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23.02.2013 Feature Article

SETTING THE AGENDA FOR A PARADIGM SHIFT IN GHANA'S CRIMINAL JUSTICE DELIVERY SYSTEM

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The rather urgent need for a rethink of our criminal justice system can no longer remain either on the drawing board or continue to be a talk show, given the extreme consequences of the current sentencing policy which has failed to go beyond the fines and custodial disposals or thresholds.

Several factors may indeed account for the high rate of the over- crowding in our prison estates, nevertheless the most significant of it all is the fact that our sentencing courts have not been provided with any means of alternative to imprisonment (except with juvenile justice delivery system) even in the context of minor offences or what is professionally referred to as misdemeanors

Instances of imposing fines on offenders are somewhat rendered meaningless , due to non-compliance which may be due to the offender's lack of financial capacity to respond positively to the court order and thus ties the court's hands to the ultimate, the only available option- custodial sentence

This clear evidence may explain how and why such offenders, sent to prison become unwilling associates and or companions of the sophisticated, entrenched, dangerous and die-hard offenders

Although it is acceptable that for those who commit offences or crimes within their communities should have to be punished, the modern trend is for punishment to go beyond the retribution and 'punishment fits the crime' philosophy, as punishment is now to be seen to have the capacity to prevent re-offending, protect the public and offer a meaningful and practical scope for the rehabilitation of the offender- 'the rehabilitation ethos', promote reparation towards the victim/ community and offering a framework for the victim to attain closure.

Indeed, punishment should offer the framework which although imposes some degree of restriction on the liberty of the offender, should similarly promote what has come to be known and referred to as the 3 R's ; the offender taking responsibility for his/her anti social behaviour, rehabilitation of the offender and reparation to either the victim or the community

It is this paradigm shift initiative that should inform our penal policy, a policy direction that acknowledges and promotes' alternative to custody 'policy initiatives and programmes of intervention, to reflect the UN Standard Minimum Rules for Non-Custodial Measures and Penal Reform International Conference's objectives adopted at its' conference, held between 13 and 27 April, 1999

The Lord Chancellor of England and Wales, Lord Phillips of Worth Matravers, makes this point succinctly when contributing to a debate on 'Alternative to Custody : The case for community sentencing, submitted amongst others '' 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 offence(s), punishment of offenders, reduction of crime, reform of the offender and public protection''

It is in pursuant of this agenda that in some other jurisdictions, such as the UK, USA, Australia, Norway, Canada, Zimbabwe, Uganda, Malawi, Mali, Tanzania, Burkina Faso and Egypt, community sentencing as a mechanism of 'alternative to custody' has become the main feature of their criminal justice system, and it's worth mentioning that Liberia is the latest to be moving in this penal policy direction having solicited the assistance and support from the Penal Reform International (PRI) an International non –governmental organization based in the United Kingdom to realize this goal.

THE STRATEGIC APPROACH TO PRACTICE:
It is my considered opinion that the time has come for all practitioners or call them stake-holders within the criminal justice system, voluntary organizations and those concerned with penal policy to embrace a much needed credible alternate vision, one which offers practically best chance of driving a rehabilitative perspective of punishment to the centre of criminal justice administration and service delivery in our country, at much less of a financial, social and ethical cost.

The central focus for a rehabilitative philosophy is the provision of high quality, rigorous, robust and properly resourced community-based programmes of intervention, which have the capacity in providing the police, prosecutors, courts and the prisons with effective options for responding to the needs of offenders, in their quest for discharging their constitutional mandate- promoting and safeguarding public protection and public safety.

There is clear research evidence, demonstrated by practice in those jurisdictions where community sentences are the bedrock of criminal justice administration and service delivery, that if faith is placed in community sentencing, then the reduction in the prison population will also allow for more productive work to be undertaken in areas such as offence focused and cognitive behaviour modification therapeutic work, general-education, skills/trade training for those individuals that must be held in custodial regimes.

The evidence is that, the alternative of an ever rising prison numbers is simply unsustainable and will do nothing to promote community safety.

Best practice approach is that, well structured community programmes of intervention, will undoubtedly raise community protection, bringing down the rate of re-offending and repay the damage(s) done by crime in a way which prison sentences cannot and would not.

This strategy should form a key component of our comprehensive approach to offender management and rehabilitation; empower people in conflict with the law to make amends for the harm they have caused, to address their personal, social and health challenges (drugs/alcohol dependency) which may lie behind their offending, develop their determination and appropriate skills they may require to lead law-abiding lifestyles.

The strategy is that positive steps need to be adopted now, to develop the relevant and appropriate penal policy that promotes and ensures that community penalties become integral elements of our criminal justice system, and that they are used as far as possible to displace prison sentences, as part of a broader and pragmatic strategy of using prison much more sparingly than has been the practice to date in our

In pursuing this agenda, devising urgently, a sentencing guideline and indeed the legislative amendment of the criminal procedure code cannot be over-emphasized.

The justice for all programme's initiative, which rightly identified a sentence review committee as one of its thematic spheres of intervention although may be said to have been a positive measure , it is regrettable to observe here that the first revised draft of a proposed sentencing guidelines, adopted by the sentencing review committee at Koforidua in December, 2009 and submitted to the ministry of justice and attorney-general's department sometime in April 2010 by this author, has still remained on the shelves gathering dust to the best of my knowledge and understanding

The expectation would have been for a sentencing - working team, to be judiciary driven and composed with stakeholder institutions within the criminal justice system, to have been set up with the clear mandate of discussing this first revised draft guidelines alongside with that proposed by the commission for law reforms, streamline these documents into a final draft sentencing guidelines, for action by a National Sentencing Council/Committee, that would need setting up

National Sentencing Council/Committee:
Such a national sentencing council/ committee should also be judiciary driven and, mandated to undertake a public consultation with the overall responsibility to publish a final definitive sentencing guideline. This should promote greater consistency in sentencing, whilst contributing to maintain the independence of the judiciary and increasing public understanding of sentencing. An effort that would be a pragmatic way forward, in the re-think of Ghana's criminal justice service delivery system in promoting the fundamental human rights philosophy and meeting international standards of best practice

Amending the criminal procedure code:
The criminal procedure code would require the relevant and appropriate amendments relating to the sentencing of offenders, with the aim to provide a clearer and more flexible sentencing framework, setting out the five traditional purposes of sentencing as :

• The punishment of the offender
• The reduction of crime (including its reduction by deterrence )
• The reform and rehabilitation of the offender
• The protection of public
• The making of reparation by the offender to the victim.
• The author is an offender management and rehabilitation consultant , operations director of OMRO, a Ghanaian nongovernmental organization, and also a penal reform advocate, can be contacted via [email protected]/ 024 841 6287

THE FEATURES OF COMMUNITY SENTENCE:
Community sentence is a statutory order imposed by the court, which provides the framework for a probationary programme that aims at rehabilitating the offender through the community, with the focus of the intervention strategy at addressing the multi-faceted challenges of criminal behaviour

It is never a soft option, as it combines punishment with changing behaviour and making amends, sometimes directly to the victim(s), if not the community, a sentence that is both suitable for the offender and commensurate with the level of seriousness of the offence

Community sentence order can and should only be available to certain types of offences and for certain types of offenders. The serious offender who is at significant risk to the community will not satisfy the criteria for such an order, given that the order should be aimed at those offenders who would normally attract a short sentence for minor offences or misdemeanors and who do not pose any significant risk to community safety

The order is also designed to offer offenders with the framework within which they can develop and acquire new skills and the opportunity for practical learning in real situations, which can prepare them for employment and or formal training.

Management/supervision of community sentence order:

The community sentence management or supervision officer, mostly a trained probation officer( professional training in offender management and rehabilitation ) , would involve the offender in an assessment process which will include offence analysis, offending related needs of the offender and risk of re-offending and or of self-harm

A process which informs the professional judgement of the probation officer, in devising a most suitable, relevant and appropriate supervision / work plan with the offender, incorporating offender management intervention strategies, with focus on the individual's participation in support groups, individual one-to-one counseling sessions, cognitive behavior modification therapy and other specified activities such as alcohol/drug education , anger management or conflict resolution and sexual education programmes

A further intervention initiative may include restorative justice, victim awareness and victim empathy, and or victim-offender conferencing, mediation and reparation

The probation officer would also provide the offender with the unique opportunity to raise issues that may be important to them, such as family and relationship issues, employment, education and or training, and engages with the offender, helping to keep him/her motivated to undertake the tasks necessary to reduce their risk of re-offending and risk of harm.

Supervision sessions can also be used to monitor progress and address issues as they may arise.

Practitioners would be mandated to share information with agencies such as the police, prisons and the department of social welfare, so as to protect others who may be vulnerable, given robust partnership working would be critical to the successful management and rehabilitation of offenders.

Enforcement of the community sentence order:
The probation officer is responsible for ensuring that the offender complies with all aspects of a community sentence order.

Duration of the community sentence order:
For a community sentence order, the maximum sentence would normally be three years and dependent on the prerogative of the sentencing court, albeit taking cognisance of the level of risk posed to community safety and that of re-offending, although the minimum tariff could be six months.

Community service order:
The sentencing court can involve unpaid work requirements, known as community service, as part of a community sentence, with the objective of providing unpaid work, which is of value to the community, as an alternative to custody to be undertaken within a determined time scale, fixed by the sentencing court

Thus community service order, is an opportunity offered by the sentencing court for the offender to compensate society for the wrong he/she committed, by performing work for the benefit of the community

The court can impose a community service or community reparation order on an offender, following professional assessment for suitability by a community service/ probation officer , taking cognizance of the level of seriousness of the offending behaviour, with the expectation for the offender to undertake some hours of unpaid work within the community

Clearly, community service is an order of the court, where the offender is provided with unpaid and useful work for community benefit. Under the unpaid scheme of work requirement, the offender can undertake work between 40-300 hours on a local community project, under the supervision of a community service supervisor.

The offender would normally receive induction at the beginning of the order, which may cover essential information as,

• Conditions of the community service order
• Standard of behaviour
• Expected work placement
• Attendance and punctuality
• Disciplinary procedures
• Health and safety

Range of placements:
• Horticulture and or gardening
• Painting and decoration
• Carpentry and joinery
• Bricklaying and construction
• Street auditing, maintenance, repair work at lorry parks and or community access roads
• Environmental and sanitation management

Enforcement of the order:
Community service order is normally enforced vigorously in accordance with laid down guidance and procedures. If the terms and conditions of the order are breached, the order will have to be taken back to court, where the court can impose a fine for the breach and request the order to be continued

The court may so desire to revoke the order entirely and re-sentence the offender on the original offence. Significantly therefore, there exists a clear distinction between community sentence and a community service order, the latter being a one element of the previous, which covers other such orders as probation order or a community punishment order.

Training needs:
Invariably, all key players within the criminal justice system will require and benefit from all aspects of training,( refresher courses, workshops and seminars ) relevant and appropriate for the shift in penal policy towards the agenda for community sentences.

These will include judges, magistrates, prosecutors/police, prison officers and probation officers/ community service supervisors.

Given that the probation officer will be the focus of managing the offender in the community, a greater emphasis will be placed on their training and education, as they will require almost new skills, knowledge and expertise if they are to deliver quality and best practice service to both the courts and offenders, in meeting national and any international standards of probation practice.

It may become appropriate to set up a centre for criminal justice studies, which should have the necessary capacity to co-ordinate and facilitate relevant and appropriate training.

There is the prospect of accessing technical co-operation and support from the penal reform international and the international directorate of the justice ministry of the United Kingdom.

Expected practice outcome:
There is no doubt that promoting the agenda for alternative to custodial sentencing or developing community sentences in Ghana, will contribute a great deal to:

• addressing prison overcrowding,
• save considerable financial resources for national development ,
• address the numerous criminogenic needs of offenders
• assist , support and promote their rehabilitation
• provide the scope for their reintegration and resettlement
• offer considerable public protection
• promote the prevention of reoffending

It is my professional opinion that a penal policy with the characteristic features of rehabilitation ethos should and must be the direction Ghana's penal policy should go, as in line with the United Nations Minimum Rules for Non-Custodial Measures and Penal Reform International's (PRI) agenda.

• The author who is an offender management and rehabilitation consultant, is the operations director of offender management and rehabilitation organization, a Ghanaian non-governmental organization ( omro )

• For enquiries please contact- email: [email protected]

Telephone:00233 248 416 287 or 0044 208 689 1597 / 0044-7466561358.

Marcus-Chris Lawson
Marcus-Chris Lawson, © 2013

The author has 63 publications published on Modern Ghana.Column: MarcusChrisLawson

Disclaimer: "The views/contents expressed in this article are the sole responsibility of the author(s) and do not necessarily reflect those of Modern Ghana. Modern Ghana will not be responsible or liable for any inaccurate or incorrect statements contained in this article."

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