RE-ASSESSING THE ROLE OF COMMUNITY-BASEDSENTENCES IN THE CONTEXT OF THE SUSTAINABLE
DEVELOPMENT GOALS
Matti Joutsen *I. APPLICATION OF COMMUNITY-BASED SENTENCES AROUND THE
WORLD
Almost thirty years ago, the United Nations Standard Minimum Rules for Noncustodial Measures (the Tokyo Rules) 1 were adopted by the General Assembly.
So far, no reliable global overview has been prepared of how community-based
sentences 2 are being used in practice in the different jurisdictions. 3 No readily available
source is available. As noted by the Secretary-General in his report to the Thirteenth
United Nations Congress,
Sentencing policies refer to the responses of the criminal justice system to thevarious offences as regards the types of sentences, including non-custodial
measures. A comparative assessment of sentencing policies of criminal justicesystems would require the analysis of the type of sentences, including the lengthof custodial sentences handed out to convicted persons, while taking account of
the seriousness of the criminal offences committed. At the international level,
there are no available data on the length and type of sentences that allow thistype of comparative analysis. 4
The situation is slowly changing. Comparative statistical data on community-based
sentences are being collected in Europe by the Council of Europe. This is only partiallygood news, since it covers only the European region, the process of collection was begun
fairly recently and it is too early to use this data set to assess patterns on other than a very
general level. However, it does provide a point of departure for at least one region in theworld. 5*

Special Advisor, Thailand Institute of Justice.
General Assembly resolution 45/110, annex.
2
Although the Tokyo Rules use the wider concept “non-custodial sanctions,” the main focus in this paper ison sentences, which can be defined broadly as punishment imposed by a court (or other duly constituted
authority) on an offender, following a formal procedure. It includes decisions made in restorative justiceand mediation proceedings.
The terms “non-custodial” and “community-based” are synonyms. The term “alternatives toimprisonment” is widely used but will not be used here, as it implies that imprisonment is the standard andexpected response, and other measures somehow exceptions from the norm.
3
The present paper updates and supplements data contained in an unpublished paper, Joutsen 2015. This
earlier paper also included data, not repeated here, on the use of restorative justice measures and monetary
sanctions.
4State of crime and criminal justice worldwide. Report of the Secretary-General to the Thirteenth United
Nations Crime Congress, A/CONF.222/4, para. 37.
5
Council of Europe Annual Penal Statistics (SPACE II); available at http://wp.unil.ch/space/space-ii/. The
most recent publication is from 2018: Aebi and Hashimoto 2018, and Aebi et al., 2019. The Council ofEurope project uses the term “alternatives to imprisonment”. The working definition does not include, for
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In time, some data may become available also on a global basis. The American
Probation and Parole Association, together with Community Supervision Solutions, haslaunched the “Supervision Around the World” (SAW) Project, which seeks to collectinformation on community supervision practices in every country around the world. 6 TheSAW Project will identify countries offering supervision services, document current
practices and create an interactive Internet repository for the information that it obtains onsupervision programmes.
A second initiative launched recently, the Global Community Corrections Initiative, issimilarly seeking to collect data on the use of community corrections. 7 During the initialstage, the initiative is seeking to identify experts in each of the fifty countries with thehighest prison populations, and obtain through them information on the use of community
corrections, both as sentencing options and as post-release measures.
There are several reasons why data on community-based sentences has been so
difficult to collect, and have not been particularly usable for comparative purposes:• community-based sentences are used primarily at the lower end of offence
seriousness, and it is at this end that the scope of criminalized conduct (i.e. conductthat may lead to a response by the criminal justice system) varies considerably fromone jurisdiction to the next;• community-based sentences as a response to criminalized conduct may be imposed
not only by the courts, but also by the police, the prosecutor and even otheradministrative authorities, and decisions may also be taken by community-based
bodies (as with the case of mediation and restorative justice measures);• community-based sentences, even if imposed by a court, are not necessarily enteredinto a centralized register nor recorded in the statistics; and• the terminology varies from one jurisdiction to another, and thus even communitybased sentences referred to with the same term (for example “probation”) may not
be comparable.
More generally, there are the considerable difficulties in making comparisons
between how the criminal justice system operates in different countries. 8 Nonetheless,almost 30 years after the adoption of the Tokyo Rules, it is of interest to try to examine
how community-based sentences are being used in different jurisdictions around theworld. This paper is based on the available literature and statistical data, and seeks tobring together a number of different observations about patterns.

example, measures imposed on the basis of juvenile criminal law, nor persons under the aftercare ofprobation agencies. Heiskanen et al., 2014, p. 27.
6
http://communitysupervisionsolutions.com/saw-project/.
7
GLOBCCI.ORG.
8
See, for example, Nelken 2007.

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A. The Benchmark: International Patterns in the Use of Imprisonment
The patterns in brief:
•
•

•

•

•

imprisonment (incarceration, custodial treatment) is without question the basic form ofpunishment in criminal justice systems around the world.
although the global rate of prisoners per 100,000 in population has been stable over the past
few years, the rate has been increasing rapidly in some individual countries, and decreasing inothers.
the prisoner rate varies considerably from one country to the next, and even from oneneighbouring country to the next – even if these countries have somewhat similar legal systems
and degree of development.
clear regional and sub-regional patterns can be detected in the use of imprisonment, asmeasured by prisoner rates. In general, imprisonment is used least in Africa and Asia, andmost in North America and Latin America.
in several countries with a high prison population, a present trend is towards “decarceration”,
a deliberate policy of lessening the use of imprisonment.

The best current source of data on prison populations around the world has beendeveloped by Roy Walmsley: the World Prison Population List. The most recent versionof this list, the twelfth edition, provides data as of September 2018. 9 The list provides
information on the total prison population and the prisoner rate (the number of prisoners
per 100,000 in population) in almost all countries in the world. The map below is basedon this data.
One point of caution. Sentences, including sentences of imprisonment, are used indifferent ways by different countries. The use of only one indicator, such as the numberof prisoners per 100,000 in population, can be misleading. The data on prisoner rates
reflect only one dimension of the use of prisons: how many prisoners are being held at a
certain time, as a proportion of the total population. Dünkel notes that prisoner rates are afunction of the number of persons entering prison, and the length of stay. Consequently,
similar prisoner rates may hide considerable differences in these two factors. 10
Furthermore, overall prisoner rates do not show possible demographic differences
within the population. Research has shown that the burden of imprisonment falls
unequally on different ethnic, racial and other population groups, with the greatest burden
tending to fall on vulnerable population groups. 11
The 2018 edition of the World Prison Population List shows that the global prison
population has continued to grow, exceeding 11 million in 2018. It also draws attention toregional trends, including an almost tripling in the total prison population of SouthAmerica since the year 2000 (an increase of 175 per cent), a more than doubling of the9

Walmsley 2019.
Dünkel 2015 provides data showing that Sweden, with a prison population rate of 57 per 100,000, andGermany, with a prison population rate of 76 per 100,000, have roughly the same rates. Even so, theaverage length in Sweden is only two months, while the average length in Germany is four times longer,
eight months. Both are highly developed countries, with roughly the same level and structure of crime, andwith roughly the same criminal justice processes and efficiency – and yet they use sentences ofimprisonment in quite different ways.
11
See, for example, Garland 2014, and in respect of the situation in the United States, Travis and Western(eds.) 2014.
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total prison population of south-eastern Asia (an increase of 122%), and an almost
doubling in Oceania (an increase of 86%). 12
In just the three years since the previous edition of the World Prison Population List
had been published, the total prison population had increased by around one half in suchcountries as Indonesia (45% increase in prisoners per 100,000 of general population), thePhilippines (48%), Egypt (53%), Nicaragua (61%) and Cambodia (68%). 13
As can be seen from the map, on the regional level, prisoner rates are highest in Northand South America, and lowest in Africa and South-Central Asia. 14
There are many differences within regions. For example, while Africa as a whole has
the world’s lowest prisoner rates, the median prison population rate for western Africancountries is 53, whereas for southern African countries it is 244.
There are even more distinctive differences within Europe. The map shows arelatively sharp divide between west and east, with prisoner rates in the former socialist
countries in Eastern Europe considerably higher than in the west. A particularly marked
divide can be found between the Nordic countries on one side, with prisoner rates ranging
around 50 to 70, and the neighbouring Baltic countries (200 – 300) as well as the RussianFederation (467), on the other.
Although the sub-regional differences in Europe are relatively stable and have existed
for a long time, there have been considerable shifts within countries. Dünkel 2015 notesthat from 1984 to 2014, there has been a clear increase in the prisoner rate in, for example,
England and Wales (from 84 per 100,000 to 149 per 100,000), France (31 to 98), Portugal(70 to 136) and Spain (38 to 140). In some other countries, there has been a decrease; forexample, in Finland from 97 to 55. In the Russian Federation, there has been a significant
decrease in just a fifteen-year period, from 730 per 100,000 in 1999, to 467 per 100,000
in 2014.

12

Walmsley 2019.
Walmsley 2019. The same source notes that during this same relatively brief three-year period, there has
been a significant decrease in the Russian Federation (10%), Viet Nam (11%), Japan (15%), Ukraine (19%),
Kazakhstan (21%), Romania (22%) and Mexico (23%).
14
The seminal and in my view most perceptive analysis of national differences in prisoner rates is to befound in the third chapter of Christie 2000. He focuses on the European region. Lappi-Seppälä 2003
contains a global analysis.
13

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To turn to Asia, Thailand had a prison population of 250,000 in 2002 (400 per
100,000 in population), but through greater use of pre-trial diversion and early release fordrug addicts, the amount had been reduced to 160,000 by August 2005 (250 per 100,000).
More recently, however, the trend has reversed, with an increase to 210,000 prisoners in2010 and 364,000 in 2018 (320 and 526 per 100,000, respectively). Japan, in turn, has
had a relatively stable rate, with gradual growth to a peak of 81,000 in 2006 (64 per
100,000), and a subsequent steady decrease to 52,000 in 2018 (41 per 100,000). 15
B. International Patterns in the Use of Probation
The patterns in brief:
•

•

•

15

the quantitative data on the use of probation, either world-wide or within a region (such as
Europe) is so poor that clear patterns cannot be detected. The reason is that probation exists inmany forms, and is used for many purposes.
the statistical data does suggest, however, that there are huge differences between countries in
the use of probation. Probation is widely used around the world, but some countries use
probation extensively, others use it rarely.
qualitative data at least in Europe suggests that the use of probation is expanding, as is therange of functions that probation agencies fulfil.

International Centre for Prison Studies, available at http://www.prisonstudies.org/about-wpb.

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Probation is generally understood as a sentence in which the offender continues tolive in the community, under the supervision of a judicial authority, probation service orother similar body. 16 The element of “under supervision” is important, and distinguishes
this sentence from, for example, simple conditional sentences where the offender is under
no obligation to report to anyone. However, it should immediately be noted that the extent
to which probation actually involves supervision varies considerably from jurisdiction tojurisdiction.
Probation agencies can be found throughout the world. For example, in Europe they
can be found in almost every country, although with a wide variety in structure and infunctions. Most of the original probation agencies were state-run, but some were nongovernmental, and today some are privately run businesses. The work of many probation
agencies covers the entire country, but some are regional or even local. As for functions,
before the trial stage some probation agencies prepare social inquiry reports for theprosecutor, and may provide information also to other decision-makers in the criminal
justice system. Some probation agencies provide assistance to victims of crime andorganize restorative justice interventions. In respect of sentences, probation agencies may
organize not only probation, but also community service orders. And in respect ofprisoners, some probation agencies provide social support for relatives of inmates, andguidance and support to prisoners themselves (including debt regulation) in order toprepare their release, and assist with aftercare residential homes. 17
Because of the considerable differences in organization and functions of probation
around the world, there is little statistical data that can be compared. Even within Europe,
where the Council of Europe SPACE II project has sought to collect data since the 1990s,
a research team that has taken a close look at this European data warns that cross-national
comparisons of the numbers and rates of persons under the supervision of probation
agencies may be misleading. 18
Table 2 in Appendix 1 provides European data on use of probation in 1999, 2007,2013 and 2017. Despite the difficulties inherent in the data, it can be concluded at thevery least that there are considerable differences between European countries in respect of
how often probation is used. For example, England and Wales, France, Germany andespecially Poland appear to use probation very often, in tens of thousands of cases eachyear, while in some other European countries, only a few hundred (or even fewer)
offenders begin to serve probation during a year.
One source that provides some data on the use of “community corrections” indifferent countries around the world is the Global Community Corrections Initiativereferred to in part A. On the website of the initiative, information is provided on the total
number of prisoners and the total number of persons in “community corrections” in
2016. 19 This is provided below in Table 1. As a source, it must be treated cautiously, inparticular as it does not give country-specific data on how “community corrections” is16

Handbook for Prison Leaders 2010, p. 120.
Dünkel 2015. See also Heiskanen et al., 2014, pp. 15 – 16, and tables 1 and 2, on pp. 40 – 41 and 43 – 44.
18
Aebi et al., 2014, p. 300.
19
See http://www.globcci.org/prisonPopulationMap/prisonPop2Map.html. The project seeks to collect datafrom the fifty countries in the world that have the highest prison population (presumably on the assumptionthat these countries would also make extensive use of probation). However, data on probation is apparently
available only from 38 of these 50 countries.
17

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defined. However, the implication given is that this involves probation, i.e. supervision in
the community.
Bearing in mind that the data in Table 1 should be treated with caution, an
examination of the table raises some intriguing questions. Assuming that the data in the“community corrections” column refers to the number of persons on probation, and that
how community corrections is defined in the different countries is at least broadly similar,
it can be seen that some countries (Malaysia, Morocco, Myanmar, and Nigeria in respectof adults) do not use probation.
A second observation is that some countries use probation very rarely, in proportion
to the number of persons kept in imprisonment. The outlier here is Argentina, with some
85,000 persons in prison, and only some 3,400 persons in community corrections. Other
countries in which the number of persons in community corrections is dwarfed by theprison population are Australia, Indonesia, Japan, Pakistan, Peru and the Philippines.
Conversely, some countries have a community corrections population that is about
three times the size of the prison population: Germany, the Republic of Korea and inparticular Poland.
Table 1. Corrections population: total number and per 100,000 in population, by type of sentence, in2016 (unless otherwise noted in respect of the year) 20
communitycommunity
corrections
prisoners
community
corrections
prisoner
population as
countrypercorrections
population
population
percentage of
100,000
populationper
prisoner
100,000
population
Argentina
85,283
198
3,433
8
4%
Australia
42,492
178
14,29866
37
Canada41,145
115
101,716
284
247
Chile
49,063274
58,198
326
119
China
1,649,804
119
707,058
51
43
Colombia
118,925
239
57,099115
48
France70,710110
174,510272
247
Germany
62,19470
180,000 (2010)
202
289**
Indonesia
248,38998
55,00022
22
Italy
59,13597
59,554
97
100
Japan*
55,96744
15,27812
27
Kazakhstan
33,989192
22,500127
66
Kenya
54,000118
7,861 (1995)
172
146**
Korea, Rep. of55,198110
165,818 (2007)
330
300**
Malaysia
55,413
182
no probation
Morocco82,512242
no probation
Myanmar79,668150
no probationno probation for adults
Nigeria
73,63140
Pakistan
83,71845
23,396 (2015)
13
28**
Peru
82,023263
16,11053
20Philippines
188,278
190
43,194 (2017)
44
23
20

Source: http://www.globcci.org/prisonPopulationMap/prisonPop2Map.html. Note: the 2016 prisoner
data provided here differ from that provided in the 2016 edition of the World Prisoner Population List
compiled by Roy Walmsley. The calculation of prisoners and community corrections offenders per 100,000
are by the author.

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Poland73,524
193
Russian Federation
582,889404
South Africa
158,111292
Spain
59,087
128
Thailand364,288
540
Turkey232,886297
Ukraine56,246
154
United Kingdom
83,014
146
United States
2,121,600
699
Uzbekistan
43,900150
Viet Nam
130,002
140*
Data provided by Kitagawa Mika, UNAFEI**
Note different years

290,000
423,092
70,35655,342
216,616 (2013)
292,406
63,944
190,4394,650,900
probation est. 2018
47,000

760
295
128
120
319
374
176
202
1531
50

394
73
44
94
598**
126
114
139
219
36

Finally, there are vast differences in the number of persons in community corrections(presumably referring by and large to the number of persons under supervision) per
100,000 in population. At one end, there were apparently only eight persons incommunity corrections per 100,000 in Argentina, twelve persons per 100,000 in Japan,
and thirteen persons per 100,000 in Pakistan in community corrections. At the other endof the range there were 760 persons in community corrections per 100,000 in Poland, andover twice that number, 1,531 persons per 100,000, in the United States. 21
Once again, caution needs to be exercised in interpreting this data, especially since nofurther particulars are provided on how the data was obtained, and more importantly on
how each reporting country had defined the concept of “community corrections” inresponding to the request for data.
To look at the qualitative data on probation, which are available only for Europe, one
pattern that has been noted is the growth in the number of new probation agencies.
According to the coordinator for the Council of Europe SPACE II project, these newprobation agencies have often been detached from the national prison administration, or
have expanded on the basis of local offices. A second pattern is the growth in probation
workload, much as a result of the diversification of probation functions at different stagesof intervention (e.g. pre-trial, enforcement, management of postponed sentences,conversions or post-release stages). 22 In commenting on the observation that the numberof prisoners in Europe has not decreased despite the growth in probation, Delgrande
notes:The paradox of increasing patterns for prison and probation is a very complex
phenomenon and many researchers try to explain this evolution from judicial, political,
security or criminal policy perspectives. It can be concluded that for the period lastingfrom the early 2000s until now, the part of prisoners sentenced to short custodial terms(less than one-year custody) did not decrease at all. In fact it seemed that there was an
overuse of CSM [community sanctions and measures] for the persons who were notsupposed to go to prison. 23

21

Noting that there were 699 prisoners per 100,000 in population in the United States, it would seem that in2016, over 2 per cent of the total population of the United States was under the control of the criminal
justice system.
22
Delgrande 2015.
23
Ibid.

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Delgrande’s point refers to what is called the “net-widening” effect of newcommunity-based sentences. Often, new sentences are developed specifically to replaceshort terms of imprisonment, but in practice they may replace less restrictive sentences.
C. International Patterns in the Use of Community Service Orders
The patterns in brief:• community service orders are a new sanction that is clearly increasing in use aroundthe world, although so far, the main area of growth appears to be largely in Europe
and North America (with a few notable exceptions in Asia and Africa).
• in Europe in particular, community service orders are in wide use.
• different forms of community service make comparison difficult.

A community service order (CSO) requires the offender to perform a certain numberof hours of unpaid work, usually for an agency or organization or the benefit of thecommunity.
The community service order was first introduced in England and Wales during theearly 1970s. Following a 1976 Council of Europe resolution 24 calling for member states
to consider adopting community service orders, its use spread to a number of other
European countries. In Asia and the Pacific region, CSOs have been introduced in at least
Australia, Fiji, Hong Kong, Malaysia, New Zealand, Singapore, Sri Lanka and Thailand,
and in the Republic of Korea as a supplement to other sentences. 25 In Latin America andthe Caribbean, community service exists in at least Brazil, Colombia, Costa Rica and
Mexico. 26 In Africa, it exists in at least Burkina Faso, Central African Republic, Kenya,
Malawi, Mozambique, Namibia, Senegal, South Africa, Tanzania, Uganda, Zambia andZimbabwe. 27
There are considerable differences between countries as regards the total persons
undergoing community service. Table 3 in Appendix 1 contains data from Council ofEurope member states for 1999, 2007, 2013 and 2017 on the use of CSOs. Perhaps theclearest trend that can be seen is the growth in the number of countries using CSOs, andin the number of CSOs imposed. (Both developments can be seen in respect of Europe in
the table.)
A second observation is the large differences in use from one country to another.
Some European countries impose only a few thousand CSOs annually, others (inparticular England and Wales, France, the Netherlands, Poland and especially Spain)
impose it very often.
Examining the available data on the qualitative use of community service orders,
McIvor et al. note that the stated and actual functions of CSOs “have always been very
unclear and conflicting”. According to them, while the various stated functions of a morehumane alternative to prison, rehabilitation and reparation “are largely shared acrossjurisdictions, within different jurisdictions they are assigned varying degrees of24

Resolution (76)10 (1976), available at https://rm.coe.int/16804feb80.
Sugihara et al, 1994, pp. 100, 104, 184 and 201; Challinger 1994, p. 263; Singh 2005, p. 90; Rujjanavet
2005, p. 108; Reddy, p. 224.
26
Carranza et al, 1994, p. 407.
27
Penal Reform International 2012, and Saleh-Hanna 2008, p. 387.
25

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importance. Furthermore, the relative importance attached to different aims has changed
over time in each jurisdiction.” 28 Melvor et al. also say that rehabilitation continues toremain a stated function of CSOs, but it is becoming more narrowly defined as reductionof the risk of reoffending and retributive aspects of CSOs “are being stressed in an effort
to garner public and judicial support”. 29
Dünkel, in turn, notes that the general experience with CSOs has been positive. By
and large CSOs do appear to be replacing short-term imprisonment, and thus the “netwidening effect” may not be particularly strong. 30
D. International Patterns in the Use of Electronic Monitoring
The patterns in brief:• electronic monitoring is a new measure that has been spreading in many industrializedcountries.
• electronic monitoring is used not only as a sanction, but also as an alternative to pretrial detention, and as a condition of parole.
• due to the expense of the measure, electronic monitoring is not in very wide use indeveloping countries.

In electronic monitoring, the offender is ordered to remain at home or, at specified
times, at his or her place of employment, educational institution or other accepted
location. The offender has a monitor attached (usually to his or her wrist or ankle) to help
in ensuring compliance with the order.
Electronic monitoring was first used in the United States in 1983. 31 Its purpose is toensure that the offender remains where he or she is supposed to be, or alternatively thatthe offender does not enter proscribed areas or approach specific persons, such as
potential victims. It can be used as a sentence in its own right, or as a condition ofprobation (or another community-based sentence). Before conviction, it can be used as analternative to pre-trial detention (as, for example, in Belgium, France, the Netherlands,
Northern Ireland and Portugal), and at a later stage, as a condition of a prison furlough orof parole from prison (as in Finland and Sweden).
Although electronic monitoring is a very recent innovation in corrections, it has
spread relatively rapidly from the United States, first to the United Kingdom, and then to
Canada, New Zealand, Australia and South Korea, and to a large number of countries in
Europe. Table 4 in Appendix 1 provides data showing the rapid spread in Europe. While
only five countries in Europe appeared to use electronic monitoring in 1999, in 2007 it
was in use in at least ten European countries, in 2013 in at least fifteen, and in 2017 in atleast twenty-one. According to Mombelli 2019, electronic monitoring is being used or isbeing experimented with in some forty countries around the world. 32
Equally impressive is the growth in the use of electronic monitoring in individual
countries. Poland, which did not have the sentence as recently as 2007, had almost 17,000
28

McIvor et al., 2010, p. 87.
Ibid.
30
Dünkel 2015.
31
Burrell and Gable 2008; Albrecht 2005.
32
Mombelli 2019.
29

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offenders starting to serve an electronic monitoring order in 2013 (Poland did not provide
data for 2017). In France, almost 30,000 offenders began to serve such an order in 2017.
For at least these two countries, electronic monitoring is not just a technological novelty,
but something that is in very wide use.
The differences between countries in the use of electronic monitoring are also evident
in comparison to population. Aebi et al. have calculated that the average total number of
persons in Europe under electronic monitoring in 2010 was quite low (8 per 100,000
population), with the highest rate for England and Wales (42), and the lowest rate in
Serbia (close to zero). 33
From the qualitative point of view, Dünkel notes the controversial nature of electronicmonitoring, and the evident danger of net-widening. The contribution of electronicmonitoring to the easing of prison overcrowding appears to have been very limited,
although positive results have been reported in Finland, the Netherlands and Sweden. 34
II. ARE COMMUNITY-BASED SENTENCES MORE EFFECTIVE THAN
IMPRISONMENT?
Conventional wisdom is that community-based sentences are suitable for only adistinct range of offences: petty offences (and, in some jurisdictions, medium-level
offences), and that the response to more serious offences should be imprisonment. Thatstatement needs to be unpacked.
What we deem a petty offence and, respectively, a medium-level and serious offence,varies from one jurisdiction to the next, and from one time to another. 35 For example, as
noted by Yukhnenko et al. (2019), more or less the same drug trafficking offence canlead to a community-based sentence in one jurisdiction, and a sentence of five to ten yearsof imprisonment in another.
Furthermore, the range of offences covered by, respectively, community-based
sentences and imprisonment varies from one jurisdiction to the next, and from one time toanother. In some jurisdictions, community-based sentences are used more thanimprisonment. In other jurisdictions, in turn, very few community-based sentences areused at all. It would be absurd to conclude that few petty offences (and perhaps evenmedium-level offences) are committed in the latter jurisdictions and come before thecourts.
Both factors suggest that the dominant role of imprisonment in each of ourjurisdictions can and should be reconsidered. If some jurisdictions can maintain social
control, prevent crime and protect the victim and the community with a low level ofimprisonment, we should try to learn from their experience. As noted by the UNODC,
33

Aebi et al. 2014, p. 300.
Dünkel 2015. Also, Graham and McIvor 2015 conclude that electronic monitoring alone does notdecrease the risk of reoffending but should be combined with support and supervision.
35
Nils Christie has explained the variation with the concept of the “penal value” of a certain sentence. He
argues that in any given society, the “penal value” of, for example, a sentence of ten years of imprisonment
can vary considerably over time, depending for example of the amount of conflict in society and thestandard of living.
34

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It can be argued that the position of imprisonment as the main punishment for
medium-level, and even for more serious, offences is not and should not be self-evident.
Other forms of punishment could just as well be used, as long as they can be regarded as
credible and as fulfilling whatever the function of punishment is seen to be in society.
Imprisonment is not the only type of punishment, nor necessarily the best type of
punishment, especially (but not only) in the case of juveniles, and disadvantaged groups
such as drug users and the mentally ill. Imprisonment should be reserved for the mostserious offences and the most dangerous offenders. In other cases, deterrence, education,
rehabilitation, just deserts and even incapacitation can be promoted by other types ofpunishment, at a significantly lower social, human and economic cost. It is for this reason
that the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo
Rules) were drafted.
It needs to be emphasized that this paper is not intended to suggest that imprisonment
is not an appropriate response to crime. As noted above by the UNODC, imprisonment
should be reserved for the most serious offences and the most dangerous offenders. It
should not be used indiscriminately when the same functions can be achieved throughcommunity-based sentences.
In pursuit of this, the following section examines whether imprisonment does indeed
fulfil different purposes of punishment, or is any more effective in fulfilling them thancommunity-based sentences. After all, as noted by the UNODC above, imprisonment is
widely believed to• deter the person sentenced from repeating his or her offence;• rehabilitate the offender (by increasing awareness and acceptance of norms, andthus by leading the offender to reject a criminal lifestyle);• incapacitate the offender, by placing him or her behind locks and bars, thus
presumably keeping the rest of the community safe; and• serve as a warning to other potential offenders not to commit an offence.
As for the “just deserts” purpose of punishment, the question of whether or not
imprisonment is “better” that community-based sentences rests essentially on theperception of the severity of each respective sentence.
This section will also consider the cost implications of both imprisonment andcommunity-based sentences.
A. The Claim That Imprisonment Is Better Than Community-Based Sentences at
Deterring the Offender from Committing New Offences
The “special prevention” function of a sentence, the impact that it has on the offender,
is seen to operate through a combination of deterrence (warning), rehabilitation(education and seeking to ensure that the offender can be reintegrated into the community
as a law-abiding member) and incapacitation. To the extent that punishment actually has
this impact, it is difficult to distinguish between deterrence and rehabilitation. We cannot
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this is because the offender fears new punishment (the deterrence aspect) or is better
adjusted (is better able to function as a lawful member of society).
A second difficulty lies in researching the impact of punishment. Much as
criminologists would welcome the possibility, judges in most jurisdictions would notagree to a massive experiment, in which offenders guilty of more or less similar offences
are randomly split into two groups, with one being sentenced to imprisonment and theother being sentenced to community-based sentences, and the researchers then seeing
which group is less likely to commit new offences (and possibly even interviewing theoffenders in an attempt to see whether deterrence or rehabilitation was the primary factor
in such desistance).
A third difficulty lies in drawing conclusions from whatever results can be gleaned
from research. Offenders are different, and have different life situations and motivations.
Individual jurisdictions have different forms of imprisonment and community-based
sentences, and their theoretical deterrent and rehabilitative impact may well be quite
different. Finally, even in individual jurisdictions, different sentences may be
implemented in different ways, and consequently could well have a different impact on
the offenders serving the sentences.
Without seeking to generalize too far, one way to proceed is to examine thedeterrence argument from the point of view of short-term imprisonment, as compared tocommunity-based sentences. If the term of imprisonment is only a few weeks or months,
the offender presumably could not receive the benefit of very extensive educational,
health or social welfare services which would assist him or her in reintegration into thecommunity.
Studies that can shed light on this have been carried out in a number of countries. An
example is Wermink et al. (2010), which used the matched samples approach 36 in acomparison of reoffending after short sentences of imprisonment (up to six months),
compared to reoffending after sentences of community service. The study concluded thatthe reoffending rate for those sentenced to community service was roughly one half ofthat of offenders sentenced to short-term imprisonment, a result which is in line withearlier studies carried out in the Netherlands.
Going beyond studies in just one country, a recent review brought together the resultsof a number of studies conducted around the world, similarly comparing the impact ofcommunity service with that of short sentences of imprisonment (Yukhnenko et al. 2019).
Once again, the over-all conclusion was that offenders sentenced to community service
had a lower rate of reoffending than did offenders sentenced to short terms ofimprisonment.
From this, it would seem that the belief in imprisonment as a greater deterrent thancommunity-based sentences can at least be questioned. At this stage, we need not try to
draw more general conclusions. Imprisonment may well have a deterrent effect on at least
some offenders and in some jurisdictions, but in some cases community-based sentences
produce better results.
36

The matched samples methodology is one way of seeking to make two samples being compared assimilar to one another as possible (such as age, gender and length of sentence).

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B. The Claim That Imprisonment Is Better Than Community-Based Sentences at
Rehabilitating the Offender
One of the fundamental purposes of custodial corrections is to take the offender awayfrom a possibly criminogenic environment and place him or her in a closed rehabilitative,
therapeutic or educational institution for treatment. The treatment may be tailored for the
special health and or mental health needs of individual offenders (counselling, anger
management, psychiatric treatment, substance abuse), or may be designed to help a wider
spectrum of offenders realize the need to abandon a criminal lifestyle (religious
counselling, education, vocational training, cognitive skills etc.).
The rehabilitative effect of custodial corrections has been extensively researched. 37
Among the classics in the field is Robert Martinson’s 1974 article, What works? –Questions and answers about prison reform. In it, he summarized a number of studies andconcluded that “with few and isolated exceptions, the rehabilitative efforts that have beenreported so far have had no appreciable effect on recidivism”. 38 David Farabee, in his
2005 book Rethinking Rehabilitation: Why Can’t We Reform Our Criminals?, also
concluded that, on a general level, correctional treatment is not working.
Many reasons have been identified for this failure in corrections. The mind-set that
offenders can be forced to change their lifestyle (referred to as “coercive treatment” or“mandatory treatment”) sets up a situation in which offenders may seem to adapt to theregime and change their behavioural patterns in a favourable manner, but on release
immediately return to a criminal lifestyle. It has also been pointed out that custodial
treatment in itself can do little about the situation in which the offender will find himself
or herself on release. Indeed, as has often been noted, being sent to prison may in avariety of ways worsen the offender’s ability to function as a member of society.
A major difficulty with custodial corrections in most jurisdictions is that it is underresourced and overburdened. The availability and quality of counselling, treatment,
education and vocational training (as well as other forms of support and assistance) may
be severely limited. Due to the over-population of many prisons, the staff is unable toconduct a proper risk and needs assessment, much less provide an individualized
treatment plan that addresses the needs of each and every prisoner. Treatment that is
specifically tailored to individual offenders (or small groups of offenders with similar
characteristics) in individual cultural contexts have been shown to work, but matching
offenders and treatment programmes, and successfully implementing such programmes,
is very resource intensive.
Without the supervision of the staff, many prisoners will be spending much of theirtime in a very criminogenic environment, one in which criminal values can be instilled,
37

It should again be emphasized that the research has been conducted primarily in a few industrializedcountries, and it is doubtful that the results can be generalized to all jurisdictions. Indeed, some jurisdictions
report very low rates of reoffending for entire prison populations after offenders have been released from
custodial treatment. However, generally the empirical research to verify these reports is missing.
38
Martinson’s conclusions have been summarized in the short phrase, “nothing works”, but Martinson
himself has disavowed this. He notes that there are successful forms of treatment, but these are tailored to
specific groups, and must be well resourced and managed.

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new and better ways to commit offences can be learned, new criminal partnerships can beformed, and in general the offenders can become more deeply committed to a criminal
lifestyle.
Poorly resourced and overpopulated prisons may furthermore provide an unhealthy
environment, with gang violence, contagious diseases, substance abuse and a variety offactors that result in mental health issues.
This criminogenic prison environment can be compared to community-based
sentences, which allow the offender to remain in the community. He or she can continue
with family responsibilities, education, vocational training and employment. In mostjurisdictions, the quality of community-based health, social services and other services
may be basic (the constraint on resources is certainly not limited to prisons), but theywould tend to be better than what is available in a custodial environment. Communitybased sentences may also reduce the social stigma of being an “ex-convict”.
Consequently, if rehabilitation is the goal, providing it in a community setting is more
effective. As noted in a recent and rigorous meta-analysis of the available research,“Strong meta-analytic evidence indicates that community-based treatment programmes
for at-risk or adjudicated individuals, especially juveniles, are more effective than thoseoffered in secure settings.” 39
The belief that imprisonment is better than community-based sentences atrehabilitating offenders can thus be questioned. Once again, we need not try to draw moregeneral conclusions. There are cases where offenders can and will benefit from being
taken away from a criminal environment and provided with a variety of services.
However, we should not be under the illusion that imprisonment in under-resourced andoverburdened institutions in general is rehabilitative.
C. The Claim That Imprisonment Is Better Than Community-Based Sentences atProtecting the Community Through Incapacitation of the Offender
A widely held and understandable belief is that imprisonment has an incapacitating
effect. By placing a criminally active offender who is dangerous to his or her environment
behind bars, the community (or a specific victim) is made safer.
Let there be no doubt about it, serious offenders who are a threat to society or a threat
to specific victims should be placed in prison: those guilty of deliberate offences
involving for example serious danger to life, health and well-being, serious drugtrafficking, serious theft, serious fraud, serious economic crime and serious crimes against
the environment, and offences that endanger national security.
The research results on the incapacitating impact of imprisonment appear to be mixed,
largely due to the methodological difficulties. Two of the main difficulties lie inpredicting how many offences a prisoner would have committed (based on his or her
criminal history) if he or she had not been sentenced to imprisonment, and the extent towhich this individual would, in time, have desisted from crime. 40

39
40

Weisburd et al., 2016, p. 77. See also pp. 94-95.
See Travis and Western (eds.) 2014, pp. 140-145.

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Furthermore, the belief in the incapacitating effect of imprisonment should not be
exaggerated. There are at least three reasons for this. First, offenders may be able tocontinue to commit offences while in prison. This is true in the sense that offenders may
commit, for example, violent or property offences against one another or staff members
while in prison, and also because offenders may continue to plan and direct offences frombehind prison walls.
A second reason has to do with the possibility (if not probability) in many cases thatremoval of one offender from the community may lead to him or her being replaced byanother offender. This phenomenon has been noticed for example in organized criminal
activity, in particular in drug trafficking.
A third reason is that most persons sentenced to imprisonment will in time be released.
Although it may seem counterintuitive to say that greater use of community-based
sentences increases the safety of the community, what is noted above of the inability of
most prisons in general to rehabilitate offenders suggests that sending a person to prison
may, in the long run, decrease community safety. While in prison, offenders in prison
may learn new ways of committing crime and may form new criminal attachments. This
leads to a cycle of release and imprisonment, which does nothing to build safer
communities.
It can also be noted that allowing offenders to remain in the community provides themwith greater opportunities to enter into community-based substance-abuse programmes,
seek employment, find suitable housing and maintain their family responsibilities, all ofwhich could further contribute to a decrease in the rate of reoffending.
Some recent studies that have examined data on how imprisonment increases the rateof reoffending have concluded that using community-based sentences instead of shortterm sentences of imprisonment can indeed reduce the number of future offences, and in
this way increase public safety. 41 It is clear that this effect depends on a number ofvariables, in particular the sentencing practice in the jurisdiction in question. In
jurisdictions which already make extensive and effective use of community-based
sentences, the effect of such a shift would presumably be less than in a jurisdiction whichmakes heavy use of imprisonment. However, the results of the study do at least draw
attention to the periodic need to reassess the approach to sentencing.
D. The Claim That Imprisonment Is Better Than Community-Based Sentences inGeneral Prevention, By Warning Others Not to Commit Offences
Aside from the special preventive argument that imprisonment can deter, rehabilitate
and incapacitate the individual offender, imprisonment has also been argued to have ageneral preventive impact, by dissuading other members of the community from crime by41

For example, a major study in the United Kingdom published in 2019 concluded that replacing short
sentences of imprisonment (less than six months) with community-based sanctions reduced reoffending by
13%. See https://www.gov.uk/government/news/justice-secretary-urges-evidence-led-approach-to-cutcrime
A study to be published in the Cambridge Journal of Evidence-Based Policing (Cowan 2019; in print)
examined the use of police and court diversion in Victoria, Australia. The author calculates, on the basis ofan examination of over one million cases, that for each 100 offenders diverted, eight crimes could be
prevented per year. Thus, the author estimates that greater use of police diversion in Victoria could have
prevented tens of thousands of offences.

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example. This general preventive impact is seen to have three components: the severity,
the certainty and the celerity (speed after commission of the offence) of the sentence.
Extensive research has been conducted on the correlation (and possible causal
connection) between the use of imprisonment and the crime rate. Of the three components(severity, certainty and celerity), the severity of the sentence has been the easiest tochange. If imprisonment had a clear general preventive impact, then an increase in theuse of imprisonment – stipulating imprisonment as the mandatory sentence for a greater
range of offences, and using longer sentences (for example through “three strikes” laws) –should result in a decrease in crime. The preponderance of evidence suggests that there
may be a slight decrease, but in general this decrease is so modest that it is offset by thesocial, human and financial costs of the increase in imprisonment. 42 It could also beargued on the basis of the statistical evidence that increasing the severity of sentences has
the opposite effect from what was intended: placing more people into imprisonment tends
to be correlated with an increase in the crime rate. 43 There are, furthermore, examples ofcountries, such as Finland, where a deliberate and considerable decrease in the use of
imprisonment did not increase crime rates (as one would have assumed on the basis of apurported general preventive impact).
It has been pointed out that persons planning to commit an offence (to the extent thatrational planning is at all involved) tend to discount the likelihood of detection,
apprehension and conviction. Overall, in many countries the likelihood that an offender
will be arrested and brought to justice for such offences as theft, burglary, drug trafficking
and trafficking in persons is quite small.
The conclusion is that also the general preventive impact of imprisonment, as
compared to community-based sentences, can be questioned.
E. The “Just Deserts” (Retributive) Argument: The Claim That Imprisonment Is
Demanded by the Public Sense of JusticeIn debates on public policy, an often-repeated argument is that the public “demands”
imprisonment as a response to crime. Imprisonment has become such an entrenchedinstitution in our society that it becomes almost a visceral response to offences. Populist
politics have, moreover, encouraged such a visceral response by emphasizing individualfeatures of particularly horrific offences, and then generalizing them to cover broader
categories of offenders and offences.
Research, however, has repeatedly shown that although simple opinion polls (asking
loaded questions along the line of “do you support harsher punishment for rapists andmurderers?”) tend to produce predictable responses (“yes, the public does demand longer
sentences”), there is considerable variety in the attitudes of different members of the
public, and not one general “sense of justice”. More importantly, when respondents areprovided with more detailed information regarding the background of individual
defendants (criminal record, ethnic background, gender, substance abuse, social history)
42

See, for example, Travis and Western (ed.) 2014, pp. 134 – 140.
This conclusion has been contested. Much depends on what time period is considered; for example, in thecase of the United States, it has been observed that the increase in the use of imprisonment from the 1970s
to the 1990s ultimately was followed by a fall in reported crime (beginning during the 1990s) (see, e.g.
Travis and Western (ed.) 2014, pp. 33 – 69). However, if imprisonment does have a general preventive
effect, this effect should have been seen in a much shorter time span.
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and the circumstances of the case, the responses tend to fall more in line with current
sentencing practice by the courts. 44
Along the same lines, Jan van Dijk has used the international data produced fromvictimization surveys to examine possible correlations between general public opinion(punitiveness) and the rate of imprisonment. He concludes that, worldwide, there is no
relationship between public attitudes towards sentencing and actual imprisonment rates. 45
Indeed, van Dijk has noted that
Public opinion survey research supports the broad proposition that the public,
when considering whether hypothetical cases should result in a sentence toprison, is more likely to favor a noncustodial sentence when that option is fully
developed. Information at the country level has shown that public attitudes are
influenced by available sentencing options. If alternative, noncustodial
sentences are introduced in a country, the proportion of respondents favoring
this option usually goes up sharply in the aftermath. … In this regard, it is worth
pointing out that noncustodial sentences are not widely available in developing
countries. Reliance on prison sentences in developing countries seems partly
determined by the lack of viable alternatives for which new institutionalarrangements would have to be put in place. 46
The conclusion is that, when the public sense of justice is assessed, community-based
sentences do find wide support as a response to a broad range of offences. The ability ofthe public to understand and accept such sentences should not be underestimated.
F. The Cost-Effectiveness of Community-Based Sentences
The implementation of any sentence brings with it a variety of costs: human, socialand financial. These costs are generally factored into public policy decisions on theadministration of justice, and are deemed to be offset by the benefits that are seen to
result from bringing an offender to justice.
This raises the question of whether the benefits believed to come from sentences ofimprisonment can be achieved through community-based sentences, but at a lower overall
cost.
The human costs of a sentence extend primarily to the offender, but they also affecthis or her family. In the case of imprisonment, the human costs to the offender include ofcourse the loss of liberty, but separate reference could be made to the disruption ofcontacts with family members, 47 interruption of education, vocational training or
employment, the resulting poorer likelihood of being able to return to the job market atthe same level of income and financial stability, 48 and the possible worsening of healthand mental health.
44

See, for example, Kääriäinen 2018 and the literature cited.
van Dijk 2008, p. 264.
46
van Dijk 2008, p. 265.
47
It should be noted that especially in the case of violent offenders, members of his or her family may
welcome the offender being placed in prison. However, the offender will in time be released.
48
Research and experience in many countries indicate that potential employers are reluctant to hire persons
with a criminal record, and in particular persons who have been in prison.
45

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The impact of imprisonment on family members can take many forms. Offenders who
have served time in prison may have difficulties in forming relationships, and thus
partnerships would tend to be unstable, leading perhaps to broken families even after theoffender has been released from prison. The offender may be the main caretaker of thefamily, and placing him or her in prison may deprive the family of necessary parental andfinancial support. Imprisonment tends to weaken family bonds, and affect the well-beingof children, to the extent that the children have behavioural problems, such as aggression
and delinquency, as well as to drop-out from school.
These same human costs are less likely as a consequence of community-based
sentences, since the offender is able to remain at home, at school and at work.
In assessing the social costs of sentences, it should be kept in mind that any stateimposed sanction – whether imprisonment or a community-based sentence – is part of aprocess of state control, a process which also includes policing, arrest of a suspect, thecriminal procedure, and conviction. Policing in any society tends to have a focus onvulnerable communities, which are regarded as high-crime areas. When we consider thata sizeable proportion of prisoners come from vulnerable communities, this should raisequestions about the impact of multi-layered and concentrated forms of disadvantage inthese communities: high crime, but also poverty, poor health, unemployment andintrusive state control. For this reason, it is difficult, if not impossible, to try to assess thesocial impact resulting from sending an offender to prison instead of applying acommunity-based sentence.
That said, the fact that the prisons in many countries have an overrepresentation ofvulnerable groups such as racial and ethnic minorities strongly suggests thatimprisonment increases social, economic and political inequality in society. Those inprison tend to be poor, undereducated, unemployed, in poor health and (in somejurisdictions) disenfranchised. The experience is that the impact of imprisonment will not
improve, but in practice worsen their prospects for full integration into society as lawabiding members. Although they have been guilty of offences, and should be brought tojustice, the question is whether a sentence of imprisonment is the most appropriate andeffective response to their offences. 49
As for the financial costs, and without entering into the accounting and budgetarydetails of prison management as opposed to the management of community-based
sentences (which vary considerably for example in accordance with the level of economic
development and the administrative structure in different jurisdictions), these costs
include investment in construction and maintenance of prison facilities, capital costs, staff
costs, the cost of various health, mental health, educational and other support services forconvicted offenders, and technology (whether for example for security in prison, or forelectronic monitoring devices in community-based sentencing). There are also hidden
costs, such as those associated with taking an offender away from his or her employment(to the extent that offenders sentenced to imprisonment are gainfully employed).

49

Travis and Western (eds.) 2014.

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Reference should also be made to the financial benefits of correctional administration,
including the economic benefit of providing employment for correctional (and affiliated)personnel, and the income from prison industries.
When looking at the bottom line, however, the financial cost per offender of
implementing imprisonment as opposed to implementing a community-based sentence ismany times higher.
The conclusion is that, from a costs-benefits perspective, community-based sentences
can be implemented at lower costs-per-sentence than imprisonment.
G. What Do We Know About the Relative Effectiveness of Different CommunityBased Sentences?
The previous section considered whether community-based sentences are more
effective than imprisonment according to various criteria. A separate issue is what typesof community-based sentences “work”, and why: do they deter, do they rehabilitate, dothey serve as a warning to others in the community, do they protect the victim and theother members of the community, does the public regard them as appropriate and are they
cost-effective?
This is a large and complicated issue, and it is made more complex by the diversity oftypes of sentences, the diversity of jurisdictions and the diversity of offenders who aresentenced. What is more, there is perhaps surprisingly little rigorous research on theeffectiveness of community-based sentences, and caution has to be used regarding theextent to which research results in one jurisdiction can be generalized to apply elsewhere.
When speaking about community-based sentences, however, the discussion can andshould be largely limited to those sentences that are intended to have a special preventive
impact on the offender. 50 We can leave aside, for example, monetary fines, which areprimarily intended to have a general preventive effect. 51
It should first be noted that most offenders will not necessarily commit new offences.
The criminological literature on the prediction of reoffending refers to the concepts of“false positives” and “false negatives”. In this context, a “false positive” refers to anindividual who, according to risk assessment, is presumed to be likely to reoffend, but infact would not commit a new offence. A “false negative” in turn, is an individual who ispresumed to become law-abiding, but would in fact commit a new offence (an occurrence
which may largely be due to situational circumstances). Although in general, risk
assessment tools have had poor success in predicting future behaviour, what we do know
is that it is easiest to predict correctly who would not offend than it is to predict who
would commit a new offence. Out of a cohort of, for example, one thousand persons who
have committed an offence, it is easier for us to predict with relative assurance the several
hundred who will not commit a new offence, than it is for us to predict the perhaps one
hundred who will commit a new offence. 52
50

It should be recalled that some sentences or measures, such as restorative justice processes, are designed
to have an impact also on other persons affected by the offence.
51
Fines, however, cannot be totally ignored when discussing the appropriateness of different sanctions. If an
offender is unable to pay the fine, he or she may be sentenced to prison for non-payment.
52
Longitudinal studies have generally suggested that a small percentage of a population cohort are “hardcore offenders”, who commit the majority of offences, both petty and serious.

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Many offenders come from a community that is beset with multiple social problems:poverty, unemployment, lack of economic opportunities, lack of basic services, family
breakdown, marginalized populations and poor social cohesion. If the goal is theprevention of reoffending, and thus also the protection of the community, also
community-based sentences should seek to come to grips with these problems.
A recent meta-analysis of the available research on “what works” in communitybased sentences can be summarized for the present purposes as follows. Those sentencesthat seek to strengthen informal and supportive social controls and reintegration, and tomaintain or repair social bonds (such as restorative justice programmes), have afavourable and statistically significant effect. The authors suggest that this is becausesuch sentences are highly specific and targeted, and they involve one-on-one interactions
and the building of personal relationships. On the other hand, sentences that simply place
the offender in the community without seeking to provide him or her with a way tointernalize or restore conventional values and relationships do not have an appreciable
special preventive impact on the offender. The authors conclude by saying that thissuggests “that interventions should be implemented at a high level of focus – whether at
small places or with high-risk individuals – and incorporate specific risk factors.” 53
Along the same lines, the authors conclude that diversion with services is distinctly
more effective than simple diversion. 54
The authors further conclude that electronic monitoring, when compared withtraditional or intensive probation, or even with incarceration, was ineffective in preventing
reoffending. They argue that this is due to the fact that electronic monitoring is based onformal social control and surveillance. 55 This is echoed by Graham and McIvor, whoreview international experiences with electronic monitoring, and conclude that
Overall, the electronic monitoring programmes and approaches which are
shown to reduce reoffending during and/or after the monitored period aremostly those which include other supervision and supportive factors (e.g.,
employment and education, social capital) associated with desistance. The
effective approaches discussed here have developed on the basis of high levels
of integration with supervision and support from Probation Officers and otherstaff and services. In other words, the more effective programmes andapproaches, in Europe in particular, are those where EM is not a stand-alone
measure. 56
Overall, Weisburd et al. conclude,

53

Weisburd et al. 2016, pp. 97-98. The approach used by Weisburd et al. is based on a rigorous assessmentof the available research, and, using the same method developed in Sherman et al. 1997, divides measures
into what works, what doesn’t work, what is promising and what requires more research.
54
Weisburd et al. 2016, p. 99.
55
Weisburd et al. 2016, p. 100. Also, Dünkel 2015 concludes that the research results on the contribution ofelectronic monitoring to the prevention of reoffending is not evident, and promising only in combination
with social support by the probation and aftercare services.
56
Graham and McIvor 2018.

86174TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS' PAPERS…the potential crime-supressing elements of the community, such as positivesocial controls, are not necessarily leveraged by simply placing an offender inthe community and assuming that the desire to remain there will act as asufficient deterrent to recidivism. The more successful community programs
suggest that a targeted and focused approach may be required. 57
This targeting and focusing revolves around the nature of the offence and the offender.
For example, substance abusers, offenders with mental health problems, offenders guiltyof domestic violence, and sex offenders may respond well to community-based sentencesthat contain a treatment and support component.
III. PROMOTING WIDER USE OF COMMUNITY-BASED SENTENCES 58
There is a strong interest throughout the world in replacing imprisonment with
community-based sentences. The repeated resolutions and declarations of the United
Nations Congresses on this subject, adopted by consensus, show that all member states
are agreed – at least in principle – on the need to reduce imprisonment and to expand theuse of effective community-based sentences. Even so, when the United Nations adopted
the Tokyo Rules in 1990, and asked member states to provide data on the status ofcommunity-based sentences, many replied that appropriate community-based sentences
are simply not available, or that the available community-based sentences are used far
less than they might be or, when used, are used as substitutes for other community-based
sentences and not for imprisonment (the so-called net-widening effect).
The available data presented in this paper on the use of community-based sentences
around the world suggests that member states continue to meet with these samechallenges.
The main reasons for the inconsistency between stated goals and actual practice are to
be found in law, sentencing constraints, policy, resources and attitudes. These problems
cannot be dealt with in isolation from one another. The use of community-based
sentences can be expanded effectively only if all the problems are recognized and dealt
with. The steps that should be taken on different levels and by the different stakeholders
involved are outlined in the following.
STEP 1 Ensure that the law clearly provides an adequate range of community-based
sentences
In most jurisdictions, the courts can impose only those sentences that are expressly
provided in statutory law. In these systems, the first step must be to ensure that statutory
law provides for an adequate range of community-based sentences, and outlines theprocedures and conditions for their imposition and implementation. The legislation
should specify the purposes of the sentence and the expectations of the legislator as to therange of offences for which the sentence may or should be used. This would help judges
in determining the proper place of the measure in the scale of penal values.
57
58

Weisburd et al. 2016, p. 100.
This section of the paper is an updated and abridged version of Joutsen 1990.

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Another statutory measure would be a requirement that the court justify why it
imposes a sentence of imprisonment rather than a community-based sentence. Such ameasure would compel the court to consider why none of the available community-based
sentences are appropriate in the case at hand. England and Wales has established a
Sentencing Council, which has issued mandatory guidelines for courts on the impositionof community-based sentences. 59 These provide, inter alia, that:
A custodial sentence must not be imposed unless the offence or the
combination of the offence and one or more offences associated with it wasso serious that neither a fine alone nor a community sentence can bejustified for the offence.
There is no general definition of where the custody threshold lies. The
circumstances of the individual offence and the factors assessed by offencespecific guidelines will determine whether an offence is so serious thatneither a fine alone nor a community sentence can be justified. Where no
offence specific guideline is available to determine seriousness, the harmcaused by the offence, the culpability of the offender and any previous
convictions will be relevant to the assessment.
The clear intention of the threshold test is to reserve prison as a punishment
for the most serious offences. 60
When a new community-based sentence is introduced, it may be difficult for thelegislator and/or the court to assign its appropriate place in the scale of punishment. 61 Is
40 hours of community service the equivalent of one month of imprisonment, forexample? Is it more or less severe than a suspended sentence of a certain length? Insentencing, the court must make a choice among a number of sentences using multiple
criteria which relate the seriousness of the offence to what are deemed to be the relevantcharacteristics of the offender and the penal value of the community-based sentences
available, either singly or in combination. 62
The introduction of community-based sentences is therefore not enough. The courts
should be given clear guidance on how the new custodial sentences fit in with present
sentencing policy. This guidance may be provided not only by the legislator, but also by
judicial practice (court precedents), and by sentencing guidelines adopted, for example,
by the Supreme Court, judicial conferences or professional associations.

59

https://www.sentencingcouncil.org.uk/about-us/ .
Ibid.
61
Although in theory the legislature could provide specific sentencing guidelines, the currently existing
guidelines primarily deal with the length of sentences of imprisonment, and at most with the borderline
between imprisonment and suspended sentences (probation). The most widely known guidelines are theMinnesota Sentencing Guidelines, which stipulate a “presumptive sentence” for offences. These have been
applied since 1980. The most recent version was adopted in August 2019; Minnesota Sentencing Guidelines
2019. The basic grid can be found on p. 79.
62
The Sentencing Council for England and Wales has issued very detailed and mandatory guidelines on abroad range of offences. The Sentencing Council’s guidelines for the imposition of community andcustodial sentences (Sentencing Council 2016) provides clear guidance for example on the imposition andlength of community service orders, the imposition of electronic monitoring orders, the imposition andamount of fines, as well as the imposition of custodial sentences.
60

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Where this would not be deemed a violation of the principle of the separation of theexecutive and the judiciary, the executive branch could consider the possibility ofproviding the court with annotated information on current court practice. This can bedone in the form of a publication giving the “normal” sentencing range for the basic typesof offences, with indications of how, in court practice, aggravating and mitigating
circumstances have affected the sentence. Such information would simply be provided tothe courts as a tool, showing the judges what other courts have done in similar cases.
Since the selection of the sentence is often determined by the motion of the prosecutor,
or by the way in which the case is presented, also prosecutorial guidelines could be
developed to identify cases which would seem suitable for the imposition of communitybased sentences.
STEP 2 Review substantive criminal law to ensure that it is in line with the fundamental
values of society
Changes in society are often reflected in changed attitudes towards certain behaviour.
A review of criminal law may show that existing penal provisions on certain offenceswere passed at a time when these offences were deemed particularly reprehensible; in thelight of present attitudes, a community-based sentence may well be deemed more
acceptable and appropriate than imprisonment. The public attitude towards the use of
imprisonment may have changed; in many countries, its “penal value” has increased.
Where imprisonment at one time was imposed in decades, it may now be imposed inyears; where it was once imposed in years, it may now be imposed in months or even in
weeks.
At the lower end of the scale of offence seriousness, the possibility of imprisonment
could be eliminated entirely through decriminalization and depenalization. Such“offences” as vagrancy and public drunkenness have been decriminalized in many
countries. Although these offences are rarely imprisonable offences in themselves, thepersons who are fined are usually unable to pay any fines imposed, or because of theircircumstances would often be in violation of conditions imposed on, for example,
community service. Such non-payment or technical violation often leads to imprisonment.
In this way, decriminalization of petty offences reduces the use of custodial measures.
STEP 3 Key stakeholder groups should be provided with information and training on thefunctions and use of community-based sentences.
Even if the law provides for a wide range of community-based sentences, and even if
the courts have clear guidelines on how these sentences should be imposed, communitybased sentences will not be used as long as the courts – and other influential groups ofstakeholders – do not consider them effective and appropriate in dealing with offenders.
The preamble to the Tokyo Rules lists as such key groups law enforcement officials,
prosecutors, judges, probation officers, lawyers, victims, offenders, social services andnon-governmental organizations involved in the application of community-based
measures.

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Ensuring that judges and other key stakeholders understand the purpose and rationaleof community-based sentences and that they are favourably disposed towards using themrequires providing them with information and training. The key groups should be madeaware of the general benefits of community-based sentences and the general drawbacks ofwide use of custodial sentences. They should be made familiar with the existing
community-based sentences and their specific purposes; they should be made familiar
with sentencing and enforcement. They should be trained in the basic principles of law,criminology and psychology (as well as other disciplines) required in their respectiveroles. Finally, they should be made familiar with the rules, procedures and practices of thevarious other services involved, in order to make it easier for them to understand the
problems involved in community-based measures, and the possibilities of working
together to solve these problems.
The credibility of community-based sentences can also be enhanced if they are notseen to be excessively lenient. Visibly punitive measures (such as electronic monitoring)might therefore be an attractive option in some jurisdictions. Even terminology might beused to enhance the perception of community-based sentences as punitive. Instead of
speaking of the “waiving of measures” or “absolute discharge”, for example (both terms
may imply to the general public that “nothing happened”), one might speak of “punitive
warnings” or “penal warnings”.
STEP 4 Criminal justice decision-makers and representatives of community-based service
agencies should work in closer cooperation in order to identify and respond to the needsof offenders, in particular members of vulnerable populations, such as racial and ethnic
minorities, alcohol and drug users, the homeless and foreigners
One theme that has been repeated again and again in the debate over the greater
efficacy of community-based sentences over imprisonment is that many offenders have alarge range of challenges, ranging from health and mental health issues, lack of educationand vocational training, lack of a permanent home, to difficulties in forming stable
relationships.
Merely sentencing an offender to a community-based sentence (unless the sentence
itself addresses underlying needs, such as with a community-based substance treatment
order) will do little to help the offender in responding to these challenges. For this reason,
the various agencies as well as appropriate non-governmental organizations (including
peer-support groups) and even the private sector, should find ways of working in closer
cooperation with criminal justice agencies, and of doing outreach work towards offenders.
Criminal justice practitioners (the police, prosecutors and judges) will be among thefirst to point out that they are not “social workers”, and that they do not have the training,
resources or time needed to provide offenders with various forms of assistance. That said,
methods of referrals (with due respect to issues of consent and privacy) can be developed,
ranging from simply mentioning to appropriate offenders what services are available andhow to use them, through provision of brochures, to the establishment of community
liaison offices in connection with police stations or courts to serve as a “one-stop shop”
for offenders.

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A more direct way of promoting cooperation is to stipulate conditions on police,prosecutorial and court dispositions requiring that the offender be in contact with specificcommunity-based services.
STEP 5 Secure a steady resource base for personnel, training and facilities
The success of community-based sentences in practice depends on the availability ofresources for their implementation. Just as imprisonment requires the prison facilities,
personnel and a prison programme, for example, probation requires a suitableinfrastructure for the arrangement of supervision, and community service requires not
only a suitable organization but also designated places of work.
The most efficient route to increase the credibility of community-based sentences andthus promote their use is that the state and local community provide the necessary
resources and financial support for the development, enforcement and monitoring of suchsentences. Particular attention should also be paid to the training of the practitioners
responsible for the implementation of the sentences and for the coordination between
criminal justice agencies and other agencies involved in the implementation of thesesentences in the community.
STEP 6 Ensure a continuous research component in planning
One area of concern relates to the possible dysfunction of wider use of communitybased sentences, in particular the so-called net-widening effect. Statistical evidence fromvarious countries clearly suggest that community-based sentences are either used far lessthan they might be or, when used, are used as substitutes for other community-based
sentences and not for imprisonment. In addition, when suspended sentences arepronounced, the period of imprisonment imposed may be longer than if an unconditional
sentence to imprisonment were to be used. In the event of activation of the original
sentence, the offender can therefore go to prison for longer than would otherwise havebeen the case.
Such dysfunctions of the greater use of community-based sentences may detract fromthe benefits, or even prove to be so serious that rational criminal policy is endangered.
Research has an important role in identifying and suggesting ways to overcome thesechallenges.
In regard to sentencing, research is needed on the factors considered by the sentencing
judge or tribunal. Unexpected factors may have a decisive influence on the sentencing
process. The little research that is available has suggested, for example, that some judges
will not consider community-based sentences that require a social enquiry report. Further
in regard to sentencing, it is possible that the imposition of community-based sentences
can be made on discriminatory grounds, as has been argued to be the case with sentencing
to imprisonment.
One area that is related to research on sentencing concerns attitudes. Certainly, theattitudes of the sentencing judge affect his or her decisions on what available options touse. As important as the attitudes of the sentencing judge are the attitudes of other persons
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involved in the implementation of community-based sentences. In particular, the degree
to which a community-based sentence is accepted by professionals as well as by thecommunity influences the probability that this sentence will actually be applied.
Research on changes in attitudes (showing the causes and extent of such changes)
might be of assistance in the planning of the introduction or expansion of communitybased sentences. A key factor in the success achieved with the use of any communitybased sentence is the extent to which the policymakers, courts, other practitioners andagencies, and the community are provided with evidence-based data on the effectivenessof this sentence.

IV. CONCLUSIONS
The assumption that imprisonment fulfils the various functions of punishment andthus is suitable for medium level and more serious offences has resulted in a general
growth in the number of prisoners. However, societies around the world are becoming
increasingly aware that the use of imprisonment has significant human, social andeconomic costs. With the increase in the number of prisoners, prisons are becoming
overcrowded. Since the prisons themselves are often outdated, under-staffed and underresourced, hundreds of thousands of prisoners around the world are being “warehoused”
in poor conditions that impair their physical and mental health, and make rehabilitation
programmes difficult.
In adopting the Tokyo Rules almost thirty years ago, the member states of the United
Nations agreed that the use of imprisonment should be lessened, and the use ofcommunity-based sentences should be expanded.
This review has questioned the basis underlying the predominant role ofimprisonment in our criminal justice system. When assessed in the light of the different
functions of sentencing (deterrence of the offender, rehabilitation, general prevention,“just deserts”, even incapacitation), we can conclude that imprisonment on a whole has
not been able to deliver in accordance with what policymakers and the public have been
expecting. In many cases, community-based sentences can fulfil the same functions atless human, social and financial cost. We need to reassess the respective role ofimprisonment, and of community-based sentences.
In 2015, the General Assembly of the United Nations adopted a resolution that shouldcause us to seriously rethink our dependence on imprisonment, and in turn look for agreater role for community-based sentences: the 2030 Agenda for Sustainable
Development.
A fair, rational, humane and effective criminal justice system is important in its own
right. It protects societies against crime. It brings offenders to justice. It ensures that therights of the victim are respected and protected. When it fulfils its function fairly, it plays
an important role also in ensuring that the conditions are in place to allow for sustainable
development.

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Our criminal justice system is therefore quite properly seen in the light of Goal 16 of
the Sustainable Development Goals, which deals with the promotion of a just, peacefuland inclusive society through peace, justice and strong institutions. It has been said manytimes that a strong legal system, including the criminal justice system, is a criticalenabling factor in reaching the other Goals. When the rule of law is lacking, theSustainable Development Goals that we are seeking are undermined. At the same time,
equitable and predictable forms of justice are fundamental to building societies that havea strong foundation in the rule of law, and that facilitate growth and development.
All the Goals, however, are cross-cutting. We should see Goal 16, and the operationof the criminal justice system in the wide sense, in the broader context of the 2030
Agenda. This means in practice that we should take into consideration how the decisions
that criminal justice practitioners make could have an impact on the different aspects of
the life of the victim, the offender and the community – on physical and mental health, on
education, on employment and economic survival, on the rural or urban environment, andso on. For example, when a police officer decides to arrest a suspect (instead of letting
him or her go with a caution), this may affect the suspect’s employment or education. If ajudge decides to impose a sentence of imprisonment, this decision may remove the only
provider from a family, thus leading to the break-up of the family, with a knock-down
effect on the education and future development of the children.
This should not be understood as criticism of the decision to arrest, or of theimposition of the sentence of imprisonment. These decisions may be justified inthemselves, and may even, under the circumstances in the case, be mandatory under thelaw. Imprisonment has a definite and important role in protecting victims and society, andin responding to offenders who have committed serious offences, and who continue topose a great threat of harm.
However, it is important to realize that decisions in the criminal justice system dohave consequences in different sectors of life and society, and that the decision-makercould and should consider whether the decisions could be made differently, in a way that
promotes sustainable development more broadly, while still ensuring that the purposes ofcriminal justice are met. Moreover, judges and decision-makers often have discretion in
making their decision, and in weighing whether or not to opt for a custodial or acommunity-based sentence.
When we look at who are in our prisons, we find that they tend to be members ofvulnerable populations, such as racial and ethnic minorities, substance abusers andmigrants. Because of our over-reliance on prison, in many communities a considerable
number in particular of young men belonging to such vulnerable groups are in prison, or
have been in prison and have to deal with the stigma of being ex-prisoners (a particulardifficulty in seeking employment) and possibly also the deprivation of certain rights, suchas the right to use public housing.
Having served time in prison deepens their problems and contributes to their
marginalization. This in turn, breeds poverty (hampering progress on Goal 1 of the SDGs),
which is one of the major root causes of crime and violence. Marginalization also often
results in poor nutrition (Goal 2), ill health (Goal 3), illiteracy (Goal 4) and otherchallenges to sustainable development.

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Because non-custodial sentences and measures do not restrict the liberty of offenders
as much as imprisonment, they allow offenders to continue their responsibilities as afamily member and a member of the community, and to continue their education (Goal 4)or employment (Goal 8) without interruption. Moreover, offenders can continue to utilize
the various social welfare and health services (including substance abuse programmes)
which are easier to provide in the community than in custodial environments (Goals 1 and
2).
Further reasons for the promotion of non-custodial sentences and measures are thatthey help to reduce inequality (Goal 10) and strengthen the inclusiveness, safety,
resilience and sustainability of the community (Goal 11).
The strong interest throughout the world in replacing imprisonment with communitybased sentences, noted at the outset of this paper, can be seen in various trends. The
strength of these trends varies from one jurisdiction to the next:• a diversification of community-based sentences through, for example, adoption of
new community-based sentences, increased possibilities for adding conditions toexisting community-based sentences, and increased possibilities for combining
different community-based sentences;• the diversification of community-based sentences has been paralleled in somecountries by an extension of community-based sentences to a greater range ofoffences and offenders;• a greater use of the classical community-based sentences such as the fine andprobation;• development of community-based sentences that include one or a combination ofsuch components as work (as in community service), compensation/restitution, andtreatment;• a renewed interest in traditional indigenous measures (such as restorative justiceprocesses), and on sentences that rely on traditional infrastructures.
Despite these developments, a gap remains between policy and practice regarding
community-based sentences. This gap is reflected on several levels:• On the statutory level, many states report that they do not have an appropriate rangeof community-based sentences, or that the legislation does not provide clear
guidance on the purposes, imposition or implementation of these sentences;• On the level of sentencing practice, the gap is reflected in the continuing
predominance of imprisonment as the “norm”, as the main measuring stick insentencing. Community-based sentences are either used far less than the law would
allow, or they are used as alternatives for other community-based sentences;• On the level of resources, the implementation of some community-based sentences
remains hindered in many areas because of the absence of the necessary personnel,
support structures and funds.
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The gap can be diminished only through a change in attitudes. The legislator should
be made aware of the need for legislation that supports the goals of community-based
sentences. The judge and prosecutor (as well as the other practitioners involved) should
be made aware of the need to seek the appropriate community-based sentences and to
apply them whenever possible. Those who decide on resources should be made aware of
the benefits to be derived through expanded use of community-based sentences, and theimportance of well-staffed, well-trained and well-resourced community-based support
services working in close cooperation with the criminal justice system. Where an offender
does have a need for treatment, criminal justice practitioners should seek to ensure that heor she is referred to the proper agencies for help. Finally, the community should be madeaware of the importance of the reintegration of the offender into the community for the
benefit of the offender, the victim and the community as a whole.
Promoting a greater role for community-based sentences is part of sustainable
development.

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Appendix 1
Statistical data on the use of selected community-based sentences in Europe
The following three tables have been prepared on the basis of the Annual Penal
Statistics of the Council of Europe (SPACE II). Each table contains data for 1999 (thefirst year for which this data is available), 2007, 2013 and 2017 for selected European
countries.
There is a structural difference between 1999 on one hand and the other three years on
the other: the data for 1999 refer to the number of community-based sentences given,
while the data for 2007, 2013 and 2017 refer to the number of persons starting to serve
such a sentence.
Please note that the number of persons starting to serve a sentence during a year –referred to in SPACE II as the “flow” – is a different indicator from the number of
persons serving a sentence on a given day – referred to as the “stock”. Thus, thesefigures cannot be compared with the “stock” figures provided by the Global Community
Corrections Initiative that are given in Table 1 in the preceding text.
These data should be used with caution. It can be seen that data is often missing. For
example, in Table 2, only Denmark and Ireland have provided data for all four years.
A second observation is that there appear to be large differences in the data from year
to year coming from some of the individual countries. For example, the data for the
Netherlands in the Table 3 appears to show that almost 37,000 persons began to serve acommunity service order in 2007, and over 32,000 did so in 2017, but in 2013 this was
the case with only 200 persons. Such huge swings can be the result of major changes inlegislation or in the organization of community service in the country in question, butthey can also be because the person(s) responding from these countries used different
interpretations of community-based sentences from year to year, or that there was asimple error in filling out the questionnaire or in complying the resulting table.

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Table 2. Annual number of probation orders ordered (1999), number of persons
that have started to serve probation (2007, 2013 and 2017) 63
country
Austria
Denmark
England & Wales
FinlandFranceGermany
Hungary
IrelandItaly
The Netherlands
NorwayPolandPortugal
Scotland
Spain
SwedenSwitzerland

1999
1,702
58,368
1,297
62,111
1,500***
128,561
6,028
***
5,258
2,096

2007
14,974
1,289
1,891
163
2,779
13,073528
263,761
1,595
175

2013
1,705
1,822
43,134
69,642
94,300
2,653
732
6,171
7,930
589
255,055
8,739
28,225
***
396

2017
1,984
1,290
42,520575
67,385
80,111
615
8,691
8,398
610
9,387
13,503***563

Table 3. Annual number of community orders ordered (1999), annual number of
persons who have started to serve community service (2007, 2013 and 2017) 64
country
Austria
Denmark
England & Wales
FinlandFranceGermany
Hungary
IrelandItaly
The Netherlands
NorwayPolandPortugal
Scotland
Spain
SwedenSwitzerland

1999
***
970
49,597
3,630
23,368
1,342***
17,290
6,200
3,066
2,096

2007
3,187
3,259
2,960
5,178
1,516
38
36,9282
103,406
2,724
4,939
5,354

2013
4,249
3,617
30,2782,10630,80913,537
2,257
8,903
200
2,228
14,3187,800
151,354
5,814
2,065

2017
3,784
4,396
22,177
1,465
32,1162,215
9,335
32,306
1,980
10,057
9,888
84,073
4,341
33,05563(source: SPACE II; selected countries that have provided data for some years) (- = data not provided;*** = sentence does not exist / not applicable).

64

Source: SPACE II; selected countries that have provided data for some years (- = data not provided;*** = sentence does not exist / not applicable).

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Table 4. Annual number of electronic monitoring orders (1999), annual number of
persons who have started to serve an electronic monitoring order (2007, 2013 and2017) 65
country
Austria
Denmark
England & Wales
FinlandFranceGermany
Hungary
IrelandItaly
The Netherlands
NorwayPolandPortugal
Scotland
Spain
SwedenSwitzerland

65

1999
***
***
661
***
***
***
***
***
47
***
***
206
0
3,529
***

2007
***
1,103
***
7,900
***
***
916
0
***
585
2,904
3,364
463

2013
724
2,512
5,058
223
27,105
42
***
***
***
1,889
16,927
185
1,500
2,344
1,987
196

2017
891
2,163
7,994
241
29,569
28
***
***
3,265
294
2,900
2,343
1,642
235

Source: SPACE II; selected countries that have provided data for some years (- = data not provided;*** = sentence does not exist / not applicable).

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References
Aebi, Marcelo F. et al., European Sourcebook of Crime and Criminal Justice Statistics,
Fifth edition, HEUNI publication no. 80, Helsinki, 2014
Aebi, M. F., & Hashimoto, Y. Z. (2018). SPACE II – 2018 – Council of Europe Annual
Penal Statistics: Persons under the Supervision of Probation Agencies. Strasbourg:
Council of Europe, 2018, available at http://wp.unil.ch/space/files/2019/09/SPACEII_report_2018_Final_190930_rev.pdf
Aebi, Marcelo F., Yuji Z. Hashimoto and Melanie M. Tiago, Probation and Prisons in
Europe, 2018: Key Findings of the SPACE reports, Strasbourg: Council of Europe,
2019
Albrecht, Hans-Jörg, Electronic Monitoring in Europe. A Summary and Assessment of
Recent Developments in the Legal Framework and Implementation of Electronic
Monitoring, 2005, available at http://www.mpicc.de/shared/data/pdf/albrecht.pdf
Burrell, William D. and Robert S. Gable, From B.F. Skinner to Spiderman to Marthan
Stewart: The Past, Present and Future of Electronic Monitoring of Offenders,
Probation and Parole: Current Issues”, 2008, pp. 101 – 118
Carranza, Elias, Nicholas J. O. Liverpool and Luis Rodríguez-Manzanera. Alternatives to
Imprisonment in Latin America and the Caribbean, in Zvekic, Uglješa, Alternatives to
Imprisonment in Comparative Perspective, UNICRI 1994, pp. 384 – 438
Challinger, Denis, Alternatives to Imprisonment in Australia and New Zealand, in Zvekic,
Uglješa, Alternatives to Imprisonment in Comparative Perspective, UNICRI 1994, pp.
253 – 275
Christie, Nils, Crime Control as Industry, 3rd edition, Routledge 2000
Cowan, David, What is the context of police and court diversion in Victoria and what
opportunities exist for increasing police diversion of offenders, Cambridge Journal of
Evidence-Based Policing, 2019 (in print)
Crime, Justice and Protecting the Public, Government Proposals for Legislation(Government “White Paper”), Cm 965, London, 1990
Delgrande, Natalia, interview, Confederation of European Probation, available athttps://www.cep-probation.org/the-complex-world-of-statistics-in-probation/, 2015
van Dijk, Jan, The World of Crime. Breaking the Silence on Problems of Security, Justiceand Development Across the World; Sage Publications, Los Angeles, London, New
Delhi and Singapore 2008
Dünkel, Frieder, Imprisonment and Community Sanctions: The Role of Crime Policy and
Sentencing Practice in Europe, paper presented at the 80th Anniversary of the
Criminological Association of Finland, Helsinki, 23 April 2015

99

RESOURCE MATERIAL SERIES NO. 111

Farabee, David, Rethinking Rehabilitation: Why Can’t We Reform Our Criminals?,
Washington, D.C., 2005
Garland, David, Cultures of Control and Penal States, in Beyond Punitiveness: Crime andCrime Control in Europe in a Comparative Perspective. Selection of Presentations of
Plenary Sessions of the EUROCRIM 2013 Conference, Proceedings of Criminology
Special Issue No. 73, Budapest 2014, pp. 57 – 87
GLOBCCI.ORG, available at http://www.globcci.org/index.html
Graham, Hannah and Gill McIvor, Scottish and International Review of the Uses ofElectronic Monitoring, Scottish Centre for Crime & Justice Research, research report
no. 8/2015, University of Stirling, 2015, available athttps://dspace.stir.ac.uk/bitstream/1893/22183/1/Scottish%20and%20International%2
0Review%20of%20the%20Uses%20of%20Electronic%20Monitoring%20%20Graham%20and%20McIvor%202015.pdf
Handbook for prison leaders. A basic training tool and curriculum for prison managers
based on international standards and norms. Criminal Justice Handbook Series,
UNODC 2010
Harrendorf, Stefan and Paul Smit, Attributes of criminal justice systems: resources,
performance and punitivity, in Stefan Harrendorf, Markku Heiskanen and Steven
Malby (eds.), International Statistics on Crime and Justice, HEUNI and UNODC,
Helsinki 2010, pp. 113 – 151
Heiskanen, Markku, Marcelo F. Aebi, Willem van der Brugge and Jörg-Martin Jehle(eds.), Recording Community Sanctions and Measures and Assessing Attrition. A
Methodological Study on Comparative Data in Europe. HEUNI publication no. 77,
Helsinki 2014
Herradura, Ismael Juanga, Improving the Treatment of Offenders Through the
Enhancement of Community-Based Alternatives to Incarceration: The Philippine
Experience, Resource Material Series No. 79, UNAFEI, Tokyo, 2009, pp. 199 – 213
Joutsen, Matti, Expanding the Use of Non-custodial Measures, UNAFEI Resources
Material Series no. 38, Tokyo, 1990, pp. 181-196
Joutsen, Matti, The Framework for Application of the Tokyo Rules: International Patterns
in the Use of Community-Based Sanctions, unpublished paper given at the 25th
Anniversary Seminar on the United Nations Standard Minimum Rules for NonCustodial Measures, UNAFEI, Tokyo, 7 – 9 September 2015
Kääriäinen, Juha, Attitudes and public punishment preferences: Finnish results ofScandinavian sense of justice research, Journal of Scandinavian Studies in
Criminology and Crime Prevention, 19:2, 2018, pp. 152-169, available athttps://www.tandfonline.com/doi/full/10.1080/14043858.2018.1502946
van Kalmthout, Anton and Ioan Durnescu, Probation in Europe, Nijmegen 2008100

174TH INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS' PAPERS

Lappi-Seppälä, Tapio, Prisoner Rates: Global Trends and Local Exceptions, Annual
Report for 2002 and Resource Material Series No. 61, UNAFEI, Tokyo, 2003, pp. 37– 60
Martinson, Robert, What works? – Questions and answers about prison reform, The Public
Interest, 1974, pp. 22-54, available at https://www.gwern.net/docs/sociology/1974martinson.pdf
McIvor, Gill, Kristel Beyens, Ester Blay and Miranda Boone, Community Service inBelgium, the Netherlands, Scotland and Spain: A Comparative Perspective, European
Journal of Probation, vol. 2, No. 1, 2010, pp. 82 – 98
Minnesota Sentencing Guidelines and Commentary, Minnesota Sentencing Commission,
2019, available at
http://mn.gov/msgcstat/documents/Guidelines/2019/MinnSentencingGuidelinesCommentary.pdf
Mombelli, Armando, Swiss-made ankle bracelets ride global prison reform trend,
Geosatis, 5 November 2019, available at https://www.swissinfo.ch/eng/geosatis_swiss-made-ankle-bracelets-ride-global-prison-reform-trend/45333054
Nelken, David, Comparing criminal justice, in Mike Maguire, Rod Morgan and Robert
Reiner (eds.), The Oxford Handbook of Criminology, Fourth Edition, Oxford 2007,
pp. 139 - 157
Penal Reform International, Alternatives to imprisonment in East Africa. Trends andchallenges. London 2012
Reddy, Bala, Community-Based Alternatives in Sentencing [Singapore], Resource
Material Series No. 79, UNAFEI, Tokyo, 2009, pp. 220 – 243
Rujjanavet, Somphop, Country Report – Thailand, in Resource Material Series No. 67,
UNAFEI, Tokyo, 2005, pp. 103 – 112
Saleh-Hanna, Viviane, Colonial Systems of Control. Criminal Justice in Nigeria, Ottawa,
2008
Sentencing Council, Imposition of Community and Custodial Sentences. Definitive
Guideline, London 2016, available at https://www.sentencingcouncil.org.uk/wpcontent/uploads/Imposition-definitive-guideline-Web.pdf
Sherman, L. W., Gottfredson, D., MacKenzie, D., Eck, J., Reuter, P., & Bushway, S.
(1997). Preventing crime: What works, what doesn’t, what’s promising. Washington,
DC: United States Department of Justice, National Institute of Justice, available at
http://ncjrs.gov/works
Singh, Runjit Singh a/l Jaswant, Non-Custodial Sentencing Options in Malaysia, in
Resource Material Series No. 67, UNAFEI, Tokyo, 2005, pp. 88 – 92

101

RESOURCE MATERIAL SERIES NO. 111

State of crime and criminal justice worldwide. Report of the Secretary-General to theThirteenth United Nations Crime Congress, A/CONF.222/4, Vienna 2015
Sugihara. H., K. Horiuchi, N. Nishimura, A. Yamaguchi, S. Sato, I. Nishimura, Y.
Nagashima, M. Nishikawa and F. Saito, An Overview of Alternatives to
Imprisonment in Asia and the Pacific Region, in Zvekic, Uglješa, Alternatives to
Imprisonment in Comparative Perspective, UNICRI 1994, pp. 95 – 202
Tonry, Michael and Richard Wills, Intermediate Sanctions, unpublished draft report,
November 1988, cited in Annesley K. Schmidt, An Overview of Intermediate
Sanctions in the United States, report prepared for the Research Workshop at theEighth United Nations Crime Congress
Travis, Jeremy and Bruce Western (eds.), The Growth of Incarceration in the UnitedStates: Exploring Causes and Consequences, National Research Council of the
National Academy of Sciences, Washington, D.C. 2014, available athttps://johnjay.jjay.cuny.edu/nrc/NAS_report_on_incarceration.pdf
Walmsley, Roy, World Prison Population List, twelfth edition, 2019, available athttps://www.prisonstudies.org/sites/default/files/resources/downloads/wppl_12.pdf
Weisburd, David, David P. Farrington and Charlotte Gill (eds.), What Works in Crime
Prevention and Rehabilitation. Lessons from Systematic Reviews, New York,
Heidelberg, Dordrecht and London, 2016
Wermink, Hilde, Arjan Blokland, Paul Nieuwbeerta, Daniel Nagin and Nikolaj Tollenaar,
Comparing the Effects of Community Service and Short-Term Imprisonment on
Recidivism: A Matched Samples Approach, Journal of Experimental Criminology,
2010, vol. 6, no. 3, pp. 325-349, available athttps://www.rug.nl/research/portal/files/14462106/2010-WerminkH-Comparing.pdf
Yukhnenko, Denis, Achim Wolf, Nigel Blackwood and Seena Fazel, Recidivism rates inindividuals receiving community sentences: A systematic review, PLoS One. 2019;14(9): e0222495, available athttps://www.ncbi.nlm.nih.gov/pmc/articles/PMC6754149/

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