ALTERNATIVE SENTENCING OPTIONS PART II

We were looking last week at some of the difficulties encountered by the Court in its sentencing function. Take a hypothetical case given by a participant in a seminar on mediation in the criminal justice system of a maths whiz politician who has stolen millions from the treasury. The State would likely spend millions of dollars to secure a conviction in the hope of a jail sentence to set an example to other would be politicians or public figures and as an act of retribution. The politician will use all legal resources and avenues to escape a jail term.  Ten years after the fact a conviction might follow. 

Circumstances change.  He now has a bad medical condition.  Jail would be a death sentence.  The politician has lived to a ripe old age as a man of previous good character.  Suppose the judge had alternative sentencing options. These might allow for the politician to repay the money that was proved was stolen as a first option, which might be directed to specific projects in the community the politician represented. In addition the judge could also order him to spend five years teaching math to children in his community with weak math scores, for free and to face his community in a large town meeting to explain why he betrayed their trust in stealing and to hear what the money could have been used for in the community to improve conditions there.  It may be worthwhile to consider whether these types of alternatives might lead to a more positive result. 
One advantage is that it actually makes the politician accountable in a real sense to the public as he is called upon to explain his conduct, something many politicians are hardly ever called on to do.  Sentencing options of this kind may well encourage in many cases a guilty plea at an early stage with its attendant savings in time and scarce financial resources.

In addition to the usual sentencing options the Community Services Orders Act, 1997, does allow for a sentence to be suspended on the making of a community service order requiring an offender to do unpaid work.  However the range of offences to which this Act applies is limited and an order can only be made where the court would have contemplated a sentence of 12 months or less.  In addition, while some courts do make use of this option the support services available are inadequate to give the legislation proper effect.  Much of the supervision falls on the very stretched probation services attached to the courts.  This factor probably militates against the greater use of this alternative.

The truck driver who was placed on a three year bond for motor manslaughter may not have been able to take the rigours of a custodial sentence but could be called on to spend a few hours per week speaking to young persons who have recently been granted a driver’s licence about what were the consequences of failing to maintain his vehicle in good working order.  Should the living victims be amenable he might be ordered to undertake some work commensurate with his medical condition to ease their suffering.  He could be ordered to tell his story to the press and sensitise drivers on the subject.
 
A convicted trafficker could be made to work for free in a public institution caring for drug addicts feeding and cleaning those who cannot do it for themselves. They can be made to do legitimate work and to pay part of their earnings for a period of time towards drug rehabilitation programmes. The possibilities are endless. Reform requires creative thinking. There is no need to re-invent the wheel either. Many alternative sentencing regimes are in operation in other countries. What is required is working out which ones are best suited to implementation and to carefully adapt them to local conditions. It calls for a change in attitude among legislators and policy makers, business people and law enforcement agencies; and for education of the public about the benefits of alternative programmes.  More than anything though, it needs among those of us involved in the criminal justice system, willingness to see it through to the end.

Even considering the existing laws, Lord Woolf, Chief Justice of England and Wales gave some useful advice, in a speech in October 2001.  Referring to the overcrowding and the revolving door syndrome of repeat offenders in the prison system “which was an expensive way of making bad people worse” he advised magistrates: “Don’t send people to prison unless it is really necessary.  If you are sending them for short term, pause before you do so — ask yourself, if you are going to sentence for 12 months would six months be sufficient and achieve exactly the same benefits to the public, at lower cost to the Treasury and prison system.  If six months is what you have in mind, would not three months do?  If three months will do, what about one month?”

Those entrusted with the responsibility of tackling crime will do well to bear in mind the difficulties presented in sentencing offenders and may well find this advice worthy of consideration particularly in light of the unsatisfactory conditions and overcrowding existing in our prison system. Finally, sentencing reform must also necessarily form part of another look at our criminal justice system in terms of its operation and purpose.  In a later article we will consider the applicability of restorative justice and victim offender mediation to the justice system.

Ronnie Boodoosingh
The Law Association of Trinidad and Tobago