The impact of the COVID-19 pandemic on non-custodial sanctions and measures

Abstract

Introduction: In order to reduce prison populations to manage the spread of COVID-19, many states have turned to the use of non-custodial sanctions and measures and the adoption of early or emergency release schemes. While the impact of the pandemic on prisons has been well documented,1 it is less clear how COVID-19 and the different measures governments have adopted in response to the pandemic have impacted the use, implementation, management and experience of non-custodial sanctions and measures and release preparation and support. This summary comparative report on the impact of the COVID-19 pandemic on the imposition and implementation of non-custodial sentences and the preparation of individuals for release from prison is part of the international project Addressing gaps in the implementation and management of alternatives to imprisonment and post-release support during the COVID-19 global pandemic, funded by the International Penal and Penitentiary Foundation and implemented between March 2021 and January 2022. The aims of the project are: • to understand the impacts of the COVID-19 pandemic on the use, implementation and experience of noncustodial sentences; • to raise awareness and engage government stakeholders with practical recommendations to take urgent and systemic steps to protect the rights of people on probation, ensuring that during times of crisis and national emergency they receive adequate supervision, complete their sentences and do not face discrimination; • to develop a 10-point plan with evidence-based recommendations that are applicable internationally for the improved implementation of alternatives to imprisonment during times of national or international crisis or emergency and that expand the use of non-custodial measures in a nondiscriminatory manner (i.e. to whom these measures are applied and how they are managed). In four countries – Georgia, Hungary, Kyrgyzstan and Portugal – research teams conducted in-depth studies, producing four independent reports on how COVID-19 impacted the use, implementation and experience of non-custodial sanctions and those released from prison during the pandemic.2 Prior research by Penal Reform International (PRI) into the impacts of the COVID-19 pandemic on criminal justice systems globally, alongside practical experience and expertise on good practices and implementing international standards, such as the UN Standard Minimum Rules on Non-custodial Measures (the Tokyo Rules),3 will inform the development of internationally applicable recommendations for adaptable, resilient, fair and effective probation, in times of crises as well as normal operations. This report also contributes to these efforts. As part of a wider comparative study conducted by the University of Coimbra as part of the project Promoting non-discriminatory alternatives to imprisonment across Europe,4 this comparative study is based on national reports provided by experts from 19 Member States of the European Union (EU).5 In two further countries, where the research team could not obtain national reports, semi-structured interviews were conducted with representatives of the prison and probation services. The national reports and data-collection interviews followed an outline questionnaire prepared by the research team, meant to ensure standardisation of replies. The questionnaire was divided into three parts, and each part encompassed several questions that addressed the following issues: (i) non-custodial sentences or measures aimed at reducing the prison population as a means of preventing the spread of the virus within prison facilities; (ii) the impact of the pandemic on non-custodial sanctions and measures; (iii) the impact of the pandemic on the future of noncustodial sanctions. Occasionally, the reports and interview data were complemented by information from other published sources. This report follows the outline of the questionnaire, although the research team found it appropriate to discuss the issues of preparing individuals for release, the impact of the pandemic on the work and well-being of probation staff and the specific impacts on persons in vulnerable situations in separate chapters. It is important to note that, although the EU Member States share common principles and values, each Member State has its own criminal law, penal system and rules of criminal procedure. The situation of prison systems (especially occupancy rates) at the outset of the pandemic also differed significantly. The differences in statistical recording of prison and probation data affect their comparability too. These difficulties impact comparative studies in criminal law in general, and with the unprecedented nature of the phenomenon under study – the COVID-19 pandemic – such challenges are even more present, since there has been no time to stabilise solutions or harmonise data collection procedures. Moreover, not all national reports addressed all questionnaire items and not all reports provided the same level of detail, which sometimes made the comparative process difficult, limiting the comparability of the information. Furthermore, while in some countries there was published data on the subject – allowing to check or complement the information – in others little information on the impact of the pandemic was available at the time of writing this study. As a result, throughout the report, comparative data are punctuated by the provision of individual examples from specific countries. We believe that these individual examples, while not constituting a comparison in a strict sense, enrich the study by showing how various systems found solutions to deal with the challenges posed by the pandemic. In the Member States covered by the study, we sought to identify common problems and difficulties faced in the context of the COVID-19 pandemic and non-custodial sanctions and measures, compare the measures taken to deal with them and highlight examples of good practice. We draw general conclusions from the experiences of the 21 countries, anticipate what lessons will be drawn from the measures and policies introduced during the pandemic and identify recommendations for building on the lessons learned and making penal systems more resilient to future crises.