Opinion

You steal a can of beer or damage an abandoned bike. Should you be jailed?

Clogging up prisons with minor offenders is expensive and can compound crime. The €7,000 monthly cost could be more constructively spent

We have an obligation to those we punish by imprisonment to minimise the collateral consequences of the pain we inflict upon them. Photograph: Gareth Chaney/ Collins Photos

Ian O'Donnell
Mon May 13 2024 - 06:00

Short prison sentences do more harm than good. Yet they continue to be handed down all too often in Irish courtrooms.

In a typical year, most people who arrive in prison have received less than six months. The time served is significantly shorter because a discount of 25 per cent is applied to any sentence greater than one month and, due to overcrowding, some prisoners are allowed home ahead of schedule on temporary release.

These brief bursts of custody are damaging in several ways. If the person being punished has somewhere to live, they may lose it. If they are working, their employer may be unable or unwilling to hold a job open for them. Their children may end up in care. Their victims’ needs go unaddressed.

If they are battling addiction or poor mental health, the period of incarceration is too short to allow for meaningful treatment. If they have managed to steer clear of criminal peers, this will end as soon as the prison gate clangs shut behind them.

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Clogging up the prisons with minor offenders is expensive. It takes little effort to imagine better ways to spend the €7,000 monthly cost of a prison place.

This is a waste not just for the individuals concerned but for the rest of us who can never benefit from their talents and may come to view them with disdain or even hostility.

Knowing more about an individual’s personal circumstances allows a more nuanced response. Empathy and harsh punishment are uneasy companions

We have an obligation to those we punish to minimise the collateral consequences of the pain we inflict upon them. As George Bernard Shaw put it: “Now, if you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him. And men are not improved by injuries.”

Irish judges espouse a strong commitment to rehabilitation and try to individualise the penalties they impose.

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In some cases, they would rather give a non-custodial sentence but the resources to support, say community service or restorative justice, are underdeveloped in their area. In others, they are benevolently inclined, believing that a vulnerable person will have access in prison to services denied them at liberty.

Sometimes they cling to the notion – despite evidence to the contrary in the form of repeat offenders appearing before them – that imprisonment is an effective deterrent.

During the 1990s I was a magistrate in Oxford. Having sentenced people to prison myself, I appreciate how difficult it can be dealing with minor offenders who seem unwilling to commit to their own rehabilitation.

For the past 12 months I have been following up a small group of people I first spoke with in Mountjoy Prison. All had received short sentences. None was sober when committing the crime that led to their incarceration. None of the offences involved violence.

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One person walked out of a shop wearing an item of clothing that should have been paid for. Another stole alcohol by stuffing cans of beer into his coat sleeve. A third damaged an abandoned bicycle frame. All were struggling with addiction and homelessness. All acknowledged the poor choices they had made and the wrong they had done. All regretted the direction their lives had taken. None wallowed in self-pity. All could have been dealt with differently.

As well as being anxious, troublesome and chaotic, they are courteous, generous and resilient.

Incarceration is not the solution for the minor offenders I have come to know, understand and like over the past year

My focus is on minor offenders whose incarceration is so short that any respite the community gains from taking them out of circulation is soon over. If their future conduct is likely to be worse, jailing them is simply deferring – and aggravating – the problem.

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Perpetrators of serious harm are a different story. They deserve a proportionate response. Occasionally this may equate to several years in prison. Fortunately, they constitute a minority of those who come before the courts.

As the population in Irish prisons nudges 5,000, the need for corrective action is pressing. The solution is not additional prison places. What is required is a more parsimonious approach to locking people up, with imprisonment reserved as a sanction of last resort for serious criminality.

The National Commission on Restorative Justice recommended that where a judge is contemplating a custodial sentence of up to three years, he or she should be required to consider a process such as victim-offender mediation instead. This should happen alongside strenuous efforts to promote community integration and, where appropriate, residential drug treatment.

Knowing more about an individual’s personal circumstances allows a more nuanced response; empathy and harsh punishment are uneasy companions.

The commission called for nationwide implementation of restorative justice by 2015. This has not happened, and it is mystifying why progress has been so slow.

Incarceration is not the solution for the minor offenders I have come to know, understand and like over the past year, or for others who find themselves in a similar predicament.

Irish judges are decent and humane and enjoy a wide margin of discretion. If they were open to new ways of thinking, there would be no impediment to an immediate change of practice.

Ian O’Donnell is professor of criminology at University College Dublin

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