Non-custodial sanctions have been commonly used as part of bringing prison numbers down during the pandemic, taking different forms. New legislation or regulations were adopted in many states to expand the legal basis of non-custodial sanctions or to give guidance on their use. For example, a new law in Turkey allows for early release when half a sentence is completed, albeit with an extension of probation periods from two to three years. In Peru, the government enacted legislation to promote the use of electronic monitoring.
In some countries, governments encouraged judicial and law enforcement arms to avoid imprisonment, as seen in Indonesia66 and Thailand, in the case of COVID-19-related offences. Courts took the lead in increasing the use of non-custodial options in Bangladesh and the Philippines; in the latter the Supreme Court reduced the conditions for bail and recognisance to avoid imprisonment of people in poverty. Prison leaders in some cases applied pressure, for example in Russia, the director of the prison administration asked the Supreme Court to encourage the use of alternatives for minor offences.
One concern in the current context continues to be the widening of offences that can attract a sanction, albeit a non-custodial one – often described as ‘net widening’. This is of concern as evidence shows that an increase in non-custodial sanctions does not correlate to fewer prison sentences. On the one hand, non-custodial sanctions like simple warnings, fines or suspended prison sentences are necessary to keep people out of prison and facilitate their rehabilitation in the community. In Thailand, for instance, as of May 2020, 2,276 persons sentenced to prison terms for breaches of COVID-19 regulations were reallocated to a non-custodial sanction under Department of Probation. On the other hand, the results in Thailand demonstrate that new criminal offences relating to COVID-19 risk drawing a large number of people at low risk of reoffending into the criminal justice system.
Where countries saw an increase in the use of alternatives, there was a sudden growth of caseload for agencies tasked with supervising the implementation of non-custodial measures. Many probation agencies have expressed concern at ‘probation overcrowding’. In Kenya, the caseload for the Probation and After-care Service varied during 2020 with correlation to the lockdowns and court activity. At peak times, the service had high caseloads due to an increase in non-custodial sentences handed down by courts, the referral of some of the 11,000 people released as a response to COVID-19 and a backlog from courts going virtual. For instance, in August 2020 when there was a strict lockdown and limited court activity, only 1,705 people were referred to the probation agency, whereas in November there were 6,412 cases referred. In Singapore, a record number of 3,246 people were placed on community corrections in 2020, a 42 percent increase from 2019. In the Philippines, in 2020 the probation service handled 55 percent more probation supervision cases than the previous year.
On the other hand, in England and Wales and in Northern Ireland, probation agencies’ caseloads decreased somewhat in 2020 compared to the previous year by 12 and 9 per cent, respectively. One explanation for this could be the scaling back of court activities and decisions and the resulting increasing backlog, the impact of which needs to be further examined as it eases. In England and Wales, the prison population did not decrease at the same rate as probation caseloads, showing just over a 5 per cent drop.
At the end of 2018, there were about 2 million people in Europe and about 4.4 million people in the US on probation or parole.
In some states electronic monitoring was looked to as the solution to keeping prison populations lower during the past year. In Spain, the number of people under electronic monitoring jumped by more than 130 per cent between March and May 2020. Electronic monitoring was also more extensively used in Italy and the Netherlands. In Senegal and Tunisia legislation was adopted authorising the implementation of electronic surveillance.
Agencies charged with supervising non-custodial alternatives have adapted working methods and approaches due to the COVID-19 pandemic in the majority of jurisdictions. Many ended in-person supervision and home visits to people on probation and moved them to phone or video calls. This was often combined with restrictions when entering prisons, limiting the opportunities for pre-release support. In Kyrgyzstan, during the lockdown in early 2020, visits by probation officers to both adult and child clients were suspended and instead conducted over the phone. In Kenya, probation officers’ capacity was limited by the lockdown. Probation officers in several countries, such as in Croatia and Austria, have reported increased stress brought by the implementation of these emergency measures and the blurred lines between home and work life.
Due to lockdowns and other movement restrictions, supervision and the fulfilment of conditions of a non-custodial sanction have become complex. At a minimum, community sentences have been impacted by the suspension or postponement of programmes, community service requirements or reporting requirements. At least 31 probation agencies across Europe had to suspend or adapt the implementation of sanctions they were supervising, many adapting to remote contact with clients. In Georgia, a hotline was set up and high-risk clients were visited at home by probation officers after a protocol was drawn up for the visit.
By its nature, community service – a common non-custodial sanction– involves social contact, in-person supervision and often contact with private-sector entities. It therefore remains hugely impacted by COVID-19. Many systems suspended or postponed community service measures, replacing them with an alternative sanction (like a fine) or extending the period of the sentence, as seen in Portugal and in Scotland. In Kyrgyzstan, some community service placements have involved contributing to COVID-19 response efforts. Other countries sought to avoid an extended sentence, like in Finland, which required people on probation to submit written or online assignments provided by substance abuse and mental health services, etc.
COVID-19 restrictions are affecting the ability to provide rehabilitation and post-release support, including drug, alcohol and behaviour change support groups, as well as the closure of subsidiary social support such as shelters. These types of programmes and support mechanisms are often an essential part of a non-custodial sanction. An analysis in the US showed that during the pandemic, services for mental health and substance use (part of a community sentence) are provided through remote ‘telehealth’ means, often as a new initiative and probation officials reported significant concern about clients’ relapse because of lack of supervision and support, among other factors.
See a complete list of references in the full report, Global Prison Trends 2021.