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1.3 The ‘Changemakers’

While the prison system itself is an important part of the penal system, the penal system involves a much wider range of stakeholders. Decisions made by other stakeholders can influence – or indeed limit – what can happen within the prison system itself. For example, if the number of people sent to prison is high, this will result in overcrowding and prisons operating above capacity, which increases the likelihood of violence. An overcrowded prison system also means a reduced focus on rehabilitation. This also subsequently impedes the prospects of successful reintegration into society.

Here, IPRT identifies and examines the role of selected stakeholders outside the prison system who can positively contribute to the shape of our penal system and the lives of those within it. These include:

  1. Judiciary
  2. Legislators
  3. Probation
  4. Media, politics and public opinion.

The principles of penal reform should be kept to the forefront when examining the roles of various stakeholders and how these principles apply to their work.

1. Judiciary

Recent domestic research[111] indicates significant disparities in sentencing practice across District Court jurisdictions where only in 8 District Courts (out of 23 jurisdictions and the Dublin Metropolitan District) were more community service orders than short-term prison sentences made during 2011 and 2012.[112] In one District Court, 14 prison sentences were imposed to every one community service order.[113] In contrast, in another District Court, three community service orders were imposed for every short-term prison sentence.[114] These findings highlight major inconsistencies in sentencing practice across District Courts in Ireland. This is in spite of the introduction of legislation, section 3 of the Criminal Justice (Community Service) Amendment Act 2011,[115] which provides that the judiciary when imposing a custodial sentence of 12 months or less shall consider a community service order as an alternative to that sentence. This legislation supports the guiding principle of imprisonment as a last resort.

Earlier research[116] highlighted possible reasons for the under-utilisation of community-based sentences at that time:

While this could indicate a lack of faith in the utility of probation, there are several other possibilities. It may be that judges believed that intensive intervention was not appropriate for minor or first time offenders, reflect the local (un)availability of suitable programmes, or indicate a belief that meaningful change cannot be imposed, but must come from within. Judges sentencing theories may partly explain the relative absence of treatment components.[117]

With the last comprehensive review of sentencing[118] by the Law Reform Commission published over 20 years ago, IPRT recently proposed that the Law Reform Commission review sentencing practice and policy in Ireland as part of its Fifth Programme of Law Reform.[119] Calls have also been made by other stakeholders[120] for the introduction of sentencing guidelines through the vehicle of the Judicial Council Bill.[121] While IPRT has some concerns about the detail of this proposal, in principle we support examining the merits of introducing sentencing guidelines in this jurisdiction where they promote penal moderation and do not unduly fetter judicial independence.

2. Legislators

Legislators can contribute to achieving practical and positive change in our penal system. One example of this is the introduction of the Fines (Payment and Recovery) Act 2014[122] which was fully commenced in early 2016. Although further evaluation is required, it appears to have had a positive effect in reducing the number of committals to prison. Figures from the Irish Prison Service demonstrate a 38.5% reduction in committals from 15,099 in 2016 [123] to 9,287 in 2017.[124] There was a 73% reduction in those committed for non-payment of a court-ordered fine.[125] This was a practical legislative measure that has had a positive effect on the number of prison committals.

On the other hand, poorly conceived and reactive legislation – for example the introduction of presumptive minimum and mandatory sentences[126] – can create potential for injustice; is often ineffective as a deterrent; has the potential to undermine the integrity of the criminal justice system; and may impact negatively on both the rate and cost of imprisonment.[127]

The central principles of de-carceration, penal moderation and imprisonment as a last resort are reflected within both Oireachtas Joint Committee Reports[128] (2013 and 2018) and within the Department of Justice and Equality’s Strategic Review of Penal Policy (2014)[129]. The cross-party consensus already achieved should inform the work of the legislature going forward.

3. Probation

The Probation Service plays an essential role in offering judges appropriate and effective community sanctions. According to Penal Reform International,[130] probation systems can contribute in four ways to “effective criminal justice”; they can:

  1. Reduce the prison population
  2. Provide more constructive punishment than prison
  3. Offer individuals an opportunity to make a positive contribution to society
  4. Provide more effective opportunities for rehabilitation.

Compared to the European average, the number of persons under the supervision of the Probation Service in Ireland is low. Latest figures published by the Council of Europe (CoE) show the total number of persons who started a community sanction or probation under the Probation Service during 2016 was 124.7 per 100,000, compared to the European median of 197.7.[131] The total number of persons under probation supervision (including community service) in Ireland on 31st December 2016 was 120.7 compared to the European median of 170.4.[132] While further analysis of these figures is required, the statistics may indicate the under-utilisation of probation services in Ireland. However, attention must also be paid to ‘net-widening effects’[133] that occur in many criminal justice systems.

Community sanctions as a direct alternative to imprisonment makes sense.[134] Community sanctions also involve a lower social cost to individuals, communities and the State.

The availability of community sanctions on a nationwide basis is pivotal in supporting and increasing the judiciary’s confidence in community sanctions. In their Concluding Observations, the UN Committee against Torture (CAT) recommended that Ireland:

Consider increasing the use of non-custodial measures and alternatives to detention, in keeping with the United Nations Standard Minimum Rules for the Treatment of Prisoners (The Tokyo Rules).[135]

In domestic penal policy, the Strategic Review of Penal Policy (2014) also recommends increasing the use of community sanctions (to directly replace imprisonment), particularly those sanctions that address the root causes of offending behaviour, in order to instil public confidence.[136] The Oireachtas Joint Committee on Justice and Equality concurred with that recommendation in its Report on Penal Reform and Sentencing (2018):

The emphasis of a progressive penal and sentencing policy should be on investment in community-based sanctions and noncustodial sentences. Prison should be a last resort for minor criminal offences. Community-based sanctions are not only effective in many cases, but can generate community payback and result in enormous savings compared to the costs of incarceration […] The Probation Service must be provided with the necessary resources it would require on foot of a greater emphasis on community-based sanctions.[137]

Increasing understanding of the work of the Probation Service among key stakeholders, such as the judiciary, is important. Further analysis of judicial decision-making, availability, utilisation, delivery and effectiveness of community sanctions in Ireland would be welcome.

4. Media, Politics and Public Opinion

The media, politics and public opinion have a complex relationship with each other. The media has a responsibility to report fairly and accurately in order to inform the public when reporting on crime and punishment. However, politicians periodically resort to ‘tough on crime’ rhetoric which is transmitted through the media. Reactive policy decisions to adverse events can have significant consequences in contributing to the rise in prison populations. The UK parliament previously highlighted the impact of media, politics and public opinion on the decision-making process:

Wider factors such as the media, public opinion and political rhetoric contribute to risk averse court, probation and parole decisions and hence play a role in unnecessary system expansion. If Ministers wish the system to become sustainable within existing resources, they must recognise the distorting effect which these pressures have on the pursuit of a rational strategy.[138]

The importance of providing accurate data for the media and general public is highlighted in the new Guidance[139] on the UN Mandela Rules:

Accurate data can help provide the media and public with a true picture of prison life, including the challenges faced by prison administrations. This is particularly important because many people are illinformed about the situation in prisons and public and political discourse about such institutions is based on fear-mongering, stereotypes and broader political agendas. Proper record keeping, can in turn, lead to increased public awareness about the problems faced by prisoners and prison staff, and lead to a shift towards more evidence based decision-making.[140]

Research on the release of life-sentenced prisoners in Ireland, which included interviews with former Parole Board members, found “public opinion was also deemed to be important, while participants were acutely aware of the political landscape in which parole operates when deliberating on individual cases”.[141] In addition, the research found there was reluctance by the Minister to accept recommendations in high-profile cases, which resulted in a reluctance to recommend release by members of the Parole Board, leading the author to conclude that: “Public opinion, although unknown in empirical reality, impacts on parole outcomes and often in a punitive manner.”[142]

Evidence of a false dichotomy between victims’ and offenders’ rights can be found in research which highlights the interchangeable nature of victimisation and offending, particularly among women and younger offenders.[143] As highlighted by the authors:

Whilst political discourse encourages members of the public to show compassion towards victims and to see them as a vulnerable, but deserving group, it simultaneously castigates the actions of “offenders” whilst carelessly ignoring the fact that many individuals might fall into both categories.[144]

5. The role and responsibility of other state bodies

(i.) Department of Education and Skills

Educational disadvantage is a predominant characteristic of the current prison population. Between 2015 and 2017, the Irish Prison Service undertook a survey[145] with prisoners in three prisons. Based on aggregate data from these surveys, results show that:

These statistics demonstrate that educational disadvantage is prevalent across the prison population, one symptom of wider social exclusion. In 2018, IPRT made a submission[147] to the Oireachtas Committee on Education and Skills. In this submission, IPRT highlighted the important role that education plays throughout the whole system, from prevention and early intervention to supporting the person in prison and upon release. Education plays a crucial role in crime prevention; therefore, the education system must consider the high levels of early school leaving by the prison population and respond with innovative methods to engage and re-engage people in education.

(ii.) Department of Health

The late Inspector of Prisons published the Healthcare in Irish Prisons[148] report in 2016 which contained a number of recommendations that have yet to be acted upon. These included that responsibility for the provision of healthcare should be transferred from the Irish Prison Service to the Health Service Executive, and that a health needs assessment of prisoners in all prisons should be undertaken by a clinician immediately, along with a healthcare staffing needs analysis.[149] Specific issues relating to mental health and addiction are outlined later in this report.

The transfer of prison healthcare to ministries of health is a growing international trend.[150] A number of benefits[151] have been identified, including:

Transferring governance of prisoner healthcare to the Department of Health would also facilitate independent healthcare inspections in prisons by the Health Information and Quality Authority (HIQA) which currently do not take place in Irish prisons.

(iii.) Department of Housing, Planning and Local Government

The Department of Housing, Planning and Local Government plays a crucial role in the reintegration of prisoners. Having stable accommodation is essential for people getting their lives back on track. However, this must be provided in tandem with relevant wraparound supports. The Joint Oireachtas Committee on Justice and Equality (2018) recommended a Housing First model where “the outgoing offender is placed in his or her own home and provided with individualised supports based on his or her needs.”[152]

Research highlights that homelessness upon committal to prison in Ireland is higher than some international estimates.[153] While no data is publicly available in Ireland, a report[154] from the UK estimates that six in ten women had no homes to go to upon release from prison, with the research suggesting that women are more likely to lose their homes upon a period of imprisonment.[155] In Ireland, this situation is compounded because of the current absence of any transitional, step-down or open provision facility for women, despite policy commitments made.[156]

(iv.) Department of Children and Youth Affairs

Supporting children and young people early in their lives is one of the best ways to support crime prevention. IPRT previously outlined the need for early intervention and specialised supports to be made available to particular groups including children of prisoners and children in care.[157] The most recently published statistics[158] of Oberstown Children Detention Campus highlight how 40% of young people there were in state care or had significant involvement with Tusla, the Child and Family Agency, prior to detention, while 36% of children had suffered the loss of one or both parents through death or imprisonment, or had no long-term contact. Better Outcomes, Brighter Futures: National Policy Framework for Children and Young People 2014–2020[159] must be acted upon. Some of the transformational goals in the Department of Children and Youth Affairs Framework are of particular relevance to these cohorts of children and examples provide how they might be applied to the needs of these children:

The Department of Children and Youth Affairs should also consider its role in supporting young adults in the criminal justice system up until the age of 24 in line with its current policy framework.[161]

(v.) Department of Employment Affairs and Social Protection

The Department of Employment Affairs and Social Protection plays a role in promoting and supporting opportunities for the training and employment of people with experience of the criminal justice system.[162] Access to stable employment is associated with desistance.[163] Criminal convictions and weak spent convictions legislation continue to be a barrier to reintegration for many individuals.

While the Irish Prison Service has made progress in this area through the recent Social Enterprise Strategy[164], there is scope for further support for people with criminal convictions in accessing employment opportunities. One point of focus might be strengthening inter-agency working, highlighted in the Irish Prison Service and Probation Service Joint Strategic Plan 2018–2020, which states that “linking with statutory services such as local authorities and the Department of Social Protection can mean for some that a sentence can be utilised to improve contact with public services”.[165]

Notably, May 2018 was the first time in ten years that Ireland’s unemployment rate fell under 6% (at 5.8%).[166] With Ireland heading for full employment, people coming out of prison should be prepared and equipped with the skills necessary to access employment upon release. (This issue will be discussed further in the Reintegration section of this report.)

Other government departments and state agencies have the potential to contribute to and make a substantial difference in changing the landscape of penal policy in Ireland. This is a challenge and one that requires ‘buy-in’ from numerous stakeholders. However, through active engagement and cross departmental, crossagency collaboration, it is an ambition that can be fully realised.