Emma Disley, RAND

Following on from the UNGASS Outcome Document’s call for alternatives to incarceration, RAND conducted research to see what legal alternatives exist across the 28 EU member states, how they are being used in practice, and the existing evidence supporting them. They considered alternatives at all stages of the criminal justice process – from pre-arrest measures, through courts and sentencing, and also post-sentencing alternatives, provided that some rehabilitative elements were included (and for adults only). A network of experts across the 28 countries was recruited, with nearly 180 interviews conducted.

The research found 108 alternative measures in place, with at least one in every member state. Most were found towards the later end of the sentencing process (sentencing etc), and RAND have proposed 14 categories of alternative measures, including: cautions or no action at arrest stage; addiction dissuasion committees (such as in Portugal); drug courts; suspension of investigations, court proceedings or sentencing with treatment as an alternative; and intermittent custody arrangements. Overall, when these alternative measures existed they were often not used enough. Some of the key issues included: the beliefs and practices of decision-makers (judges, prosecutors etc); the lack of awareness of the measures; the lack of feedback provided to judges on the outcomes of treatment; the lack of financial and other resources for treatment programmes; legislative changes that may facilitate or impede the use of alternatives (such as by affecting the discretion allowed to judges); and public opinions and political pressures.

There is a lot of evidence and studies of these alternative measures – especially on reductions in crime and re-offending – but the widespread limitations in their methodology impact on how much can be inferred from them. There is also very little research on cost-effectiveness, and a lack of clear monitoring studies and data. However, it does appear that measures targeted at individual needs are more effective, rather than a ‘one size fits all’ approach. Quasi-compulsory options also appear to be no more or less effective than voluntary ones, but may lead to greater retention.

Danilo Ballotta, EMCDDA

The 1961 Convention allows for alternatives to conviction, as does the 1971 Convention, and the 1988 Convention then goes even further to allow these options for some supply-side offences as well. The 2009 Political Declaration noted the limited use of these options, which was reiterated in the 2014 Joint Ministerial Statement, which also highlighted cases of good practice. The UNGASS Outcome Document reiterated the call to adopt alternatives to incarceration. We also have three resolutions related to this, so we do not need any more. The beliefs of judges etc are key. There is a mindset that drug use must be punished, which comes from around 100 years of a war on drugs approach, and has become a social norm. We need to put the objectives of law enforcement and public health officials together – we need common, clear objectives for all stakeholders in the design and implementation of these measures. And we need proper treatment, based on the UNODC Quality Standards. And we need to monitor and to show value-for-money from these measures.

Giovanna Campello, UNODC

UNODC has run a joint programme with WHO working on this issue since 2009, with published papers and reports. But we definitely need more monitoring and research. UNODC launched a project at last year’s CND, with a lot of interest from member states asking how to implement alternatives to incarceration. But clear best practice examples are not available. Hence our Handbook is going to be released soon – based on the many responses to the note verbale issued to member states. Findings look similar to those of RAND – the key issue is a lack of treatment resources to offer as the alternative. 

Nacira Boulehouate, European Commission

The EU continues to work on this area – and the recent report was a very good exercise to share information and learn about the barriers that exist. These include the lack of treatment options, the lack of M&E, etc – even inside of the EU. We need more training for prosecutors and judges to change their beliefs, and expose them to the evidence in favour of alternatives to incarceration. There is also a need for greater feedback between law enforcement and public health sectors. We need to connect different actors together, as the data exists but often in a fragmented way. The key issue is to ensure a continuum of care, including after the treatment or sentence has ended. EU actions include sharing knowledge in this area, including through the EU-Latin America cooperation project, and reflecting this in the new Plan of Action on Drugs.