During 2021, hopes that the response to COVID-19 would lead to longer-term global efforts to reduce prison populations through the increased use of alternatives to imprisonment began to dwindle as numbers continued to rise in many countries (see Imprisonment and prison overcrowding). Evidence of non-custodial measures being utilised to relieve prison systems has been seen, for example in Portugal where individuals who had previously benefited from extraordinary prison leave could bring forward their parole by a period of up to six months, by court decision. The pandemic also prompted more non-custodial measures to be used in places like Bahrain, where an alternative sentencing scheme that includes community service and home detention was expanded to all people in prison following protests about overcrowding and fear of COVID-19.
While the impact of COVID-19 on prisons has received attention, its impact on non-custodial measures and sanctions is only now beginning to be documented. In January 2022, a series of research reports by PRI with the University of Coimbra and the Hungarian Helsinki Committee shed light on the impacts of the pandemic on non-custodial sanctions and measures. Drawing on lessons from the research, guidance was also published in, ‘Ten-point plan: Crisis-ready non-custodial sanctions and measures’. As with prisons, many longstanding failings and shortcomings in the implementation of non-custodial sanctions and measures have been exacerbated, but there have also been many examples of innovative practice and adaptations to be harnessed.
Reductions in prison populations linked to COVID-19 measures have proven more sustainable in countries with existing mechanisms for alternatives to detention.
In terms of how supervision is implemented, many countries such as the Netherlands have moved to a ‘blended’ form of probation (both online and face-to-face contact) developed during the pandemic, which will be further developed for future use. This has potential benefits for both the probation service in terms of efficiency and the client, but the impact of reduced in-person contact is yet to be evaluated. In Chile, for example, before the pandemic, no office in the country’s capital, Santiago, reported meeting clients less than once a month, with most (58%) meeting 2-3 times a week. Since the pandemic, however, almost half reported they met clients less than once a month, with an increasing reliance on phone calls and videoconferencing. While most people serving probation in the country (70%) have a home phone or cell phone, less than half have access to emails, smartphones, or videoconference facilities, and less than a quarter have a computer with access to the internet at home posing difficulties in this new modus operandi.
In Europe as a whole, the number of non-custodial measures and sanctions grew by 3% from 2019 to 2020. However, analysis of the ratio between probation and prison populations showed that, with the exception of eight countries, there were high rates of both people serving probation and prison populations. This indicates that community sanctions and measures are not always being used as an alternative to imprisonment, but in addition to (as a supplementary sanction). An increase in non-custodial sanctions can also lead to higher rates of imprisonment if violations can lead to detention. This has been the case in the US where the most recent data shows that almost one in five (18%) people in jail nationally are detained for a violation of probation or parole.
Data on non-custodial measures and sanctions globally remains lacking, but in Europe, their use grew by 3% from 2019 to 2020.
Reduced prison numbers linked to COVID-19 have proven to be more sustainable in countries with existing detention alternatives or reform initiatives. In Ireland, the 15% reduction in numbers obtained as a result of COVID-19 release measures followed a more general trend in the country to move away from short sentences, increase the use of community service orders and non-custodial sanctions. Evidence has demonstrated that the availability of existing mechanisms for detention alternatives has allowed for a more effective response on reducing prison populations in times of crisis.
Unrelated to COVID-19, there have been reforms to replace the use of short sentences with non-custodial sentences. In Belgium, the federal parliament has given its approval to a proposal aimed at making it easier for people sentenced to a short term in prison to request alternative types of supervision, and judges will no longer be able to impose a prison sentence on those convicted of very minor crimes such as vandalism and certain traffic offences. In Kuwait, those sentenced to less than three years in prison are now eligible to serve their sentence at home under electronic surveillance, and in Ghana, the government continues to work on the enactment of a non-custodial sentencing law.
More than two years on from the start of the pandemic, it is clear that COVID-19 has not resulted in an overall reduction in the global prison population.
Unfortunately, even when available, many alternatives to detention – at pre-trial, sentencing and post-sentencing stages – are not widely used in practice. Reasons vary but common issues that continue to be reported on include a lack of awareness, resources and training for the judiciary, or due to judicial resistance and lack of political will. This is often linked to perceptions of public opposition to the use of alternatives and support for punitive approaches. Yet new research from Cambodia adds to the existing body of research that challenges this premise. The study found that in Cambodia, where delays in implementing alternatives to detention for children in conflict with the law were often attributed to resistance to community-based alternatives, communities were in fact broadly in favour of alternatives, and officials were willing to put the law into practice. Instead, the main barriers to implementation were found to be linked to poor communication, coordination, and resourcing.
In the US, there is also a significant body of research that demonstrates support across political parties, regions, ages, genders, racial and ethnic groups for policy changes that provide for alternatives to imprisonment for people convicted of non-violent offences. In Australia, public opinion polls have also shown broad support for alternatives to detention, especially for people convicted of non-violent offences, young people, and those with substance dependencies and/or mental health problems.