights (2004) Report on a Reviewof the Criminal Justice System.Dublin: Houses of the Oireachtas.

� Kilcommins, S., O’Donnell, I.,O’Sullivan, E. & Vaughan, B.(2004) Crime, Punishment andthe Search for Order in Ireland.Dublin: Institute of PublicAdministration.

� Kilias, M. Aebi, M. & Ribeaud, D.(2000) Does Community ServiceRehabilitate Better Than Short-Term Imprisonment? Results of aControlled Experiment, HowardJournal, 39(1), pp.40-57.

� Lappi-Seppälä, T. (1998)Regulating the Prison Population:Experiences from a Long-TermPolicy in Finland. Helsinki:National Research Institute ofLegal Policy.

� Law Reform Commission(2002) Penalties for MinorOffences: Consultation Paper.Dublin: Law Reform Commission.

� Law Reform Commission(2005) The Court Poor Box:Probation of Offenders. Dublin:Law Reform Commission.

� Lewis, S. (2005) Rehabilitation:Headline or Footnote in the NewPenal Policy?, Probation Journal:The Journal of Community andCriminal Justice. Vol. 52(2) pp119-135.

� Mair, G. (2004) Diversionaryand Non-Supervisory Approachesto Dealing with Offenders inA.Bottoms, S.Rex and G.Robinson(eds.), Alternatives to PrisonOptions for an Insecure Society.Cullompton: Willan Publishing.

� May, C. & Wadwell, J. (2001)Enforcing Community Penalties:The Relationship betweenEnforcement and Reconviction(Home Office Research FindingsNo. 155). London: HMSO

� McIvor, G. (1992) Sentenced toServe: The Operation and Impactof Community Service byOffenders. Aldershot: Avebury.

� McIvor, G. (1992a) IntensiveProbation Supervision: Does MoreMean Better?, Probation Journal,39(1), pp. 2-6.

� McIvor, G. (2004) Reparativeand Restorative Approaches inA.Bottoms, S.Rex and G.Robinson(eds.), Alternatives to PrisonOptions for an Insecure Society.Cullompton: Willan Publishing.

� National Crime Forum (1998)National Crime Forum Report.Dublin: Institute of PublicAdministration.

� National Economic and SocialForum (2002) Re-integration ofPrisoners Forum Report No. 22.Dublin: National Economic andSocial Forum.

� Nellis, M. (2004) ElectronicMonitoring and the CommunitySupervision of Offenders inA.Bottoms, S.Rex and G.Robinson(eds.), Alternatives to PrisonOptions for an Insecure Society.Cullompton: Willan Publishing.

� O’Donnell, I (2001) PrisonMatters. Irish Jurist. Vol 36, IRJUR153, pp162-63.


PAGE 31

� O’Donnell, I. (2004)Imprisonment and Penal Policy inIreland. Howard Jounal, Vol. 43,No.3, pp253-266.

� O’Donnell, I. (2005) Crime andJustice in the Republic of Ireland.European Journal of Criminology,Vol. 2(1), pp.99-131.

� O’Mahony, P. (ed.)(2002)Criminal Justice in Ireland. Dublin:Institute of Public Administration.

� O’Malley, T. (2000) SentencingLaw and Practice. Dublin: RoundHall Ltd.

� Public Safety and EmergencyPreparedness PortfolioCorrections Statistics Committee(2004) Corrections andConditional Release StatisticalOverview. Canada: Public Worksand Government Services.

� Redmond, D. (2002)Imprisonment for Fine Default andCivil Debt: Report to theDepartment of Justice, Equalityand Law Reform. Dublin:Stationery Office.

� Reitz, K.R. (2001) TheDisassembly and Reassembly ofU.S. Sentencing Practice in M.Tonry and R.S. Frase (eds.),Sentencing and Sanctions inWestern Countries. New York:Oxford University Press.

� Renzema, M. & Mayo-Wilson, E.(2005) Can Electronic MonitoringReduce Crime for Moderate toHigh-Risk Offenders? Journal ofExperimental Criminology, Vol. 1,No. 2, pp.215-237.

� Rex, S., Gelsthorpe., L.,Roberts, C. & Jordan, P. (2004)What’s Promising in CommunityService: Implementation of SevenPathfinder Projects. Findings 231.London: Home Office.

� Rex, S. & Gelsthorpe, L. (2002)The Role of Community Service inReducing Offending: EvaluatingPathfinder Projects in the UK,Howard Journal, 41(4), pp.311-325.

� Roberts, J. (1992) PublicOpinion, Crime and CriminalJustice in M.Tonry (ed.), Crime andJustice: A Review of Research,Vol. 16. Chicago: University ofChicago Press.

� Roberts, J.V. (2003) Evaluatingthe Pluses and Minuses ofCustody: Sentencing Reform inEngland and Wales. The HowardJournal, Vol. 42, No. 3, pp.229-247.

� Roberts, J.V. & Cole D. (eds.)(1999) Making Sense ofSentencing. Toronto: University ofToronto Press.

� Roberts, J.V. & Gabor, T. (2004)Living in the Shadow of Prison:Lessons from the CanadianExperience of Decarceration,British Journal of Criminology,Vol. 44 (1) pp. 92-112.

� Scottish Executive (2001)Reconvictions of OffendersDischarged from Custody or GivenNon-Custodial Sentences in 1995.Edinburgh: Scottish ExecutiveStatistical Services.

� Scottish Executive (2005)Criminal Justice Social WorkStatistics Statistical BulletinCriminal Justice Series.Edinburgh: Scottish ExecutiveStatistical Services.

� Seymour, M. & Costello, L.(2005) A Study of the Number,Profile and Progression Routes ofHomeless Persons before theCourt and in Custody. Dublin:Probation and Welfare Service.

� Sontheimer, H. & Goodstein, L.(1993) An Evaluation of JuvenileIntensive Aftercare Probation:Aftercare Versus SystemResponse Effects, JusticeQuarterly, 10(2), pp. 197-227.

� Sugg, D., Moore, L. & Howard,D. (2001) Electronic Monitoringand Offending BehaviourReconviction Results for SecondYear of Trials of Curfew Orders.London: Home Office RDSD.

� Tonry, M. & Frase, R.S. (eds.)(2001) Sentencing and Sanctionsin Western Countries. New York:Oxford University Press.

� Törnudd, P. (1993) FifteenYears of Decreasing PrisonerRates in Finland. Helsinki: NationalResearch Institute of Legal Policy.

� Travis, J. & Petersilia, J. (2001)Reentry Reconsidered: A NewLook at an Old Question, Crime &Delinquency, 47(3), pp. 291-313.

� Underdown, A. (1995)Effectiveness of CommunitySupervision: Performance andPotential. Manchester: GreaterManchester Probation Service.

� Vass, A.A. (1996) CommunityPenalties: The Politics ofPunishment in T. May & A.A. Vass(eds.), Working with OffendersIssues, Contexts and Outcomes.London: Sage Publications.

� Vennard, J., Sugg, D. &Hedderman, C. (1997) The Use OfCognitive-Behavioural ApproachesWith Offenders: Messages FromResearch. In Home Office,Changing Offenders’ Attitudesand Behaviour: What Works?(Home Office Research Study No.171). London: HMSO.

� Vennard, J. & Heddermann, C.(1998) Effective Interventions withOffenders. In Home Office,Reducing Offending: AnAssessment of Research Evidenceon ways of Dealing with OffendingBehaviour (Home Office ResearchStudy No. 187). London: HMSO.

ALTERNATIVES TO CUSTODY BUSINESS IN THE COMMUNITY IRELAND

PAGE 32

� von Hirsch, A. Bottoms, A.E.,Burney, E. & Wikstrom, P.-O. (1999)Criminal Deterrence and SentenceSeverity: An Analysis of RecentResearch. Oxford: Hart Publishing.

� Walsh, D. & Sexton, P. (1999)An Empirical Study of CommunityService Orders in Ireland. Dublin:Stationery Office.

� Weigend, T. (2001) Sentencingand Punishment in Germany in M.Tonry and R.S. Frase (eds.),Sentencing and Sanctions inWestern Countries. New York:Oxford University Press.

� Working Group on theJurisdiction of the Courts (2003)Working Group on the Jurisdictionof the Courts The CriminalJurisdiction of the Courts. Dublin:Stationery Office.

� Worrall, A. and Hoy, C. (2005)Punishment in the Community,Managing Offenders, MakingChoices (2nd Edition). Cullompton,Devon: Willan Publishing.

Websiteswww.prisonstudies.orgwww.iprt.iewww.justice.govt.nz

Documents

ALTERNATIVES TO CUSTODY - Irish Penal Reform Trust TO CUSTODY ... and the United States of America? In the USA, (when adjustments are ... & Auditor General, 2004). Furthermore,