MICHAEL REILLYdescribes how both numbers of criminal offences and the prison population can be reduced
IF YOU were to ask the ordinary man or woman in the street what they expect from the criminal justice system, you would probably find that their initial response is that anyone who commits a crime should be locked up – and that the sanctions are not nearly tough enough.
Another view might be that there is little consistence in sentencing. There are many other examples of criticisms of the system.
Could our courts be used more efficiently or, in fact, should courts be created that would better address low level crime in our society? Should certain work practices of those who work in the system change?
In this context, everyone must bear in mind that those who work in the system must never allow themselves to be lulled into the view that the system should facilitate them – rather, they should always realise that they are there to operate the system within the law and for the benefit of those who come in contact with the criminal justice system, be they victims or defendants.
There could be greater consistence in sentencing. More guidelines could be given to the judiciary which would not, in my opinion, compromise their independence. Innovative sanctions could form part of the sentencing options available to our courts.
In practical terms, what does prison achieve? The major advantage of prison as far as the ordinary person in the street is concerned is that the offender will be taken out of circulation for a short defined period, and during this time s/he will not be a nuisance to society.
By and large, society will be happy that a person goes to prison, some of the popular press will write positively of the matter and lawmakers could be forgiven for thinking that sanctions which result in people being locked up are for the better good.
I suggest, however, that if you were to ask many victims of low-level crime – such as a person who is kept awake at night by disorderly conduct on the street, a woman whose handbag is stolen while walking on main street, a person whose wall is smeared with graffiti or a person whose windscreen wipers are broken by a drunken youth – what they really wanted the criminal justice system to do, you would find it was that the activity would cease and that they could sleep at night, that they could be reasonably certain that their handbag would be safe, that their wall would not be decorated and that their car would be equipped with wipers in the morning.
They would, of course, all be pleased to hear that the wrongdoer had been apprehended by gardaí. They would take a passing interest in any subsequent court case and would in certain cases take some pleasure in the fact that the wrongdoer had been sent to prison – but would then be disappointed if the offending behaviour restarted when s/he was released from prison.
This is where innovative new sanctions might be relevant. They could only be relevant if work practices were to change and if there was public confidence in such sanctions.
The present range and operation of non- custodial sanctions is very well documented. I suggest that a new range of non-custodial sanctions should be examined with two objectives in mind, namely, to analyse the sanctions per se and to reduce the prison population.
Why would you contemplate additional non-custodial sanctions? I suggest for three reasons: that they could protect society from the perpetrators of crime, reduce the recidivism rate and reduce the prison population.
I am sure that there are very many models that could be utilised to achieve these three aims. The Tallaght Restorative Justice Services and the Nenagh Community Reparation Project are two structured restorative justice projects.
Overcrowding in our prisons is a major problem. What about a new approach which is gathering favour in other parts of the world? I am referring to the concept of problem-solving justice.
Why should a person who, because of mental health issues, drug addiction, poverty, personality disorder or other deficiency, have to wait until they are in the current criminal justice system to get help? They may or may not get the help they require, but one thing is almost certain: they will also end up with a criminal conviction and a possible prison sentence, with all the negativity that that brings with it.
Problem-solving justice uses the main players of the existing criminal justice system to address the underlying problems that have led to low levels of criminality. It can come in many forms. Community courts, drug courts, domestic violence courts and mental health courts are but four examples.
I have seen at first hand a number of these services in operation in the United States and England. They are all judge-led and, because the emphasis is on problem-solving, they bear no relation to our criminal courts. They are non-adversarial and they do not by and large lead to convictions. All evaluations of such services point to a marked decrease in low- level crime in the areas covered by such courts. Large numbers of people can be processed through such facilities.
Problem-solving courts would never replace the existing courts as we know them, but would complement such services. The emphasis is on immediate intervention.
If these type of services were to be introduced into this State, it would require a sea change in practice by judges, lawyers, members of An Garda Síochána, probation officers, the social services, addiction services, educational services and many others who would provide services to such courts.
Experience from other jurisdictions would suggest that if a community court such as is suggested in the report of the National Crime Council were to be established, it could deal with approximately 40 new cases a day, in addition to the regular review of many cases and other issues that would arise.
I do not wish to give the impression that all defendants who would appear before a community court would necessarily face a prison sentence if they appeared in the structured courts that we all know. If in many cases the offending problem is solved, it follows that a certain coterie of would-be wrongdoers would be diverted from crime – thus leading to a reduction in crime and a reduction in the numbers going to prison.
I am satisfied that a community court could operate as a stand-alone court. I feel that other problem-solving courts such as a drugs court, a domestic violence court or a mental health court, while operating in the same general way as a community court, should nonetheless operate under the general umbrella of a community court, not under the umbrella of the court system as we know it.
Judge Michael Reilly is the Inspector of Prisons. This is an excerpt from a speech he gave to the White Paper on Crime Consultation seminar Criminal Sanctionslast month in Dublin Castle.