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Alternatives Alternatives as policies of tolerance

In England, not all alternatives fail to act as true alternatives. There is some evidence that some local projects (particularly where there appears to be close inter-agency co-operation) do work as real alternatives to prison. Furthermore, some evidence, though impressionistic, on probation day centres appears to suggest that such centres may be in a position to really act as alternatives, but are effectively prevented from doing so due to decisions taken by sentencers. These often have too significant an influence on the focus and the orientation of the work carried out by probation staff (Harris, 1992). Indeed, in some cases, courts discount the possibility of placing on probation with day centre requirements «high risk offenders» (i.e. those who would appear likely to receive immediate long prison sentences). In other words, it is often the case that courts «divert» offenders from alternatives to prison.
In doing so, many sentencers believe they fulfil the expectations of so-called public opinion, whose mandate - they assume - requires safeguards, a robust defence and protection through the imposition of custodial punishments. On the one hand, this belief is propagated by the very «culture» of the judiciary who assume to be the bastions of the «British way of life». The selective process for the appointment of the judiciary based on privilege and patronage, which is characteristic of the English system, perpetuates the power of sentencers to define and act on policy. Hereditary appointments and lay recruitment of untrained judges and magistrates put the judiciary in a particular position vis-a-vis the community they are purported to represent. They seem to feel that their function is less to conform to precise principles of justice than to mirror the average set of values, or even the changing moods, of the often underdefined community. In fact, in the name of the «community», Weberian principles regarding the rationality and predictability of law may often be suspended. On the other hand, sentencers «diverting» offenders from alternatives on the basis of public concern seem to rest their practice upon ill-informed views of public attitudes towards sentencing. When the «public» has been asked to express opinions on criminal justice issues, a stronger propensity for alternatives to custody has emerged than that displayed by courts (Shaw, 1982; Ruggiero, 1991a). Of course, this is not to deny the fact that «public opinion» changes according to the circumstances, the context, media representations of particular if not atypical cases (e.g. the often negative, indeed punitive responses against particular types of offenders such as murderers or other groups such as deinstitutionalised schizophrenics and their own personal experiences).
The effectiveness of alternatives to act as true alternatives, with a measurable effect on the prison population, may depend on what type of offenders are given alternatives. According to data provided by Bottomley and Pease (1986), most offenders who are given alternative sanctions are (or would be) short-term prisoners, serving up to six month sentences. These represent less than 20% of the actual prison population at any one time, though they constitute 51% of receptions. In short, there are at one and the same time two problems with this penal disposition: a «revolving door» effect which allows many individuals to experience custody for short periods (thus capturing a broader population), and a «closed door» effect which keeps those with longer prison sentences inside (without much of a chance of receiving alternative community sanctions), thus creating congestion and overcrowded conditions. It comes as no surprise, therefore, that the effect of alternatives on the overall prison population is almost negligible. Moreover, decarceration usually appears to affect whole new populations among which Miller (1991) listed the following: the tractable patient, the interesting offender, the verbal neurotic, the compliant homeless person, the white middle-class delinquent. These promise unusual rates of success in treatment and probably would not be otherwise institutionalised. In brief, «we allow alternatives only so long as they don't threaten institutions» (Miller, 1991: x)
An important cultural barrier opposes true decarceration and the use of alternatives. This is the belief, embedded in a reassuring complacency, that the prison system is aimed at dangerous offenders whose violence would not be restricted otherwise. In fact, this is not the case with most prison systems worldwide (Ruggiero, 1991b). In most countries the percentage of violent prisoners is so low that, if imprisonment were reserved only for them, this would curtail the population in custody by an average of 90%. As Miller suggests, violent and dangerous offenders should become the symbol of decarceration strategies. «If I could do something decent and humane with these most threatening delinquents, then the whole system would be shaken» (Miller, 1991: 91). The problem is, therefore, to focus on the «intractable», which allows to address the highest values justifying custody. «If we didn't isolate and abuse the intractable we weren't likely to institutionalize a simple burglar. If we didn't institutionalize a burglar, we couldn't very well institutionalize a truant or a runaway» (Miller, 1991: 91).
According to the British Government agenda, alternatives or «community sentences» should be strengthened and made more demanding. The idea of introducing national standards for community service, or toughening up probation orders by expanding day centre provisions, or introducing new combinations such as community service and probation, are illustrations of an attempt to polish up the image of alternatives as punishment in the community (Criminal Justice Act, 1991). In this way, it is assumed, alternatives would be tantamount to real, harsh community sanctions. This policy implies the abandonment of flexibility and discretion in favour of more rigid regimes, whose purpose is to impose a structure in the life-style of offenders whilst subjecting them to constraints and suspending their rights (Cavadino and Dignan, 1992; Vass, 1990). The effort to make alternatives more attractive to sentencers caused what has been termed «a policy of punitive bifurcation».
In the Criminal Justice Act 1991 rigour in administration and enforcement is recommended with respect of community penalties. They are expected to play a full part in their own right in the structure of punishment, and should not be viewed as alternatives to custody. But the increased harshness of community punishments may well result in more offenders being incapable of complying with orders, thus «forcing» sentencers to impose custody. Therefore, it seems to us that the Act does not simply make alternatives more attractive to sentencers, as Cavadino and Dignan imply, but that it makes them less reliable as measures whose aim is to keep prison sentences at bay. Furthermore, the more structure and control applied, the more the opportunities are rife for law infringements, underground and hidden practices away from the public eye, challenges, rebellion, and conflict in the context of administration and enforcement of penal sanctions. It is almost as if offenders who are given these measures are «set up» to fail in order to be moved up the penal ladder and into the ambit of imprisonment. In some sense, it is a double-jeopardy experience: it is punishment with the higher risk of imprisonment.
Alternatives alone cannot be expected to resolve the prison crisis, which is a policy crisis (Ashworth, 1983). Coherent policy decisions can be more effective than alternatives in reducing the prison population. In this respect, the example relating to disciplinary proceedings is illuminating. About 95% of all charges concerning offences within prisons are dealt with by governors. In 1989 Governors heard 81,215 charges. The majority of these were found proven (95%). The most commonly used penalty was forfeiture of remission, equivalent for each offence to a maximum nine months prison sentence. The prison service itself calculated that in 1988 this kind of disciplinary measure added a figure equivalent to 600-700 to the annual average prison population. As the Woolf Report writes: «This is an astonishing extra burden on the Prison Service. It needs to be controlled and relieved. The award or loss of remission on this scale [is] in effect keeping people longer [in prison]» (pp. 426-27: 14, 401, our emphasis).
The reduction, or the abolition of this disciplinary measure would in itself curtail the prison population by 600-700. This is also dictated by the fundamental principle recognised by the Woolf Report, that penalties equivalent to quite long sentences should not be inflicted by the prison administration but by a court (Ryan, 1992). Long penalties can only be justified by an infraction of the criminal law, and not by a breach of disciplinary rules. We suggest therefore that prison governors should not adjudicate in cases where loss of remission is possible.
An important reductionist policy can also be devised with respect to prison capacity. Each prison has a certified number of prisoners it can hold without overcrowding. This Certified Normal Accommodation (CNA) should constitute the real ceiling for each particular institution. The Woolf Report calls for the introduction of a rule «that no establishment should hold more prisoners than is provided for its normal level of accommodation, with provisions for Parliament to be informed if exceptionally there is to be a material departure from the rule» (p. 433: para. 7). While we agree with this principle, we are sceptical about its formulation. The possibility may always arise that «exceptionally» turns into «routinely», the definition of an exceptional situation being highly subjective. Our scepticism also derives from the fact that a relentless «creation» of exceptions and emergencies often legitimizes conservation and hampers reform. However, our suggestion is that, if prisons are to hold as many inmates as their CNA, waiting lists for prisoners should be established like those existing in Northern European countries (Christie, 1993), though there may also be something drastically wrong with waiting lists. They can send the spiral of long waiting lists and crowded prisons into perpetual motion. In other words, there is a danger of both increasing the prison population and expanding the waiting lists. However, the effectiveness of this measure in terms of the enhancement of a «culture of decarceration» as opposed to a «culture of carceration» would be invaluable. In many cases, the fact that offenders are queuing for a place in prison could prove that they can be retained in the community. As Christie puts it: «Recognizing the queue is to recognize that those lined up are not dangerous, are not monsters. They go to prison - eventually - for other purposes than the protection of the public» (Christie, 1993: 36). Waiting lists, moreover, would have an inhibiting effect on enforcement agencies and sentencers, who would in a sense be forced to genuinely consider custody as a last resort.
Reductionist policies may also work as alternatives to custody if remand prisoners are targeted. The remand population is a significant part of the total prison population, and its proportion increased significantly over the last few years. Remand prisoners accounted for 14% of the total prison population in 1975 and 22% in 1989. This represents an increase from 5,600 in 1975 to 10,500 in 1988, although the figure dropped to 10,100 in the first month of 1990, but went back to 10,405 in December 1992 (NACRO, 1993). The majority of these prisoners are awaiting trial (82%), whereas the remainder are convicted but are awaiting sentence. A significant section of remand prisoners are eventually given non-custodial sentences (26%) and 12% are acquitted.
It has to be noted that the increase of remand prisoners indicates both a higher number of prisoners awaiting trial or sentence, and offenders being remanded for longer periods. In other words, to use the phrase of one of the authors, a type of crowding occurs in prison institutions which resembles traffic congestion (Vass, 1990). Quick and easy passages are delayed, and gradual build ups ensue. In 1989, for example, the national average time between committal and the start of hearings for defendants remanded in custody was over 10 weeks. Incidentally, averages do not describe the plight of those awaiting trial for six months, a year or more. Bearing in mind that also an increasing number of defendants remanded in custody are committed to the Crown Court, a depressing situation emerges where too many people are serving a sentence before being sentenced.
Furthermore, we suggest that a limit be placed on the time a prisoner, whether on remand or under sentence, can be kept in police cells on behalf of the prison service. Such practices cause human suffering and crisis and, at the same time, are extremely expensive. The estimated cost of holding prisoners in police cells for a six-month period until 31 August 1990 was £ 175,000 (Lord Justice Woolf, 1991).
An increase in the number of hostel places, and an expansion of diversionary schemes can also boost a decarceration process. Again, diversion should not be confined to minor offenders, but in all cases in which prosecution does not serve the immediate public interest. The criminal justice system should be regarded as a resource to be used parsimoniously. In this light, experiments such as mediation and symbolic reparation should be high on the agenda. These schemes meet with difficulties because they are only applied when defendants plead guilty, and are often discarded by sentencers because presumably they only serve the interests of offenders (Davis, 1992). Compensation, moreover, is viewed with scepticism because of the inability of many offenders to make substantial repayments to the victims. Mediation and reparation are thus becoming additional penalties to custodial punishment. In this way, even experiments which are supposed to be inspired by diversionary principles for offenders and concern for victims end up being permeated by the prevalent retributive culture. As Mathiesen (1990) remarked, «In view of the poverty of the offenders, such compensation would have to be the duty of the state… It is actually fantastic that advanced states […] have not long ago introduced automatic insurance, from birth, against crime, but has left the question of insurance to the individual's private initiative. Very modest fees, as part of a taxation package, would be enough to cover the cost» (Mathiesen, 1990: 164).
Some of our suggestions as to how alternatives could work may find resistance in the prevailing culture of punishment in England. Others seem inapplicable because they do not incorporate the criteria which are customarily adopted by legislators when alternatives are created. Prompted by prison disturbances, and in somewhat emergency situations, alternatives bear the mark of a package of measures designed to preempt or defuse future conflicts in prison. The centrality of prison is therefore never questioned, and alternatives seem to owe their existence to the existence of prison, to whose peaceful management, in the last analysis, they are expected to contribute. Depenalisation is not on the agenda. Alternatives, in sum, seem only to be important in that they allow prison to be run smoothly. We will see that a similar philosophy is embedded in alternatives to custody in Italy, to which we will now turn.

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