Module 7: Alternatives to Imprisonment

Introduction

The overuse of imprisonment is a major issue worldwide (Penal Reform International, 2018). The international community has recognized this and made a concerted effort to promote the use of alternatives to imprisonment and the principles that should underpin them (see for example: UNODC, 2006a). The United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) hold that criminal justice systems should provide "a wide range of non-custodial measures, from pretrial to post sentencing dispositions", "consistent with the nature of the gravity of the offence, the personality and background of the offender and with the protection of society and to avoid unnecessary use of imprisonment" (1990, Rule 2.3). Importantly, alternatives to imprisonment play a significant role in many different legal systems. Indeed, in some jurisdictions, the majority of penal sanctions imposed are, in fact, non-custodial, and the numbers of offenders subject to community sanctions has grown rapidly in recent years (McNeill, 2013; 2018a). The overarching aim of this Module is to critically assess the use and implementation of alternatives to imprisonment at different stages of the criminal justice process.

The Module is divided into five main sections. Topic One of the Module - Aims and significance of alternatives to imprisonment - first introduces key terminology and considers why alternatives to imprisonment are important in contemporary criminal justice. It then considers the main aims and objectives (as well as the potential risks) of alternative sanctions to imprisonment. Topic Two of the Module - Justifying punishment in the community - provides a critical overview of the general purposes of punishment, namely, retribution, incapacitation, deterrence, rehabilitation and reparation. Topic Three - Pretrial alternatives - focuses on assessing decriminalization and diversion strategies that are aimed at limiting entry into the criminal process, as well as the imposition of alternative measures to pretrial detention. Topic Four - Post trial alternatives - investigates a range of non-custodial sanctions and measures that can be imposed, first at the sentencing stage of criminal proceedings, and secondly, at the post sentencing stage, such as early release from prison. Topic Five of the Module - Evaluating alternatives - examines the effectiveness of alternatives to imprisonment and highlights which groups may benefit most from non-custodial sanctions. This section closes with examples of innovative and good practice across different jurisdictions.

Learning outcomes

• Develop a critical understanding of the main aims and significance of alternatives to imprisonment.
• Identify and evaluate the five main justifications of punishment.
• Critically assess decriminalization policies and diversion strategies, as well as alternatives to pretrial detention, as key mechanisms to reduce the reach of the criminal justice system and the use of imprisonment.
• Describe different types of non-custodial sanctions available at sentencing and post sentencing stages of the criminal process, and identify the key agencies involved in their implementation.
• Critically examine the available evidence on the effectiveness of alternatives to imprisonment.
• Identify vulnerable groups who may particularly benefit from alternatives to imprisonment, and to develop an understanding of innovative and promising practices in use around the world.

Module 4: Use of Force and Firearms

Exercise one: Aims of law enforcement and reason for the use of force (20 minutes)

This session is an icebreaker for students to introduce them to the topic.

Lecturer Guidelines

Begin by asking what the students think are (or should be) the legitimate aims of law enforcement. Responses should include some of the following:

• Prevention of crime
• Arrest of criminal suspects
• Maintenance of law and order
• Protection of the vulnerable
• Facilitating peaceful assemblies

Can any of these be achieved without recourse to use of force? If so, how?

Examples might include the following:

• Maintaining public trust in policing agencies through independent oversight and accountability mechanisms (for more on this, see Module 5 on Police Accountability, Integrity and Oversight).
• Warnings about the consequences of a failure to comply.
• Possible criminal responsibility for resisting arrest.

At this point, an optional activity is to show a two-minute video on an interaction between police officers and a youth who has made an obscene gesture to the police. Discuss how the police might have dealt with this more effectively without recourse to use of force.

Next, discuss when force might be legitimate. Is it only when a suspect is already violent?

Elicit examples of police use of force. Responses should include some of the following:

• Physical restraint using hands
• Handcuffing
• Fitting of a spit hood
• Baton strike
• Chemical irritant (e.g. pepper spray or tear gas)
• Taser electrical discharge
• Police shooting

Using sticky notes on a whiteboard, ask the class to put the different responses in a "continuum", starting with the least dangerous to the suspect at the bottom (handcuffing or physical restraint) and finishing at the top with the most dangerous (i.e. the use of a firearm). Explain to the students that this is one possible continuum on the use of force by law enforcement officials.

Module 3: Access to Legal Aid in Criminal Proceedings

Exercise 1: Pre-class case study

This exercise refers to the pre-class case study included in the “Case Studies” Section of this Module. The related questions are:

Assuming that the law in your country reflects the relevant provisions of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (UNPG) -

1. Would the police have to inform you about a right to a lawyer? Would you be entitled to a lawyer at the police station?
2. Would you be entitled to legal aid to pay for a lawyer at the police station?
3. Would you be entitled to be represented by a lawyer at court?
4. Would you be entitled to legal aid to pay for a lawyer at court?

Lecturer guidelines

In addition to the pre-class reading (see recommended class structure below), the lecturer should give the pre-class case study to the students, and ask them to prepare answers to the questions, based on their pre-class reading, and be ready to answer the questions and discuss the issues raised in class. The Teaching Guide that accompanies this University Module Series provides practical advice for lecturers in teaching the Modules, including tips to ensure that the material is engaging for students from a broad variety of disciplines.

Module 5: Police Accountability, Integrity and Oversight

Exercise 5: Analysis of ECtHR judgments

Difficulty: Advanced, Length 70 mins

The purpose of this exercise is to have students analyze landmark court judgments on the themes of this Module, and critically discuss the case from a comprehensive accountability perspective.

Lecturer guidelines

• Introduction (5 mins): Divide the students into three groups and introduce the exercise. Each group analyses one court judgment and briefly presents the case, violations, and the court ruling to the other groups.
• Group work (30 mins): During this phase, groups should browse through the court ruling and answer the following questions to prepare for their presentation:
• What are the basic facts of the case?
• Which human rights are violated?
• Which police accountability mechanisms failed before the case was brought before the ECtHR?
• Which oversight actors, and accountability mechanisms/procedures shall be in place to prevent such incidents in the future?
• Group presentations and discussion (30 mins): Following the group work, reconvene the plenary. Each group presents their case to the other groups, followed by a plenary discussion along the lines of the above listed questions.

Suggested cases

• Group 1: Whistle-blowing - Guja v. Republic of Moldova (No. 14277/04)
• Mr. Guja was dismissed from the Prosecutor General's Office for providing the press with two documents which disclosed interference by a high-ranking politician in pending criminal proceedings concerning police officers. The Court considered, in particular, that the public interest in being informed about undue pressure outweighed the interest in maintaining public confidence in the Prosecutor General's Office.
• Group 2: Gender and Police Accountability - Aydın v. Turkey (No. 57/1996/676/866)
• The case concerns the beating and rape of a Turkish girl of Kurdish origin (aged 17 at the time) by Turkish law enforcement agencies during detention. The applicant further claimed that the family was intimidated and harassed by the authorities to coerce them into withdrawing their complaint before the European Court of Human Rights.

Alternative cases for Group 2:

• Failure of the police to investigate SGBV - S.Z. v Bulgaria (No. 29263/12)
• The case concerns ineffective investigations for the false imprisonment, assault, rape and trafficking in human beings perpetrated against the applicant. The applicant complained of the lack of an investigation into the alleged involvement of two police officers and the failure to prosecute two of her assailants, and of the excessive length of time taken to investigate and try the case.
• Domestic violence committed by a police officer, systemic failure to investigate - Eremia and Others v. the Republic of Moldova (No. 3564/11)
• The first applicant and her two daughters complained about the Moldovan authorities' failure to protect them from the violent and abusive behaviour of their husband and father, who was a police officer.
• Group 3: Police detention and accountability - M.S. v. the United Kingdom (No. 24527/08)
• The case concerns detention conditions in police custody and particularly the treatment of persons with mental health conditions.

Modification

For better context relevancy, the lecturer may consider choosing cases reviewed or adjudicated by the Inter-American Court of Human Rights, or the African Court of Human and People's Rights.

Module 11: Justice for Victims

Case study one

Before presenting the case (it can be distributed, read, or projected), ask students to go through the case by paying particular attention to the following questions.

• What happened?
• What type of damage did the victim(s) suffer?
• What needs the victim(s) might have?
• What are the victims' rights?
• What would be the best approach to ensuring justice for these victim(s)?

Allie and Mike are both in their mid-seventies. They are both retired, and since their children grew up and left, besides being grandparents, they look after themselves, travel, spend time in the community, and engaged with various hobbies. Mike had a hip replacement a few years ago and has some issue in walking; Allie has high blood pressure and is on heart medication. They have been together for 45 years.

One night while returning from a concert performance, Allie was taking the keys from her bag, they were approached by two young men who distracted them by asking for directions. They seemed lost and were very gentle to the couple, apologizing. After spending a few seconds in exchanging information, one of the two young men, grabbed Allie's bag, where she had her purse, keys, her mobile and some photos and small objects, while the other young men hit Mike on his head, took his wallet and left him unconscious on the ground. Allie, in total shock, started shouting and asking for help. She did not have the phone anymore, and as much as she was shaking could not even shout; eventually, after ten minutes, someone called an ambulance and then the police arrived.

They were both brought the hospital where Mile spent five days 'under observation' due to a mild concussion. When home, he could not stand on his own feet, as he was always dizzy and losing balance. Consequently, one of their sons moved in, and they also had to have some professional assistance.

One of the two young men were arrested three days after the attack thanks to some cameras positioned in a nearby bank. He pleaded guilty, saying that he was under the effects of drug and alcohol and did not have the means to pay back any of the costs or damages.

Module 4: Use of Force and Firearms

Case study two: Combating the sale of illegal drugs

“Freedonia” is a democracy that has recently voted in a populist president who has pledged to tackle fast-rising violence in the country, especially as a result of the drug trade. The national police are to be given fully automatic weapons which were previously only held by the military, with orders to shoot drug traffickers on sight. Freedonia is a State party to the 1966 International Covenant on Civil and Political Rights (ICCPR).

Questions

• Given the democratic mandate of the new president should the police be allowed to use extreme measures to get a handle on rising violence?
• What are the dangers of such an approach?

Suggested answer

The same legal framework applies to law enforcement officials anywhere in the world, even in societies with high levels of violence. Where the police are seen to be unable to stem rising violence, however, public clamor for more draconian action may be irresistible. This may manifest itself in greater weaponry being provided to the police or by using the army with a view to "restoring order". Examples of where such an approach has succeeded in reducing violence, though, are hard to find. In addition, the actions of the police are often hampered by their infiltration by criminal elements or corruption.

Zero tolerance policing and "stop and frisk" in New York in the 1980s and 1990s (where even minor crime in "failing" neighbourhoods is prosecuted) is ascribed by some as the reason for the significant drop in violent crime in that city, though there is longstanding contention, among criminologists, about the influence of other factors (see, for example, Grabosky, 1998).

Module 10: Violence against Women and Girls

Possible class structure

This section contains recommendations for a teaching sequence and timing intended to achieve learning outcomes through a three-hour class.

• Exercise 1 (building on preparatory reading/viewing) [30 minutes]
• Exercise 2 [20 minutes]
• Lecture on Prosecuting the crimes of Rape and Sexual Violence - based on the materials presented in Topic 3, and the PowerPoint presentation provided [30 minutes] or
• Exercise 3 - mini lecture and small group discussion on the ecological approach to understanding violence against women [30 minutes]
• Case study 2 - present case study, discuss, and circulate the CEDAW comments, and facilitate a plenary discussion to encourage students to understand the obligations on States with respect to the right to life [50 minutes]
• Exercise 4 [45 minutes]

Debrief and strengths-based strategies for change - lecturers should take the time at the end of the class to acknowledge the seriousness of the topics and cases discussed, and to remind students of their options in accessing resources to debrief more fully. Lecturers are encouraged to engage in a strengths-based discussion about the role that each person can play as an agent for change. This is an empowering note to end on, and will encourage students to apply their knowledge, rather than feel overwhelmed by the magnitude of the problem. Introducing the final exercise or student assessment on "Imagining a world without gender-based violence" might be useful here - or perhaps the video (3:38 minutes in length) in which Eve Ensler talks about activism, titled "men need to join the fight to end violence against women." (15 February 2018, Time Magazine) [Full debrief session 15 minutes].

Module 12: Violence Against Children

Advanced reading

The following readings are recommended for students interested in exploring the topics of this Module in more detail, and for lecturers teaching the Module:

• Committee on the Rights of the Child (2013). General Comment No. 14 - The right of the child to have his or her best interests taken as a primary consideration . CRC/C/GC/14.
• Committee on the Rights of the Child (2011). General Comment No. 13 on the right of the child to freedom from all forms of violence . CRC/C/GC/13.
• Committee on the Rights of the Child (2007). General Comment No. 10 - Children's Rights in Juvenile Justice. CRC/C/GC/10.
• International NGO Advisory Council on Violence against Children (2013). Creating a Non-Violent Juvenile Justice System . New York: International NGO Advisory Council on Violence against Children.
• Jones, Hayley and Pells, Kirrily (2016). Undermining Learning: Multi-Country Longitudinal Evidence on Corporal Punishment in Schools . Florence: UNICEF Research Office.
• Ogandon Portela, Maria Jose and Pells, Kirrily (2015). Corporal Punishment in Schools - Longitudinal Evidence from Ethiopia, India, Peru and Vietnam . Florence: UNICEF Research Office.
• UNODC (2015b). Planning the Implementation of the United Nations Model Strategies and Practical Measures on the Elimination of Violence against Children in the Field of Crime Prevention and Criminal Justice: A Checklist . Vienna: UNODC.
• WHO (2010). Violence Prevention - The Evidence. Changing cultural and social norms that support violence. New York: WHO.

Regional information

• Council of Europe (2010). Guidelines on Child-Friendly Justice . Strasbourg: CoE.
• UNICEF (2015). Legal Protection from Violence: Analysis of domestic laws related to violence against children in ASEAN member States. Bangkok: UNICEF.

Sources of Data on Violence against Children

• UNICEF (2017). A Familiar Face: Violence in the lives of children and adolescents . New York: UNICEF.
• UNICEF (2016). The State of the World's Children 2016: A fair chance for every child . New York: UNICEF.
• UNICEF (2017). The State of the World's Children 2017. Children in a Digital World,. New York: UNICEF.
• UNICEF (2014). Hidden in Plain Sight. A statistical analysis of violence against children . New York: UNICEF.
• UNICEF (2014a). A Statistical Snapshot of Violence against Adolescent Girls . New York: UNICEF.
• UNICEF (2014b). Violence against Children in East Asia and the Pacific: A Regional Review and Synthesis of Findings . Bangkok: UNICEF.
• UNICEF (2012). Child Maltreatment: Prevalence, Incidence and Consequences in the East Asia and Pacific Region: A Systematic Review of Research . Bangkok: UNICEF.

Resources on Specific Aspects of Violence against Children

• United Nations Special Representative of the Secretary General on Violence against Children (SRSG) (2016). Protecting Children Affected by Armed Violence in the Community . New York: United Nations.
• United Nations Special Representative of the Secretary General on Violence against Children (SRSG) (2016a). Ending the torment: tackling bullying from the schoolyard to cyberspace . New York: United Nations.
• United Nations Special Representative of the Secretary General on Violence against Children (SRSG) (2015). Safeguarding the rights of girls in the criminal justice system: Preventing violence, stigmatization and deprivation of liberty. New York: United Nations.
• United Nations Special Representative of the Secretary-General on Violence against Children (SRSG) & Plan (2012). Protecting Children from Harmful Practices in Plural Legal Systems, with a Special Emphasis on Africa . New York: United Nations.
• United Nations Special Representative of the Secretary General on Violence against Children (SRSG) (2012). Tackling Violence in Schools: A global perspective - Bridging the gap between standards and practice . New York: United Nations.
• United Nations Special Representative of the Secretary General on Violence against Children (SRSG) (2012). Prevention of and responses to violence against children within the juvenile justice system . New York: United Nations.
• United Nations Special Representative of the Secretary General on Violence against Children (SRSG) (2012). Safe and child-sensitive counselling, complaint and reporting mechanisms to address violence against children . New York: United Nations.
• United Nations Children's Fund (UNICEF), the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), the United Nations Population Fund (UNFPA), the International Labour Organization (ILO) and the Office of the Special Representative of the Secretary-General on Violence against Children (SRSG) (2013). Breaking the Silence on Violence against Indigenous Girls, Adolescents and Young Women: A call to action based on an overview of existing evidence from Africa, Asia Pacific and Latin America . New York: UNFPA.

Module 8: Restorative Justice

Student assessment

This section provides suggestions for a post-class assignment for the purpose of assessing student understanding of the Module. Suggestions for pre-class or in-class assignments are provided in the Exercises section.

Assignment 2

Students are given the opportunity to watch a video about a restorative conference, after which they can write a critical reflection about what they learned about the restorative justice encounter (3-4 pages). Students should examine interactions between participants, the topics addressed, and the values undergirding the process. The assignment fosters students' understanding of the theoretical dimensions of restorative justice by experiencing a restorative justice dialogue in practice. Lecturers may choose to allocate (or allow students to choose) a video from the Video Materials section.

Module 4: Use of Force and Firearms

Additional teaching tools

This section includes links to relevant teaching aides such as PowerPoint slides, video material, case studies, and other resources that could help the lecturer teach the issues covered by the Module. The slides and other resources can be adapted by lecturers.

PowerPoint presentations

• General principles governing police use of force
• International legal rules on the use of firearms

Video material

• Use of Taser against a man armed with a knife (52 seconds)
• Conducted energy weapons can be an alternative to firearms in certain circumstances. This brief footage shows police using a taser on a man who is holding a knife outside Buckingham Palace.
• Shooting of a man in Dallas, Texas, carrying a screwdriver (watch the first 2:45 minutes)
• The first 2:45 minutes of this raw footage from a police body worn camera shows police shooting a mentally ill man who was holding a screwdriver.

Websites

• Law on Police Use of Force Worldwide
• UNHCHR - Special Rapporteur on extrajudicial, summary or arbitrary executions

Module 9: Gender in the Criminal Justice System

Guidelines to develop a stand-alone course

This Module provides an outline for a three-hour course. It has the potential, however, to be developed into a stand-alone course. The information in each section and sub-section could easily be developed and expanded, and further debated and discussed by students. The structure could be determined by local interests and needs, but a possible structure is presented below.