Category Archives: Law

Exploring global disparities in criminal sentencing

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Catherine Heard directs the World Prison Research Programme, at Birkbeck’s Institute for Crime & Justice Policy Research. The research team monitors trends in world prison populations and examines the causes and the consequences of rising levels of imprisonment. The Institute’s latest comparative research on the sentencing of burglary, drug importation and murder highlights vast disparities between different jurisdictions in their approaches to custodial sentencing across a range of offences. Here, Catherine discusses some of the most striking disparities.

Imagine being convicted of a crime in another country, where the sentencing framework is very different to the one in your home country. For drug trafficking, you could be looking at life imprisonment and a hefty fine if you were sentenced in Thailand, but be home within months if you happened to be in the Netherlands.

Working with international research partners, we have examined how three hypothetical offence scenarios – below – would be dealt with in ten jurisdictions: Kenya, South Africa, Brazil, New York State, India, Thailand, England and Wales, Hungary, the Netherlands, and New South Wales, Australia. The work involved researching sentencing laws and policies, and interviewing 70 experienced defence lawyers about sentencing in practice.

Burglary

P-, a 32-year-old man, broke into a house when the residents were at work, accessing the rear of the house via a back alley and breaking a window to gain entry. He stole jewellery and cash belonging to one of the residents, worth a total of approximately [US$ 500]. He has several prior convictions for the same type of offence and other similar offences.
Drug importation

K-, a 26-year-old woman, was recruited in her home country of [Nigeria] to transport heroin in return for a cash payment. She had flown to [England] from her home country, carrying the heroin in a hidden compartment in a money belt. The quantity of heroin was 400 grams, or a little under 1 lb.
Intentional homicide

Two 23-year-old friends, L- and J-, got into an argument while drinking together in a bar. Both left the scene, and L- texted a mutual friend to say that he was going to kill J-. The next morning, on leaving his home for work, J- was confronted by L- who had been waiting for him outside his property. L- was armed with a knife, which he used to stab J- fatally in the chest.
Note: Minor adjustments were made to the value of items stolen, the country the drugs were imported from, and whether cocaine or heroin was imported, to ensure appropriateness for each country.

These contrasting scenarios allowed for clear comparisons between various elements of legal systems and sentencing frameworks, while also engaging important criminal justice and social policy issues.

Previous convictions a bar to non-custodial options

For the domestic burglar P-, non-custodial options would have been possible, even likely, in most of the ten countries, without the aggravating factor of his previous convictions. (His chances of avoiding prison would have been all the stronger if P- had pleaded guilty and made reparation.) But because of his prior offences, P- would probably get an immediate custodial sentence of several years, with three or four years likely in most countries. Only in the Netherlands would P- have a real prospect of avoiding prison, if his lawyer could convince the court that custody would serve no purpose and P- had better rehabilitation prospects in the community.

Disproportionately severe sentencing of drug offences

The most striking degree of disparity was found in the drug importation scenario. K- would be likely to receive a life sentence in Thailand, a 20 year term in India, 15 years in South Africa, and between five and 18 years in most of the other countries. Again, the Netherlands was the exception, with lawyers estimating her likely sentence at around four months.

In six jurisdictions, K- was also liable to receive a fine on top of custody: in New South Wales, the fine could equate to almost US$700,000 (but would be at the court’s discretion). In Brazil, a minimum fine equivalent to around US$3,500 would apply. In Kenya, South Africa, Thailand, and India, non-payment of the fine would probably mean extra time in custody. In Brazil it would mean removal from the electoral roll and losing the right to work.

Life sentences

In the case of L-, the perpetrator of homicide with intent, a life sentence would be the probable outcome in most of the ten countries. This would currently take effect as a whole life sentence (that is, with no possibility of release) in Kenya, potentially also South Africa, and as a minimum term of 20 to 25 years in England and Wales, New York State and New South Wales, with a right to apply for release on parole thereafter. In India and Thailand limited remission can be earned after a certain point. Also in Thailand, prisoners can earn eligibility for royal pardon and release as part of a system of intermittent amnesties.

The death penalty remains on the statute book as the sanction for murder in Kenya (where it was ruled unconstitutional by the Supreme Court in 2017), Thailand and India. In Thailand it is also mandated in drug trafficking cases but is generally commuted to life imprisonment if there is a confession. None of the defence lawyers considered a death sentence likely on the facts in L-’s case.

Brazil, alone among the ten countries, has no life sentence. For homicide, a mandatory minimum of 12 years applies: if judges sentence above this level (up to a statutory maximum of 30 years) they are expected to provide reasons. In Brazil, L- would probably receive a 14 year sentence, the first five or six years to be served in maximum security conditions.

In the Netherlands, life sentences  are almost never used. The most likely outcome for L- in a Dutch court would be a custodial term somewhere between three and twelve years, with a stay in a psychiatric treatment centre afterwards if the court was satisfied that he had a treatable condition. (Otherwise, the custodial term would likely be ten to twelve years, but without a potentially open-ended period in a psychiatric clinic.)

Do long prison sentences deter?

Politicians and governments tend to justify the use of life or very long custodial sentences largely on grounds of deterrence. The same reasoning has supported tougher sentences for repeat offenders, with fairly long custodial terms even when the index offence and the prior convictions did not involve violence. But the research evidence on the (general or specific/individual) deterrent effects of harsh sentences suggests that they are limited; the certainty of detection and punishment are more effective deterrents. Deterrence theory also fails to account for impulsivity, unmet mental health needs, the influence of drugs and alcohol, or the role of poverty and weak social support – all factors known to underlie much offending.

What is beyond doubt is that the introduction of tougher, more arbitrary sentencing regimes greatly increased prison populations, while doing nothing to resolve the underlying and complex drivers of much (re-)offending.

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Re-imagining the Youth Court

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Gillian Hunter from the Institute for Crime and Justice Policy Research shares findings from research conducted in collaboration with The Centre for Justice Innovation (CJI) on developing problem-solving practice in the Youth Court.

Youth courts and problem-solving justice
The number of young people coming to court has declined by 75% over the past decade due to falls in youth crime and the successful diversion of cases away from formal court proceedings. Those who do end up in courts, however, tend to be the most vulnerable and disadvantaged young people, their biographies replete with experiences of being in care, exclusion from mainstream schooling, and evidence of welfare, mental health and learning and communication needs.

Our research, funded by the Nuffield Foundation, explored youth court practice in three areas in England with a view to identifying opportunities to develop problem-solving approaches. Problem-solving justice emphasises rehabilitation; it promotes procedural fairness and respectful treatment by the court, and interventions and supervision (sometimes from a number of agencies) that are focused on outcomes and responsive to the changing circumstances of the young person. It also involves longer-term judicial monitoring to review and support compliance with the court’s sentence. There are already elements of problem-solving in how youth courts operate: there is a degree of specialism required to work in these courts; hearings should take place in adapted courtrooms where there is more emphasis on engaging with the child compared to adult court hearings; youth offending services (YOS) are specialist multiagency teams that coordinate and supervise interventions; and the guidance for sentencing young people encourages a child-focused approach which centres on rehabilitation wherever possible and warns against the unnecessary criminalisation of young people. It is clear, however, that these elements of problem-solving practice could be further developed and enhanced.

Our report, co-authored with CJI and launched on 30th June 2020 – Time to get it right – underlines the need for action rather than more words. Our research followed several high-level independent reviews of the Youth Justice System, completed since 2014, all of which have recommended aspects of problem-solving practice as a better way to address young people’s underlying needs and reduce their likelihood of future contact with the justice system. It is also widely recognised that the decline in numbers of young people going through the courts has created the necessary space for a system ‘re-boot’.

Local innovation and challenges
Despite the absence of a national strategy on youth justice, the study found local innovation and enthusiasm for changes in line with problem-solving practice, including, for example, the use of informal review hearings to support the progress of young people on community orders. This was described by one YOS worker we spoke to as helping to establish a more positive relationship between young person and court:

“Because up until then, their experience of magistrates and people dictating what happens to them, which is how they see it, is people sat on a bench who are talking to them in a particular way, who are deciding what will happen to them, who are telling them what to do and then suddenly …They have a review and they are sitting around a table with people who are genuinely taking a real interest in them, who are not being lovey-dovey. Although the setting is informal it is quietly exploratory, it is quietly challenging, but it’s all done at the young person’s pace so they’re more relaxed, they’re more engaged.”

We also encountered committed and hard-working court and YOS staff and lay and professional judiciary working in a strained system that throws up daily challenges: delays in cases reaching court; the closure of youth courts and associated loss of local expertise; court layouts that are ill-adapted to young people’s participation in hearings; children’s services that are under-funded and often absent when they need to provide support to young people in court; and shortfalls in the help that can be offered to address young people’s mental health, or communication and learning needs. “A sticking plaster” analogy was used by one magistrate we talked to, in considering how well the system is currently addressing young people’s needs.

Young People’s voices
The young people we interviewed, with recent experience of youth court, were frequently confused by court language and felt largely detached from proceedings, sometimes not fully understanding the implications of their sentence until later. However, they also told us that they appreciated when efforts were made by judiciary and others in court to explain what was happening in ways they could understand.

Time for action
Our research highlights the need for enhanced problem-solving practice in the youth court – including greater specialist knowledge and training for those working with young people as judges, magistrates and legal representatives, and further adaptations of court layouts such that they are always less formal than the equivalent for adults. There should also be better resourcing of youth justice and children’s services to ensure the young people who come before the court receive the support they need. Our research found local endeavours to introduce problem-solving in the absence of national initiatives to promote the approach and we emphasise the need for an official repository  so that learning can be shared and further innovative practice in the youth courts can be fostered.

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Pre-trial detention and its overuse

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Catherine Heard, director of the World Prison Research Programme, at the Institute for Crime & Justice Policy Research at Birkbeck discusses pre-trial imprisonment.

Justice for Kalief Browder rally, New York, 2015. Credit: Felton Davis

Today, around 3 million people are in pre-trial (or ‘remand’) detention, awaiting trial or final sentence: roughly a third of the world’s prisoners. Some will see their cases dropped before trial. Some will be acquitted and released. Others, although convicted, won’t receive a custodial sentence. Whatever the outcome, the experience could have life-changing consequences, such as loss of employment, family and community ties; homelessness; and deterioration in physical or mental health.

Many pre-trial prisoners are held for months or years, their cases languishing in congested court lists. Kalief Browder spent three years in Rikers Island jail in New York, but was never tried or sentenced. Aged 17 when his detention began, he endured appalling abuse and spent hundreds of days in solitary confinement.  Accused of stealing a backpack, he insisted on his innocence, resisting pressure to plead guilty in exchange for his release. At the many court hearings during his detention, the judge rubber-stamped repeated prosecution requests for more time. Eventually, the case was dropped due to lack of evidence. Kalief was released but tragically, two years later, he committed suicide.

Kalief’s case shows the casual disregard that criminal justice systems so often have for the lives, rights and freedoms of those caught up in their machinery. It’s not just an American problem. All over the world, people unable to pay bail or afford a good lawyer are being consigned to months or years in pre-trial detention, while those with money or social status find it easier to avoid prison.

Why it matters: The misuse of pre-trial imprisonment is a major, but preventable cause of prison overcrowding; and a severe infringement of fundamental rights. It causes economic and social harm, puts pressure on prison conditions and increases the risk of crime. Pre-trial detention statistics held on ICPR’s World Prison Brief database show that, since 2000, pre-trial prison populations have grown substantially across much of the world. This is despite increased availability of cheaper, less restrictive measures like electronic monitoring.

Research in ten countries: Our new report, Pre-trial detention: evidence of its use and over-use in ten countries, looks at pre-trial detention in ten jurisdictions: Kenya, South Africa, Brazil, the USA, India, Thailand, England & Wales, Hungary, the Netherlands and Australia. All but one of these (the Netherlands) currently run their prison systems over-capacity. The rate of pre-trial detainees per 100,000 of the national population varies significantly among these countries. Several of them have seen very substantial rises in their pre-trial imprisonment rates, as shown in the figure below.

Change in pre-trial detention rate (number of people held pre-trial per 100,000 of the population) since 1970*

*Figures are from earliest date for which reliable data are available to most recent data as of September 2019.

Causes of pre-trial injustice: Our research included analysis of national legal systems followed by interviews with 60 experienced criminal defence lawyers across the ten countries. We found a gulf between law and practice: although legal systems (in line with international standards) refer to pre-trial detention as an exceptional measure it is, in practice, more often the norm. The problem is rarely the law itself, but wider socio-economic and systemic factors that influence its (mis)application.

People from backgrounds of disadvantage are more likely to be arrested, often don’t have money to pay bail, are less likely to have good legal representation – and for these reasons are more likely to be detained pre-trial.  Aspects of the wider criminal justice ‘machinery’ are also part of the picture: under-resourced police and prosecution services that can’t investigate quickly and effectively; inadequate legal aid; lack of judges and court staff; unmodernised court infrastructure and technology; too few alternatives to custody. All these factors lead to misuse and prolongation of pre-trial imprisonment.

Judicial culture and practice were also identified as problematic, with judges described as being too ready to make unsupported assumptions about risk; too quick to dismiss defence arguments about weak evidence or ways to mitigate risk; overly influenced by fear of media (and social media) criticism; and disinclined to give concrete, evidence-based reasons for their decisions to remand in custody.

Our recommendations for tackling misuse of pre-trial detention are concrete and grounded on the research findings. We’ll be presenting them to policy-makers, practitioners and civil society bodies over the coming months.

More information

Read the full report by ICPR’s Catherine Heard and Helen Fair: https://prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_final.pdf

Read the brief: https://prisonstudies.org/sites/default/files/resources/downloads/pre-trial_detention_briefing_final.pdf

See the latest data on prison populations worldwide, at ICPR’s World Prison Brief database: https://prisonstudies.org/world-prison-brief-data

About ICPR’s World Prison Research Programme: https://www.icpr.org.uk/theme/prisons-and-use-imprisonment

Institute for Crime & Justice Policy Research, School of Law, Birkbeck: https://www.icpr.org.uk/

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Ireland’s Mother and Baby Homes in Law and Literature

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Professor Adam Gearey from Birkbeck’s School of Law writes about the horrific scandal of Ireland’s Mother and Baby Homes, and how its representation in literature may play an important role in the recently opened Commission of Investigation.

A conference this weekend in Dublin City University is dedicated to ‘law and literature’ in Ireland. What is law and literature; and how can this kind of scholarship shed light on matters of public concern? Literature compels us to think about matters that are left unresolved when courts have ruled. In particular, the poet Annemarie Ní Churreáin’s book Bloodroot asks its readers to think about the lives ruined by the abusive regime of the Mother and Baby Homes. Mother and Baby Homes operated throughout Ireland from the early 1900s to more or less the present day. They were institutions run by the Catholic Church for women “who became pregnant.” Women who survived Mother and Baby Homes describe them differently—there are many stories of duplicity, exploitation abuse and forced separations. As Emer O’Toole has written: “women were incarcerated in state-funded, church-run institutions called mother and baby homes or Magdalene asylums, where they worked to atone for their sins.” Mother and Baby Homes were thus part of a system of institutions that served to discipline women and girls; enforcing codes of sexual morality and social conformity. Although not unique to Ireland, recent events have forced a confrontation with the traumatic legacy of Mother and Baby Homes- themes that animate Ní Churreáin’s poems.

Survivors of Mother and Baby Homes have long maintained that church and state presided over the systematic abuse of mothers and babies. However, only recently have Mother and Baby Homes become the subject of a Commission of Investigation. In 2014 Cathleen Corless published research suggesting that there was a mass grave in the grounds of the Bon Secours Mother and Baby Home in Taum containing the remains of over 800 babies and young children. A Commission of Investigation was charged with gathering evidence on conditions in Mother and Baby Homes, mortality rates and adoption practices. Excavations carried out by the Commission established that there had indeed been a mass burial of human remains in a sewage tanks in the grounds of the Bon Secours Mother and Baby Home.

Although the Commission is yet to publish its final report, the “hospital empire” has been denounced in the Dáil, and Taoiseach Enda Kenny came under pressure to make a public apology. The Commission is seen as an important way of establishing the truth. But it is only a partial victory for survivors. The Commission has no power to consider those mothers and adopted children who were subject to forced adoptions. As Tanya Gold, has put it: the possibility of ‘restorative justice’ seems remote to those whose histories have been effectively erased, and who remain outside the scope of the commission.

The poet Annemarie Ní Churreáin’s addresses the lived realities of this history. She has described herself as a “daughter” of the Mother and Baby Homes. Her grandmother gave birth to her father in Castlepollard Mother and Baby Home in the early 1950s. As a single mother, she had to give the baby up for adoption.

How can the horror, the systematic ruin of so many families and so many lives be understood? As an introduction to Bloodroot, Ní Churreáin’s has written:

“If I remain wary today of State care systems and policies, it’s because they disappeared from my life, without explanation or proper support, many of the people I have loved. It is at least in part the State that has taught me what I know in my poetry about space, power structures and the unsaid.”

Ni Churreáin talks of her ‘wariness’ towards the state. ‘Wariness’ stems from words that mean being attentive, heedful or watchful. As a poet, Ní Churreáin is invoking an attentive heeding of those who have disappeared. Heedfulness is linked to an old Irish word which describes weeping and lamentation. Bloodroot is an elegy, a lamentation for loved ones and for what remains ‘unsaid’. The power of law and the state may be able to silence, and to compel speech, but Ní Churreáin remains attentive to those who cannot speak. When the Commission publishes its final report, Bloodroot will be read as its essential supplement. If the Commission cannot recover evidence relating to the trauma of survivors, then perhaps poetry can remain heedful. If the suffering of many survivors is absent from official record,  Bloodroot affirms: “[w]hat comes from desire cannot be erased”.

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