COMMUNITY SENTENCING: A CREDIBLE WORLDWIDE APPROACH TO PRISON OVERCROWDING. The eighteenth century marked the beginning of the response to the then criminological theories, resulting into the concept of imprisonment as a form of punishment for offenders or those who come into conflict with the law. Within this context, the legitimate purpose of prison is to reform and rehabilitate offenders considered to pose significant (risks) of harm or danger to public safety. This is to assist and support them lead law abiding lifestyles and be self supporting on release. In Ghana however, our current criminal justice policy, which historically was fashioned on that of the British legal system, focuses much more on punitive or retributive or 'punishment fits the crime' rather than on a rehabilitative approach, which has the potential to assist, support and promote the reintegration and resettlement of the offender back into community life as currently reflected by the British penal policy.
It is my considered view that our criminal procedure code at its current state is clearly outmoded, anachronistic and no longer fit for purpose, if the legitimate purpose of punishment is to promote rehabilitation, reintegration and resettlement of offenders back into community life. Whereas the British approach to criminal justice delivery has over the years responded to the exigencies and demands of modern criminology, given the numerous penal reforms that have been undertaken in direct compliance to the United Nations Standards Minimum Rules on non-custodial Measures for minor offences and thus incorporating alternative to custodial sentencing into its sentencing framework and policy, Ghana has remained static with the only two options of sentencing as fines and imprisonment.
It is my professional assessment and opinion that our current penal policy is detrimental to the future well-being of those individuals who commit crimes(s), their families and the entire community. Although it may be said that prison has an important role to play in protecting the community against the most dangerous offenders and in punishing the most serious crime, research evidence indicates the many disadvantages of over using imprisonment. There are several reasons why greater use of imprisonment is not a desirable direction in which our penal policy and practice should continue to be moving.
Little or no community sentences and too long prison sentences have dire consequences which are doubly destructive of the needs of offenders and their communities. In democracies, which value freedom and humanity, there is a strong case for using non-coercive, less formal and more positive approaches wherever possible and appropriate. Undoubtedly, prison can harm the chances of prisoners to make amends and fulfil their potentials as citizens. By definition prison limits the opportunities for prisoners to contribute to civil society and democratic life. Furthermore, most people leave prison no better equipped to fit into society than when they entered it and indeed they leave a good deal worse off. Evidently, imprisonment causes major problems for the prison service in accommodating prisoners in a decent and dignified way. Overcrowding can be seen as the cancer of the prison service and can lead to inevitable diminution of the prison regimes and activities, if any are available or should be available to prisoners in the prison institutions. The frightening overcrowding or over population of our prisons and its characteristic implications are a growing concern for most well meaning Ghanaians irrespective of their political disposition.
The overcrowding of our prisons constitutes a significant challenging problem that confronts our criminal justice system, a phenomenon which clearly undermines the United Nations Standards Minimum Rules for the Treatment of Prisoners. It is a sad and dangerous phenomenon which is a direct consequence of our insensitively unprofessional over use of imprisonment and pre-trial detention and our gross lack of appreciation for modern criminological theory on crime and punishment and our professional indirection.
For the rather half-baked 'justice for all programme' is not in any way a pragmatic and credible response to the challenges of prison overcrowding, given its failure to address the hydra-headed problem holistically ( a critical review of this programme will be considered in a separate discourse ). This position is contextualised within the United Nations Standards Minimum Rules for non-custodial measures, which significantly provides the working framework for alternative to custodial sentencing for minor offences.
This is a framework that acknowledges and appreciates community sentence as a credible alternative to custodial sentencing. Community sentence is a court order which provides the opportunity for a probationary programme that aims at rehabilitating the offender through the community with focus of the intervention programme addressing the multi-faceted problems of criminal behaviour. It is never a soft option, as it combines punishment with changing behaviour an making amends sometimes directly to the victim (s), if not the community. Community sentence is and can demonstratably be seen to be, not only a viable alternative to a custodial sentence, but for those for whom they are tailored, they are a real improvement on an immediate custodial sentence.
With community sentence, the offender serves his/her sentence within the community, managed through the professional intervention strategies and programmes of the probation officer or the offender management and rehabilitation officer/practitioner. The programme element ( probation intervention ) of community sentence incorporates offender management supervision, individual participation on support groups( group work ), individual one-to-one counselling sessions and or cognitive behaviour modification therapeutic work, vocational skills and trade training, facilitated by a qualified case management officer/trained probation officer. The length of the order although may form part of a pre-sentence report prepared by the probation officer in his/her capacity of providing quality professional advice and assistance to the court, the final determinant authority lies with the court, given its sentencing powers.
The order may be from 6 months minimum to a maximum of 3 years depending on the assessment outcomes of risk(s) of offending, risk(s) to public safety, the victim(s) and the offender's own vulnerability, his/her attitude towards the offending behaviour and the victim (s) and the motivation for change of behaviour, but above all, the nature and seriousness of the offence. The court can involve unpaid, work requirements, known and referred to in practice terms as community service, as part of a community sentence.
A programme of work is drawn up with the offender, through criminogenic needs assessment around the number of hours the offender is ordered by the court to carry out. The work is supervised by a community service officer and reports submitted that monitors the work undertaken. If the offender is unemployed, the work will substitute for an eight hour working day; if the offender is employed, he/she must carry out the work in his/her free time. Under unpaid requirement, the offender can undertake work up to 300 hours on a local community project under appropriate supervision. Evidently, community sentence order is and can only be available for certain types of offences. The serious and dangerous offender who poses significant risk to community safety will not satisfy the criteria for a community sentence, as the order is aimed at specific offenders ( minor offences ) who would normally attract a short sentence and who do not pose a risk to community safety. This explains why the courts will have guidelines to advise them about which offences may qualify for a community sentence/order, or any other non-custodial sentence-then they must question the offender as to his/her personal circumstances so that the court is satisfied that the offender will be able and willing to complete the sentence.
Imprisonment should always be the last resort of the court when considering sentence. In the event of not qualifying for a community sentence order, the court then reserves the power of sentencing the offender to a term of imprisonment. On non compliance with the order, quite simply the offender will have to be returned to the court which originally passed the order to give reason why he/she failed to comply/complete the order. Should the court be dissatisfied the offender can then be sent to prison for non compliance, thus enforcing the order.
The Lord Chancellor of England and Wales , Lord Phillips of Worth Matravers, contributing to a debate on ' Alternative to Custody, The case for community sentencing, ' submitted amongst others that '' when sentencing those who commit minor offences, the primary objective must be rehabilitation and that sentencing must have the purpose of making of reparation by offenders to persons affected by their offences, punishment of offenders, reduction of crime ,reform , rehabilitation of the offender(s) and public protection''.
This should be the direction Ghana's penal policy and indeed its criminal justice delivery should and must go in this 21st century. African countries such as Mali , Niger, Egypt ,Morocco, Zimbabwe, Burkina Faso, Uganda, Tanzania and most recently Liberia have solicited support and technical assistance from the Penal Reform International, an International Non- Governmental Organisation committed to reducing the use of imprisonment in countries around the world in undertaking appropriate penal reforms.
The writer who is a socialcare, offender management and rehabilitation consultant is also penal reform advocate. For further details please contact [email protected] / 0248 416 287.
Source: Marcus-Chris Lawson