Sentencing people who are convicted of a criminal offence is complex business. The sentencing policy and practice of any given country has a significant impact on prison population and overcrowding rates, and is closely linked with the ability to provide safe, humane prison conditions in line with international standards like the UN Nelson Mandela Rules. In this blog, written for Penal Reform International, Catherine Heard, Director of the World Prison Research Programme at the Institute for Crime & Justice Policy Research, explores sentencing trends (and disparities) based on a study of ten countries.
Imagine being convicted of a crime in another country, where the sentencing framework is very different to the one in your home country. For a drug trafficking conviction you could be looking at life imprisonment and a hefty fine if you were sentenced in Thailand, but be home within months if you happened to be in the Netherlands.
Our latest research highlights vast disparities between different jurisdictions in their approaches to custodial sentencing across a range of offences. In this piece I’ll discuss some of the most striking disparities and what they would mean for sentence outcomes.
Working with our international partners, we have examined how the three hypothetical offence scenarios below would be dealt with in ten jurisdictions: Kenya, South Africa, Brazil, New York State, India, Thailand, England & Wales, Hungary, the Netherlands, and New South Wales, Australia. As part of this, we have researched sentencing laws and policies, and interviewed seventy experienced defence lawyers across five continents.
- Burglary: P-, a 32-year-old man, broke into a house when the residents were at work, accessing the rear of the house via a back alley and breaking a window to gain entry. He stole jewellery and cash belonging to one of the residents, worth a total of approximately [US$ 500]. He has several prior convictions for the same type of offence and other similar offences.
- Drug importation: K-, a 26-year-old woman, was recruited in her home country of [Nigeria] to transport heroin in return for a cash payment. She had flown to [England] from her home country, carrying the heroin in a hidden compartment in a money belt. The quantity of heroin was 400 grams, or a little under 1 lb.
- Intentional homicide: Two 23-year-old friends, L- and J-, got into an argument while drinking together in a bar. Both left the scene, and L- texted a mutual friend to say that he was going to kill J-. The next morning, on leaving his home for work, J- was confronted by L- who had been waiting for him outside his property. L- was armed with a knife, which he used to stab J- fatally in the chest.
Note: Minor adjustments were made to the value of items stolen, the country the drugs were imported from, and whether cocaine or heroin was imported, to ensure appropriateness for each country.
The selection of these contrasting vignettes enabled clear comparisons to be made between various elements of legal systems and sentencing frameworks, while also engaging important criminal justice and social policy issues.
Previous convictions as a bar to non-custodial options
For the domestic burglar P-, non-custodial options would have been possible, even likely, in most of the ten countries, without the aggravating factor of his previous convictions. (His chances of avoiding prison would have been all the stronger if P- had pleaded guilty and made reparation of the goods stolen.) But because of his prior offences, only in the Netherlands would P- have a reasonable chance of avoiding prison, provided that his lawyer could produce convincing evidence that custody would serve no purpose and that his rehabilitation prospects would be better in the community. In the other jurisdictions, P- would probably get an immediate custodial sentence of several years, with three or four years the likely sentence in most countries.
Disproportionately severe sentencing of drug offences
The most striking degree of disparity across jurisdictions was seen in the drug importation vignette. K- would be likely to receive a life sentence in Thailand, a 20 year term in India, 15 years in South Africa, and between five and 18 years in most of the other countries. Again, the Netherlands was the exception, with lawyers estimating her likely sentence at around four months.
Heavy fines on top of custody
In six jurisdictions, K- was also liable to receive a fine on top of custody: in New South Wales, the fine could equate to almost US$700,000 (but would be in the court’s discretion). In Brazil a minimum fine equivalent to around US$3,500 would apply. In Kenya, South Africa, Thailand, and India, non-payment of the fine would probably mean extra time in custody. In Brazil it would mean removal from the electoral roll and losing the right to work.
In the case of L-, the perpetrator of the intentional homicide, a life sentence would be the probable outcome in most of the ten countries. This would currently take effect as a whole life sentence (that is, with no possibility of release) in Kenya, potentially also South Africa, and as a minimum term of around 20 or 25 years in England & Wales, New York State and New South Wales, with a right to apply for release on parole thereafter. In India and Thailand limited remission can be earned after a certain point. Also in Thailand, prisoners can earn eligibility for royal pardon and release as part of a system of intermittent amnesties.
The death penalty remains on the statute book as the sanction for murder in Kenya (where it was ruled unconstitutional by the Supreme Court in 2017), Thailand and India. In Thailand it is also mandated in drug trafficking cases but is generally commuted to life imprisonment if there is a confession. None of the defence lawyers considered a death sentence likely on the facts in L-’s or K’s cases.
Brazil alone among the ten countries has no life sentence. For the offence of homicide, a mandatory minimum of 12 years applies and if judges sentence above this level (up to a statutory maximum of 30 years) they are expected to provide reasons. In Brazil, L- would probably receive a 14 year sentence, with the first five or six years served in closed (maximum security) conditions.
The Dutch approach: shorter prison terms and mental health treatment orders
In the Netherlands, although the life sentence exists, it is almost never used. The most likely outcome for L- in a Dutch court would be a custodial term somewhere between three and twelve years, with a stay in a psychiatric treatment centre to follow that, if the court was satisfied that he had a treatable condition. (Otherwise, the custodial term would likely be ten to twelve years, but L- would not be subject to a potentially open-ended period in a psychiatric clinic.)
Do long sentences deter?
Politicians and governments tend to justify the use of life or very long custodial sentences on grounds of deterrence. The same reasoning has supported tougher sentences for repeat offenders, with fairly long custodial terms even when the index offence and the prior convictions did not involve violence. But the research evidence on the (general or specific/individual) deterrent effects of harsh sentences suggests that they are limited; and that the certainty of detection and punishment are more effective deterrents. Deterrence theory also fails to account for impulsivity, unmet mental health needs, the influence of drugs and alcohol, or the role of poverty and weak welfare or social support – all factors known to underlie much offending.
What emerged clearly in interviews with defence lawyers was how difficult it was to predict sentencing outcomes for the burglary vignette, where base sentence ranges were generally wide. In some countries, including Thailand, England and Wales and Hungary, an early guilty plea, and good personal circumstances (like a stable home life) could potentially mean a more lenient sentence.
Many of the lawyers berated the inability of their sentencing systems to distinguish between different levels of culpability in the context of drug offences. In Brazil and India, for example, lawyers argued for more nuanced approaches, to avoid ‘micro-traffickers’ – often homeless, perhaps just turning over enough to feed their families or maintain their own drug habits – being sentenced as if their culpability were the same as that of larger scale dealers (who, they noted, often escaped prosecution).
What is beyond doubt is that the introduction of tougher, more arbitrary sentencing regimes greatly increased prison populations, while doing nothing to resolve the underlying and complex drivers of much (re-)offending.
See more on ICPR’s ten country prisons project and related publications. The full briefing on sentencing will be published in September 2020.
You can see other blogs in Penal Reform International's Global Prison Trends 2020 blog series here