Alternatives to imprisonment in Europe

Community-based sanctions and controls are quite new in some of these countries, but long part of the criminal justice system in others (notably France and the UK). Latvia, the biggest per capita user of imprisonment, stands alone among these eight states, in having recently legislated to end the use of imprisonment across a large group of offences. By contrast the UK, another high per capita user of prison, has seen sentences grow longer and the imprisonment net widen: the state of our prisons is now widely acknowledged as a national disgrace.

The Centre for Crime and Justice Studies (the Observatory’s UK partner) has long argued for an end to our over-reliance on prison, based as it is on the false premise that punishment and control can address social problems like poverty, substance dependency and mental ill-health. This project gave us the chance to compare the UK with other EU countries and assess the role that alternatives to custody have played in changes to prison populations. We found a complicated picture.

Aware from the Centre’s previous work of the potential adverse effects of greater use of community measures, we agreed with the other project partners that the focus of this study should be on measures and approaches that seemed capable of reducing numbers in prison and diverting more people away from criminal justice towards more socially just and sustainable interventions.

There is little research on the impact of alternatives to imprisonment in European countries, even those where they have been used for many years. This project has tried to fill this gap, by presenting all the available data (from 2000 to 2014), highlighting where better information and statistics are needed, and bringing national experts together in each country, to analyse and compare practices in different states and then try to come up with workable reform proposals.

The handbook is a distillation of the key points emerging from the national reports compiled by each project partner in 2015. It provides a policy-level complement to those detailed reports, to guide the work of state and supranational penal reform bodies wanting alternatives to imprisonment to work better in reducing harm and enhancing community safety.

Pre-trial

Most of these eight countries achieved reductions in the proportion of prisoners who were pre-trial detainees since 2000. This was achieved mainly through legislative reform improving access to bail, sometimes also by introducing electronic monitoring. Greece and Italy are unusual in that their systems also feature ‘rehabilitative’ measures at the pre-trial stage, involving probation supervision or similar interventions before any finding of guilt. The Italian example of this, the messa alla prova (pre-trial probation capable of nullifying the criminal prosecution), is seen as good practice by country experts. Greece has introduced pre-trial measures involving mediation, diversion, and programme participation. But due to severely limited infrastructure and resource, they are rarely used. In both cases, the person’s full compliance with the pre-trial programme can mean a complete end to the prosecution and no further penalty.

Alternative sanctions

Most of the states have seen a marked rise in the number of people serving community sanctions since 2000. The most common measures in the eight states are:

• Community sanctions (often involving unpaid work for a stated number of hours or days);
• Supervision or control without treatment or rehabilitation, for example, curfews enforced by electronic monitoring, or suspended custodial sentences; and
• Supervision or control with treatment or rehabilitation, for example, supervised access to training, education, drug or alcohol treatment, mental health care or restorative justice, often with regular probation supervision.

The project found that the introduction and enforcement of these measures can operate to enlarge the sphere of penal control by encompassing more and more kinds of conduct seen by governments as undesirable. There is a corresponding growth in new offences around antisocial behaviour, welfare claims or immigration control breaches, which attract non-custodial penalties (at least, at the first instance of sentencing), but which expand the population of criminalised people and, in the longer term, can lead to higher prisoner numbers.

Good practice stand-outs

Each country partner convened national workshops to hear from those working in the field about what ‘good practice’ looked like in their states, or where promising reforms had been introduced. To give just a couple of striking examples:
Latvia, with the biggest per capita prison population in all the EU, has recently brought its prisoner numbers down significantly. It did this not by arbitrarily releasing early or granting amnesties (like some EU countries) but by a more radical and sustainable approach. 

• Several offences were decriminalised.
• Community-based sanctions were broadened for a wider range of crimes (including extending the availability of community service for 150 offences).
• Thresholds for minimum and maximum sanctions were lowered for a wide range of crimes (notably property crimes not involving threats to life or injury), and in some cases mandatory minimum sentences were abolished.

Portugal is also a standout example, for having passed laws in 2000 dramatically changing how the state tackles use of illegal drugs and introducing new government bodies to promote reduction of substance dependency and to reduce drug harms. Possession of drugs for personal use was decriminalised, while the criminal status of dealing and trafficking was maintained. Evaluation and treatment services are organised through 18 regional Commissions under the authority of the Ministry of Health. Services are aimed at empowering individuals and are voluntary. Failure to comply with the programme can never be punished by imprisonment; the regime and its sanctions are administrative, not criminal.

Good practices in alternatives to custody were identified in all eight countries, but many were only run as pilots. Some alternatives were hardly ever used simply because judges did not know about them or were unwilling to risk using them.

To tackle Europe’s high prisoner numbers and stop the steady expansion of criminalised populations, we need to downsize our use of prisons and stop relying on criminal justice to solve social problems. To do this, states must refocus interventions away from criminalisation, punishment and retribution, towards harm reduction, social justice and, where appropriate, treatment, reparation and restorative practices.

There is also a need to monitor the use of alternatives to imprisonment, to make sure these forms of punishment and control do not simply widen the net of punishment by criminalising people in ever-increasing numbers. Promoting the use of these sanctions without attending to other priorities risks simply widening the net of criminalisation further – punishing more people differently. To help states avoid this, the handbook offers a set of core principles to guide the use of alternatives to imprisonment.

Catherine Heard was a policy and research associate at the Centre from November 2014 to February 2016. She now leads the World Prison Research Programme at the Institute for Criminal Policy Research, based at Birkbeck, University of London.