Exploring global disparities in criminal sentencing

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.

Further information

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The use and over-use of prison around the world

Catherine Heard, Director of ICPR’s World Prison Research Programme, writes on a new report looking at disparities in prison use in ten countries, across five continents.

prison-report-launchMarch 16th saw the launch of our new report, Prison: Evidence of its use and over-use from around the world.

Over 40 guests came to the launch (kindly hosted by the law firm Clifford Chance) to hear about the report’s highlights and watch presentations by experts on imprisonment in Brazil and the Netherlands, two of our featured countries. The event was also addressed by speakers from the international human rights NGO, Fair Trials, who co-published the report and are ICPR’s partner on the wider project – of which the new report is the first output.

The human stories behind the data

Given ICPR’s strong focus on prison statistics (as hosts and compilers of the World Prison Brief) we want to ensure this project never loses sight of the many ways prison affects people: not only those imprisoned, but their families, their wider communities and the people who work in prisons.

That is why a core element of our methodology in the wider project is about mapping the ‘custody journey’ in each country. That means drawing on real cases to understand the lived experience of criminal justice and imprisonment – after arrest, in pre-trial detention, during custodial sentences and after release.

Every human story behind a prison statistic has something to tell us about how a particular country uses imprisonment to respond to crime. The importance of listening to the human story came out clearly from the presentation by Jago Russell and Alex Mik of Fair Trials, about their work with individuals who have experienced unfair treatment in criminal justice systems. They played prison-report-launch2a one-minute animation by the Royal College of Art and filmed interviews with three people who have experienced pre-trial detention in different European countries. These can be viewed on Fair Trials’ website.

I was struck by what Jago had said in his Foreword to our report: ‘Statistics alone can sanitise reality – they do not speak to the violence, intimidation and isolation that are part of the daily experience of custody’.

Brazil’s recurring nightmare

Who better to pick up this theme than Dr Sacha Darke, from the University of Westminster? Sacha has visited 30 Brazilian jails and is an expert in the country’s sad history of uncontrolled growth in prisoner numbers – Brazil has seen prisoner numbers increase twenty-fold from around 30,000 in 1973 to over 600,000 today – and the violence and horror this has unleashed. He showed images from recent massacres and riots in prisons in northeast Brazil (discussed on pages 8 to 10 of our report). He then described the importance of prisoner governance, and organised crime group affiliation in Brazil’s prisons. Organised crime groups are by-products of wholly inadequate staff/prisoner ratios. In many of Brazil’s prisons, the role of staff is essentially to guard the perimeter, while prisoner ‘trusties’ are left to organise, arbitrate and discipline on the inside.

It was clear from Sacha’s presentation that Brazil’s prisons have always been in crisis and that there is no real prospect of enough capacity being built to change this. But, on a brighter note, he spoke of his visits to some of the country’s ‘community prisons’. These first emerged in the seventies in São Paulo and, though few in number, they are very different from the hellish, overcrowded prisons that prevail in Brazil. There is close collaboration between the prisons and prisoners’ families and communities. Many ex-prisoners come back as volunteers. Governors and senior managers are often former prisoners. Sacha referred to Fiona Macaulay’s research on Brazil’s community prisons, which have been praised as exceptionally humane in approach.

The Netherlands: reversing the punitive turn?

It was then over to Professor Francis Pakes (University of Portsmouth) to address the question: how did the Netherlands reverse its punitive turn? As explained in our report (page 21), after decades of low imprisonment levels, the Dutch prisoner rate surged from the late eighties, increasing by 200% and peaking at 134 per 100,000 in 2005. Interestingly, despite a strong Dutch tradition of criminology – and good statistical data – there is no consensus on precisely why the subsequent turnaround happened.

After hearing Francis speak, I was confident that in choosing the Netherlands we’d picked the right country to contrast with the high incarcerators featured in this report. There is a lot we can learn from the Netherlands. Maybe our project will contribute to the on-going inquiry about how the Dutch turned around their prison juggernaut.

FURTHER INFORMATION

Understanding and reducing the risk of imprisonment: interview with Catherine Heard

Report authors

Dr Jessica Jacobson, Director of ICPR
Catherine Heard, Director of ICPR’s World Prison Research Programme
Helen Fair, a Research Fellow at ICPR·

Read the press release about the report.

The World Prison Brief The statistical data in the report are sourced from the World Prison Brief, compiled by Roy Walmsley and hosted and published by ICPR. This unique and internationally renowned online database contains a wealth of information on prisons and the use of imprisonment in 226 independent countries and dependent territories around the world.

The Institute for Criminal Policy Research (ICPR) is based at the Law School of Birkbeck, University of London. ICPR conducts policy-oriented, academically-grounded research on all aspects of the criminal justice system. ICPR’s work on this report forms part of ICPR’s World Prison Research Programme.

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