Why increase prison capacity when we should be looking for alternatives to jail for minor offenders, writes Dr Ian O'Donnell.
The Minister for Justice, Equality and Law Reform has announced his intention to reduce judicial discretion and increase prison capacity. It is difficult to see a clear justification for either of these initiatives.
The Criminal Justice Act 1999 introduced mandatory minimum prison sentences of 10 years for adults convicted of trafficking in drugs to the value of at least £10,000. There was scope for the imposition of a lesser penalty in "exceptional and specific circumstances". The judiciary has interpreted this clause broadly and the Minister now views it as a loophole that needs to be closed.
Few would object to a tough penal policy for drug dealers, but there are real dangers that the proposed measure will be ineffective, costly and unjust.
The rationale behind the renewed emphasis on mandatory sentences has not been clearly articulated. However, it would be reasonable to assume that they are intended to protect the public through incapacitating dangerous criminals, while at the same time deterring traffickers by increasing the risks associated with their trade.
These assumptions are based on a misplaced faith in the power of prisons to reduce crime and an overly optimistic conception of the criminal as a rational calculator who adjusts his behaviour in light of prevailing costs and benefits. They ignore the consistent research finding that the severity of punishment plays less on a potential offender's mind than the chances of being caught. When the latter are perceived to be slim, the former is largely irrelevant.
At an average of €85,000 per annum for each occupant, prisons are expensive. More spending on criminal justice means there is less available for other activities that contribute to the prevention of crime. In some American states that have embraced mandatory minimum sentences, education budgets have been slashed to accommodate swelling prison budgets.
Beyond questions of economy and efficacy, the proposal raises the possibility of injustice. The mandatory sentence is a blunt instrument. Judges will no longer be able to select the penalty which they feel will contribute most to the rehabilitation of the offender and the protection of the public.
There is a further complication. Juries might be reluctant to convict in a case where they know the judge has no option but to pass a sentence of 10 years' imprisonment and such a severe penalty seems manifestly excessive.
In any event, it is not as if the courts are limited in how they can dispose of drug dealers. Their powers of punishment are wide, the maximum penalty being life imprisonment. Also, the Director of Public Prosecutions can appeal a sentence if it is considered to be unduly lenient.
There is little doubt that the existing legislative framework allows for both harshness and flexibility. It is difficult therefore to understand the need for the proposed change. Better ways to tackle apparent inconsistencies in sentencing would include judicial training and careful empirical research.
Experience shows that when legislation demands greater severity in one area, the harsher climate can affect sentencing practice more generally. There is a risk that courts may ratchet up penalties for other offences to prevent them appearing disproportionately light compared with sentences for drug offenders.
Decisive action is necessary to prevent drug-related crime and reduce the fear it engenders. However it is by no means evident that the best way to achieve these twin goals is through mandatory minimum terms of imprisonment.
The Minister also promises to construct two new prisons on a scale previously unknown in this country. One is to accommodate 1,000 individuals, and the other 800. This breaches the important principle that penal institutions should be small and located close to where their occupants usually reside. When it comes to prison design, big is not beautiful.
If these plans are completed it is estimated that the prison system will have space for over 4,000 persons. This compares with 2,500 in custody when Fianna Fáil and the Progressive Democrats coalesced in 1997, and would propel us towards the top of the European league table of imprisonment rates.
A swelling prison population as a consequence of rising crime is a tolerable, if bitter, pill. To make it a policy goal is illogical. This is especially true given that Ireland's crime problem remains relatively modest, despite the growing incidence of lethal violence.
There is one critical, and little known fact, about the prison population. It is that most of those sentenced to prison receive less than six months. Reviews of the criminal justice system over the past 20 years have reported with monotonous regularity on the need to create a meaningful array of alternatives to imprisonment for the minor offenders who crowd into our courts every day.
It is impossible to estimate the need for prison spaces until community sanctions are properly available nationwide. To enable this will involve diverting resources from prisons to the Probation and Welfare Service and increasing, rather than reducing, the range of options available to judges. The current proposals go in the opposite direction.
Mr McDowell is a man of action and principle. We would be in his debt were he to adopt a parsimonious approach to incarceration. To stabilise, and then reduce, the prison population: now that would be radical.
Dr Ian O'Donnell is deputy director, Institute of Criminology, Law Faculty, University College Dublin.