The penal codes of nations throughout the world have undergone substantial evolution in the past few centuries. Thus, many nations have removed death penalty out of their codes. The next stage may be the reduction in the number of crimes that are deemed worthy of a prison term. Overcrowding of prisons, associated financial outlays, dubious effect of prison terms on offenders’ morale have reduce public support for custodial sentences. Non-custodial options including community service and home detention have emerged as a response to the need to reform efforts at penalizing criminals.
There are serious arguments both in favour and against such penalties that will be examined in this paper. What Are Non-Custodial Penalties? Non-custodial penalties are different ways of punishing a criminal and incapacitating him/her for a certain period of time other than regular imprisonment. The UN Standard Minimum Rules for Non-Custodial Measures include verbal sanctions related to different kinds of verbal warnings, “conditional discharge”, “economic sanctions and monetary penalties”, confiscation, “suspended or deferred sentence”, “probation and judicial supervision”, “community service order”, “house arrest”, and others (Muntingh:1).
Thus, authorities choosing to impose a non-custodial sentence have a wide array of methods to choose from. The choice can be related to what works best for every individual case, helping the offender to repair damage done in the offence. Advantages of Non-Custodial Sentencing The undoubted advantage of non-custodial sentencing is more restorative nature that allegedly helps the criminal to repair the damage done to the society or the victim. Instead of spending months in prison, without an opportunity to repay the damage inflicted, for instance, in case of property theft.
The possibility to restore justice is often less direct, as in the case of a criminal who does community service to help the society that has been damaged by the unethical actions of the offender. At the same time, non-custodial sentences are not strictly restorative, as literal realization of restorative justice would require the transfer of decision-making power to the parties that would later decide on methods of compensation, and in case of non-custodial sentencing, decision-making power remains with the judge or the magistrate (Muntingh:1).
Another important argument in favor of non-custodial sentencing is that it serves as alternative to imprisonment that is not a viable option for various kinds of offences. On certain offenders the impact of imprisonment can be severely detrimental, which is the reason non-custodial sentencing is preferable. Non-custodial sentences offer “greater chances for successful reintegration of offenders” (Muntingh: 2).
When an offender is imprisoned, this person is taken out of normal life routines, has to get accustomed to a totally different pattern of life, and can often lose both professional and social skills indispensable for successful socialization. Leaving prison, this person is later faced with the need to enter the same society. This is all the more difficult because by that time social contacts may have been lost, a job search has to be started from scratch and under more challenging circumstances, and reintegration becomes tremendously difficult.
In contrast, during probation, for instance, a person has a chance to keep the closer bonds with the family, for instance, and continue a life that will more closely resemble the one this person has had before imprisonment. Alternative sentences relieve society of a serious financial burden of keeping criminals in prisons. New Zealand’s Ministry of Justice (1998), for instance, has calculated that “on average, holding someone in prison for a month costs about 53 times as much as a sentence of community service and about 19 times as much as a sentence of periodic detention”.
The society, therefore, has to spend 53 times more on an offender in order to place this person in prison – a high cost for the doubtful effect of incapacitation and retribution. The fact that taxpayers have to pour their money into restoring justice in this way, supporting criminals who have committed crimes against the same taxpayers does not impress many people. Overstretched budgets observed in many Western nations, in particular the US, make saving public money an important priority on the political agenda of many nations.
Imposition of non-custodial sentences has a positive effect on reduction of prison populations which is an important goal for the justice system. In particular, community service as a method to let criminals get away from a prison term has managed to garner substantial public support (Esmee Fairbairn Foundation 2002). The public has recognized the importance of the restorative component in such sentences as well as the fact that community work contributes to solving the long-standing problems of many localities.
Efforts of sentenced offenders at cleaning up the litter, removing graffiti from walls, cleaning canals and rivers are appreciated by many who live in these communities and are able to attest to the positive effect of such sentencing. Besides, residents are ready to recognize the positive influence on the morale of offenders of practices in which they are able to help those who need it most and thus make a difference in other people’s lives. The idea that criminals will compensate for the harm they did through their community work has “emotionally satisfying symmetry for many” (Esmee Fairbairn Foundation 2002).
The approval of sentences related to community work is based on the perception that doing something useful may be happening for the first time in life of some offenders, which can adapt them to doing useful work for the society. Community work can help offenders develop their self-esteem and foster good habits. Overall, the support for non-custodial sentencing is grounded in the understanding that “prison is not an universally effective sanction” (Scottish Parliament 2005).
For many offenders, their first prison term becomes a springboard to the criminal world, a way to learn a specific value system that reigns in this world and to absorb new attitudes and beliefs. Non-custodial sentences save criminals from the pernicious impact of prison stay and reinforce connection to ‘mainstream’ society. Disadvantages of Alternative Sentencing Despite all the advantages of non-custodial sentencing, many would argue against it as a universal measure. The opponents of alternative sentences point out that this type of penalties has considerable limitations.
Thus, it is not deemed effective against serious crimes such as drug trafficking or murder. Non-custodial measures fail to address an important goal of imprisonment, namely the incapacitation of the criminal for a substantial time period, which makes the repetition of the offence virtually impossible unless the criminal breaks free from jail (New Zealand Ministry of Justice 1998). To better understand the relevance or irrelevance of non-custodial sentences to certain crimes, one should in the first place seek to understand the value of punishment, its end goals that justify its existence in society.
In the opinion of New Zealand’s Ministry of Justice (1998): The standard position is that custodial sentences are imposed to reflect how seriously the public views certain criminal behaviours (retribution and denunciation), to ensure that the offender does not commit offences for a specified period (incapacitation), to deter the offender from committing further offences after release (individual deterrence), and to deter other potential offenders (general deterrence).
While the regular prison term, as mentioned before, is more effective at incapacitation, it is also seen as a more appropriate retribution for serious crimes. In contrast, the option of “doing some gardening” appears to many people too mild in comparison to the heinous crimes committed in many communities (Esmee Fairbairn Foundation 2002). This ‘soft option’ is not considered appropriate for hardened repeat offenders who can only be reformed through a more drastic experience of a long prison term. In addition, non-custodial sentences may be a poor alternative to imprisonment in terms of deterrence.
A sentence of a period of community work would be a perfect match for a young offender who violated the law for the first time and is so scared by the whole litigation process that has vowed to him/herself never to repeat the offence again. A work sentence would give this person an opportunity to establish connections outside the previous social circle and learn positive working habits. At the same time, some seasoned criminal will not look at the prospect of community work or probation as a serious stimulus not to commit the intended crime.
At the same time, the prospect of a new prison term can repel some criminals who realize what they are in and want to stay with their family for the rest of their lives. Therefore, it remains to be explored whether non-custodial penalties can rival the custodial ones in terms of deterrence; the effects could be different in cases of different penalties. Thus, one can expect more serious deterrent effect from non-custodial penalties imposed on offenders who have committed less serious crimes, and vice versa. The support for non-custodial penalties is likely to be in direct dependence on the perceived quality of prisons.
Thus, in a survey conducted by the Centre of Social Marketing at the University of Strathclyde, many respondents pointed out their dissatisfaction with the quality of the prison system and stated their belief that “prison is an expensive way of making bad people worse” (Esmee Fairbairn Foundation 2002). At the same time, many respondents seemed comfortable with the idea that prisons should have a humanitarian cost for the offender, leading to the endurance of hardship and suffering commensurate with that experienced by the victim. The Concept of Punishment
The choice of custodial or non-custodial sentences will be directly motivated by the perception of punishment as such and its status in society. Thus, in a society where retributive justice is more important, that is, making a criminal experience suffering in compensation for the victim’s suffering, custodial punishments will remain the norm. At the same time, there is no getting round the fact that non-custodial punishments do have a place in the penal system as some crimes are not serious enough to warrant the application of a custodial sentence, for instance, petty theft.
If society places emphasis on restorative justice, non-custodial sentences often offer a better way to do that. Placing a criminal in prison does not really solve the problem since it only deprives the offender of the opportunity to do the work that would be good for society and the victim alike. On the contrary, imposition of a monetary penalty, such as a fine, will allow the criminal to compensate the victim for the inflicted evil in the maximally concise term. One can also evaluate punishments from the utilitarian perspective, seeing whether it is effective for the achievement of some pre-specified goals.
These goals can be a reduction in the number of crimes and reduction in prison populations most typically associated with high costs to the society. In this respect, non-custodial penalties can be effective for the achievement of the second goal, reducing the number of prisoners that places a high cost burden upon society. At the same time, its effects on crime deterrence are doubtful since criminals may not be sufficiently intimidated by the prospect of spending some time under parole, house arrest, or in community work. Conclusion Non-custodial sentences are a sound alternative to the regular imprisonment.
Many people are dissatisfied with the quality of the prison system that often perpetuates crime through instilling in offenders habits and behaviour norms that are detrimental to their future behaviour. Besides, imprisonment results in the disruption of normal life routines and breakage of social bonds that still tie the offender to the ‘normal’ life. Restoration of these social contacts and acclimatization to ‘normal’ life becomes a challenge for many criminals, making them consider a return to criminal activities as a possibility.
Non-custodial penalties also effectively reduce prison populations, help offenders foster good habits, take them out of their habitual circle of communication and let them integrate more smoothly into mainstream society, thereby giving them a ‘second chance’. At the same time, the threat of a non-custodial sentence is less serious than that of imprisonment and may not stop many prisoners. These sentences fail to incapacitate the criminal and therefore block the perpetration of new crimes and do not adequately address the goals of retribution. Therefore, the choice of a sentence has to be individualised in each particular case.
Society has to impose different penalties depending on the nature and seriousness of the crime. It also has to choose a ground for sentence imposition, such as retributive or restorative justice, or utilitarian considerations. Bibliography Esmee Fairbairn Foundation (Rethinking Crime and Punishment). What do the public really feel about non-custodial sentences? November 2002. 11 Jan. 06 <ttp://www. rethinking. org. uk/latest/pdf/briefing3. pdf>. Muntingh, Lucas. Chapter 9. Alternative Sentencing in South Africa: An Update. 11 Jan. 06 < http://www. iss. co.
za/pubs/Monographs/No111/Chap9. pdf>. New Zealand Ministry of Justice. The Use of Imprisonment in New Zealand. 1998. 11 Jan. 06 <http://www. justice. govt. nz/pubs/reports/1998/imprisonment/introduction. html>. Scottish Parliament. Justice 1 Committee Report. A Comparative Review of Alternatives To Custody: Lessons From Finland, Sweden And Western Australia. Final Report commissioned by the Scottish Parliament Information Centre for the Justice 1 Committee. 2005. 11 Jan. 06 <http://www. scottish. parliament. uk/business/committees/justice1/reports-05/j1r05-custody-01. htm#23>.