Mandatory penalties and rigid sentencing guidelines are neither just nor effective, argues TOM O'MALLEY
IT HAS recently reached record levels, but the Irish prison population is not remarkably excessive by international standards – although Ireland is steadily moving up the European league table in terms of its rate of imprisonment.
However, this population is a cause of great concern when considered in light of the amount and quality of available prison space.
Creating additional space is seldom the answer or, at least, the sole answer to prison overcrowding, and in the present economic climate the Government’s ability to increase prison capacity is severely limited in any event.
More creative and constructive solutions are needed, with an emphasis on treating imprisonment as a sanction of last resort and on the elaboration of sentencing principles designed to ensure custodial terms are no longer than strictly necessary to advance whatever goals are considered appropriate in individual cases.
Many of the problems associated with the criminal justice system, and the burgeoning prison population in particular, stem from a lack of integrated policy-making which must, of necessity, operate at different levels. The political branches of government are responsible for creating legal and institutional frameworks within which the Garda, courts, prison service and other key agencies can discharge their functions fairly and effectively.
Each of these agencies must be accorded a reasonable measure of operational independence so as to avoid unwarranted political interference in day-to-day decision-making and to allow them to develop long-term strategies within the limits of available resources.
The creation of a criminal justice policy unit, preferably as an independent entity, but possibly within a Government department, would facilitate more effective and co-ordinated research and forecasting on the operation and needs of the overall system into the future.
More detailed elaboration of sentencing policy is best left to the courts. Mandatory penalties and rigid guideline systems are neither just nor effective and, often, in fact, create more disparity than they remove. After all, disparity arises not only when like cases are treated differently but also when different cases are treated alike.
Mandatory penalties are usually introduced with the aim of incapacitating or deterring serious offenders such as drug barons and others at the helm of organised criminal enterprises. But, as history has repeatedly shown, they end up being applied to the so-called low-hanging fruit, namely minor offenders who have little or no involvement in the management of these enterprises. This has certainly been the experience in Ireland, with the various minimum sentences introduced for drug-dealing offences.
The Government has given some indications it is prepared to review these sentences, and this is greatly to be welcomed, as is its recent legislation requiring District Court judges to consider community service as an alternative to short prison sentences. Many other European countries are also trying to address the problem of short custodial sentences which seldom advance any worthwhile goal and, in an era of prison overcrowding, will probably not be served in any event.
In return for such legislative reform, the courts must be prepared to develop more specific sentencing principles than heretofore in order to ensure consistency of approach based on the overarching principle of proportionality. District Court judges should collectively endeavour to identify custody thresholds so as to ensure imprisonment is truly a measure of last resort for minor offences.
The Court of Criminal Appeal, which we will hopefully see replaced with a full-time appeal court sometime soon, could provide much more detailed and targeted guidance if supplemented with a sentencing information or advisory unit. If we want to avoid the proliferation of mandatory sentences with all their flaws, we must enhance the capacity of the senior appeal courts to develop a body of case law which will provide more specific guidance than is now available on sentence selection criteria and, eventually perhaps, on appropriate benchmarks or starting points for commonly prosecuted offences.
Some progress has already been made. ISIS, the Irish Sentencing Information System (www.irishsentencing.ie), is a very innovative and valuable project which provides detailed narrative data on some hundreds of cases dealt with in the Circuit Court mainly during the period 2007 to 2009. It is not intended as a guideline system which fetters judicial discretion, but rather as a judicial support system which can, over time, lead to a more coherent and transparent sentencing system.
With a very modest financial investment, this system can continue to develop, possibly under the aegis of the Judicial Council, and become a core element of the sentencing information or advisory unit mentioned earlier. In fact, this system is already something of a world leader in the sense that no comparable system elsewhere provides such a range of high-quality data.
An effective parole system is equally essential. Prison populations are determined, not only by the number of offenders committed by the courts and the lengths of sentence imposed, but also by the length of time which prisoners actually serve. There is little point in having a structured sentencing system if those sentenced to custody are released on an ad hoc basis, mainly in order to relieve prison overcrowding.
The Parole Board should be placed on a statutory footing, and the same legislation should provide for standard terms which prisoners will be required to serve before being eligible for release on licence and under supervision. Desistance from further offending is often crucially dependent on the support which prisoners receive in the immediate aftermath of release.
Tom O'Malley BL is a senior lecturer in law at NUI Galway. This article draws on his most recent book, Sentencing: Towards a Coherent System (Round Hall Press, 2011), which has a foreword by the Chief Justice, Mrs Justice Susan Denham