Even Ask

A CALM AND DISPASSIONATE RECOGNITION OF THE RIGHTS OF THE ACCUSED AGAINST THE STATE, AND EVEN OF CONVICTED CRIMINALS AGAINST THE STATE, A CONSTANT HEART-SEARCHING BY ALL CHARGED WITH THE DUTY OF PUNISHMENT, A DESIRE AND EAGERNESS TO REHABILITATE IN THE WORLD OF INDUSTRY ALL THOSE WHO HAVE PAID THEIR DUES IN THE HARD COINAGE OF PUNISHMENT, TIRELESS EFFORTS TOWARDS THE DISCOVERY OF CURATIVE AND REGENERATING PROCESSES, AND AN UNFALTERING FAITH THAT THERE IS A TREASURE, IF YOU CAN ONLY FIND IT, IN THE HEART OF EVERY MAN - THESE ARE THE SYMBOLS WHICH IN THE TREATMENT OF CRIME AND CRIMINALS MARK AND MEASURE THE STORED-UP STRENGTH OF A NATION, AND ARE THE SIGN AND PROOF OF THE LIVING VIRTUE IN IT."
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THE OFFENDER MAY, AND OFTEN IS, CALLED UPON TO AGREE TO A VAGUE AND ILL-DEFINED TREATMENT AT THE SENTENCING STAGE SO THAT EVEN IF HE IS PREPARING TO EMBRACE SOCIETY'S RULES "WITH SYMPATHY AND EMOTIONAL AFFIRMATION" THE TREATMENT TO WHICH HE IS ULTIMATELY SUBJECTED MAY NOT BE APPLIED AFTER AN ADEQUATELY INFORMED CONSENT.

FOX MADE A STRONG CASE AS TO THE PERILS INVOLVED IN SUCH "TREATMENT", WHICH MAY EVEN EXTEND TO BIOLOGICAL MEASURES AS AN AID TO SELF-CONTROL OF DEVIANT SEXUAL BEHAVIOUR, BEING PLACED IN UNKNOWN HANDS AND BEYOND JUDICIAL SUPERVISION BY COURT'S INTENT ON OPENING AND WIDENING NON-CUSTODIAL OPTIONS.

NOR IS IT USEFUL TO EMPLOY NON-CUSTODIAL SANCTIONS WITHOUT REGARD TO THE EFFECT ON THE REST OF THE SYSTEM.

WEATHERBURN AND BRAY (1992), A STATISTICIAN AND JUDICIAL COMMISSION RESEARCH OFFICER RESPECTIVELY, PROVIDED A RARE INSIGHT INTO THE LIKELY EFFECTS ON THE SYSTEM OF FINDING AND APPLYING DIVERSION PROGRAMS FOR PRISONERS INCARCERATED FOR UP TO 6 MONTHS AS AGAINST 12 MONTHS.AT THE OUTSET, THEY REALIZED THAT EVEN THOUGH MANY PEOPLE ARE SENT TO PRISON EACH YEAR, MOST DO NOT STAY FOR VERY LONG PERIODS SO THAT PRISONS ACTUALLY FILL UP WITH PEOPLE SERVING LONGER SENTENCES.THEY DESCRIBED THE SHORT TERM PRISONERS AS PERSONS WHO "FLOW" WHILE THEY REGARDED THE LONGER TERM PRISONERS AS THE "STOCK".THE CONCERN WAS TO MEASURE THE EFFECTS OF DIVERSION PROGRAMS ON THE "FLOW".

THE FIRST RESULT WAS THE DISCOVERY THAT IF EVERY OFFENDER GIVEN LESS THAN 6 MONTHS WERE TO BE DIVERTED, THEN THE REDUCTION IN THE NUMBER OF PEOPLE BEING SENT TO GAOL WOULD BE 25%; AN IMPRESSIVE FIGURE AND ONE WHICH IS EASY TO REACH GIVEN ACCESS TO THE RECORDS.HOWEVER, CLOSER ANALYSIS SHOWED THAT SUCH A REDUCTION WOULD RESULT IN ONLY ABOUT A 4½% REDUCTION IN OVERALL PRISON POPULATION.

THE IMMEDIATE REACTION TO THAT CONCLUSION WOULD HAVE TO BE TO THINK OF THE EXERCISE AS A WASTE OF TIME.FIRSTLY, BECAUSE IT WOULD BE DIFFICULT TO ACHIEVE A 100% DIVERSION IN THE FIRST PLACE, AND SECONDLY, THOSE DIVERTED STILL HAVE TO BE PROGRAMMED.

FROM A PURELY STATISTICAL STANDPOINT, IT MIGHT BE EASIER AND NOT MUCH DEARER TO LET THEM STAY IN GAOL.

FORTUNATELY, THE PICTURE CHANGES FOR THE BETTER WHEN PERSONS SENT TO PRISON FOR UP TO 12 MONTHS ARE CONSIDERED.WEATHERBURN AND BRAY DISCOVERED THAT IF DIVERSION PROGRAMS WERE FOUND FOR THEM, THE REDUCTION IN OVERALL PRISON POPULATIONS WOULD PROBABLY RISE FROM ABOUT 4½% TO ABOUT 17%, A FIGURE WHICH JUSTIFIES A GREAT DEAL OF EFFORT IN FINDING AND DEVELOPING ACCEPTABLE DIVERSION SCHEMES.

A MAJOR DIFFICULTY SEEMS TO BE THAT SUCH SCHEMES ARE NOT SEEN BY THE PUBLIC, AND PERHAPS TOO BY THE JUDICIARY, AS GENUINE ALTERNATIVES TO IMPRISONMENT.SEE JUNGER - TAS (1996).

AN ANSWER TO THAT, AT LEAST SO FAR AS THE JUDICIARY IS CONCERNED, IS CLEARER GUIDANCE FROM THE LEGISLATURE AS TO THE SORTS OF OFFENDER WHO SHOULD BE CONSIDERED FOR DIVERSION AND THE CIRCUMSTANCES UNDER WHICH A DIVERSIONAL ORDER SHOULD BE MADE.IF LEGISLATURES COULD BE PERSUADED TO UNDERTAKE SUCH A TASK, THEN THEY MIGHT AT THE SAME TIME IDENTIFY THE PURPOSE OF EACH OF THE ALTERNATIVE OPTIONS AND PROVIDE CONSTRAINTS FOR THEIR PROPER OPERATION.AS TO CONVINCING THE PUBLIC, THAT IS QUITE ANOTHER MATTER.LARGE SECTIONS OF THE PUBLIC ARE FAIRLY WELL INFORMED ON THESE MATTERS.MANY ARE AWARE OF THE FAILURE OF PARTICULAR PROGRAMS; AND THE HAVOC CAUSED BY POOR SUBJECT SELECTION.THEN THERE ARE THE VIRULENT OBJECTIONS OF SOME SECTIONS TO ANY SUCH REFORM; NOT TO MENTION THE STRIFE CAUSED BY THE PLACEMENT OF PROGRAMS IN INAPPROPRIATE SETTINGS.

IT IS NOT REALLY SURPRISING THAT WRITERS LIKE CHAN AND ZDENKOWSKI (1986) CONCLUDED, ALBEIT RELUCTANTLY, THAT ATTEMPTS TO DIVERT PEOPLE FROM GAOL AT THE SENTENCING STAGE HAVE FAILED AND BEEN SEEN TO FAIL.

ANOTHER DIFFICULTY FACING THOSE WHO WOULD TRY FOR THE 17% REDUCTION IN PRISON POPULATIONS WHICH DIVERSION OF PRISONERS SENTENCED TO UP TO 12 MONTHS COULD CAUSE, IS THAT FORWARD PLANNING WOULD BE REQUIRED TO PROVIDE PROPER SUPPORT FOR THE IMPLEMENTATION OF ALTERNATIVES TO IMPRISONMENT.SUCH A DE-INSTITUTIONALISATION PROGRAM WOULD HAVE TO BE ACCOMPANIED BY A SUBSTANTIAL TRANSFER OF RESOURCES.

YET EFFORTS AT FINDING SOLUTIONS MUST GO ON.THE FISCAL AND HUMAN WASTE OF THE EXISTING SYSTEM CANNOT BE ALLOWED TO CONTINUE.FOX AND FREIBERG (1986) DEPLORED THE LACK OF CO-ORDINATION IN THE RANGE OF PENALTIES WHICH JUDGES ARE FORCED TO CONSIDER.A LEGISLATIVELY STIPULATED SANCTION HIERARCHY IS REQUIRED, THEY SAID, TO REMEDY THE PROBLEM.

WEATHERBURN AND BRAY (1992) ACCEPTED THIS, BUT ADDED THE VIEW THAT THE POTENTIAL FOR DIVERSION WILL NOT BE MAXIMISED UNLESS WE FIND ALTERNATIVE SANCTIONS WHOSE POTENTIAL SEVERITY COMPARED TO OTHER NON-CUSTODIAL SANCTIONS IS NOT ONLY CLEAR BUT MANIFESTLY CLOSER TO THAT OF IMPRISONMENT.IN MOST JURISDICTIONS, THE DISPOSITION CLOSEST IN SEVERITY TO IMPRISONMENT IS A WHOLLY SUSPENDED SENTENCE WHICH IS CLASSIFIED AS CLOSEST BY THE LEGISLATURE, JUDICIAL DECISIONS OR BOTH.YET AS WASIK AND VON HIRSCH (1988) POINTED OUT, THE SUSPENDED SENTENCE DOES NOT DESERVE ITS STATUS JUST BELOW IMMEDIATE CUSTODY.THE OFFENDER SUFFERS NO SPECIAL IMMEDIATE DEPRIVATION.DURING THE PERIOD OF SUSPENSION, HE MERELY FACES THE POSSIBILITY THAT THE COMMISSION OF A FURTHER OFFENCE MAY BRING ABOUT ACTIVATION OF THE CUSTODIAL TERM.

I AM AWARE THAT SOME JURISDICTIONS HAVE INTRODUCED CONDITIONAL SENTENCES WHICH MAY BE SEEN TO INVOLVE IMMEDIATE DEPRIVATION.BE THAT AS IT MAY MY EXPERIENCE IS THAT THE WHOLLY SUSPENDED SENTENCE IS NOT UNDERSTOOD BY THE PUBLIC AS RANKING JUST BELOW IMPRISONMENT IN SEVERITY AND IS WIDELY REGARDED AS A SORT OF CONDITIONAL DISCHARGE - NO REAL PENALTY AT ALL.

IT SEEMS DESIRABLE THAT AN ORDER INVOLVING A WHOLLY SUSPENDED SENTENCE SHOULD ALSO INVOLVE CONSEQUENCES WHICH ARE SEEN BY ALL TO AMOUNT TO IMMEDIATE DEPRIVATION.WHETHER SUCH AN ORDER IS THOUGHT NECESSARY AFTER SUCH CONSEQUENCES ARE DEVISED IS ANOTHER MATTER.

THE NEED TO DEVISE SUCH EFFECTIVE NON-CUSTODIAL DISPOSITIONS IS URGENT.

AND YET BEFORE MAKING ANY SUGGESTIONS I SHOULD MENTION MORE DIFFICULTIES.MUCH HAS BEEN WRITTEN ABOUT THE NEGATIVE AND WASTEFUL EFFECT OF PRISON CROWDING.BUT AS ROSENFELD AND KEMPF (1991) POINTED OUT, INITIATIVES TO REDUCE PRISON CROWDING BY COMMUNITY BASED DISPOSITIONS MUST TAKE ACCOUNT OF THE LARGE NUMBERS ALREADY UNDER COMMUNITY SUPERVISION.

THE FAILURE ACCURATELY AND PROMPTLY TO ASSESS RISK, BOTH AT THE SENTENCING STAGE AND THE PAROLE STAGE, HAS RESULTED IN LARGE NUMBERS OF HIGH RISK OFFENDERS DISTRACTING PROBATION OFFICERS FROM MORE USEFUL WORK AND PRESENTING A REAL DANGER TO THE COMMUNITY.IT IS RIDICULOUS TO EXPECT COMMUNITY BASED DIVERSION PROGRAMS TO ACHIEVE ANY SUCCESS AS AN ALTERNATIVE TO IMPRISONMENT IF THEY SUFFER FROM THE SAME SORT OF CROWDING WHICH EXISTS IN THE PRISONS.

IT IS SUGGESTED BY ROSENFELD AND KEMPF THAT ONE REASON WHY PER CAPITA COSTS OF PAROLE AND PROBATION PROGRAMS SEEM SO MUCH CHEAPER AND MORE ATTRACTIVE THAN THOSE IN PRISON IS THAT GREAT "CROWDING" IS ALLOWED TO BE IMPOSED ON SUPERVISORS OUTSIDE PRISON.THE ATTRACTION IS DECEPTIVE AND BASED ENTIRELY ON COST SAVING.THE COST OF EFFECTIVE COMMUNITY SUPERVISION IS MUCH HIGHER THAN MANY JURISDICTIONS ARE PRESENTLY PAYING.

THE COST OF EFFECTIVE INTERMEDIATE SANCTIONS CLOSER TO IMPRISONMENT IN POINT OF SEVERITY WOULD ALSO BE HIGHER.

ROSENFELD AND KEMPF(SPEAKING OF THE US EXPERIENCE) HIGHLIGHT THE PROBLEM WITH CURRENT CROWDING AS AGAINST COST-EFFECTIVENESS AS THE ABSENCE OF A COHERENT CORRECTIONAL PLANNING FRAMEWORK WITHIN WHICH PARTICULAR DECISION PROCESSES, PROGRAMS AND OUTCOMES CAN BE FORMULATED AND EVALUATED.THEY SEE THE NEED TO ESTABLISH A FRAMEWORK THAT SYSTEMATICALLY LINKS POLICIES TO A SET OF EXPLICIT OBJECTIVES, A VALID AND RELIABLE INFORMATION SYSTEM ALL LINKED TO BUDGETED RESOURCES.THEY ARE OBVIOUSLY CORRECT IN THAT ASSESSMENT.

TOO OFTEN DIVERSION ATTEMPTS AND EARLY RELEASE MEASURES OPERATE WITHOUT CO-ORDINATION AND INCONSISTENTLY.OFFENDERS OFTEN RECEIVE ARBITRARY TREATMENT AND DECISION MAKERS AT ALL STAGES ARE OFTEN QUITE UNAWARE OF THE CONSEQUENCES OF THEIR ACTIONS.NEEDLESS AGGRAVATION IS CAUSED BY THE APPLICATION OF CONFLICTING OBJECTIVES AND PURPOSES AT EACH DECISION STAGE.

AS WE HAVE DISCUSSED, ALTERNATIVE DISPOSITIONS ARE HAMSTRUNG BY LACK OF HUMAN AND FINANCIAL RESOURCES AND BY A FAILURE TO EXAMINE CAREFULLY THEIR LIKELY EFFECTIVENESS.FEW JURISDICTIONS HAVE AVAILABLE WELL RESEARCHED INFORMATION UPON WHICH EFFECTIVE DECISION MAKING MAY TAKE PLACE.FURTHERMORE, EXISTING MEASURES NEED TO BE THE SUBJECT OF CONSTANT REVIEW AND DECISIONS NEED TO BE MADE ON THE RESULTS OF CURRENT FIGURES AND TRENDS.
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EVEN IF THE MATTER IS TOO SERIOUS TO BE RESOLVED BY MEDIATION AT LEAST THE FEAR CAN BE REDUCED FOR THE VICTIM BY KEEPING THAT PERSON INFORMED AS TO WHAT IS HAPPENING, AS TO WHAT THE STATUS OF THE OFFENDER IS.IF HE HAS BEEN RELEASED, WHAT ARE THE TERMS OF HIS RELEASE?WHERE