250 words and two scholarly references

allowing testimony through closed-circuit television, and allowing the acceptance of children’s testimony without corroboration. Finally, they also have been instrumental in increasing the funding for victim support schemes.

While a good deal of work to assist victims has been carried out by volunteer groups, it is important to point out that various components of the criminal justice system are making significant efforts to aid victims. Some of the efforts by the police were outlined in the section of this chapter devoted to police. In addition, the government has established a number of magistrates’ courts that specialize in domestic violence cases. These courts are designed to bring the various components of the justice system—police, Crown prosecutors, magistrates, probation service, and victim support services—together to facilitate moving these cases through the system in a more efficient manner. While the rate of convictions of domestic violence cases has increased in recent years irrespective of the type of court, the conviction rate in domestic violence courts has reached 71 percent, according to the Home Office. Presently, there are 98 courts that specialize in domestic violence cases.

In the autumn of 2014, the police and crime commissioners were authorized to coordinate victim services in their constabularies. Finally, in her 2013–2014 report to the minister of justice, the Victims Commissioner indicated that there is now “a greater awareness of crimes, such as, human trafficking, hate crime, forced marriage, modern day slavery, and female genital mutilation.” As such, people in the victim assistance movement need to be aware of the expanding needs of society’s victims.

CORRECTIONS The importance of the juxtaposition of penal theory and the architectural design of correctional institutions is a notion that emerged in England during the late eighteenth century. At roughly the same time, police practitioners began in earnest to support improvements in law enforcement. People were questioning some of the basic assumptions behind the administration of justice, just as they were questioning many of the established political, religious, scientific, and social assumptions on which society was based.

Many of these basic tenets had been introduced originally during the Middle Ages, a period that some have referred to as the Age of Faith. The eighteenth century was a markedly different period, known by contemporaries as the Enlightenment, the Age of Reason— espousing a belief that the individual was a free, rational, and equal member of society. Such notions were obviously at cross-purposes with established custom and authority.

The eighteenth century serves as a useful benchmark for the emergence of the modern development of English corrections. It was during this time that people consciously and rationally attempted to study the purposes of and the conditions for incarcerating law violators. In order to appreciate the contributions of Enlightenment thinkers, it is useful to examine the state of corrections at earlier points in time. Anglo-Saxon dooms and medieval statutes enable us to piece together that history.

The stocks were probably the earliest form of imprisonment, though they were not suited for people who were sentenced to an extended period of custody. It is assumed that as early as the eighth century some type of prison existed, because owners of large tracts of land

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were frequently awarded the right of infangthief and outfangthief. Infangthief was the right to bring a thief caught on your land to the lord’s court; outfangthief was the right to bring a thief caught beyond your land to the lord’s court.

By the ninth and tenth centuries, it was common for courts to sentence thieves to 40 days in custody before releasing them on the condition that they pay the compensation that had already been awarded by the court. Such a sanction obviously required that a suitable place be available to hold suspects and individuals sentenced to a period of confinement. It is assumed that either a hut or cage on a manor, a room in a county town, or a designated area of a castle was used for this purpose.

Following the Norman Conquest in 1066, the use of imprisonment appears to have declined somewhat. Two possible explanations have been offered for this development. On the one hand, imprisoning people was a costly enterprise for the captor. On the other hand, alternatives to incarceration did exist. For example, death, mutilation, and outlawry had long been established methods for punishing serious offenders, while compensation was considered an appropriate sanction for less serious offenses.

The use of custody achieved a greater degree of certainty by the twelfth century as the king expanded royal authority in the administration of justice. Sheriffs were required to detain suspects of serious crimes until the trial was completed. People defaulting on the payment of their taxes to the king were imprisoned not only as a means of securing payment but also as a form of punishment for being delinquent. Originally, trespassing was considered a tort action but, by the thirteenth century, it was viewed as an indictable action. The reasoning was that the defendant had not only acted against the plaintiff but also had violated the peace of the kingdom. In addition, those convicted of larceny were imprisoned at a rate of one week for each penny stolen.

The Statute of Acton Burnell (1283) and the Statute of Merchants (1285) enabled private creditors to have debtors imprisoned until payment was made. Because the state did not provide funds for their upkeep, those who were incarcerated were almost totally dependent on their family and friends for their maintenance. Because not all prisoners had family or friends, it is assumed that some probably starved to death. Members of the general public, however, did assist prisoners; it was not uncommon for people to give alms to inmates as they did to the poor. By the fourteenth century, prisoners frequently were permitted to beg while chained to posts outside prisons.

Throughout the medieval period, the spiritual well-being of prisoners appears to have been of greater concern than their physical health. Religious services were readily available, but impure drinking water and a general lack of sanitary conditions led to illnesses that occasionally reached epidemic proportions. Attempts also were made to separate felons from debtors and women from men, but not all facilities provided this type of segregation. Therefore, it is assumed that many prisoners associated freely with one another.

By the eighteenth century, prison conditions had reached an intolerable state. Criticism was directed at the use of institutions as a method of deterring and isolating offenders from society for a period of time. It is estimated that by the end of the century Parliament had also created about 200 statutes calling for the death penalty. A number of these statutes dealt with crimes that would be considered petty property offenses by today’s standards. A small group of reformers began to question the propriety of incarcerating some

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offenders—especially in light of the poor facilities in which they were housed, as well as the rationale for dramatically increasing the death sentence.

Although rehabilitation, deterrence, and isolation are often presented as rationales for prisons today, they are considered to be at cross-purposes with one another. During the second half of the eighteenth century, the emerging view was that each of these rationales served as a component to a larger theory that justified the development of prisons. Reformers saw the need to deter and isolate offenders but were also concerned about efforts at rehabilitation.

It must be remembered that one of the principal tenets of Enlightenment philosophy was that humankind is malleable. The theorists were not so idealistic as to believe that all individuals had reached the state of being free, rational, and equal in society, but they did believe that everyone was capable of being led to that state of freedom. John Howard held this Enlightenment view. His contribution to prison reform illustrates its application to penal theory.

Howard serves as a representative of a larger movement. Cesare Beccaria, William Eden, Samuel Romilly, and Jeremy Bentham also were instrumental in encouraging change, but Howard was one of the first reformers in England to see a relationship between penal theory and the architectural design of facilities for housing the offender. This merger of theory and design was presented in his treatise, State of the Prisons in England and Wales (1777).

Howard argued that prisoners’ accommodations should be clean and that nutritious food should be provided. Although his views were partly based on humanitarian grounds, he also thought that prisoners had more potential for being reformed if they were treated correctly. The key component of his rehabilitative philosophy involved prison design. Howard was either the discoverer of the cellular prison or one of its early and most ardent proponents. He was of the opinion that the reform of prisoners would be enhanced if they were lodged in separate cells. This view obviously had significant implications for the architectural design of prisons. Although rehabilitation has not always been at the forefront for justifying this design, the cellular prison has been a central issue in prison design since the late eighteenth century.

Throughout the nineteenth century, other reformers continued the movement to transform the purpose of corrections. Sir Walter Crofton’s Irish system and Alexander Maconochie’s attempt to change the regime on Norfolk Island are notable examples. While holding the position of home secretary, Robert Peel was instrumental in significantly reducing the number of death penalty statutes.

The key issue that was raised throughout much of the nineteenth century was: Who should administer the prison system? The Prison Act (1877) resolved that question. Before the act’s passage, the British had created two kinds of prisons. The first kind were convict prisons controlled by the central government. These prisons were designed to house offenders sentenced to penal servitude, wherein a prisoner spent the first nine months in solitary confinement and served the remainder working on public works projects. Local prisons, on the other hand, handled offenders sentenced to imprisonment, a sentence differ - ent from penal servitude in that it was considerably shorter—with a two-year maximum permitted by common law.

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Because the central government was not involved in the administration of local prisons, there was a notable difference in the regimes established at each prison. Generally, local prisons adopted one of two popular systems: associated or separate. Under the associated scheme, prisoners worked together in workshops during the day but were segregated in their cells the rest of the time. The separate system kept prisoners segregated in their cells all of the time. Though the separate scheme obviously limited the kind of work assigned to prisoners, it tended to be the more popular of the two systems.

The Prison Act (1877) accomplished two things: It brought local prisons under the control of the central government, and it created a Board of Prison Commissioners. The Board’s first chair, Sir Edmund Du Cane, was instrumental in developing a uniform policy by which prisons would operate. That policy consisted of establishing a prison regime based on the separate system. Although modifications in the scheme were introduced from time to time, it became an intricate part of the prison regime well into the twentieth century.

As the nineteenth century drew to a close, a series of articles was published that painted a bleak picture of the system of local prisons. Critics noted overcrowding, poor diet, inhumane treatment by guards, and the separate system. A committee formed to investigate the charges issued a report in 1895. Although the report addressed itself to the original criticisms and offered a series of reforms, it has been suggested that the report’s most noteworthy achievement is found in the recommendations proposed for the future development of penal policy. The most significant examples that came to fruition in the twentieth century were the establishment of separate institutions for offenders between the ages of 16 and 23, the segregation of habitual criminals under special conditions, and the creation of a prerelease prison. Youth custody, preventive detention, and hostels have respectively transformed those suggestions into intricate parts of the British correctional system.

Sentencing Philosophy

Throughout the twentieth and on into the twenty-first century, the British have been confronted with two major problems in sentencing that have also created controversy in the United States. One of these is the existence of multiple sentencing aims instead of a single unifying purpose. Sentencing with multiple aims may not be a bad idea, but it does compound the problems facing prison authorities and other social service agencies. The second problem involves judicial discretion. Depending upon the sentencing philosophy of the individual judge, any of a number of sentencing aims may determine the rationale for imposing a particular sanction.

Sentencing Aims

There are essentially four categories of rationales in sentencing: retribution, isolation, deterrence, and rehabilitation. In the past, retribution was closely linked to vengeance, specifically the ancient Hebraic idea of “an eye for an eye.” Because that rationale for sentencing has largely been discredited, a more modern perception has developed. Today, its justification rests on the belief that courts have an obligation to display society’s

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collective disapproval of crime. Sanctions should serve as a means of condemning the guilty by punishing offenders in proportion to their culpability for criminal activity. Hence, the old term of retribution has been replaced with the label—“just deserts”—to capture this sentencing rationale.

Isolation is another aim based on the premise that society should be protected from dangerous and violent offenders. However, society is assured that this rationale works only when a person is sentenced to life imprisonment and actually serves the entire term. Like most modern justice systems, the British are usually unwilling to enforce this aim completely. Although a life sentence or a long prison term attempts to fulfill the goal of isolation, most prisoners do not serve the total period imposed. Thus, the objective is achieved for only a limited time, and citizens are often surprised or angered to discover the actual amount of time served.

Critics of isolation have raised another concern with regard to its purpose. Although dangerous and violent offenders are removed from society for a time, they are simply transferred to another society—the closed world of the prison—where they often inflict their violent tendencies on other inmates. Critics contend that this imposes an added punishment on other inmates and is therefore unjust.

Deterrence is frequently cited as one of the principal aims of sentencing. Although its effectiveness is usually difficult to prove, deterrence has a dual purpose. One is to deter a specific offender from violating the law. Research and the opinions of those working in the field suggest that this kind of individual deterrence is largely dependent on the type of offense committed. Fear of punishment may deter some property crimes, for example, but this aim is unlikely to reduce violent crimes, which frequently occur on impulse. Moreover, the character and personality of the offender also influences the utility of this aim.

The other purpose is to deter others who may intend to violate the law in the future. This is referred to as general deterrence, because it is directed at the general public as a type of crime-prevention tactic. The success of this tactic is based on the premise that if the public is knowledgeable of the sanctions imposed for a particular offense, they will be discouraged from committing such an offense. For this to work, citizens must possess a respect for the law and display a degree of deference toward the agents administering the justice system. The case for general deterrence is probably stronger than that for individual deterrence, but in both instances the effectiveness is difficult to prove.

Finally, rehabilitation has become an important goal of sentencing for many professionals working in the justice system. Although the aim is highly desirable, it has not totally superseded the others in significance. The lack of consensus on rehabilitative objectives is usually attributed to limited knowledge with regard to which techniques work and the fact that some of the other sentencing aims are better suited to handling certain offenders. Nevertheless, significant attempts are made to divert offenders from traditional correctional settings to those that have a community-based correctional philosophy. These diversionary programs occur in the closed prison setting as well as in the community. Each program is designed to enhance efforts at rehabilitation.

Since the 1950s, the British have generally adopted a dual purpose for sentencing. Depending on the political climate of opinion, an offender is sentenced to a prison term under the guise of isolation that reflects his or her culpability. The rationale is designed to

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protect the public from a dangerous offender. The other purpose for sentencing is rehabilitative. Again, depending on when and how crime is viewed as a political issue, the British make a conscious effort to move toward noncustodial programs based on a treatment philosophy, because they acknowledge that rehabilitation is not as likely to work in a confined setting.

Judicial Discretion

An issue of paramount importance to the sentencing process is the amount of discretion awarded judges. Judicial discretion is a modern phenomenon that was almost unknown in the nineteenth century. Under common law, discretion was not permitted in felony cases, with the exception that a capital sentence could be substituted with a transportation order to one of the British colonies. During the first half of the nineteenth century, some statutes were enacted that enabled judges to substitute transportation for a sentence to penal servitude.

At the beginning of the twentieth century, the general absence of judicial discretion was altered considerably. Appellate review of sentences was introduced in 1907 in an attempt to assure that the sentence imposed would fit the individual rather than the crime committed. The Probation of Offenders Act became law in the same year; it permitted the issuance of probation orders as a substitute for imprisonment. The following year saw the passage of the Prevention of Crime Act (1908), which introduced two new sentences: borstal detention for young adults and preventive detention for habitual offenders. Thus, individualized sentencing had arrived—and with it, judicial discretion. The Criminal Justice Act (1948) extended sentencing options further, and other alternatives have been introduced since that time, most notably noncustodial sentences.

In recent years, a central topic of discussion has been the use of mandatory and minimum custodial sentences. Those issues, along with others, have guided judges in their sentencing decisions. A number of pieces of legislation have introduced sentencing guidelines for judges, and these include the Criminal Justice Act (1991), the Criminal Justice Act (1993), the Crime (Sentences) Act (1997), the Criminal Justice Act (2003), Violent Crime and Reduction Act (2006), Criminal Justice and Immigration Act (2008), and the Legal Aid, Sentencing and Punishment of Offenders Act (2012).

Organization and Administration of the Prison Service

Throughout the 1970s, England’s economic stability suffered considerably from a number of setbacks. Inflation, high unemployment, wildcat strikes (i.e., strikes not authorized by the union representing the workers) in key industries, and the burdens of an extensive social welfare program were well publicized. When a country finds itself faced with this dilemma, the government frequently attempts to cut spending in the public sector in the hope that it will stimulate economic growth in the private sector. Generally, social services are asked to bear an unusually large portion of the cuts. Even under favorable economic conditions, prisons are considered a low-priority item in most countries. This was also true in England. This was partly a reflection of the public’s narrow understanding and knowledge of the

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purpose of such institutions, and this sense of indifference was also displayed by elected representatives. During periods of extreme economic difficulty, prisons are subjected to an even lower status.

General State of Prisons

In his book, Prison Crisis, journalist Peter Evans pointed out that it would take a considerable amount of time to improve the prisons. He stated that “[the] system is now in such a state of decay and the backlog of replacing obsolete prisons so great that even if it were possible to replace one every two years, beginning in 1980, the last Victorian prison would not be phased out until 2060” (1980). Over the past 35 years, in part because of the periodically improved economic conditions of the country, the government committed itself to addressing the prison crisis by moving ahead with an aggressive building program. Twenty-one new prisons have been built since 1980, and another six were under construction. In addition, temporary facilities have been opened at army bases. Finally, attempts also have been made to modernize some of the existing facilities.

The general state of prisons in England has been a long-standing critical issue confronting the justice system. Part of this dilemma can be attributed to the financial crises that on occasion have plagued the country. Despite efforts to utilize noninstitutional methods, England’s prisons have been overcrowded. Following World War II, the inmate population was estimated at almost 16,000. By 1980, the figure had risen to approximately 45,000. The figure peaked at more than 50,000 in 1988, declined somewhat in the early 1990s, but rose again to more than 66,500 by 1998. In early January 2006, the inmate population was at 74,679 in a system that has a useable operational capacity of 78,619.

In a report issued by the Home Office, the prison population was projected to continue to increase over the next several years. It is important to point out that these figures included adults and young people sentenced to incarceration along with people held while awaiting trial. To illustrate, the report projected that by July 2010 the prison population could be as high as 94,020 and as low as 85,700. At the end of March 2010, the population was 85,184, of which 71,352 had been sentenced. Of the total population, 73,637 were adults (69,806 males and 3,831 females), and 11,547 (11,088 males and 459 females) were young people between the ages of 15 and 20.

The prison population reached 88,179 by December 2011. The increase was attributed in part to the riots that occurred in August of that year and that were alluded to earlier. By the end of June 2013, the population had declined to 83,842. Of the approximately 146 facilities in operation, 69 were overcrowded, and even more had a population of at least 150 percent of the certified normal accommodation. Of the aforementioned June figures, 80 percent were males age 18 or older who had been sentenced, and 7 percent were females sentenced, while 13 percent of the total population were awaiting trial or sentencing. More than one-third of the population were serving determinate sentences greater than four years, while one-fifth were serving indeterminate sentences including life sentences. Almost half of the population were between the ages of 25 and 39. One concern is the aging of the population, with 4 percent, or 3,741 prisoners, age 60 or older. Obviously, with the elderly come a variety of disabilities that must be addressed.

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At the other end of the age scale, 866 juveniles between the ages of 15 and 17 were in prison, 245 youths between 12 and 15 years were housed in secure training centers, and 125 were in secure children homes provided by the local authorities. Around 13 percent of the population consisted of foreign nationals with nine countries accounting for half the total. Poland, Jamaica, and the Irish Republic led the list. Finally, slightly more than 50 percent identified themselves as Christian, 30 percent were of no faith, and 13 percent were Muslim (Ministry of Justice, 2013).

Efforts to close old prisons and build new ones have not kept pace with the increase in the prison population. Successive governments established plans to undertake extensive building and remodeling programs, but schedules to implement the work were often set aside because of financial crises. Thus, many of the prisons were antiquated structures built during the previous century. These conditions created serious problems. Cells that were designed to hold one person now held two or three. The cells were without toilets, so slop buckets were used. The redesign of plumbing at the older correctional facilities has eliminated the need for slop buckets. Poor ventilation created a hot and stuffy living environment, and there were inadequate bathing facilities. Each of these factors contributed to unsanitary conditions as well as to low morale among inmates, who already suffered from various states of depression (Stern, 1987).

On the matter of the mental health of prisoners, a report by the inspectorate of prisons addressed this concern in 2000. The goal was to borrow from the World Health Organization concepts applicable to correctional facilities. The central goals were: assure the safety of vulnerable inmates, respect human dignity, engage in beneficial activities, and prepare prisoners for release into the community (Podmore, 2012). While these goals are noteworthy, a recent report indicated the degree of the problems confronting the prison system. As many as 72 percent of the males and 70 percent of the females incarcerated have two or more mental health problems. This is significantly higher than the general population. Among the mental health issues cited were: behavioral disorders, learning disabilities, organic mental disorders, personality disorders, and stress disorders. Unfortunately, people with these problems are diverted to prisons rather than left in the community to be provided with therapeutic treatments (see Peay in Dockley and Loader, 2013).

Nevertheless, the state of the English prisons was the principal cause for several disturbances in the early 1980s at facilities housing long-term prisoners and at high-security institutions. By 1986, a series of riots occurred at a variety of prisons. The physical conditions of the facilities remained a central concern. Thus, the protest spread throughout the system (Cavadino and Dignan, 2004; Vagg, 1994).

Another perspective was offered on the financial state of prisons. One study concluded that the neglected condition of prisons was actually limited to the overworked and overcrowded local prisons (King and Morgan, 1979). Training prisons, especially those housing long-term dangerous offenders, were built after World War II. The study found that, though funding was available for prison construction and remodeling, the issue centered on how the money was actually spent. The greatest criticism centered on the Home Office’s adoption of the dispersal policy. The dispersal policy was the Prison Service’s method of handling dangerous offenders who had been processed through the system. More than four decades ago, the Prison Service was concerned with providing maximum-security

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conditions only for prisoners sentenced to a life term. Because many of these inmates were guilty of domestic murders, and thus not considered dangerous to society, they were dispersed throughout the system.

During the 1960s, it became apparent that the system was incarcerating a new class of offender, either for a long term or for life. This class included members of the underworld and professional criminals who were considered violent and dangerous. These people, too, were being dispersed throughout the system. Following a number of successful escapes, the Home Office decided to inquire into prison security. It appointed Lord Mountbatten to conduct an investigation. Mountbatten suggested that all prisoners considered dangerous to the public be placed in a high-security-risk prison. Opponents contended that the Mountbatten scheme would make the prison too difficult to manage.

Opposition to the idea led to the creation of a second committee appointed to investigate prison security. This committee, headed by Sir Leon Radzinowicz, opposed the single high- security prison. It recommended that such inmates should continue to be dispersed to reduce the likelihood of concentrating potential unrest in a single prison; the dispersals were to be limited to a few secure facilities. Periodically, inmates could be transferred to another secure facility in order to reduce any tensions that might be developing among some of the high-risk prisoners. The Radzinowicz proposal was adopted, and funds were used to assure that a number of the institutions were indeed secure.

During the 1970s, the dispersal scheme apparently backfired—at least in the eyes of some critics. Violent confrontations and riots occurred in these high-security prisons. On economic and humanitarian grounds, it has been suggested that the Prison Service consider adopting the original Mountbatten proposal of concentrating the high-risk prisoners in one or two maximum-security prisons, but this has not been implemented.

Despite the government’s attempt to improve the conditions within prisons, riots continued to occur in the early 1990s. This resulted in a review of the entire prison system by a senior judge, Justice Woolf. The Woolf Report was published in 1991. It offered several conclusions as to why the disturbances occurred and several recommendations for alleviating the problems. In addition to management concerns, such as inadequate staffing and communications problems, the inmates raised several objections that have been identified as standard complaints, following prison riots in most countries. They included overcrowding, type and quality of food, availability of work and educational opportunities, visitation rights and restrictions, ineffective grievance procedures, and the number of petty prison regulations.

A central feature of the Woolf Report was the strategy offered to assure that a more stable environment be established throughout the prison system. The report suggested that the goal of stability could be achieved only through security, control, and justice. Security focused on the need to prevent inmates from escaping. Control centered on the need to curb the disruptive behavior of inmates. Finally, justice suggested that inmates should be treated with a greater degree of humanity and fairness.

The Woolf Report maintained that the governance of prisons should be based on principles that address how inmates are to be treated. For example, it suggests that inmates take some responsibility for their lives while in prison, which in turn would make them accountable for their actions. Inmates should expect to be treated with justice, thus reducing

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arbitrary decisions and capricious actions by staff. Finally, the notion that privileges be awarded at the discretion of the prison governor should be eliminated. Many of the privileges mentioned, such as the use of a radio and the purchase of books or newspapers, should be considered a norm by today’s standards. These principles are obviously designed to improve the relations between inmates and staff.

Moreover, the number of exceptional risk inmates has increased considerably from 150 when Lord Mountbatten conducted his investigation into prison security in 1966 to the 750 exceptional risk inmates of 2012. At issue is that the prison system has become more violent, coupled with a good deal of drug-related crime (Podmore, 2012).

Only time will tell if the adoption of Woolf ’s recommendations coupled with building new prisons and the modernization of others will reduce the concerns raised about the state of English prisons. Early indications are that the problems raised by prisoners and confirmed by the Woolf Report persist (Woolf and Campbell-Holt, 2008). It has been suggested that part of the reason has to do with the fact that the government accepted only two of the three methods for achieving greater stability. Since Woolf, security and control have been emphasized throughout the Prison Service at the expense of even considering the third element—justice—in the stability equation (Cavadino and Dignan, 2004).

Ministry of Justice

Since the nineteenth century, the British have been enacting legislation to assure a centralized administration of England’s correctional system. Initially, the home secretary was the civilian politician responsible for prisons. This responsibility was transferred to the new Ministry of Justice. As indicated earlier, the Lord Chancellor was named in 2007 to head a new cabinet-level department, the Ministry of Justice. As such, the Lord Chancellor is also referred to as the minister of justice. Placing the correctional system in the hands of a senior cabinet officer who is also a member of Parliament enables members of the legislative branch to question the executive branch on policies, procedures, and critical issues of the prison system (see Figure 1.4).

The Prison Act (1952) was the principal legislative instrument that explained the powers and duties of the home secretary (now minister of justice). According to the act, the key functions included having general powers and jurisdiction over all prisons and prisoners, appointing people to various boards or committees that deal with correctional issues, establishing rules for prison personnel, ordering the transfer of a prisoner from one institution to another, granting a temporary discharge of a prisoner because of ill health, having the power to enlarge or build new prisons with the approval of the Treasury, ordering the closing of a prison, issuing a yearly report to Parliament on the state of the prisons, and having similar powers of control and jurisdiction over juvenile justice facilities.

National Offender Management Service

The National Offender Management Service (NOMS) was created in 2004. A review of the correctional system identified gaps in the work of the prison and probation services. NOMS was established to bridge the gaps and to improve the efficiency and effectiveness

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of the total correctional service. The chief executive and board of NOMS report to the minister of justice. NOMS is responsible for strategic planning, policy development, and financial leadership of the correctional service. It is also linked to other national and local government organizations, like the National Health Service, to enhance the quality of service provided and also to improve the public’s confidence in these components of the criminal justice system. NOMS is organized into 10 regions (nine in England and one in Wales). Each region is responsible for planning the offender’s supervision while in custody and the logical transition of the offender when released back into the community.

The Prison Service

Until the 1990s, the British correctional system had been administered centrally. The Prison Board, composed of a director general and five additional board members, was responsible for the formulation and implementation of prison policy and the overall management of the service. In an effort to reduce the size of government, an attempt is under way to decentralize the administration of the correctional system. This process began in 1993 when the Prison Service was granted agency status. Agency status essentially means that while the government will fund the correctional system and the employees will remain civil servants, the administration of the system will be more in line with that of a corporation in the private sector. Under this new arrangement, a chief executive officer administers the Prison Service, along with a board of management. This officer has authority over how the budget for the Service will be allocated. In addition, the number of administrative restric - tions has been reduced to enhance efficiency and effectiveness. This includes giving prison

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Ministry of Justice

National Offender Management Service

Prison Service

National Probation Service

Parole Board

• Remand Centers

• Local Prisons

• Training Prisons

• High-Security Prisons

• Young Offender Institutions

Office of Chief Inspector of Prisons

Independent Monitoring Boards

Prisons and Probation Ombudsman

FIGURE 1.4 | Organization and Administration of the Correctional Service

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governors more discretion in the daily management of their prisons (Ruggiero, Ryan, and Sim, 1995; Vagg, 1994).

With this agency status, the Prison Service is administered and managed in the following way. The director general of the Prison Service is the chief executive officer and is appointed by the minister of justice. The director general is responsible for the management of the Service, which includes the establishment of an organizational plan, performance targets, budget issues, and personnel matters. The director general is aided in long-term planning, policy, and fiscal development by NOMS.

As was mentioned earlier, one of the goals of the Ministry of Justice is to transform the administration of the correctional system so that it would operate along the lines of a corporate organization. One attempt at mirroring the private sector is illustrated by the adoption of a vision statement for the service titled The Prison Service’s Statement of Purpose.

Statement of Purpose Her Majesty’s Prison Service serves the public by keeping in custody those

committed by the courts. Our duty is to look after them with humanity and help them lead law-abiding and useful lives in custody and after release.

Our Vision To provide the very best prison services so that we are the provider of choice To work towards this vision by securing the following key objectives.

Objectives To protect the public and provide what commissioners want to purchase by: Holding prisoners securely Reducing the risk of prisoners re-offending Providing safe and well-ordered establishments in which we treat prisoners

humanely, decently and lawfully.

Our Principles In carrying out our work we: Work in close partnership with our commissioners and others in the Criminal

Justice System to achieve common objectives Obtain best value from the resources available using research to ensure effective

correctional practice Promote diversity, equality of opportunity and combat unlawful discrimination,

and Ensure our staff have the right leadership, organisation, support and preparation

to carry out their work effectively.

The Prison Service is expected to continue to explore the notion of privatization of and within prisons, something that has received a good deal of attention in England. Privatization can include the design, construction, management, and funding of a facility or a combination

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of this kind of involvement. Presently, 14 prisons are managed by private-sector organizations. These facilities are designed for both adults and young people. Moreover, 15 percent of the prison population is housed in these private facilities (see Genders in Dockley and Loader, 2013). Although the director of a private prison and the prison staff are employees of the contracting organization, they are subject to the same kind of oversight provided to public-sector prisons. Moreover, the director general of the Prison Service must approve the appointment of a director of a private-sector prison (Bryans and Jones, 2001).

Criticisms have been directed at the private-sector prisons by Her Majesty’s Chief Inspector of Prisons and academic research. A central concern involves the quality of life of the inmates. While the issue of security versus rehabilitation is a matter for all prisons, critics claim that private facilities consider issues of risk control more important than rehabilitation. Obviously, this should come as no surprise in light of the fact that the private prison industry is a business that wishes to retain contracts and grow. It is unlikely that prison riots and escapes would lead to contract renewals; hence, the emphasis on security. It has been suggested that additional research is needed of a comparative nature between public and private institutions. Specific attention should be directed at: prisoner–staff relations, relative costs, identification of institutional innovations, and analysis of the Ministry of Justice’s best outcomes (see Genders in Dockley and Loader, 2013).

Office of the Chief Inspector of Prisons

The responsibility of this office is general oversight of the English prison system. It is also mandated to inspect young offender institutions and immigration removal centers. The office was created in 1981 to assure a degree of independence in the inspection of prisons. The chief inspector reports directly to the minister of justice rather than to the director general of the Prison Service. Because the inspectorate does not have any administrative authority over prisons and cannot impose any sanctions, its principal role is to identify problems in the Service and, on occasion, to offer strategies for resolving them. An actual inspection is carried out by a team composed of a prison governor and a senior prison officer who have been seconded from the Prison Service, as well as a civil servant. Other people may be added to the team because of their expertise. Doctors, lawyers, and building inspectors have been utilized in the past. Ultimately, it is the responsibility of the minister of justice to accept, reject, or delay addressing the issues identified by this office.

Independent Monitoring Boards

For many years, the British have prided themselves on the use of lay volunteers to assist in the administration of justice. In the past the local police authorities, now replaced by the police and crime commissioners and the police and crime panels, and the Independent Police Complaints Commission are examples of citizen participation in law enforcement, while lay magistrates illustrate this in the courts. In reference to prisons, until 2003, independent monitoring boards were referred to as boards of visitors. Under either name they reflect the use of lay participation in various penal establishments, and one exists for each correctional institution and immigration removal center. Board members are appointed

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by the minister of justice; they receive a training course designed to prepare them for their work; and they spend two to three days a month working as a board member. Presently, there are more than 1,800 members from a variety of walks of life who are serving in this capacity.

Board members have the responsibility of general oversight of prisons. Based on frequent visits by individual board members, each board produces a report on its institution for the minister of justice. The report examines the physical conditions of the establishment, the prison’s administration and staff, and the various treatment programs that are available. Inmates also have access to board members, especially if they wish to raise a grievance about their treatment.

Irrespective of their good intentions, the boards have been the subject of various criticisms over the years. One is that the composition of the boards are too middle-class and disproportionately middle-aged. As many inmates are fairly young, it has been suggested that boards should have some representation from the prisoners’ peer group. Unfortunately, board work generally requires that members have some control over their personal work schedule. Many young people have not gained that kind of freedom at their place of employment. Even the basic purpose of these boards has been a subject of criticism. Do boards contribute to an improvement of efficiency within the penal system, as their mandate implies, or are they merely window dressing for the Ministry of Justice? The same concern, you may recall, was raised regarding the role of local police authorities. Especially significant in this case, however, is the fact that some of these comments are being voiced by members of the boards.

Much of the criticism centers on their frustration with not being able to change the conditions that exist within correctional facilities. Board members have expressed concern about the types and conditions of work provided inmates and the low pay awarded. They also have pointed out that improvements should be made in educational and recreational programs. Little has been done to implement their suggestions, though, and the reasons most often cited for this inadequacy are financial. Some board members identify another more serious factor. They do not think the prison staff takes the work of the boards seriously. This is further compounded by the poor communication channels that exist between boards and the Ministry of Justice. Thus, board members feel thwarted by the prison establishment, both at the local level and at the top of the bureaucratic hierarchy. It will be interesting to see if the recent changes in the administration of the Prison Service resolve some of these concerns about the boards of visitors or possibly complicate the board’s role further.

Prisons and Probation Ombudsman

One of the concerns identified in the Woolf Report, which had looked at the causes for the proliferation of prison riots in the second half of the 1980s, was the lack of an independent oversight mechanism for the complaint process within the prison system. The Prisons and Probation Ombudsman is an attempt to address that concern. Created in 1994, the office is ultimately accountable to the minister of justice. The ombudsman’s principal responsibility is to investigate complaints about how those in custody are treated throughout the prison

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and probation services. He or she also serves as the prisoners’ final source of appeal from the internal disciplinary system of the prison authority. Finally, the ombudsman is responsible for investigating all deaths of prisoners, residents of probation hostels, and residents of immigration detention facilities.

In addition to the chief ombudsman, there are nine assistant ombudsmen and a staff of complaints investigators and fatal incidents investigators. Because the ombudsman is largely dependent on prison staff when conducting investigations, questions have already been raised about whether the ombudsman can reduce the inmates’ concern that the disciplinary system is essentially unfair. It has been suggested that this system is too new to determine if it has brought a degree of fundamental fairness to the prison disciplinary system (Cavadino and Dignan, 2004).

Types of Prisons

As was mentioned earlier, the British have adopted two sentencing rationales. For people found guilty of serious crimes, the sentencing aim is to incarcerate the person for an extended period of time, thereby protecting the public from a dangerous offender. Every effort should be made to impose a noncustodial sentence on other offenders in an effort to encourage these people to seek a treatment program. While the British acknowledge that custodial settings are often not suitable environments for serious attempts at treatment, they have recognized the need to provide opportunities within prisons that are specifically designed to encourage inmates not to reoffend upon release. As a result, programs have been designed to enable inmates: to improve basic educational skills, to provide meaningful work training, to address substance abuse, and to plan for outside accommodation and employment upon release from prison (Bryans and Jones, 2001).

The British have established five types of prisons: (1) remand centers, (2) local prisons, (3) closed and open training prisons, (4) high-security prisons, and (5) closed and open young offender institutions. Each is designed to serve a specific purpose and is intended for a different kind of prisoner. Remand centers hold people who are awaiting trial or sentencing; they serve as distribution centers for the rest of the prison system and can be used to house inmates serving very short sentences of imprisonment. If an area does not have a remand center, the local prison will serve those functions. Thus, the purpose of local prisons in England is similar to that of jails in the United States.

One report, “Crisis in the Prisons: The Way Out,” suggested that local prisons are also used to house people who will be incarcerated for an extended period of time (King and Morgan, 1979). It is not uncommon to find a person serving a four-year sentence in a local prison. The authors contend that this is a direct result of a policy of keeping the population low at some of the prisons that hold dangerous offenders. When Ministry of Justice officials talk about prison overcrowding, it is argued that the officials are really referring to the conditions in local prisons. For example, in 2006, the populations of remand centers represented 17 percent of the average population in custody (Cavadino and Dignan, 2007).

Since 1948, an attempt has been made to transform all prisons into corrective training centers. This has led to the establishment of the training prisons. The British pride

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themselves on the fact that about one-third of these correctional facilities are open institutions; that is, there are no walls or fences to prevent escape. All the training facilities have as a primary goal the rehabilitation of inmates. Attempts are made to achieve this rehabilitative ideal by providing work and therapy for inmates.

Critics have taken issue with the supposed rehabilitative purpose of prisons and the lack of revenue to enhance rehabilitative programs. They contend that the rehabilitative goal of prisons is in a serious state of disillusionment in England and that it has been replaced by a new goal of the Prison Service: assuring secure and humane containment for inmates. While funds have been readily available to achieve the security objective, they have not been forthcoming in attaining a humane setting. Critics point out that this is illustrated by the fact that counseling, vocational, educational, and work programs are actually available to only a small number of inmates.

If the National Offender Management Service’s strategy for protecting the public and reducing reoffending among inmates comes to practical fruition, some of the criticism may subside. One principal strategy is to manage offenders—both inmates and those in the community—more effectively. The plan calls for each offender to have an offender manager “who will be responsible for making sure that they are both punished and rehabilitated properly.” The plan is designed to have the Prison Service and probation service interact more effectively. Related to this effort is an attempt to develop partnerships across government in areas like health, education, employment, housing, finance, and social and family ties. This is intended specifically to address issues related to recidivism.

Prison Staff

The personnel working in a prison facility generally fall into one of three categories: the governor grade, the uniformed staff, and the professional and technical staffs. The governor grade consists of governors and assistant governors. A governor is the chief administrative officer of an institution and thus has the same responsibilities as a warden in a correctional facility in the United States. Assistant governors are assigned to a wing of a prison; their principal responsibilities focus on the rehabilitative care of inmates entrusted to them. Unlike the British police, the Prison Service is not unified. Therefore, the personnel do not all begin their careers at the lowliest ranks in the system and gradually work their way up through competitive promotions. The governor grade illustrates this fact, because governors traditionally have been recruited from outside the Service. Presently, there are three fast- track methods available to candidates for governor grade. An accelerated promotion scheme was implemented for both college graduate and veteran prison officials who aspire to administrative positions. The direct entry scheme permits managers of people-oriented organizations or prison staff entry to governor grade training. Finally, a cross-hierarchical scheme enables people who have an established career in another branch of the civil service to move into the Prison Service. Many of these people are appointed to the governor grade of the service. Once recruited, governors attend the Prison Staff College before being assigned to an institution. They also are encouraged to attend university courses dealing with counseling techniques and management skills.

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Recruitment of uniformed staff is conducted both nationally and locally. Although there are no educational requirements beyond a high school diploma, selection standards are considered fairly rigorous. Candidates participate in a series of job simulation exercises that include testing their skills of listening, calming, dealing with criticism, and offering constructive criticism. Candidates are also tested on their analytical skills and report-writing capabilities. The successful candidates would then participate in the prison officer initial training course. This is an 11-week course that begins with the candidate spending the first week essentially observing at the prison where they will eventually begin their career. This is followed by four weeks of training, one week at their prison, four more weeks of training, and one more week at their prison. Throughout this training period, candidates must pass a series of tests in order to gain certification. Approximately 9 percent of the candidates either fail the course or resign before its completion (Bryans and Jones, 2001). Although training traditionally has emphasized custody techniques and methods of supervising work and recreation, increased attention has focused on the officer’s role as a treatment agent. In-service training is made available through refresher courses, and officers are encouraged to enroll in courses offered by other educational institutions.

The professional and technical staffs represent the third personnel category. They include the medical staff, chaplains, psychologists, social workers, educational organizers, and prison industries instructors. The medical and psychological staff, as well as the chaplains, consist of both full-time and part-time personnel. Under the Education Acts, it used to be the sole responsibility of the local authority in which a prison was located to provide inmates with educational programs. Now private suppliers of educational services can compete for these contracts. Full-time and part-time educational organizers develop courses for inmates, and the costs for this service are reimbursed by the Ministry of Justice. Finally, civilian instructors (who are a part of the civil service but are not members of the uniformed staff) are hired to supervise and instruct inmates in prison industries. Some uniformed staff also assist the civilians in this capacity.

In recent years, there has been a growing degree of unrest among the staff of prisons. Much of this is directed at the government for essentially three reasons. First, an increase in the number of offenders placed in prisons has led to overcrowding. This, in turn, raises concerns about security and control among uniformed staff, as they have had to cope with prison riots. Second, budget cuts have inhibited or frustrated long-term planning, and this raises concerns about possible reductions in prison jobs. Finally, the introduction of privatization in the field of corrections on a limited scale has contributed to the sense of uncertainty among prison staff.

One recent critic of the prisons, who was a former manager in three prisons, has argued that too many uniform staff had only attained minimal education standards, had received insufficient training for work in today’s prison environment, and are poorly paid. This enhances the likelihood that some will and have been coopted into the corruption of the prison environment. At issue are the drug deals, theft, violence, sexual exploitation, and blackmail. It was further pointed out that the staff of the Corruption Prevention Unit was reduced because of financial cutbacks. As a result, no members of the remaining staff had administered a prison, and only a few had actually worked in one (Podmore, 2012).

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Parole

The Criminal Justice Act (1967) introduced the parole system. Based upon the same premise as the United States’ system, parole is designed to provide an inmate with an early release from a correctional institution. The Criminal Justice Act (1991) has revised the method of granting early release by establishing three strategies that are related to the inmate’s length of sentence.

One strategy is the automatic unconditional release that is granted to all inmates serving less than 12 months. Eligibility occurs after one-half of a sentence is served, and there is no supervision unless the inmate is a young offender. If a person is convicted of a second offense while on early release, the court not only can impose a sentence for the new offense but also can reactivate all or part of the time remaining on the original sentence.

A second strategy is the automatic conditional release that is granted to all inmates sentenced from 12 months to less than four years. They are released after serving one- half of the sentence. Under this strategy, supervision is compulsory until at least three- quarters of the sentence is completed. If a person fails to adhere to the conditions of the early release, he or she can be fined or imprisoned for up to six months or have the time remaining on the original sentence reactivated if that is longer than six months.

The third strategy is the discretionary conditional release. This is available to inmates serving a term of more than four years. The inmate becomes eligible for consideration after serving one-half of a sentence, and it is the Parole Board that considers these cases. If an inmate is serving a sentence of less than seven years, the authority to release is given to the Parole Board. If the sentence is longer than seven years, the decision of the Parole Board is in the form of a recommendation to the minister of justice, who would make the final decision. Under this strategy, supervision is compulsory until at least three-quarters of the sentence is completed. In those cases in which the inmate is not considered for release under this strategy, the person would automatically be released after serving two-thirds of his or her sentence. Any breach of the conditions under this release strategy is handled by the Parole Board.

With the passage of the Crime and Disorder Act (1998), electronic tagging was introduced. This enabled the possibility of an earlier release by two months from the normal release date. This is known as the home detention curfew.

The Criminal Justice Act (2003) introduced some further changes to parole that went into effect in 2005. First, for sentences of less than 12 months that have an automatic release mechanism, there is a minimum period of incarceration of 13 weeks and a maximum period of 26 weeks. Second, once released, the remainder of the sentence is served in the community. Thus, supervision for all sentences, irrespective of the length of the initial sentence, is in force until the end of the sentence. Third, whereas home detention curfew was previously only available for short-term inmates, it is now available for all fixed-term prisoners.

Finally, the distinction between short- and long-term prisoners has been eliminated under the Criminal Justice Act (2003). Under normal circumstances, inmates will be released from prison after serving one-half of their sentence. For a typical fixed-term prisoner, the Parole Board will not be involved in the process, irrespective of the length of

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the original sentence. The Parole Board is expected to focus its attention on those inmates who are incarcerated for either violent or sexual offenses. These inmates are not eligible for the automatic release at the half point of their sentence. They will be released only when the Parole Board grants this order. Moreover, at the end of the custodial sentence, these types of offenders are subject to additional supervision: in the case of violent offenders, for five years, and in the case of sexual offenders, for eight years.

The Parole Board consists of about 20 members. It includes judges, psychiatrists, a retired police officer, and others with expertise in social work and criminology. These individuals sit in panels to determine cases. When an inmate is released and supervision is called for, this responsibility would be handled by a probation officer.

The Parole Board is presently attempting to redesign the parole process as a result of the Supreme Court’s decision in the cases of Osborn, Booth, and Reilly, which was handed down in October 2013. At issue in each case was the refusal of the Parole Board to grant these prisoners an oral parole hearing. The Supreme Court ruled unanimously that the Board “breached its common law duty of procedural fairness.” They further cited article 5 (4) of the European Convention on Human Rights in failing to provide an oral hearing. In light of this ruling, the Parole Board estimates that the number of oral hearings could increase from 4,500 to more than 14,000 each year.

Noninstitutional Sanctions

While the Prison Service is the unit within the Ministry of Justice that handles institutional treatment, the administration of noninstitutional programs is the responsibility of the National Probation Service. At the close of the 12 months ending in June 2013, there were 144,804 people being supervised by the probation service. Of these probationers, 132,329 were issued community orders by a court, while 42,240 were people who received a suspended sentence. This illustrates an attempt to impose noncustodial sentences on those who are guilty of offenses that are not considered violent or serious. Obviously, it is designed to help lessen that expanding prison population.

In the recent past, there were 55 local probation authorities responsible for probation services, with approximately 80 percent of the funds provided by the Ministry of Justice. The local probation authorities had a good deal of local control over these services. In 2001, it was reorganized into the National Probation Service. The reorganization also extended to the local probation authorities, with the 55 areas being reduced to 42. These new areas correspond with the boundaries of the 43 police forces of the country, with one exception. The Metropolitan Police of London and the City of London Police represent a single area of the National Probation Service. Each local area has a committee that is composed of magistrates and citizens from the area who assist in coordinating the programs and services provided to probationers of the area.

In the past, probation officers were not required to meet specific educational and training standards; in fact, many were volunteers. Today, the Central Council of Education and Training in Social Work controls the selection and training process. There has been a considerable influx of new probation officers holding university degrees in recent years. These people view themselves not as mere officers of the court but rather as a professional

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class of social workers allied more frequently with their clients than with the court. It appeared for a time that the probation service would be exclusively populated by these professionals, but increased caseloads and a recognition that lay volunteers would enhance the work of the service has led to a return to the utilization of volunteers.

Britain’s justice system has become increasingly committed to the rehabilitative aims of sentencing. This conscious effort has led to an increased use of noninstitutional programs and the development of more nonpunitive methods within the community. What follows is a description of some of the more popular sentences that embody the community-based corrections philosophy.

Probation was the earliest form of noninstitutional sentencing. Its purpose is to allow the offender to remain in the community while under the supervision of a probation officer. A court will issue a probation order if the following criteria are met: the offense and the offender’s record are such that incarceration is inappropriate, society is not being placed in danger by the release of the offender, the offender needs supervision, and the kind of supervision required is best provided while the offender is allowed to remain free in society.

Probation orders contain some standard conditions, such as maintaining good behavior, keeping in touch with the probation officer, and notifying the officer of any change in address. A court may impose additional requirements that include specifying the place of residence, requiring medical or psychiatric treatment, and prohibiting association with certain people or the frequenting of specific places. If a court deems it necessary to place a restriction on the probationer’s place of residence, or if the person does not have a fixed residence, the court orders the person to reside at a probation hostel. These facilities, run by either volunteer groups or the National Probation Service, are designed to provide the probationer with a residence while he or she works in the community during the day. Group treatment is frequently available at the hostel. Probation centers also have been established to assist probationers in acquiring basic skills that will enable them to secure employment. Probation orders are issued for a period of at least one year but not more than three. Failure to comply with a probation order generally leads to a fine or an order to perform community service.

Criticism has focused on the kinds of people utilizing hostels and probation centers. Hostels were originally designed to help improve employment skills of probationers. As the prison system attempts to reduce the number of people incarcerated, parolees are being sent to hostels. During periods of high unemployment, it was difficult to assist these people in finding work. Besides, many parolees at this stage of their release are in need of general coping skills for life. Another concern is that the number of offenders who suffer from alcohol or other drug abuse creates disruptive problems for hostels and day centers because it makes the offenders’ behavior unpredictable (Smith, 1985). For some time, there had been a recognition that the number of hostels should be increased. The government had planned to expand the number but then abandoned the idea. In fact, they closed some of the existing hostels because of cost.

In the early 1970s, the British began experimenting with the community service order. The order requires an offender to perform 40 to 240 hours of unpaid community service. Such an order is generally served within a year’s time, but it may be extended beyond that. Community service orders are frequently viewed as an alternative to a custodial sentence.

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Many offenders who have participated in this scheme are between the ages of 16 and 21; they have been sentenced in the past to custody or probation, so they are not first-time offenders. Noncompliance to a community service order may lead to a fine or to the revocation of the order and substitution of another sentence. The types of orders issued by a court under the program have included hospital work, care of the elderly, the running of employment bureaus for ex-offenders, land reclamation projects, and work with youth organizations.

Although the number of offenders sentenced to community service continues to rise, probation officers have identified two areas of concern. The first involves the probation officers’ perception of their role in the community service plan. Probation officers are accustomed to active participation with offenders. Under community service orders, an officer is initially involved with an offender as attempts are made to place the person with an organization. Once placed, however, it is advisable that an officer maintain a low profile. The burden of proving that the sentence was the correct one is almost totally in the hands of the offender. Some probation officers are finding it difficult to adapt to this new posture.

The second concern centers on the fact that the imposition of community service orders appears to have a multifaceted purpose. These orders can be viewed as punitive, rehabil - itative, or as a form of compensation to the community. A number of critics have suggested that this clouds the purpose of the order and that it should actually have only a single objective. It has been suggested that this would enable the establishment of a clearer method for evaluating the entire program.

Community service orders are in part designed to fulfill a basic need of human nature: to feel wanted. Many offenders have been rejected by their families or society. Community service makes an attempt to reverse that sense of alienation. Moreover, the long-established view that correctional rehabilitation should be based on the premise that the offender needs help is altered considerably. With community service, offenders are not considered the recipients of help but rather as dispensers of it. Given the philosophical assumption behind the order, some have suggested that offenders should be paired with volunteer probation workers rather than professional probation officers. This notion is based on the belief that an offender should come in contact with the value system of a volunteer who is also displaying the need to feel wanted.

The Criminal Justice Act (1991) introduced a new sentence called the combination order. This order combines aspects of probation and community service. The period of probation must be at least 12 months but no longer than three years, while the community service hours range from 40 up to 100 hours. This sanction is available to any offender over the age of 16.

Another sentence introduced through the Criminal Justice Act (1991) is the curfew order. This order requires the offender to remain at a specific place for up to 12 hours a day. The act permits monitoring the curfew through an electronic device. Curfew orders can be imposed for up to six months.

Like many European countries, England utilizes the fine as a penal sanction for offenses other than traffic violations. Although it can be used in place of a custodial sentence, fines are imposed in addition to custodial sentences if the person is convicted on indictment. Unless a maximum amount is cited in a statute, a Crown court has unlimited power to fix

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a fine. Magistrates’ courts, however, are limited in the amount that they can impose. Both courts consider the offender’s income and general financial situation before imposing this sanction. Failure to pay can lead to a custodial sentence.

Other types of monetary sanctions include compensation and restitution orders. People who are injured or have property damaged (with the exception of traffic offenses) may be awarded compensation by a court. The order would be based on the offender’s ability to pay. Offenders convicted of theft may be ordered to make restitution to the victim.

Another method of reducing the prison population was the development of the suspended sentence. The suspended sentence was first introduced under the Criminal Justice Act (1967). Courts that could impose a sentence of imprisonment for up to two years may suspend its enforcement if the time served is greater than six months. Offenders who are under a suspended sentence and who are subsequently convicted of another offense punishable by imprisonment would have the suspended sentence revoked. They would generally have to serve the remainder of the time in custody—in addition to serving the time for the new offense.

The Criminal Law Act (1977) introduced another method for employing the suspended sentence. Sentences ranging from six months to two years can be partially served and partially suspended. The suspended portion can range from one-fourth to three-fourths of a sentence. Offenders found guilty of a second offense while under this type of suspension are subject to the same rules spelled out in the Criminal Justice Act (1967). A court also can order the offender to seek treatment while on a suspended sentence.

A court may impose either an absolute or a conditional discharge in those cases in which a sentence is not fixed by law and the court believes that the character of the offender and the type of offense committed do not warrant imprisonment or a probation order. An absolute discharge is technically a conviction with exemption from any type of custody. A conditional discharge is the immediate release of an offender with the condition that the person not commit another offense over a specific period of time. This period cannot extend beyond three years. With a discharge order, a court can still require the person to pay compensation or restitution.

Finally, the Criminal Justice Act (1972) introduced deferred sentences. Under this type of sentence, a court defers the sanctioning of an offender for up to six months to determine if the person’s conduct will change. If the person is convicted of another offense before the termination of the grace period, the court can impose a sanction for the original offense for which the offender received the deferment.

Nacro

The impetus for developing a community-based corrections philosophy has not been fostered solely by courts and corrections personnel. Voluntary organizations have played a considerable role in introducing innovative rehabilitation programs. One of the leaders in this endeavor has been the National Association for the Care and Resettlement of Offenders (NACRO). NACRO was founded in 1966 by volunteer prisoners and societies in order to assist in the training of hostel staffs and the advising of those planning to develop hostels. Although it receives grants from the Ministry of Justice, it remains the major

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nongovernmental agency working to initiate new techniques and improve existing rehab - ilitation programs. NACRO has recently dropped its full name and is now simply referred to as Nacro.

Nacro has been a particularly influential advocate in three areas of community-based corrections. First, it has been a vocal proponent of the use of volunteers. Specifically, it has urged the probation service to take a more active role (and greater care) in the placement of volunteers so as to assure the system that volunteers’ time and energies are effectively utilized.

Second, it has been an innovator in the testing of diversionary programs. These programs are designed to help both those who have already been involved in the criminal justice system and those who are prime candidates for possible entry into the system. Among the projects developed by Nacro were the Whitechapel Day Centre (which helps homeless offenders and ex-offenders by providing food, medical attention, counseling, job training, and placement), the Nacro Education Project (which offers placement in high schools, vocational schools, and colleges for offenders who started such a program while in prison), the Onward Workshop Project (which is designed to counsel drug users and their families), and the Lance Project (which assists the homeless who are perceived as potential delinquents by establishing hostels and offering referrals to other assistance agencies in the community).

Finally, Nacro has continued to play an important role in recommending to Parliament additional reforms regarding the handling of offenders. For example, it has called for a reduction in the maximum sentence for a number of offenses; it has urged abolishing sanctions of incarceration for drunkenness, marijuana use, vagrancy, begging, and soliciting; and it has proposed a broader use of alternatives to prisons. Thus, Nacro has played a major role in implementing and encouraging the use of noninstitutional treatment programs throughout England (Dodge, 1979).

In recent years, Nacro has been critical of the increase in the number of people sentenced to prison. Nacro’s mission is explained in its Strategic Plan for 2011–2015, and has pointed out in their Corporate Plan for 2004–2007:

By reducing crime we change lives, and by changing lives we reduce crime. Time and time again we demonstrate that, where we succeed in helping those in trouble to change their behavior, everybody benefits: the person in trouble, their victims and potential victims, and the wider community around them.

Among the specific concerns of Nacro are the increase in the number of women, minorities, and mentally disturbed inmates; the length of the sentences; the difficulties of resettle- ment that confront the short-term prisoner; and the high level of unemployment among ex-offenders in general. Today, Nacro has established a comprehensive agenda for itself. It is involved in approximately 300 communities that include housing for ex-offenders and other homeless people; employment training centers; informational and training services for prison inmates; structured activities for disadvantaged children; mediation and advice services for families; training for young people who have left school; and joint efforts with schools and outreach work to contact youths about education, training, and employment opportunities.

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In the most recent annual report ending in March 2014, Nacro indicated that they had a combined staff and volunteers of more than 900 people. The report also noted some of their key achievements, which involved providing 250,000 requests for resettlement advice, and 26,000 queries via telephone, e-mail, or letters. Nacro housed 2,200 in their properties, and another 2,000 were given housing support. They worked with approximately 3,000 young people.

Critical Issue

Most modern correctional systems face a crisis of purpose and direction, and England’s is no exception. This is in part due to the fact that the system frequently has established multiple goals for itself. When faced with this dilemma, conflict over which goal should take precedence is often inevitable. To compound the problem further, more than one component of the justice system has an impact on determining which direction the correctional system will take. As a result, goals and objectives are frequently imposed from outside and may be at cross-purposes with the goals established internally. Thus, corrections is not simply the official business of the Ministry of Justice. Parliament (with its lawmaking powers) and courts (with their sanctioning authority) play an important role in the development and execution of correctional policy.

Over the course of the past 40 years, various governments have initiated reform efforts to address the general state of prisons that were considered by many to be in a serious state of decay. Concerted attempts have been made to focus on improving the recruitment and training of employees of the Prison Service and with upgrading the quality of new and existing correctional facilities. Irrespective of the government in power, these efforts have been guided by two concepts—efficiency and effectiveness. When discussions focus on enhancing the efficiency and effectiveness of the Prison Service, it inevitably leads to a consideration of the role that prison privatization might play in the equation.

The privatization of prisons is not a new idea. From medieval times into the nineteenth century, prisons tended to be administered by private individuals. The idea of privatizing what had become an exclusive government function has been discussed in the context of reducing costs for the prison system. This is occurring at a time when there is a need to build more correctional facilities. While privatization can be implemented in a variety of ways, four approaches have dominated the discussion. One involves contracting out to the private sector the design and construction of prisons. Another focuses on having private firms finance the building of new prisons rather than using tax dollars. A third approach turns the ancillary services within a prison over to the private sector. These services usually include catering, health care, education programs, and escorting prisoners. A final method involves transferring the management and administration of a prison facility over to a private firm. In this context, the government would continue to determine prison policy and monitor the administration of these facilities.

The British have elected to experiment with each of these approaches. Some of the future prisons are being financed, designed, and constructed by the private sector. Many of the ancillary services, such as catering, education, and prisoner escort, have been contracted out to a considerable degree. In early 1996, four prisons were being managed by a private

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firm. This number has risen to 14. Obviously, the ultimate goal for the government is to reduce the cost of the Prison Service.

Although privatization in any of its many formats is a relatively new endeavor, comments offered thus far provide a mixed review of these early efforts. Privately constructed prisons have been found to be similar in quality to those constructed by the public sector. Criticisms have been leveled that the various ancillary services, such as catering and educational programming, have been unsatisfactory. The private escort service has probably been the most noteworthy embarrassment. Shortly after assuming their duties, an escort service lost several prisoners, and one died in their custody. An inquest found that the incidents could have been avoided. Finally, while costs are being reduced, staff levels in prisons run by the private sector are noticeably lower than those in the public sector. This has been made possible by the installation of high-technology security devices. It should also be pointed out that the staff hired by the private firms are paid less than those working in the public-sector prisons. Because privatization in the Prison Service is a new endeavor, only time will tell if its introduction was truly a cost-effective measure. More recently, it has been suggested that private prisons might not be a solution to the problems confronting the Prison Service, but rather a factor that may aid in perpetuating them (Cavadino and Dignan, 2007)

JUVENILE JUSTICE For centuries, the British seldom attempted to make a clear distinction between its poor and criminal classes. It was widely held that extreme poverty would inevitably lead to crime. Thus, legislation—in the form of a series of “poor laws”—was passed to cope with these problems. The laws were designed to serve two purposes: to aid the destitute in a humane fashion and to protect society from beggars and vagrants. A natural outgrowth of the poor laws was the development of a philosophy toward juvenile justice.

The emergence of a separate justice system for juveniles was based on the assumption that young people should be segregated from both the adjudication process and the penal system that had been established for adults. In part, this belief was based on humani- tarian pity—especially for children of the poor—but there was also an element of self- interest underlying this philosophy. There was a fear that these children would inevitably become society’s future criminals. The separate system was based on the premise that, because children were malleable, they could benefit from individual treatment, but that the rehabilitation process could only work if children were divorced from the adult justice system.

Another idea that emerged at approximately the same time suggested that the young should be treated as individuals possessing both needs and rights that the state should protect. This notion was directed at youths who had not violated the law but were orphans or victims of broken homes or child abuse. By the middle of the nineteenth century, the state commenced to expand its authority not only over the criminal behavior of the young but also over their noncriminal behavior.

Before these assumptions were introduced, young people were treated like adults. Juvenile delinquents were processed through the adult criminal justice system. They were

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new legislation. Because of the ongoing concerns of a number of political factions, it has not been enacted into law.

Victim Assistance

Another critical issue involves victim assistance. It has already been pointed out that a victim can sue for damages and that the suit can be entertained during a criminal trial. Although this is a progressive procedure, it has flaws. For example, the court is responsible only for enforcing the penal sanction, not the damages awarded a victim. Most damages, therefore, are not paid by the offender because the offender is indigent, refuses to pay, or possibly has not been identified.

Although very little research has been conducted on victimization in France, successive governments have taken steps to address the problem. The first state compensation law was adopted in 1977. It was initially designed for victims of bodily injury but has since been extended to include victims of burglary. Originally, the state was viewed as a secondary source for compensation. The victim was supposed to exhaust efforts at securing damages from the offender. Given the difficulty victims have had with collecting damages from offenders, legislation enacted in 1990 permits a victim to seek compensation through a process that is independent of any criminal proceeding—in some cases, even before a defendant is identified. A Commission for the Compensation of Victims of Crime is found in each of the courts of major jurisdiction. Victims of serious crimes against the person may receive a total compensation for the damages, for example, if they are unable to work for more than a month. If a person is a victim of a property offense, he or she may be entitled to a limited compensation that is determined by the victim’s financial assets.

Legislation was passed in 1986 to create a special system for granting compensation to victims of terrorism. Through the Guarantee Fund for Victims of Acts of Terrorism, compensation is provided for physical and material damages. Funds are also available to the family in the event of death. Finally, an attorney is provided through legal aid for representation in any legal proceeding.

In addition, the National Council for the Prevention of Delinquency was created in 1983. It has corresponding local councils at the department and municipal levels. There are presently more than 413 local associations. A National Institute has been established to train volunteers in victim assistance. The hope is that this training will be extended to include professionals in the field, such as police, judges, medical personnel, and social workers. The work of victim assistance illustrates the efforts to decentralize governmental administration in France. In addition to the formation of local associations, funding for these programs comes from the national ministries of Justice, Women’s Rights, and Welfare, as well as from local grants (Piffaut, 1989).

CORRECTIONS At the end of World War II, the Ministry of Justice turned its attention to reforming the correctional system through the introduction of a progressive regimen. The plan called for the use of a minimum amount of force when handling inmates and the establishment of

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treatment programs that would be both effective and humane. The scheme was directed at the entire prison population, including long-term prisoners. This progressive regimen was an indication of France’s commitment to a rehabilitation scheme that was to serve as the principal function of the correctional system.

The regimen was composed of five phases. The first phase lasted nine months, during which time the inmate was kept in maximum-security isolation. The inmate was interviewed and evaluated by correctional counselors during this phase. At the end of this period, the inmate was either advanced to the second phase, transferred out of the progressive regimen, or retained in the first phase for further observation. Those who advanced to the second phase would continue to eat and sleep in isolation, but they would be given a work assignment to be performed with other inmates. At that time, the inmates were expected to work at some task, however menial, within the institution. This phase would continue for six to 12 months. The third phase, which lasted for approximately one year, kept the inmate in a separate cell during sleeping hours but allowed all other activities to be carried out in a group environment. Phase four was designed to allow the inmate to work in the private sector while continuing to reside at the prison. This phase could be in effect for up to six years. Finally, the fifth phase was the conditional release of the inmate without supervision, in which the person would be placed on parole for a period of one to three years and then be discharged (Conrad, 1965).

Attempts were also made to build new facilities or redesign old ones to meet the needs of the progressive regimen. Another concern centered on improving recruiting and training of the staff working in these facilities. Because of the lack of funding and—according to some critics—inadequate commitment, they were largely carried out in a piecemeal and sometimes insufficient fashion.

The next significant innovation to the correctional system was the passage of the Code of Criminal Procedure in 1958. That code legally created a new position that has had an important impact on the decision-making process of the release of inmates from French penal institutions. The position was that of the judge for the application of punishment, more commonly referred to as the post-sentencing judge. Like the investigating judge, this official is selected from the ranks of judges of the magistracy and serves a three-year term in this capacity.

With this change in the code, the judiciary formally accepted a responsibility that initially was the correctional administrator’s, that is, determining the length of conditions and the appropriate conditions for a person’s incarceration. Prison administrators opposed the concept of the post-sentencing judge from the beginning, on the grounds that judges were not adequately informed about the prison environment and that the scheme would reduce the role of correctional personnel. The role of the post-sentencing judge has received a good deal of attention over the years; its present status will be discussed shortly.

As was the case with many countries committed to a rehabilitation regimen, the French began to question its utility. By the early 1960s, greater attention was directed at making correctional institutions more secure. Although treatment programs were not totally abandoned, they were placed in a new perspective because of the unimpressive results of the existing rehabilitation programs. Moreover, a number of prison disturbances during the first half of the 1970s drew attention to the plight of the correctional community. The result

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was a series of reforms that were largely responsible for making the prison system what it is today.

According to the Ministry of Justice, the mission of the French penal system is “monitoring individuals placed under judicial authority and preparing them for their future social rehabilitation.” This position is similar to that of many countries. Although this sentencing philosophy expounds multiple purposes for punishment, in the years since 1975, and particularly after 1980, much emphasis has been placed on protecting society and deterring known offenders. Thus, the French have introduced a “get tough” policy on criminals.

Although France has a much lower rate of violent crime than the United States, such crime has been increasing nevertheless. This has caused alarm among the public as well as among officials of the French criminal justice system. The Security and Liberty Law of 1981 had important implications for the correctional system in light of the rise in crime. Its principal goal was to assure swift and certain punishment for those found guilty of criminal offenses. For example, it called for increasing the certainty of sanctioning recidivists. In the past, a person was labeled a recidivist if he or she committed the same offense within five years. Under the Security and Liberty Law, the recidivist label would apply to offenders who committed a similar type of offense, in particular, crimes against the person and property. The law also called for minimum mandatory terms of imprisonment for certain offenses. In cases in which the maximum sentence was 10 years or more, a minimum sentence of two years was imposed. For offenses in which the maximum was less than 10 years, a minimum sentence of one year was called for. Finally, the use of suspended sentences and probation was reduced.

As a result of the changes in both attitude and legislation, the population in French correctional facilities, especially the jails, has dramatically increased. Between January 1975 and January 1995, the number of offenders incarcerated rose from 26,032 to 51,623, and in May 1995, it reached a high of 55,479. In 1997, on average, there were more than 58,000 people incarcerated. During the early years of the period 1975 to 1981, the prison population increased because more offenders were being sentenced to a period of incarceration. From 1981 to 1988, the explanation for the size of the population was attributed to longer sentences of incarceration. Since 1988, longer sentences of incarceration continue to play a significant role in the size of the prison population. Two kinds of offenses—drug trafficking and breaches in the immigration laws—have had a significant role to play in the size of the prison population (Kensey and Tournier, 1997).

On January 1, 2005, the population of French prisons was 59,197. Approximately 66 percent had been sentenced to a term of incarceration, while 34 percent were awaiting trial and had not been convicted of anything. This clearly illustrates the French commitment to protecting society, irrespective of whether a person has yet been found guilty. Of the 39,041 convicted prisoners, 30 percent were serving a term of less than one year; 22.5 percent a term of between one and three years; 12.4 percent a period between three and five years; and 35.7 percent a term of more than five years. Of those receiving a long-term period of incarceration, 1.4 percent received a life sentence (Ministry of Justice, 2006). Although there has been a dramatic increase in incarcerating offenders, it must be placed in a French context, for they are still committed to utilizing noninstitutional sanctions.

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The profile of the typical inmate is not surprising. In the prison population, of those sentenced and awaiting trial on January 1, 2005, male inmates represented more than 96 percent of the total population. Approximately 45 percent were under the age of 30, and more than 27 percent were between the ages of 30 and 39. French citizens made up more than 78 percent of the prison population, while more than 21 percent were represented by other nationalities (Ministry of Justice, 2006). The number of foreign prisoners has increased significantly in recent years. Part of the reason has to do with the fact that these offenders are less likely to receive a suspended sentence. The nature of their offenses, such as illegally entering the country, trafficking in drugs, and handling stolen goods influences the decision to impose a period of incarceration (Kensey and Tournier, 1997).

By the middle of 2014, the French prison population had risen above 68,000 and was close to 69,000. The prisons are designed to hold 57,000. Of the roughly 68,000 inmates, 17,000 were awaiting trial. It is noted further that approximately 60 percent of the people in prison are Muslims. Many of these are second-generation Arab immigrants who have failed to integrate into French society. As alluded to earlier, many of these inmates feel disenfranchised. One explanation for the surge in incarcerations was the get-tough policies introduced by former President Nicolas Sarkozy, specifically the mandating of minimum sentences for repeat offenders. To illustrate, if an offender’s original sentence was for three years, that person would be required to serve at least one year as a repeat offender.

As was mentioned in the last section, a new Penal Code was introduced in the 1990s. After three decades of work on the project, the code was implemented in 1994, thus replacing the much revised but archaic Napoleonic code of 1810. Unlike the old code, the new code does not stipulate a maximum or a fixed minimum sentence for all offenses. Although the new code often has increased the severity of the sanctions that can be imposed on an offender, it is important to note that imprisonment is no longer considered the principal method of punishment. Thus, judicial discretion has been enhanced.

The current code also recognizes degrees of culpability in several contexts. For example, it acknowledges more modern views regarding psychiatric disorders. While a person’s diminished mental capacity may reduce his or her legal responsibility, it does not automatically eliminate it, as was the case with the old code. In addition, the old code did not draw a distinction between premeditated murder and second-degree murder; the sentence for both was life imprisonment. With the new code, premeditated murder is punishable with life imprisonment, while a person found guilty of second-degree murder could receive a 30-year sentence. Finally, members of organized crime are subject to harsher sanctions than non-gang members who commit the same offense.

The code acknowledges the emergence of either totally new crimes or variations on old forms of deviance that have received a good deal of attention in the latter half of the twentieth century. Crimes against humanity and breaches of human rights are prominently featured. A significant innovation is the establishment of principles of liability for corporations, which was totally absent in the old code. Offenses associated with organized crime (such as racketeering) and terrorist activities are also acknowledged. Finally, environmental crimes are included, and sexual harassment is recognized as an offense.

The French have divided their criminal offenses into three categories. Crimes are the most serious offenses and can be punished by life imprisonment or a considerable number

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of years of imprisonment. The French abolished capital punishment in 1981. The principal purpose for sanctioning people who commit crimes in France is their removal from society. Délits are less serious offenses that are punishable by six months to 10 years of incarceration. The purpose of this type of sentence is to educate or coerce the offender. The new code raised the maximum penalty from five to 10 years; it also increased the minimum term of incarceration from two to six months. The justification offered for increasing the minimum term was that short periods of incarceration have failed to either intimidate or rehabilitate. Finally, because the new code abolished imprisonment for petty offenses, the sanctions prescribed for contraventions are either a fine or a noncustodial sentence. The goals of these punishments are to coerce people into obeying the law and to demonstrate to the public that justice is being done.

Organization of the Penitentiary Administration

It should come as no surprise that the correctional system is administered by a highly centralized national bureaucracy (see Figure 2.5). The most perplexing characteristic of the system is that although the French are often at the forefront of creating new ideas for corrections, they leave the actual development of the idea to practitioners in other countries. Parole is the most notable example of this phenomenon. Although its origins are traced to nineteenth-century France, the French did little in the way of experimenting and expanding its use until quite recently. The one possible exception to this trend is the extent to which they have created the role of the post-sentencing judge.

One possible reason for the apparent inability to follow through on their own creative ideas is that the French have lagged behind other countries in the study of criminology, despite the fact that they have established several institutes for that purpose. This can be attributed to both insufficient funding for research and a lack of interest in the study of criminal law. Another reason may be the traditionally low level of crime. In more recent years, however, property crimes and certain types of offenses against the person have increased significantly, especially among the juvenile population. As a result, the French

Ministry of Justice

Post-Sentencing Judges

Regional Directors

Penitentiary Administration

Commissions on the Applications of Punishments

Committees for Assistance to

Liberated Convicts Jails Special

Facilities Prisons

Penitentiary Centers

High Security

Detention Centers

FIGURE 2.5 | Organization of the Penitentiary Administration

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have attempted to improve or reform their correctional institutions, with a tendency to borrow quite heavily from the experiences of other countries.

Ministry of Justice

The Ministry of Justice is responsible for the administration of the correctional system. It is responsible for the legal establishment that sentences people to imprisonment, and it coordinates the system for care and treatment of the offender.

Penitentiary Administration

The Penitentiary Administration is the central bureaucracy (accountable to the minister of justice) that manages the administration of the entire correctional system, which includes the probation service. The central administration is responsible for the recruitment, training, and welfare of the personnel who work within the system. Correctional personnel are recruited civil servants and must sit for a competitive examination to qualify for the various levels within the organizational hierarchy. Personnel are trained at the National School for Penitentiary Administration. People initially pursuing a career as a guard must first pass an entrance examination that is designed to assess general knowledge and physical and psychological compatibility. If successful, the recruit would participate in an eight- month training program. The training would include theoretical courses at the school and an internship component at various correctional facilities. Traditionally, people were promoted from within the ranks of the French prison service. In recent years, however, university graduates have been recruited to enter the service at administrative levels within the bureaucracy.

To facilitate the work of the central administration, the prison service is divided into nine regions. Regional directors and prison wardens help to determine and coordinate the policies and procedures of their correctional facilities in accordance with the wishes of the central administration. Within any region, one is apt to find several different types of correctional units.

In addition, two centralized authorities have responsibility for inspecting the French correctional system. The Inspectorate for the Prison Services is part of the central bureaucracy. It performs five tasks: (1) investigating major disturbances, incidents, or escapes; (2) conducting routine inspections; (3) reviewing the security plans of the facilities; (4) examining systemwide correctional functions; and (5) overseeing the handling of probationers. The Inspectorate for Social Concerns has oversight responsibilities for the health of the inmates and the overall cleanliness of the correctional facilities. This Inspectorate reports to the minister of health (Vagg, 1994).

Types of Institutions

The French have developed three general kinds of correctional facilities: jails, special institutions, and prisons. Each is designed for a particular type of offender. Jails are found throughout the country in close proximity to the courts of major jurisdiction. They are used

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to detain both the accused before trial as well as convicted offenders whose term of incarceration does not exceed one year. In comparison to most jails in the United States, French jails are small. They were originally built to accommodate 20 to 40 inmates, and the cells were originally designed for single occupancy. Because of the number of inmates being detained in these facilities, there is often serious overcrowding, with two or three people placed in a cell.

French jails have been criticized for many of the same weaknesses identified in the American and British systems. For example, the development of intensive rehabilitation programs has been hampered by the transient nature of the jail population. The French are making an effort to resolve another perennial problem by separating younger offenders from older recidivists. In addition, attempts at work release programs have proved somewhat unsuccessful because of the scarcity of jobs.

Special institutions are established for offenders who are also suffering from a physical handicap or a behavioral disorder that falls short of the legal definition of insanity. These facilities include health centers existing within correctional institutions or separate facilities such as sanatoriums or psychiatric hospitals. The French also have created special units for the chronic recidivist. This measure is referred to as penal guardianship.

Prisons are further subdivided into three categories: detention centers, penitentiary centers, and high-security facilities. A nationally centralized classification unit at Fresnes carries out diagnostic testing to determine where the convicted offender should serve time. Each institution, whether a detention center, penitentiary center, or high-security facility, offers variations on the prison regimen designed to meet the diverse needs of the inmate population. For example, most high-security prisons follow a traditional model regarding inmate rules. Some have special security centers for the more dangerous offenders.

Detention centers have adopted a collaborative model intended to enhance the relationship between inmates and staff. Detention centers afford the offender greater degrees of freedom and individual responsibility with both closed and open types of facilities. It should be noted that not all offenders are processed through the central classifi - cation unit at Fresnes. Inmates who serve a fairly short term of incarceration are classified at the local jail where they were held during the course of the trial.

Irrespective of which type of prison a person is sent to, one of the missions of the penal system is to prepare inmates for life outside the correctional facility. This is achieved through various activities. For example, prisoners have a right to work. Although work is voluntary, it enables the inmate to earn money. This kind of employment can occur within or outside the prison. Another activity is education or vocational training. It comes as no surprise that the illiteracy rate is higher in prisons than within the general population. The Ministry of Justice and the Ministry of Education have established agreements that enable inmates to pursue a wide variety of educational programs from literacy courses to preparation for admission to universities. The Ministry of Social Affairs, Employment, and Solidarity are active in providing inmates with vocational training programs. The Ministry of Culture assists with providing workshops in various fields of the arts. Public libraries assist with the operation of prison libraries. Finally, there are sports facilities located at almost 200 correctional institutions.

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It was mentioned earlier that there has been a serious problem with overcrowding in French jails. The issue of overcrowding has also impacted the prison system. In 2002, the Ministry of Justice began a significant building project to address overcrowding in the prisons. Building began on 27 new facilities, seven of them specifically designed for young offenders.

Judge for the Application of Punishment

With the passage of the Code of Criminal Procedure in 1958, the judge for the application of punishment (more commonly referred to as the post-sentencing judge) was given the responsibility of controlling the post-sentencing phase of the criminal process. The rationale for this innovation was based on the argument that both a judicial decision arrived at during the course of a trial and the implementation of that decision in a penitentiary was part of the same process. The thinking went that it was illogical and possibly harmful to disrupt the continuity of the decision by placing it in the hands of two distinct authorities. The post-sentencing judge was the French prescription for assuring that there would be continuity in the execution and application of the judicial decision.

The post-sentencing judge is a regular member of the branch of the magistracy that adjudicates cases in court. He or she is selected for a three-year term by the chief judge in a district of a court of major jurisdiction (although the nominee can refuse the appointment). The number of judges per district assigned to this special responsibility varies accord- ing to the type of correctional institutions found in each particular district. Thus, French judges serve the courts in one of four capacities: investigating judge, liberty and detention judge, trial judge, or post-sentencing judge. When not carrying out special sentencing responsi bilities, the post-sentencing judge sits in a court and adjudicates cases with other judges.

Most who comment on the role of the post-sentencing judge have described it as having a dual purpose. One is administrative in nature, for the judge is part of the correctional institution’s oversight committee. In this capacity, the judge receives copies of all instructions sent by the central prison authorities to the prisons and jails in his or her jurisdiction. He or she is informed of all changes in disciplinary and security matters and is kept apprised of all disciplinary actions. He or she is also expected to keep abreast of the conditions of the physical plant, inmate safety and security, and various rehabilitation programs. Addition ally, the judge must visit the institution once a month and meet with individual inmates on request. Decisions that pertain to the management of the prison are not made by the judge, for he or she has no authority over the daily operations of the institution. Such responsibilities are left to the regional directors and wardens of the various correctional facilities.

The other responsibility of a post-sentencing judge is distinctly judicial in nature. It is in this context that the significant role of the magistracy’s relationship to the correctional community becomes apparent. The judge has the authority to alter the inmate’s sentence and to influence the individual’s regimen. This is a central feature of the rehabilitation process for most inmates.

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The role of the post-sentencing judge has been the subject of much criticism. Correctional administrators have long opposed the position on the grounds that although judges are not truly knowledgeable of the work in the correctional community, they are empowered to make decisions that influence the inmate population. Inmates, as well as some former post-sentencing judges, complained that judges are restricted in altering an inmate’s sentence by the fact that they are largely dependent on information provided by the prison authorities. Some trial judges have opposed the independent nature of the office. Their complaint was that the post-sentencing judge’s decision to change an offender’s sentence (originally imposed by the trial judge) was not subject to appeal or review as was the case with the original sentence.

Because of adverse criticism from so many quarters, interest in serving as a post- sentencing judge declined. Trial judges who did accept the position were often viewed by their colleagues as “second-class” members of the magistracy. It was suggested that the system could be improved if the role and standing of the post-sentencing judge was altered somewhat. In particular, it was suggested that a method of reviewing the judge’s decisions should be established (Chemithe and Strasburg, 1978).

As a result of these criticisms, the role of the post-sentencing judge was clarified through a revision in the code. Article 722 of the Code of Criminal Procedure explains the principal duties.

At each penitentiary establishment, the judge for the application of punishments shall determine for each convict the principal modalities of penitentiary treatment. In accordance with the limits and conditions provided by law, the judge shall accord place - ments on the outside, semiliberty, reductions, fractionings and suspensions of penalties, authorizations for leaves under escort, permissions for leave, [and] parole, or the judge shall bring the matter before the court competent to arrange the execution of the punishment. Except in emergency, the judge shall rule after advice from the commission on the application of punishments.

The commission on the application of punishments will be explained shortly. The code also states that “[e]xcept in emergencies the judge for the application of punishments shall also give his or her opinion, on the transfer of convicts from one establishment to another.” Finally, in a decree issued in 1986, the status of the post-sentencing judge was raised to that of a specialist. It is hoped that this enhanced status will encourage more judges to serve in this capacity.

There are five principal methods by which a post-sentencing judge can act to alter an inmate’s sanction of incarceration. Parole (traditionally called “conditional liberty”) at one time could be granted only by the minister of justice. In 1972, the post-sentencing judge was delegated complete authority to issue a parole for inmates serving a term of three years or less. As approximately two-thirds of all sentences fall within this range, this first method was considered a significant change. For people serving a longer term, the judge may recommend parole but must have it approved by the minister of justice. Parole is usually granted to first-time offenders after one-half of the term is served, to recidivists after

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two-thirds of the term is served, to chronic recidivists after three-fourths of the term is served, and to people receiving a life sentence after 15 years (Chemithe and Strasburg, 1978). It is alleged that this change has enabled the system to work more effectively. This method of early release thus has been utilized more frequently.

The 1972 legislation that introduced changes in parole created a second method for reducing time served: sentence reduction. Each year, an inmate’s disciplinary record is reviewed by the post-sentencing judge. In most cases, the judge reduces the person’s sentence for good behavior. Reductions average about seven days per month for a sentence that is under one year, while inmates serving longer sentences have had as much as three months per year eliminated from their original sentence. Two groups of people, however, are excluded from this scheme: people sentenced to less than three months and chronic recidivists. A sentence is not necessarily a permanent reward for good conduct. A judge can retract all or part of the reduction if the inmate displays recalcitrant conduct in the future (Chemithe and Strasburg, 1978).

The third method, work release, is a system that allows the inmate to work outside the confines of the correctional institution. The nonworking hours are spent at a halfway house or a local jail. The costs of maintaining the inmate in the institution are deducted from his or her wages. Work release is usually granted to people during the last six to 12 months of their sentence. People who are about to be released on parole are also eligible for work release. This is usually done to test their ability to cooperate with the authorities under this regimen.

The fourth method, the granting of leaves from prison, originally was used for emergency purposes, such as an illness or death in the family. Since 1975, the scheme has been expanded to test the inmate’s ability to function outside the confines of the prison for short periods of time. Inmates who are housed in detention centers and who have served one-third of their sentence are eligible for leaves of up to 10 days each year. Inmates who are being held in more secure facilities and who have approximately three years remaining on their sentence are granted three days’ leave per year.

The fifth method, temporary suspension, has been available since 1975 but is used infrequently. It permits the judge to suspend the sentence of a person convicted of a mis - demeanor for up to three months in cases of serious personal emergencies. An alternative to this scheme is to have the inmate continue to serve part of the sentence on weekends. In extraordinary situations, in which the request is for a period longer than three months, the judge’s order must be approved by a court of major jurisdiction. The time suspended does not count toward the completion of the sentence.

Finally, it should be noted that offenders sentenced to less than one year of incarceration are eligible for day and work release. While work release is self-explanatory (i.e., a release for the purpose of employment), day release enables the offender to participate, for example, in educational activities, seeking employment, or receiving medical treatment. Electronic monitoring enables the person to serve part of his or her sentence while residing at home. The person must participate in various programs appropriate to the offense that are in accord with the goal of rehabilitation and that follow a specific daily schedule (see Reuflet in Padfield, vanZyl Smit, and Dunkel, 2012).

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Commission on the Application of Punishments

The post-sentencing judge, though afforded a good deal of discretion in altering an inmate’s sentence, is not totally independent. This point was reinforced in the aforementioned reference to Article 722 of the Code of Criminal Procedure. Judges are assisted in their work by a commission on the application of punishments, of which the judge serves as the president. Thus, it is a commission that annually reviews each case. A commission is created for each prison. Members include the warden, a procurator, the personnel director of the prison, the chief of supervision of the prison, a prison educator, a psychiatrist, a social worker, and a doctor. The post-sentencing judge also can appoint other people to serve on a temporary basis at his or her discretion.

Noninstitutional Sanctions

The French have been slow in developing noninstitutional sanctions. In recent years, they have explored alternatives to incarceration, partly because of the high cost of imprisonment. Currently, there are four methods for imposing a noninstitutional sentence.

A simple suspension is designed for the offender who has not been sentenced to imprisonment during the preceding five years. Article 735 of the Code of Criminal Procedure states that “[i]f the convict benefiting from the simple suspension of imprisonment does not commit, during a period of five years after the sentence, a common law felony or délit followed by a new sentence of either a felony penalty or a correctional prison penalty without suspension, the suspended conviction shall be considered void.” The offender is still obliged to pay any damages or court costs rendered by the court.

The use of the suspended sentence received a good deal of adverse publicity in France, especially when a violent offender was freed through a suspended sentence and subsequently committed a second violent offense. The Security and Liberty Law of 1981 reduced the use of the suspended sentence. Now, anyone who is convicted of a violent crime must serve a minimum term in prison. Recidivists are no longer eligible for a suspended sentence. Civil libertarians opposed this measure for obvious reasons, and a large segment of the French trial judges opposed its passage on the grounds that it would curtail the independence of the judiciary.

A suspension of the sentence with probation is another alternative. What is required in such instances is that the offense is minor and the probability exists that the offender will not commit another offense. This is based on both the offender’s previous record, if any, and his or her conduct during the course of the proceedings. The offender is placed on probation for a period of three to five years. If the person is not convicted of another offense, the sentence is nullified.

Each court of major jurisdiction has a committee devoted to assistance for liberated convicts. The committee is composed of probation officers, educators, and volunteers. Before 1986, the post-sentencing judge was the president of this committee. Today, that is no longer the case. Nevertheless, the work of the probation department is under the control of a post-sentencing judge. While a probation director is assigned the responsibility of organizing and managing the service, it is the post-sentencing judge who assigns to

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probation officers specific offenders who have been placed on probation, parole, or some other form of noninstitutional supervision. Probation officers attempt to assist the offender in resocialization efforts and are required to keep the judge apprised of the individual’s progress. Whereas a post-sentencing judge has the authority to revoke a parole because of violations of the agreement, only a trial judge can revoke a probation order. A post- sentencing judge who thinks that the probation should be revoked must submit such a request for approval to the trial judge that originally ordered the probation.

The newest noninstitutional sanction is the community service order. Introduced in 1983, it involves performing 40 to 240 hours of unpaid work over a period of time that is not to exceed 18 months. It is designed for offenders who have a very limited criminal history and who have not been convicted of a serious offense in the previous five years. The order can be applied to adults and juveniles above the age of 16.

A community service order can be imposed along with other sanctions or used as a substitute for another form of punishment. Unlike other forms of sanctioning, the offender must agree to community service. This is required in order to comply with the European Convention on Human Rights, which states that a person cannot be “required to perform forced or compulsory labor.” The work is performed for either a public organization, a public institution, or an approved association that has a social function. Much of the actual work involves the maintenance of the environment, buildings, or equipment of the organization. Although a trial judge imposes this sanction, it is the responsibility of a post-sentencing judge to oversee its execution.

Initially, the community service order was not utilized to any significant degree. In 1985, only 2 percent of those sentenced received such a sanction. Among the reasons cited for the paucity of its use were the difficulty in finding work, the absence of a work aptitude among the offenders, and the belief among judges that it be applied in a restrictive fashion. It appears that the community service order was used more often as a substitute sanction for driving offenses than for any other type of offense (Ezratty-Bader, 1989; Pradel, 1987). This view has changed significantly in recent years, as community service orders represent more than 16 percent of the noninstitutional sanctions.

Fines are another type of noninstitutional sanction. A fine can be imposed upon people who commit either a délit or a contravention. Fines can be imposed alone or along with another institutional or noninstitutional sanction.

JUVENILE JUSTICE The French usually cite 1945 as the year in which they embarked upon a plan to develop a new juvenile justice system. Most authorities attribute the advent of this movement to the fact that the Ministry of Justice took over the administration of the correctional system from the Ministry of the Interior. Prior to that date, the treatment of juveniles was undertaken in the penitentiary setting.

Once the Ministry of Justice was charged with this new responsibility, change was in the offing. At first, the advances were largely in the areas of establishing new institutions and procedures in the processing of delinquents. The implementation of changes in the manner of treating juveniles was considerably slower. It has been suggested that this was

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Finally, it has been suggested that the abolition of the death penalty will come to Japan only with a revision of the Penal Code, because the nature of the Japanese judiciary is such that it will not act independently of the legislative branch (George, 1990). The abolitionists recognize the difficulties that they face in gaining converts to their cause. One observer suggested that a compromise might be reached by substituting capital punishment with the sanction of life imprisonment without parole (Kikuta, 1993). Nevertheless, a 2004 government opinion poll found that 81.4 percent supported the death penalty, while only 6 percent were opposed to it. The poll noted that supporters were of the opinion that only capital punishment could provide closure for families of the victims. Supporters also maintained that the punishment had a deterrent effect.

CORRECTIONS It should come as no surprise that Japan’s correctional system has evolved in a manner not unlike that of their police, judiciary, and law. The Penal Code of 1908 and other legal measures related to corrections were initially influenced by French and German ideas from the mid-nineteenth century through the early twentieth century. Some of this legislation remains in force today, albeit with some modifications. In addition, the American occupation had many effects on the correctional system, the introduction of probation and parole being most notable. Finally, a clearly distinct juvenile justice system also was created following the war.

The significant influence of Western ideas on corrections must be placed in the Japanese context. Although the form the correctional community has taken appears strikingly Western, the substance of the system must be viewed and understood within the social and cultural framework of Japan. The purpose of this section is to offer a brief explanation of the sentencing philosophy, a description of the organization and adminis - tration of the correctional system, an examination of both the institutional and non - institutional forms of sanctioning, and the identification of some of the critical issues confronting the correctional system.

Sentencing Philosophy

The traditional objectives behind sanctioning an offender are retribution, deterrence, isolation, and rehabilitation. Most countries emphasize one or more of these objectives as a rationale for their sentencing philosophy. In that regard, Japan is no different than the others. However, both practitioners within the Japanese justice system and foreign observers of it are in agreement that the Japanese tend to emphasize retribution and rehabilitation.

Before these two objectives are examined, it is important to mention why there is a greater impetus directed at them than at deterrence and isolation. Japanese and foreign commentators are fond of pointing out the homogeneity of Japan’s population and the social cohesiveness of the people, as illustrated by the importance placed on group associations. It is within this context that the Japanese sentencing philosophy must be understood.

In determining how to proceed with the disposition of an offender, the paramount concern for the Japanese is how the decision will benefit society. This goal is strikingly

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different from that found in many countries, which claim, at least in theory, the principal concern is for the individual offender. Of course, the Japanese are still concerned about the individual, just as justice systems that appear to concentrate their efforts on the offender are also interested in the societal benefits that result from their decisions.

This helps to explain two features of the Japanese criminal justice system: (1) agents of the justice system are not viewed only as enforcers of the law but also as guardians of society’s morals (a good deal of deference is paid to them as dispensers of this authority), and (2) broad discretionary power is accorded these agents. It is an accepted practice for the police to decide whether a minor infraction of the law should be resolved through a formal citation or an apology. It is legally permissible for the procurator to decide if a criminal, irrespective of the nature of the offense, should be prosecuted or have the prosecu - tion suspended. Those offenders who are formally adjudicated may have their sentence modified by the judge exercising powers of discretion. These extensive discre tionary powers are accepted by the public because the public displays a great deal of faith in the agents of its criminal justice system. This faith is based on a belief that in each case, the agent’s judgment will be guided by the interests that best serve society.

Returning to the twin objectives of retribution and rehabilitation, the Japanese base the specific sentence on the gravity of the offense and the degree of culpability of the offender. The offender’s character, personality, age, and environmental history (criminal, familial, and educational background) are also taken into consideration. It should be pointed out that this kind of information is usually provided to the court by the procurator and defense counsel, rather than by a professional who has a specific expertise in the social or behavior sciences. All the previously mentioned criteria are used, however, in determining the extent to which retribution and rehabilitation will be sought in the sentencing process.

According to Tadahiro Tanizawa (1979), the principal rationale for the imposition of a formal sanction is retribution. However, Yoshio Suzuki (1978a) has pointed out that this should not be misconstrued as a Japanese revival of the old talionic law. Rather, it is simply an acknowledgment that the need to satisfy vengeance is deeply rooted in any society. The victim, as well as society, wants to be assured that justice is done. Retribution either achieves or enhances the prospects of that realization. The actual application of retribu- tion is considerably different, however, from the old notion of “an eye for an eye, a tooth for a tooth.”

Nevertheless, for the Japanese offender who is not a professional criminal, the sanction can be as psychologically painful as some of the earlier forms of corporal punishment. Retribution is achieved through disgrace. This is specifically brought about by alienating the offender from the group—that coveted association that often ensures and fosters a person’s identity. Imprisonment is the ultimate form of alienation from the group and rejection by society. The long-standing impact that this is intended to achieve explains, in part, why prison sentences in Japan are fairly short.

Another reason for the brief length of most sentences is associated with the second major objective for sanctioning, that is, rehabilitation. Tanizawa (1979), among others, has indicated that a lenient sentence, whether or not it includes incarceration, is meant to encourage the rehabilitation process. The goal is to impress upon the offender the court’s generosity, thus leading the offender to desire rehabilitation. The Japanese seem to

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understand, possibly better than most cultures, that the chances of success are greater within the community than in an institutional setting. Once again, this is based on the importance placed on maintaining close ties with a group. If membership in a group provides emotional sustenance to the noncriminal, it is assumed that such an association for a criminal offender can only strengthen the efforts to rehabilitate oneself.

Organization and Administration of Corrections

Ministry of Justice

The Ministry of Justice is a cabinet-level department headed by the minister of justice, who is appointed by the prime minister. Like the rest of the Japanese criminal justice system, the administration of corrections is controlled by the national government. As mentioned earlier, the ministry is divided into seven bureaus, of which two—the Correction Bureau and the Rehabilitation Bureau—are concerned with all matters pertaining to correctional administration.

Correction Bureau

The Correction Bureau is responsible for the administration of adult prisons as well as facilities for juvenile delinquents. The chief administrative officer of the bureau is the director general. The director general’s staff is divided into six divisions. The general affairs division is responsible for such issues as planning, budgeting, inspections, staff training and welfare, and the drafting of regulations and policy. The treatment division handles the admission and release of prisoners, along with the daily security needs of the correctional facilities. The industry division is concerned with issues related to prison labor and vocational training. The medical care and classification division is responsible for such issues as the feeding, sanitation, and medical needs of the inmates, along with classification and parole procedures. The education division addresses all academic training, welfare concerns, and recreational needs. Finally, the counselor’s office is responsible for drafting and amending changes in the laws and regulations that impact on the services provided by the correctional system.

The director and staff are assisted in their work by eight regional headquarters. The regional centers are designed to coordinate the management of the various correctional institutions in their respective geographical areas. Their duties range from administrative concerns, inspection of facilities, and dealing with personnel issues involving the staff, to supervisory responsibilities such as the classification and transfer of inmates and the coordination of prison industries (see Figure 3.4).

The Japanese have developed a fairly elaborate scheme for classifying offenders as they enter the prison system. The scheme is employed to determine the placement of inmates either in a particular correctional facility or in a specific section within an institution. The first method of classification takes into consideration the gender, nationality, and age of the offender, as well as type of sentence. The Japanese have established correctional

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facilities that are specifically designed for different populations: females, foreigners, people sentenced to imprisonment without compulsory labor, inmates serving a term of more than eight years, adults under the age of 26, and juveniles. The second classification issue takes into consideration the degree of criminal tendency. Under this scheme, inmates are categorized as either having or not having advanced criminal tendencies. A third method of classification identifies those inmates who have either a mental or physical disability. Finally, inmates are categorized according to their treatment needs.

Imprisonment

Before the regimen of the correctional institutions is explained, it is important to offer some general comments about the sanction of imprisonment in Japan. According to the Penal Code, an offender sentenced to a term of incarceration receives either a sanction of imprisonment with compulsory labor, imprisonment without compulsory labor, or penal detention. Imprisonment with compulsory labor and imprisonment without compulsory labor are either for a fixed term or for life. The fixed terms range from one month to 15 years; however, they can be increased to 20 years when circumstances warrant such an extension. The only difference between imprisonment with compulsory labor and imprisonment without compulsory labor is that the former requires the performance of some type of work. Although imprisonment without compulsory labor does not require a work assignment, most inmates request one. The sanction of penal detention requires the offender to serve a term of between one and 29 days in a house of detention.

An examination of the data provided by the Ministry of Justice on people sentenced to prison since World War II indicates that there has been a dramatic decline. In 1950, there were 83,492 people sentenced to a period of incarceration, creating a total prison population of 103,204 in that year. Of those sentenced, approximately 71 percent were guilty of some

Ministry of Justice

Bureau of Corrections

Regional Headquarters

• prisons – branch prisons • houses of detention – branch detention houses • women’s guidance home • juvenile prisons • juvenile training schools • juvenile classification homes

Regional Parole Boards

Rehabilitation Bureau

National Offenders Rehabilitation Commission

FIGURE 3.4 | Organization of the Bureau of Corrections

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form of theft. Japanese criminologists attribute the high level of this particular crime to the fact that the country was in a state of social chaos and economic collapse during the years immediately following the war. People convicted of war crimes are also included in these totals. In 2008, the population in penal institutions was 79,809. Of that number, 65,508 were convicted inmates, while 14,301 were awaiting trial.

Several reasons are offered for the small number of offenders sentenced to prison. One is that the rate of nontraffic offenses either continues to decline or remains stable. Another is that judges prefer to sanction the offender with a fine, if at all possible, or to a mini- mum term of deprivation. Fines are the most popular form of sentence. It is estimated that approximately 97 percent of all sanctions involve a fine. Finally, about 60 percent of all prison sentences imposed are granted a suspension of execution by the judge. Offenders who are sentenced for up to three years of imprisonment can have the sentence suspended if they meet one of two criteria: (1) the person has never been sentenced to imprisonment before, or (2) a period of five years has elapsed since a prison term has been imposed.

Although greater attention was directed at the issue of capital punishment earlier, brief mention should be made here of the apparent support for the death penalty in Japan. While the Japanese tend to favor its retention, they also expect its use to be restricted. The Penal Code permits the death sentence for particularly heinous crimes, such as murder or murder in the course of committing a robbery. Hanging is the only method employed to execute the sentence.

Types of Institutions

Compared to other countries, the number of offenders sentenced to incarceration in Japan might be small and the length of sentences fairly short, but several scholars have pointed out that Japanese prisons impose a good deal of discipline on inmates. It has been suggested that “leniency is extended to those who confess, demonstrate remorse, accept their account - ability by compensation to any victims,” but that it “stops at the prison door” (Haley, 1998). The justification for the rigorous discipline imposed on inmates is that it is designed to correct behavior rather than to punish the person. The principle behind the treatment of sanctioned offenders is explained in article 30 of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees (2005). The article states: “Treatment of a sentenced person shall be conducted with the aim of stimulating motivation for reformation and rehabilitation and developing the adaptability to life in society by working on his/her sense of consciousness in accordance with his/her personality and circumstances.” This approach is considered a central feature in the Japanese rehabilitative process.

Moreover, article 103 of the Act on Penal Detention indicates: “The warden of the penal institution shall provide with necessary guidance to sentenced persons in order to awaken them to the responsibility for the crime, cultivate healthy mind and body, and acquire knowledge and lifestyle necessary for adapting themselves to life in society.” The guidance or discipline is reflected in the very detailed daily schedule that inmates follow. There are a number of rules, which range from general rules (e.g., how inmates are expected to speak and act toward others), to rules within the cell (e.g., when a person is permitted to lie down),

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to an extensive array of work rules. All correspondence is censored and may not even be delivered. Moreover, inmates do not have access to telephones.

The Japanese have established two types of adult correctional facilities: prisons and houses of detention. There are 62 prisons and eight branch prisons, and there are seven detention houses and 104 branch detention houses. There is also a women’s guidance home, which is utilized for the purpose of rehabilitating prostitutes. The purpose of this facility is to provide social and vocational guidance along with medical and psychological treatment. The houses of detention are used either to hold suspects or defendants awaiting trial or to incarcerate offenders sentenced to penal detention for committing minor crimes. Among the prisons, three are medical facilities designed to house inmates who are not capable, either physically or psychologically, of serving their sentence in a regular prison. Finally, six of the prisons are designated for women.

As mentioned earlier, the purpose of the adult prison is to aid in the rehabilitation of the offender. In order to enhance the prospects of that, the convicted offender is first sent to one of the eight regional classification centers. While at the center, the inmate is oriented to prison life and given a series of aptitude tests to assist the authorities in determining the institution that might best serve the inmate’s needs. A host of other factors also are taken into consideration, including age, gender, nationality, criminal record, type of sentence, mental stability, and any physical handicaps.

Sentences to imprisonment (either with or without labor) are subject to a progressive system. In operation since 1934, the progressive system is a scheme involving four grades or steps in an inmate’s period of detention. Inmates begin their term in the fourth grade. When they display self-discipline and a willingness to accept and cooperate with the rehabilitative regimen, they are advanced to the other grades. First-grade inmates enjoy more privileges and a greater degree of self-government. There is also a greater likelihood that they will be released on parole. It should also be pointed out that a number of the prisons are open facilities.

Most sentences mandate that inmates perform some kind of compulsory labor. In light of this fact, it has been pointed out that much of the Japanese prison system is organized along the lines of a factory system (Clifford, 1976). Among the types of work found in a prison are woodwork, metalwork, tailoring, and printing. An appropriately qualified inmate could be assigned a job in industry. With the absence of restrictions imposed by Japanese trade unions, the prisons are able to negotiate contracts with the private sector to produce goods. While some products are manufactured within a prison, it is not uncommon to send crews of inmates out of an institution to work. This is primarily limited to farming. All profits from such contracts are transferred to the national treasury. Other inmates are assigned maintenance tasks around the prison, such as kitchen, janitorial, or physical plant repair duty. Finally, a few inmates are selected for vocational training. This enables them to learn a skill while in prison, apply that skill in a prison industry, and find employment upon release from the institution. Although inmates are awarded some financial remun - eration for their work, it is not considered a wage. It is regarded as a gratuity designed to encourage the inmate to work. Some of this money is saved for the prisoners and returned to them upon their release from prison, while the rest can be used to buy necessities or help support their families.

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The prison regimen also includes educational programs that are generally designed for younger inmates. For example, inmates who have not completed the nine years of compulsory education or who need remedial assistance are required to attend classes. Correspondence courses are also provided, including high school classes and vocational education courses, of which some have been approved by the Ministry of Education. Moreover, vocational training is provided in the prisons. The participants of such programs have their regular work hours reduced so they can participate. Those who complete a vocational or technical program and then pass the appropriate national examination are eligible to receive a license or certificate issued by the Ministry of Labor. This enhances the inmate’s opportunities for employment upon release. As mentioned earlier, article 103 of the Act on Penal Detention notes the importance of assisting the inmate to acquire skills necessary to adapt to life in society. The work and educational programs are designed to assist with this endeavor. Both general and specialized rehabilitative programs are also available to complement those efforts. They include drug-treatment, sexual-offender, and traffic-safety programs.

The Japanese have had remarkable success in maintaining the internal security and order within the prison system. By way of illustration, in 1991, there was one escape, one case of an inmate seriously assaulting another inmate, and no instances of an inmate killing an officer or another inmate (Yokoyama, 1994). Articles 150 through 156 of the Act on Penal Detention explain the issue of disciplinary measures that can be taken against an inmate. These include a simple warning, suspension from work or a reduction in the amount of remuneration, complete or partial suspension of the use or consumption of items that inmates are permitted to purchase, complete or partial suspension of access to reading materials, and a period of disciplinary confinement. Confinement includes the suspension of access to reading materials, sending and receiving of letters, visits with the exception of visits from defense counsel, and restrictions on exercise as long as this does not endanger the person’s health. Most sanctions of confinement are for 30 days. Periods of disciplinary confinement can be extended to 60 days if the inmate’s transgression is deemed “especially serious.”

Rehabilitation Bureau

Whereas the Correction Bureau is responsible to the Ministry of Justice for the penal institutions of Japan, the Rehabilitation Bureau is the central bureaucracy within the ministry that is concerned with the release and oversight of inmates from a correctional facility. The facilities include prisons, juvenile training schools, and women’s guidance homes. It is recognized that inmates often require a transition phase in their movement from a total lack of freedom to the exercise of responsible freedom. Parole serves the purpose of testing an inmate’s ability to cope with this responsibility. The Bureau is also responsible for monitoring the progress of those adults who received a suspended sentence and those juveniles who have been placed on probation.

The National Offenders Rehabilitation Commission has an important role to play in this process, and it is accountable to the ministry through the Rehabilitation Bureau.

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The commission is composed of five people who are appointed by the minister of justice with the approval of the Diet. According to the Offenders Prevention and Rehabilitation Law (1949), the commission is mandated two responsibilities. It makes recommendations to the Ministry of Justice regarding pardons, reductions, and remissions of sentences, as well as the restoration of inmates’ rights. It also oversees the eight regional parole boards that determine who is eligible for parole. These boards are located in each of the cities that have one of the high courts. A board is composed of three to 12 members; at least three members are needed to render a parole decision.

According to the Penal Code, inmates sentenced to a fixed term are eligible for parole after they have served one-third of their sentence. Inmates condemned to a life sentence are considered for parole after serving 10 years. Approximately 60 percent of all inmates are granted parole, but the favorable decision usually comes after they have served more than one-half of their original sentence. While on release, inmates are supervised by a probation officer who is expected to offer aid and guidance. Among the most notable problems associated with the Japanese parole system is the fact that most prison sentences are relatively short. As a result, the length of time on parole is equally short. It has been argued that there is simply not enough time to assist the parolee in any meaningful way before the termination of the conditional release. The other major concern focuses on the apparent passivity displayed by members of the parole boards. They tend to rely upon the opinions expressed by the superintendents of the correctional facilities rather than actively attempt to collect their own data and formulate their own opinions based on a particular case (Horii, 1973).

It has been suggested that there might be support in the Diet to add a new sanction, life without parole. This idea has emerged because of the soon-to-be-introduced saiban-in system, which was discussed previously in the section on the judiciary. At issue is the concern that lay assessors might be reluctant to impose the death penalty and thus be left with the next most severe sanction, life with the possibility of parole after 10 years. While technically eligible after 10 years, most inmates sentenced to life serve between 20 and 30 years in prison. There appears to be support in the Diet to add life without parole to the list of penal sanctions, but it has not been introduced at this time.

Noninstitutional Sanctions

The role that the police and procurators play in diverting offenders from the formal adjudication process can be considered a form of noninstitutional sentencing. Like many progressive countries, Japan recognizes the value of utilizing noninstitutional sanctions when sentencing its offenders. They realize that if rehabilitation is truly a goal of the sentencing philosophy, then it is more likely to succeed if the offender is kept in the community and is able to benefit from the positive influences of a group. This is especially noteworthy in Japan, where the family remains an important source of that group support.

The suspension of a sentence can be granted in two kinds of circumstances. According to the Penal Code, a person sentenced to imprisonment for not more than three years or fined less than 200,000 yen can have the sentence suspended for a period of one to five

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years, depending upon the offender’s sentencing history. A person who is sentenced to imprisonment for not more than a year and who has previously received a suspended sentence of imprisonment is also eligible for a suspended sentence. In the former case, the court can order the suspension with or without supervision, while in the latter case, the court orders the suspension with supervision. Thus, a suspension of sentence with super - vision is the Japanese version of a probation order.

The Japanese utilize the suspended sentence in approximately 50 percent of the cases that go to trial. In each of the 50 cities containing district courts, there is a probation office that is under the jurisdiction of the Ministry of Justice. Each probation office employs full- time probation officers and volunteer probation officers who assist offenders on probation or parole. The Japanese have long emphasized the importance of the community’s role in reducing crime; the extensive use of volunteer probation officers is one example of that tradition. Presently, there are about 49,000 volunteers working in this area.

As was previously indicated, approximately 97 percent of the sentences involve a fine. A regular fine ranges from 4,000 yen and up, but the amount can be reduced to below the 4,000 yen figure. A minor fine ranges from 20 to 4,000 yen. If a person is unable to pay either a regular or a minor fine, he or she may be detained at a workhouse for a period of time. The amount of time is determined by the court and is based on the amount of the fine.

A final aspect of Japan’s correctional system is the aftercare program. Although the government is responsible for this program, Japan’s system of aftercare is dependent on the help of voluntary organizations to provide halfway houses. The system is available on a voluntary basis to specific kinds of offenders and is designed to enhance their prospects of reintegration into society. The scheme specifically assists inmates released without parole supervision, parolees who have completed their term of parole, offenders who have received a suspended sentence without probation, and people released by the procurator’s suspension of their case. The type of care provided includes food, lodging, clothing, medical care, counseling, and employment or welfare assistance.

Critical Issues

It should be noted that the Japanese correctional system is not devoid of problems. The government is mindful of several concerns and speaks fairly openly about them in their official reports. Some scholars also have commented on these issues (Archambeault and Fenwick, 1988; Johnson and Hasegawa, 1987; Yokoyama, 1994). Among the problems mentioned is the fact that the law regulating the prison system came into effect in 1908. As such, it contained serious defects with regard to modernizing the management of the correctional system. In particular, this involved timely issues related to rights versus restrictions that were placed on inmates. While some modifications had occurred, attempts at revision were usually slow.

In 1995, Human Rights Watch/Asia issued a highly critical report on the conditions in Japanese prisons. While it acknowledged that Japanese prisons are sanitary and that inmates are provided clean clothes and an adequate diet, it focused much of its attention on the

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rigid enforcement of prison rules and the restraints placed on human contact. To illus- trate, many prisoners live in single cells that are very small and sparsely furnished. The lighting in the cells is controlled from outside by guards and is only dimmed at night. All forms of communication with the outside world are controlled. For example, corres - pondence is read and may be censored, and if the censors are not familiar with the language, the materials may never be delivered. Legal visits are usually curtailed, and when they do occur, they are monitored by guards. The amount of time inmates are permitted to exercise outside is restricted usually to three times a week and usually for less than 30 minutes. Prisoners are told how and when to sleep; they are told how they must sit in the cell, especially during inspection; they are told when and where they can write; and they are taught how to march when they are permitted to leave their cells. Finally, the most common method of punish ment for a violation of any prison rule is to spend up to two months in solitary confinement.

Human Rights Watch/Asia acknowledged that the existence of rules in the course of regulating behavior is a common feature of Japanese society. As early as primary school, numerous rules have been established to control the behavior of students. More recently, the educational system has become a bit more flexible with regard to the importance of rules. This has not happened in the prison system. As such, prison policies appear for some critics to be devoid of any notion that prisoners have rights.

Following the revelation of some incidents of inmate abuse at the Nagoya Prison, in some cases fatal abuse, and often involving injuries sustained while inmates were manacled in solitary confinement, the government created a panel of experts on penal reform to investigate the concerns. The panel’s report led to the passage of the Act on Penal Detention Facilities and Treatment of Inmates and Detainees in 2005. This legislation incorp- orated revisions to the 1908 Prison Law that had been the subject of criticism for a number of years.

The Act on Penal Detention introduced several changes. For example, inmates are allowed to wear their own clothes and eat their own food when possible. It is also possible in some circumstances for an inmate to seek medical treatment from a doctor of his or her choice (Shinkai, 2010). Of particular interest for those concerned about the potential for human rights abuses, the legislation authorized the minister of justice to appoint mem- bers (a maximum of 10) to a Visiting Committee that will be established at each penal institution. This is a part-time position, and the appointment is for one year with the possibility of reappointment. Members of a Visiting Committee are authorized to seek information from the warden, to conduct visits to the penal institution, to interview inmates, and to make recommendations to the warden. The minister of justice is kept informed of the Visiting Committee’s work and the warden’s response to the Committee’s recom - mendations. A similar scheme is established for police detention facilities, with the local Public Safety Commission delegated the responsibility of appointing members to the Visiting Committees of detention facilities. In both instances the goal is to provide a degree of oversight of facilities that incarcerate people by permitting civilians to inspect correctional facilities and to entertain grievances of those incarcerated. Over time, some of the concerns mentioned earlier by Human Rights Watch might be raised by these Visiting Committees and lead to further reform.

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Another problem involves the age of most prisons. Many are older facilities that are in need of either reconstruction or demolition. The problem with tearing down an old facility is that it would have to be replaced with a new one—at a staggering cost. Economics is not the only consideration, however. Citizens are sensitive to the prospect of having such an institution located near them. If an existing facility is demolished and a new facility is constructed in a different location, the prison staff would have to relocate. This would require selling their residence, possibly moving to a remote area of the country, and placing their children in a school system inferior to the one that they left in a more urban setting. Because the Japanese place such a high premium on a quality educational program for their children, this could have a serious effect on prison staff morale.

Although the Japanese have established a fairly progressive system for recruiting, screening, and training correctional officers, a specific point of concern involves the nature of a demographic change that has been occurring among prison staff. At issue is the large number of staff presently retiring from the correctional service. This mass exiting from the workforce was to be expected; its roots date back to the close of World War II when prison authorities had to recruit a large number of people to work within the system.

These numbers are now at retirement age and are being replaced by younger people. This might be considered a blessing in some countries, particularly by those who consider it an excellent opportunity to reduce the generation gap between the staff and the inmates. That is not the case in Japan, however, because the prison population is aging. Therefore, the system is employing staff younger than the bulk of the inmates. Although the younger officers are capable of maintaining prison discipline and security, it is feared that they will not be as successful at counseling inmates. In this instance, a reversal of the generation gap works to a disadvantage in maintaining or implementing various rehabilitation programs for long-term prisoners.

In recent years, Japan has become a popular place for tourists. Although most visitors are law-abiding, those who throw caution to the wind may find themselves placed in prison. This creates a host of problems for the inmates and their keepers. The most obvious is the language barrier. There are additional problems, however, that include such issues as dietary needs, sleeping accommodations, and correspondence from home. The Japanese have designated three prisons to receive foreign inmates. Some staff can speak other languages at these facilities; Western-style meals are prepared; beds have replaced the traditional Japanese sleeping mat; and showers have been installed instead of the traditional bathing pools. Problems with correspondence and reading materials remain, however. Article 207 of the Act on Penal Detention may prohibit the distribution of such materials, and the prison system is simply unable to provide inmates with a free translation service. The absence of correspondence from the outside obviously compounds the unsettling experience of the foreign inmate.

Another management and supervisory concern for the prison system is the growing number of inmates who are members of either organized crime syndicates or gangs. These inmates represent a significant part of the total prison population. Their num- bers are estimated at more than 25 percent. Because they have been ingrained in their own subculture, these career criminals reject any effort to cooperate with the system’s

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rehabilitation pro grams. They also pose a constant threat to the maintenance of security within the prison.

Finally, as is the case with most prison systems, the Japanese are confronted with the problem of drug abuse inside the prisons. While the number of stimulant-drug offenders entering the prison system has increased significantly for both sexes, of particular alarm to the Japanese is the greater increase of such abuse among women. For the most part, the problems mentioned here are not unique to Japan; they can be found in almost any modern correctional system in the world today.

JUVENILE JUSTICE Among modern industrialized countries with a comparable population, the low level of criminality in Japan is enviable. Both Japanese experts and foreign observers have identified a number of reasons for this. They usually include the homogeneity of the population, the emphasis directed at family solidarity, the importance placed on the cultural trait of respect for authority, the extent to which transgressions of society’s norms are translated into a stigma of shame toward the violator, the low rate of unemployment, the stringent controls on firearms and drugs, the overall efficiency of law enforcement, the fact that the geographical size of the country reduces the likelihood of easy escape from the police, and the extent to which the public cooperates with agents of the criminal justice system. For the most part, these are social structural characteristics of the society.

Since the end of World War II, the degree of criminality among people under the age of 20 has undergone three distinct phases in which delinquent activity increased to serious proportions (Saito, 1993; Yokoyama, 1986). The level of juvenile crime reached its first peak in 1951. This was attributed largely to the aftermath of the war. The war not only had placed the country in a social and economic state of chaos, but also left a large number of poor and orphaned children who turned to crime in order to survive their personal economic hardships.

The second peak occurred in 1964. As was the case in many industrialized coun- tries, this increase was attributed to the large postwar baby boom generation reaching the delinquency-prone years. Of particular concern at that time was the rise in crimes of violence, intimidation, and injury. In 1965, the level of serious crime started a steady decline.

The third phase reached its peak around 1981. While violent offenses continued to decline, there were significant increases in theft, especially shoplifting, theft of bicycles, and cases of embezzlement. In Japanese law, embezzlement is used in two contexts. One, which is a familiar term employed in common law countries, is the misappropriation of entrusted property. A common example is the taking of money for personal use by a person who has been entrusted to serve as an administrator of an estate. The other use of the term embezzlement, which is significant in the context of Japanese crime and juveniles, is categorized as lost property embezzlement, that is, the taking possession of property that has been misplaced by the owner. A common example of this form of embezzlement can be the unauthorized use of an unattended bicycle. More than 98 percent of all embezzlement arrests involve lost property (West, 2005).

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involve counseling, health, or social services. The right to compensation deals with the loss or damage to property. Finally, there is the right to restitution for goods or property taken or damaged.

With regard to victim services, it has been suggested that the government should improve its funding for civil society organizations that assist with victim services. It is also recommended that research be conducted to identify best practices in providing such services, that minimum standards of service be established, and that effective methods to measure and regulate these services be created. Another suggestion is to explore the value of restorative justice with victims. The examples noted included family group conferences and victim–offender mediation. Finally, it is important to acknowledge that victimization can occur by the state while a person is in state custody. Of particular concern are the most vulnerable, that is children, the disabled, and the elderly (Frank, 2007).

CORRECTIONS In the new South Africa, two pieces of legislation are designed to regulate the correctional authorities. The Bill of Rights in the Constitution of the Republic identifies rights that were either not recognized or were disregarded under the apartheid regime. To illustrate, section 10 indicates that human dignity is a right that should be respected and protected. Section 11 proclaims the right to life, and as mentioned earlier, the Constitutional Court has ruled that the death penalty is unconstitutional. Section 13 prohibits people from being subjected to forced labor. Black prisoners were often forced to work during periods of incarceration, including in the private sector, such as on large farms during harvesting seasons.

It is section 12, however, that mentions a number of conditions to which prisoners were frequently subjected and that are now prohibited by the Bill of Rights. The Bill of Rights includes prohibitions against the denial of freedom without just cause, detention without a trial, torture, and cruel and inhuman treatment. Thus, like the police, courts, and law, the correctional system during the apartheid era was complicit in supporting the regime’s policies (Suttner, 2001).

The other piece of legislation that is significant is the Correctional Services Act (1998), which provides the regulations for the administration of the Department of Corrections in South Africa. The regulations encompass issues associated with prisons, community corrections, and parole.

Sentencing Philosophy

There are essentially four categories or rationales in sentencing: retribution, isolation, deterrence, and rehabilitation. The most prominent South African rationale tends to emphasize retribution often with isolation. The aim is usually to isolate the offender from the general public because of the harm and suffering caused by his or her criminal actions. Such a sanction may also include a fine and a period of correctional supervision. In light of the Constitution of the Republic of South Africa, capital and corporal punishments, which were common under the apartheid regime, are no longer permitted.

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The Criminal Procedure Act (1977) explains the types of sanctions available for persons found guilty of a criminal offense. Section 276 focuses on the sentence of imprisonment, and there are various types. For example, the most common form of imprisonment is a term that is determined by the court. High Courts can impose any period of imprisonment; regional magistrates’ courts are limited to a 15-year sentence; and district magistrates’ courts are further limited to a period of incarceration of no more than three years. Obviously, the nature of the crime will determine which court would adjudicate the case. If a person is deemed a dangerous criminal, he or she may receive an indeterminate sentence. Regional magistrates’ courts and High Courts can impose this sanction. A person who has been assessed as a habitual criminal may be sentenced to at least seven years in prison. Finally, life imprisonment is the most severe sanction.

A fine has long been the most common sanction imposed by courts in South Africa. Three factors influence the court’s decision to impose this sanction: imprisonment is not necessary, the offender can pay the fine, and the crime involved some type of financial gain for the perpetrator. Statutory provisions determine the range of fines imposed.

According to section 296 of the Criminal Procedure Act (1977), a commitment to a treatment center can be imposed either with another sanction or in lieu of any sentence. This sanction was created in light of the Prevention and Treatment of Drug Dependency Act (1992). Noninstitutional sanctions, such as correctional supervision, will be discussed later.

Organization and Administration of Correctional Services

The mission of South Africa’s Department of Correctional Services is to enforce the sentences of the courts by detaining offenders in a safe and humane manner. Moreover, they are tasked with focusing on correcting offending behavior through the promotion of social responsibility and human development. There are presently 242 correctional centers: eight are for women, 13 for youths, 130 for men, and 91 can accommodate women in a section. It should be noted that within women’s facilities, female offenders may keep their children with them until they reach the age of five years. Within this total number of correctional centers are two maximum-security private prisons. South Africa’s correctional facilities are overcrowded by about 35 percent of capacity. There are more than 150,500 inmates, of which almost 104,900 have been sentenced and approximately 45,700 have not been sentenced. Of these inmates, almost 147,200 are male and approximately 3,380 are female. South African correctional services have about 38,700 staff members, of which approximately 32,000 are correctional officers (Department of Correctional Services, Annual Report 2012–2013). Figure 4.4 illustrates the organizational and management structure of the South African Department of Correctional Services.

Department of Correctional Services

The Department of Correctional Services is a cabinet-level unit in the South African government. The minister of correctional services is appointed by the president and is a

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member of the National Assembly. How the correctional system is managed is largely controlled by the Correctional Services Act (1998) and subsequent amendments to that legislation. A significant feature of the Correctional Services Act is the importance placed on human dignity, the tenth right listed in the Bill of Rights. Chapter 2 of the Correctional Services Act addresses the notion of custody under conditions of human dignity. A long list of items and general policies follow, which includes the protocol for admitting a person to prison involving hygienic and medical procedures, accommodations, nutrition, clothing and bedding, exercise, health care, contact with outside community, development and support services, recreation, access to legal advice, and reading materials. The list also includes issues associated with the control of the inmate population, such as discipline, safe custody, searches, mechanical restraints, and nonlethal incapacitating devices.

National Commissioner of Correctional Services

The National Commissioner of Correctional Services is accountable to the minister of correctional services for the overall governance of the organization, its fiscal manage- ment, compliance with all statutory requirements, and codes of conduct and professional ethics. The commissioner is aided in these endeavors by several chief deputy commissioners for operations and management, that is, strategic planning, monitoring, evaluating, and coordinating project management; information management systems and information communications technology; corrections management; development and care of services and programs for offenders; corporate services, that is, human resource management; financial management and accounting; and liaison with the African Correctional Services Association (ACSA) and the Southern African Development Community (SADC). Operationally, correctional centers are located in one of six regions: Gauteng, Freestate and Northern Cape, Kwazulu Natal, Eastern Cape, Western Cape and Limpopo, and Mpumalanga and North West. Each region is administered by a commissioner.

Inspecting Judge

It has been mentioned that there are several state institutions that have been designed to support constitutional democracy in the capacity to receive and in some cases investigate complaints. One notable example that was mentioned was the Public Protector. Within the criminal justice system, reference has already been made to the oversight responsibilities

Department of Correctional Services

National Commissioner of Corrections Correctional Supervision and Parole Boards

Six Regional Commissioners

FIGURE 4.4 | Organization of the South African Correctional Services

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of the Independent Police Investigative Directorate and the Judicial Service Commission. The responsibility of oversight of the correctional services falls to the Inspecting Judge.

The authority and responsibilities of the Inspecting Judge were authorized in section 85 of the Correctional Services Act (1998). The holder of the office is appointed by the president and must be either a judge or a retired judge from either the Supreme Court of Appeal or a High Court. The Inspecting Judge is an independent office and is authorized to inspect prisons with the goal of reporting on the treatment of prisoners, examining the conditions of the correctional facilities, and identifying any corrupt or dishonest practices within correctional institutions.

The Inspecting Judge is authorized to appoint people with professional backgrounds in law, medicine, and criminology to assist with the work of the office. The Judge appoints full-time investigators, usually correctional staff seconded to the office and accountable to the Inspecting Judge. The Inspecting Judge may receive and investigate complaints that have been raised by the minister or commissioner of correctional services or from a visitor to a correctional facility. Following each investigation, a report is submitted to the minister of correctional services. Finally, an annual report is submitted to the president and to the minister of correctional services.

Parole

Most of the provisions in the Correctional Service Act (1998) were only gradually implemented. For instance, the changes that brought about the new parole system were not operational until October 2004. It is this statute that explains how parole is regulated. Prior to the passage of this legislation, parole boards were limited to an advisory function, but now they have an independent authority, at least in theory.

Parole is the conditional release of an inmate from a correctional center into the community. The offender is subject to various conditions. Among the stipulations that could be imposed are: reside at a fixed address, refrain from the use of alcohol or other drugs, refrain from associating with certain people, avoid contact and threatening a specific person, avoid certain places, seek and maintain employment, participate in various treatment or support programs, and if the court ordered, pay victim compensation.

Most inmates are eligible for parole consideration after having completed half of the court sentence or having served 25 years. A person serving a life sentence is considered for parole after serving 25 years, and a habitual criminal is considered for release after serving seven years. In most instances, the parole decision is made by the local parole board. There are two exceptions to this rule. If a person is sentenced to life imprisonment, the minister of correctional services ultimately determines the inmate’s eligibility. If a person is declared a dangerous criminal by a court at trial, the court would decide if the person should be granted parole.

There are 52 Correctional Supervision and Parole Boards in South Africa. Each board is chaired by a member of the community. This person, along with two additional community members, would receive training regarding legislation, the parole process, and policies associated with parole. A parole board would also have a vice chair and secretary who are

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staff members of the Department of Correctional Services. A board can also have members from the police and the Department of Justice and Constitutional Development.

Before a parole board meets to consider a specific case, a case management committee within the Department of Correctional Services has assessed the prisoner’s eligibility for parole consideration It is important to emphasize throughout this process that an inmate does not have a right to parole. Among the factors that are considered with each parole application is whether the inmate is suitable for parole. A person’s unsuitability would be based on factors including: did not comply or adapt to imprisonment, has behavioral problems, does not work or cannot comply with the conditions of release, and/or poses a danger to the community.

On the day of release, a quorum of at least three members of the local parole board, of which either the chair or vice chair is presiding, would entertain a parole application. Victims and other complainants may also be in attendance and be heard. Ultimately, the board makes its decision after considering any statements from the aforementioned parties and on reviewing a report on the inmate that addresses the type of crime committed; length of sentence; seriousness of the offense; conduct of the offender, especially in the correctional center; progress toward treatment; and the availability of a support system in the community for the inmate. When an inmate still poses a threat to the community, has failed to adapt to life in the correctional center, and has displayed an unwillingness to comply with the conditions of parole, he or she would be deemed unsuitable for parole irrespective of the length of time incarcerated.

The decision of the parole board is final, unless there is an objection from either the minister of correctional services, the commissioner of corrections, or the inspecting judge of prisons. The inspecting judge of prisons is a judge tasked with the responsibility to assure that inmates’ rights of equality, human dignity, security, and life, as spelled out in the constitution, are protected. This is especially the case for children under 18 years of age. The inspecting judge also appoints people from the community as independent prison visitors, whose principal responsibility is to deal with complaints from prisoners.

Returning now to the objection to a parole board’s decision by either the minister of correctional services, the commissioner of corrections, or the inspecting judge of prisons, the case would be appealed to the Correctional Supervision and Parole Review Board. This board would consist of a judge, a director or deputy director from the prosecutor’s office, a member of the Department of Corrections, a person knowledgeable about correctional service, and two representatives from the public. They would entertain the appeal, and a simple majority can affirm or set aside the decision of the local parole board. As an aside, the Correctional Supervision and Parole Review Board is actually composed of members of the National Council for Correctional Service, who are simply sitting in this capacity as a review board. The National Council for Correctional Service is a statutory body that is mandated to aid the minister of Correctional Services in the area of policy development for the correctional system. Earlier it was mentioned that if a person was sentenced to life imprisonment, the minister of Correctional Services would determine the person’s eligibility for parole. It is the National Council for Correctional Service that advises the minister on such cases (Moses, 2012).

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Finally, it should be noted that in 2012 the Department of Correctional Services began using electronic monitoring of parolees. Also in that year, the first halfway house for parolees was established in Gauteng province. It is a pilot program specifically designed for those parolees who are without a permanent address or lack support upon their release.

Noninstitutional Sanctions

In South Africa the preferred sanction appears to be imprisonment. Nevertheless, the follow - ing sanctions are designed to avoid incarcerating offenders in a correctional facility.

Correctional supervision or probation is an alternative to imprisonment. Whether an offender is suitable for this sanction is dependent on the person’s previous convictions, risk to the community, willingness to participate in various treatment programs, and the ability to monitor the offender in the community. Other requirements may involve requiring the offender to seek employment, perform community service, or pay compensation to victims; restricting the offender’s movement; prohibiting contact with certain people; and refraining from the use or abuse of alcohol or other drugs. Correctional officials would monitor the offender, which could be carried out by visits to the offender’s home or place of employment, and/or the offender may be required to visit the community corrections office. Correctional supervision orders are usually imposed for no more than three years.

Associated with the correctional supervision order are two other types of sentences: suspended sentence and postponed sentence. With a suspended sentence, as the term implies, the sentence is not executed as long as the offender agrees to certain conditions and does not violate those conditions. The usual conditions are the same as those for a person receiving a correctional supervision order. If the offender fails to comply with the conditions of a suspended sentence, that sentence could be revoked and the person would then serve the sentence in a correctional facility. A postponed sentence may be imposed with or without conditions. The person is released without a sentence and required to report to the court in the future. Neither the suspended nor postponed sentence can exceed a period of five years.

Committal to a treatment center is another noninstitutional sanction for those offenders who are suffering from alcohol or other drug abuse. This is issued when the court is of the opinion that the offender and the family would be best served by such an order. While detention in such a facility is for an indefinite period of time, the center must report a detention that is beyond a 12-month period.

With a community service order, the court determines the total number of hours and the period of time in which the requirement must be completed. Such an order requires a minimum of 50 hours of work, and the court may determine the minimum hours of service per month. The offender must be at least 15 years of age and willing to comply with the requirements of the order. Participants in such programs are monitored either by a probation officer or by NICRO.

Fines are often employed when the offense is minor. It is an order that the offender pay a sum of money to the state for the offense committed. In addition to the offense being minor, the offender must have the ability to pay the fine. Various statutes determine the amount of a fine. A court may defer payment of a fine, but this cannot exceed five years. Moreover, a court may order that a fine be paid in installments.

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Compensation and restitution orders are similar to civil judgments. Compensation orders are imposed on the offender to pay for damages to or loss of property in the course of committing a crime or to compensate the victim of a crime. Restitution orders are a method of compensating a person who buys an item from a thief and upon learning that the item was stolen returns it to the original owner.

NICRO

Founded in 1910 as the Prisoner’s Aid Association, the National Institute for Crime Prevention and the Reintegration of Offenders (NICRO) has long been concerned about issues associated with criminal justice reform, in particular human rights and prison reform. Located in all nine provinces, NICRO focuses its attention on providing services to both adults and children who are in conflict with the justice system. It is the only non - governmental organization that is attempting to provide a host of crime-prevention programs.

NICRO is noted for its work in the areas of diversion, noncustodial sentencing, and offender reintegration. With reference to diversion, it can facilitate community service and individual counseling for the person by avoiding a trial and a possible criminal record. The major distinction between a diversion order and a noncustodial sentence is that with the latter the offender was found guilty following a trial and was also considered at low risk of reoffending. The length of the sentence and the types of activities, such as community service and individual counseling, are essentially the same. Finally, offender reintegration is a service provided to inmates in prison. The aim of this program is to facilitate the inmate’s transition from prison back into the community. As such, this program begins before the inmate is released and continues for up to a year after release.

NICRO offers a variety of intervention programs. These include victim–offender mediation, individual counseling, intensive therapy, and community service (often with a charity or a local NGO). Other programs focus on the offender and family relationships, the offender as a parent, handling conflict, drug abuse and treatment programs, life skills, intimate partner violence, lifestyle choices, and preparing for and seeking employment. NICRO also offers programs that are specifically directed at youths and address such topics as staying in school, gender-based violence, crime, life skills, and high-risk behavior. Parents are encouraged to attend such programs.

Critical Issue

Many correctional systems in democratic countries suffer from the problem of over - crowding. This is a factor that is not new to South Africa. In fact, South African prisons were overcrowded before 1994, but unfortunately, they have become more overcrowded as a result of the country’s crime problem and the government’s decision to establish a more get-tough policy on crime and offenders. Moreover, young people are being sent to adult prisons because some juvenile prisons are experiencing severe overcrowding. This only enhances the difficulties confronting the adult correctional system.

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South Africa has the highest rate of incarceration among countries in Africa and is ranked fourteenth in the world. It is estimated that about 85 correctional facilities are at times between 175 to 370 percent over capacity. Part of the problem is associated with the fact that South Africa has one of the highest pretrial detention rates in Africa. As previously mentioned, of the total prison population of more than 150,500, 45,700 had yet to be sentenced, of which 44,710 were male and 990 female.

It should be further noted that approximately one-third of those awaiting trial were granted bail but could not afford the cash bond for release. One approach that has been approved to reduce some of the overcrowding has been to reduce the sentences of some of the inmates. Another approach that was implemented in 2012 was the establishment of 26 remand detention facilities for those awaiting trial or the completion of their trial. In addition, specific units were created for remand detention in 109 of the correctional centers.

The issue of overcrowding has created a number of problems within the correctional facilities. For example, the ability to offer programs and teaching facilities has been reduced. Adequate healthcare is largely lacking. It should also be noted that approximately 90 percent of the natural deaths in a South African prison are the result of HIV/AIDS (Sarkin, 2008). Presently, about 43 percent of the inmates have tested positive for HIV.

Another characteristic of correctional systems in some democratic countries is the prevalence of gangs and the role that they play in controlling the environment within a prison on a daily basis. This is a very serious problem in South Africa’s prisons, where highly organized criminal gangs dominate a variety of aspects of prison life. As is the case with general overcrowding, gangs add to the tension within correctional facilities and contribute to the increased stress imposed on the staff and correctional officers.

JUVENILE JUSTICE Section 28 of the Constitution of the Republic of South Africa is devoted to the rights of children. Central to these rights is the welfare of the child. Moreover, a child is defined as anyone under the age of 18. Among the rights cited in section 28 that relate to the criminal justice system are access to social services, protection from neglect and abuse, alternative care when removed from the family, access to legal counsel, and not to be detained unless as a last resort.

Prior to the passage of the Child Justice Act (2008) and its implementation, young offenders under the age of 21 could receive a sentence that could be imposed on adults. Of course, tradition called for a reduction in the severity of the sanction. According to the Criminal Procedure Act (1977), courts were authorized to place any person under the age of 18 who was convicted of any offense either to supervision of a probation officer, to be placed in the custody of “any suitable person,” or to be sent to a reform school. These court orders could be enforced for up to two years and extended another two years, but they could not be extended once the offender reached the age of 18. For those sent to a reform school, an extension could continue until the offender reached the age of 21.

The treatment of young people in the criminal justice system became a significant issue with the adoption of the new constitution. A major reason for this was that prior to the end of apartheid, and even after its legal demise, the correctional approach toward young

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CORRECTIONS The Russian people have been subjected to authoritarian governments throughout their history, whether it was the capricious and at times benevolent direction of the tsars or the planned and calculated leadership of the Communist Party. In both cases, the majority of Russian citizens displayed a good deal of respect for the power and authority imposed by their leaders. This attitude has been attributed to the fact that the Russian people are essentially patriotic and nonpolitical. This created a conformist attitude toward the state by the citizenry. Since 1917, deference was paid to the authority of the CPSU because the party was the principal interpreter of Marxism–Leninism, the ideology upon which the Soviet socialist system was based.

Irrespective of the country, there tends to be general agreement as to the purpose of a correctional system. It is designed and responsible for those individuals who have been sanctioned for failing to abide by society’s norms as articulated by law. It has been pointed out that the Soviet Union placed a greater emphasis on ideology than on law, while the Russian Federation is attempting to establish a society based on the rule of law. Thus, the present dilemma facing Russia is that of transforming the basis for the correctional system to a set of legal principles. Considering the history and present circumstances, a good deal of progress has been made in this endeavor.

The correctional system of the Soviet Union had been established primarily to handle two types of norm violators. There were those people who had violated “traditional” dictates of Soviet criminal law. The term “traditional” is defined here as crimes that are found in all countries; that is, offenses described either as street crime or white-collar crime. The other norm violators were political prisoners, referred to by Amnesty International as “the prisoners of conscience.” Depending on how one wants to interpret this category, most countries are likely to have some people who are depicted as “prisoners of conscience” or who view themselves as such. The Soviet Union appeared to have more political prisoners than would be found in most other countries. This was largely attributed to two factors. The first was the unwavering faith of the Soviet leadership in the Marxist–Leninist philosophy and the desire to have all citizens conform to its dictates. The other factor was the leadership’s ongoing policy objective of assuring the country’s internal and external security. Soviet corrections served as an important mechanism in the government’s attempts to enhance and assure security within the country.

Some experts were of the opinion that the introduction of glasnost would lead to a reduction of the number of people labeled political prisoners. They based this view on the fact that Gorbachev had made it known that he was committed to strengthening socialist legality. This was translated to mean that he favored ensuring greater social justice by providing citizens with more rights and legal safeguards. There were at least two tangible signs that this was occurring. In 1985, the Institute of State and Law of the USSR Academy of Sciences drafted for circulation and discussion the “Theoretical Model of a Criminal Code (General Part),” and in 1990, amendments were introduced to the Fundamentals of Criminal Legislation of the USSR.

It was stated earlier that correctional systems are designed and responsible for those people who have been sanctioned for failing to abide by society’s norms as articulated by

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law. However, law in the Soviet Union was not considered a guiding force behind the correctional system; rather, the system sought direction from the dictates of Communist ideology. Both the rationale and method of sanctioning an offender were tied to the ideology, as were the administrative goals and management objectives of the correctional system. With the establishment of the Russian Federation, efforts have continued to build on those initially introduced by Gorbachev to strengthen the role of law in society— including changes in the correctional system. In several instances, legislation has been adopted to rectify some of the long-standing concerns, while in other instances the lack of funding precludes implementation.

Sentencing Philosophy

The general part of the 1996 Criminal Code contains a section on punishment. Article 43 is devoted to the concept and purposes of punishment.

Punishment is the measure of State coercion assigned by judgment of a court. Punishment shall be applied to a person deemed to be guilty of the commission of a crime and shall consist of the deprivation or limitation of rights and freedoms of this person provided for by the present Code. Punishment shall be applied for the purpose of restoring social justness, and also for the purpose of reforming the convicted person and preventing the commission of new crimes.

As was the case during the Soviet era, Russia ascribes to multiple-purpose objectives for sanctioning, which include such standard rationales as deterrence and rehabilitation.

The Soviet efforts to achieve the sentencing rationales of deterrence and rehabilitation were clouded by the allegations that physical suffering was very much in evidence when a person was sentenced during the Soviet era, in particular when the sanction included a term of deprivation of freedom. Mindful of these criticisms, a draft of the Fundamentals of Criminal Legislation that was undertaken during the Gorbachev era suggested that the purpose of sanctioning should include deterrence and rehabilitation rather than punishment. This view has essentially been introduced into the Russian Federation with the 1996 Criminal Code.

By way of illustration and alluded to earlier in the section on law, the new code is guided by a series of principles. One is legality; that is, an act can be deemed criminal only if it is addressed by the present code. Another is equality, or the proposition that all people are equal before the law. A third principle is that guilt must be established in order to hold a person criminally responsible. A fourth principle is justness; that is, the punishment must correspond to or fit the crime. The last principle is that of humanity, which is specifically concerned with the purpose of sanctions and punishment. Article 7 of the code in which the principle is spelled out states: “Criminal legislation of the Russian Federation shall ensure the security of man. Punishment and other measures of a criminal-law character applicable to a person who has committed a crime may not have as their purpose the caus- ing of physical sufferings or the demeaning of human dignity.” While acknowledging that these principles will be significant and useful only if they are interpreted correctly and

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implemented in practice throughout the various stages of the judicial process, they do offer a new standard for administering justice in Russia.

With regard to the underlying philosophy behind Russian sentencing, it is useful to consider the fourth principle of justness to a greater extent. This principle is spelled out in Article 6 of the code. “Punishment and other measures of a criminal-law character applicable to a person who has committed a crime must be just, that is, correspond to the character and degree of social danger of the crime, the circumstances of committing it, and the personality of the guilty person.” It goes on to state that “No one may bear criminal responsibility twice for one and the same crime.” The central issue here is that judges are asked to consider the nature of the crime and the personality of the offender, which would include mitigating circumstances and aggravating punishment.

Among the circumstances that might mitigate the punishment are being a first-time offender, the age of the offender, pregnancy, being responsible for young children, being prompted by arduous living conditions or compassion, physical or mental compulsion, unlawful behavior of victim, rendering assistance to the victim, and acknowledgment of guilt. The circumstances that might aggravate the punishment include being a repeat offender; grave consequences of the crime; degree of participation; use of a weapon; degree of cruelty; prior collusion or being in an organized criminal group; the victim having been young, pregnant, defenseless, or helpless; and the offense having been motivated by hate based on nationality, race, or religion. Some of these factors were available and utilized by judges during the Soviet era.

As mentioned earlier in the section on law, the Russians make a distinction between punishments that are considered basic and those considered supplementary measures. The sanctions that can be imposed only as a basic measure include obligatory tasks, correctional tasks, limitation in military service, limitation of freedom, arrest, confinement in a disciplinary military unit, deprivation of freedom for a determined period, deprivation of freedom for life, and the death penalty. Two sanctions can be assessed as either basic or supplementary punishments; they include a fine and the deprivation of a right to occupy a determined post or to engage in a determined activity. Finally, a few punishments can be issued only as a supplementary measure; they include (1) the confiscation of property, or (2) the deprivation of a special, military, or honorary title; class rank; or State award. These sanctions will be explained in greater detail throughout this section of the chapter.

Of particular interest to students of comparative correctional institutions is the degree to which they differ under the administration of the Russian Federation from that of the Soviet era. A central feature of the Soviet correctional system was the tripartite rationale for sanctioning. It was based on the need to reform or reeducate the offender to the goals and purposes of socialist society and legality, to assure that the offender performed a useful service or socially significant labor while they were being punished, and to enhance the possibility that the person would comply with the law in the future and not commit new crimes. Various regimes had been developed to impress upon the individual the state’s commitment to establishing an orderly society with which all citizens were expected to comply. From the Soviet point of view, it was the task of reeducation that was—at least theoretically—the most significant rationale for sanctioning and thus central to each type of sentence.

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The extent to which Soviet corrections was shrouded in secrecy resulted in Western accounts being largely limited to those of Soviet émigrés who had personally experienced a term in a correctional facility. Because these people were often convicted of political crimes, and given the Soviet attitude toward such offenders, their prison regimen was harsher than that to which an ordinary street criminal might be subject. Both the regimen and the sincerity of the Soviet commitment to rehabilitation became highly suspect in light of these émigré accounts—at least in terms of the Western perspective.

As was suggested earlier, the purpose of sentencing in the Russian Federation has focused on deterrence and rehabilitation. It is important to note that in the Russian Federation rehabilitation is used in two contexts. On the one hand, the traditional use of the term refers to programs within correctional settings and more recently to the diversion of people from custodial to noncustodial sentences. On the other hand, rehabilitation has a special significance for former political prisoners. In the Russian context, it also means the restoration of a person’s rights, standing, and reputation, which were destroyed because the person was persecuted and labeled a criminal within the framework of the Soviet criminal justice system (Moskal’Kova, 1992). Although much effort has been made to correct this past injustice, there remain political prisoners who have not yet had their names and reputations restored.

The principles behind the 1996 Criminal Code are designed to offer a new standard in which to administer justice. Part of that new standard should be the transformation of the old correctional system of the Soviet Union to a more humane approach under the Russian Federation. While the legal principles mentioned earlier are clearly a start in the right direction, the state of corrections in Russia is presently in a crisis mode. The nature of that crisis is incorporated into a description of the organization and administration of the correctional system.

Organization and Administration of the Correctional System

Ministry of Justice

The organization and administration of the correctional system of the Russian Federation was initially the responsibility of the Ministry of Internal Affairs, as it had been under the Soviet Union. In late 1998, that authority was transferred to the Ministry of Justice. Although one can hope that a change in administration might facilitate an improvement in the state of corrections in Russia, it does not appear likely. Part of this has to do with external factors that are beyond the control of any ministry responsible for administering corrections. The central problem has been a lack of adequate government funding to support correc- tions. Given the breadth and depth of the economic problems confronting the country, this should come as no surprise. Another significant problem is the number of people who are either being sentenced to a period of incarceration or are being held awaiting trial. This is a reflection of the increased crime rate throughout the country. The abysmal economy is a contributing factor to these circumstances, as is the manner in which government bureau - cracies function in the country. A key feature of these bureaucracies, which is a holdover from the Soviet era, is an overreliance on centralized decision making. There is also a crisis

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in both the quality and quantity of personnel working in the field of corrections. All of this makes one skeptical that the state of corrections will soon improve in the Russian Federation.

In light of the fact that the Ministry of Internal Affairs had long been responsible for the central planning and policy development of the correctional system during both the Soviet era and the initial years of the Russian Federation, it is useful to review its tenure as that authority. The ministry has long been an important part of the government. As pointed out earlier, this ministry was also accountable for the militia (the regular police force) during the Soviet era, and it has retained that responsibility today. When it was responsible for Soviet corrections, it had an even more powerful role. As a ministry, it could issue legal orders, and as a member of the Council of Ministers, it could participate in the passage of legal decrees that influenced the administration of the correctional system. Because most legislation affecting corrections was seldom published for public consumption, this kind of law-making authority was quite significant. The actual implementation and administration of the correctional system was handled through the offices of the ministry at the union republic or regional level. The ministry’s original arbitrary legal authority was curbed significantly during the Russian Federation’s attempts to administer its institutions according to rules of law.

Because penal statistics were considered state secrets, Western experts were unable to acquire an accurate assessment of the number of penal institutions or inmates in the Soviet Union. Amnesty International, however, had identified at least 330 facilities in the course of their defense of Soviet political prisoners (1975). They indicated further that more than one-half of these institutions were located in the RSFSR, the largest of the Soviet Union’s 15 republics. As a result of the dramatic changes during and since the demise of the Soviet Union, information about the justice system of the Russian Federation is not considered a state secret.

Scholars have suggested that statistical data from Russia should not be interpreted as precise numbers but rather as approximations to be considered along with other information (King, 1994). It is in that spirit that the following data are offered. In 1991, the Ministry of Internal Affairs of the USSR reported holding 765,000 convicted prisoners in its various prison facilities and 200,000 people were also being held in detention, which meant that they had either not gone to trial or were awaiting their sentence. In 1992, the Ministry of the Interior for the Russian Federation reported 600,000 convicts incarcerated and another 150,000 awaiting either a trial or their sentence. Amnesty International has reported that there are approximately 1 million people incarcerated in Russian correctional facilities; of these, hundreds of thousands have not been sentenced but are awaiting trial. A more recent study indicated that the prison population peaked at more than 1 million in 2000. Since that time, the population declined, rose again, and has begun a steady decline, measuring about 865,000 in 2003 (see King and Piacentini, in Pridemore, 2005).

With regard to the number of facilities in operation, the Ministry of the Interior reported in 1992 that it utilized 981 facilities for its prison population. Of these, 922 are for adults and 59 are for young offenders. Among the adult institutions, 30 are for female inmates. Of the 59 facilities for young offenders, three are designated for female offenders. The facilities for the prison population are designated as colony settlements, educational labor colonies for juveniles, hospitals, labor colonies, prisons, and remand prisons (or jails).

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Finally, the most recent information from the government indicates that as of July 2013 there were more than 686,200 inmates held in various facilities, such as penal colonies, settlement colonies, prisons, colonies for those sentenced to life, and juvenile colonies. Included in the total number are the almost 115,300 people held at either remand prisons or remand wings in penal colonies. Women make up 56,700 of those incarcerated in penal institutions. There are 2,100 people held in the juvenile colonies who are between the ages of 14 and 19. All of these figures are reductions in the populations from the previous year. Finally, there are 876 correctional facilities for adults and 46 for juveniles, as well as 230 remand facilities.

Imprisonment

Before the various types of correctional institutions are explained, it is important to offer some general comments about the sanction of imprisonment in the former Soviet Union and in the Russian Federation. Imprisonment had been frequently utilized in the Soviet Union. It was estimated that one-half of all convictions—for approximately 0.5 million people annually—involved deprivation of freedom (Juviler, 1976). More recently, it was suggested that as late as 1983, between 70 and 80 percent of the defendants in people’s courts were sentenced to a term of imprisonment. High rates of incarceration were the order of the day and had always been so under the Soviet regime because the prison population was a significant feature in the Soviet economy. Nils Christie reminded us that the prison colonies “were among the best functioning parts of the old economy. Here was a captive work force, sober, well-ordered, working in two shifts in factories inside the same fence” (Christie, 2000). By 1988, however, the percentage of sentences to incarceration had dropped to about 30 percent (Butler, 1988). This change in policy was attributed both to glasnost and to the policy of strengthening socialist legality.

It should be noted that the term “imprisonment” is not used by Russians when describing forms of punishment in general and periods of incarceration in particular. Presently, an offender in the Russian Federation can be sentenced to a term of imprisonment or incarceration in one of three ways. The term “arrest” is used in the 1996 Criminal Code to describe a period of confinement from one to six months. This sanction cannot be imposed on people who have not reached the age of 16, or on women who are pregnant or have children up to the age of eight.

Deprivation of freedom for a determined period is another sanction associated with incarceration. The term ranges from six months to 20 years. The type of facility that an offender would be sent to would depend on the nature of the crime and aggravating and mitigating circumstances associated with the offense. The facility could be a prison, correctional labor colony, or colony-settlement. It has been reported that the average length of a sentence imposed by a Russian court is five and one-half years and that the actual time served is about three years (King, 1994).

The final sentence to a term of incarceration is deprivation of freedom for life. As Article 57 of the code indicates, this is a sanction imposed as an alternative to the death penalty for “especially grave crimes infringing life.” The code goes on to state that this form of deprivation of freedom “shall not be assigned to women, and also to persons who have

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committed a crime in age of up to eighteen years, and men who have attained at the moment of the rendering of judgment by the court sixty-five years of age.”

During the waning years of the Soviet Union, Gorbachev’s policy of democratization and his strategy of perestroika had a significant impact on the correctional system. The goal was basically to humanize some criminal legislation. These efforts were also assisted by the human rights movement within the country. Of particular interest to that movement was the issue of capital punishment. While the government advocated eliminating it for most economic crimes, human rights groups favored the total abolition of the sanction.

In public opinion polls taken in the late 1980s, it was suggested that 80 to 85 percent of the population opposed the complete elimination of the death penalty. When readers of Moskovskiye novosti were asked if they favored the abolition of capital punishment, approximately nine out of 10 opposed the idea on the grounds that they felt the death penalty deterred murders. Although the deterrent effect had not been studied in the Soviet Union, Soviet officials and scholars pointed out that they were familiar with the studies and debate in the United States. Many scholars and officials were convinced that the reform of socialist legality would inevitably lead to a reduction in the number of offenses punishable by death.

According to official records, 25,000 people were executed between 1962 and 1994. While 76 people were executed in the Soviet Union in 1990, only three people suffered this fate in Russia in 1993 and four in 1994. The president of Russia established a committee on clemency, which commuted death sentences to life imprisonment. This usually meant a 15-year sentence in a labor camp. In 1994, 150 people had their sentence commuted. It appears that those who failed to have their sentence commuted were convicted of serial murders.

The Russian government has altered the use of the death penalty. Article 20 of the Constitution of the Russian Federation states: “Everyone has a right to life. Pending its abolition, capital punishment may be established by federal law as an exceptional measure of punishment for especially grave crimes against human life, provided the accused is given the right to have his case considered in a trial by jury.” As mentioned earlier, the death penalty, according to the 1996 Criminal Code, is considered an acceptable sanction in exceptional cases and those instances include homicide, infringement on the life of a State or public official, and genocide. It is interesting to note that Article 59 of the code, which deals with the death penalty, prohibits carrying out the sanction on women, people who committed the crime before reaching the age of 18, and men who have attained the age of 65 at the time of sentencing. In addition, a petition through the clemency process can replace a death sentence with a sentence of deprivation of freedom for life or deprivation of freedom for 25 years. Finally, it should be noted that the Russian Federation suspended the use of capital punishment in 1997. While several notable politicians have expressed their opposition to the sanction and legislation has been introduced to abolish it, this has not happened as yet.

Types of Institutions

The Russian Federation has continued the Soviet practice of having two basic types of correctional facilities: prisons and correctional labor colonies (see Figure 5.4). According

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to the Principles of Correctional Labor Legislation, offenders are sentenced to prison when they have committed “heinous crimes” or are considered “particularly dangerous recidiv ists.” It should be noted that a remand prison is primarily used to hold offenders who are awaiting trial. Thus, its population and some of the management problems associated with that population are like those found in countries that use jails for similar purposes.

There is a multiple classification scheme for correctional labor colonies. The general regimen is designed for most first-time offenders and offenders sentenced to less than three years. The strict regimen is reserved for people convicted of particularly dangerous crimes against the state or who have previously served a term of deprivation of freedom. The special regimen is designed for offenders deemed particularly dangerous recidivists or persons for whom the death penalty has been replaced by deprivation of freedom.

Colony settlements are open institutions that are utilized for two kinds of offenders. Inmates who have displayed significant progress toward rehabilitation while in a correctional labor colony are transferred to colony settlements. In addition, people who have been found guilty of an act of negligence, rather than of specific intent, are usually sent to a colony settlement.

While the Soviets had not considered psychiatric hospitals part of their correctional system, the use of such hospitals for the rehabilitation of criminal offenders attracted an unusual amount of international concern. On the surface, the Soviet Criminal Code appeared to espouse a fairly modern and humanitarian view toward criminal offenders suffering from some form of mental illness. Article 11 of the general part of the code stated that a “person shall not be subject to criminal responsibility who at the time of committing a socially dangerous act is in a state of non-imputability.” According to various articles in the code, the court had the authority to commit a person to compulsory treatment in either a general or a special psychiatric hospital. In addition to the offender’s mental condition, the court was expected to take into consideration “the character of the socially dangerous act” and “the special danger” that the offender’s actions represented toward society.

At issue was the lack of procedural protections in the Soviet use of such facilities. Three principal concerns were expressed by professionals in the West, as well as by some members of the psychiatric profession in Russia. These concerns centered on the type of

Chief Administration of Corrective-Labor Institutions

Special

• hospitals • former staff

Ministry of Justice

Prisons

• normal • remand

Correctional Labor Colonies

• special regimen • strict regimen • general regimen • colony settlements

FIGURE 5.4 | Organization of the Correctional Facilities of the Russian Federation

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offenders sent to these hospitals, the arbitrary procedural safeguards that were spelled out in the code, and the lack of written regulations protecting the offender’s rights as a patient. In 1975, Amnesty International published a report, “Prisoners of Conscience in the USSR,” which offered one of the more extensive assessments of these concerns. Probably the most serious allegations leveled at the Soviets regarding their use of psychiatric hospitals had been the confinement of political and religious nonconformists (Slovenko, 1983). Amnesty International, among others, documented a number of cases in which people who did not follow the Communist Party’s line or who attempted to express their religious convictions in a manner that was deemed unacceptable by the authorities, found themselves labeled insane and thus subject to treatment in a psychiatric institution.

In addition to this concern was the ever-present fear that abuse by design or negligence was possible in these highly secretive facilities. It is important to stress that this issue had been raised not only by critics from the West but also by those within the country. Two pieces of legislation were passed during Gorbachev’s tenure that were designed to reduce the confinement of political and religious nonconformists. The Law on Public Associations (1990) and the Law on Freedom of Conscience (1990) acknowledged political and religious freedoms of expression.

Another concern regarding the use of psychiatric hospitals concerned the arbitrary, and at times contradictory, procedural safeguards granted a person declared mentally ill. For example, Article 188 of the Procedural Code stated that “[i]f a suspect is referred to a forensic medical institution in connection with an expert examination, he shall be granted the rights established by Articles 184 and 185 of the present Code.” Article 185 guaranteed the rights to:

• Challenge the expert • Request the assignment of an expert from among persons indicated by him or her • Present additional questions in order to obtain the opinion of an expert concerning them • Be present, with the permission of the investigator, at the expert examination and give

explanation to the expert • Become acquainted with the opinion of the expert

However, Article 184 stated that a “decree to assign a forensic psychiatric expert examination and the opinion of the experts shall not be announced to the accused if his mental state makes this impossible.” Thus, the rights established under Article 185 could— and allegedly had been—disregarded as a result of the statement in Article 184. A final procedural concern in such cases was the declaration cited in Article 407 that a judge may exclude a person diagnosed as mentally ill from attending the court hearing. While this rule may have had some validity for a person who truly was diagnosed insane, serious questions arose regarding the person’s rights if the diagnosis was based on political or religious convictions.

Finally, Amnesty International alleged that there was no code guaranteeing the rights of people sent to psychiatric hospitals, nor were there regulations explaining the conditions under which they would be detained. Amnesty International had already claimed that inmates’ rights were violated in prisons and labor colonies that purportedly had legal

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protections. They were concerned, based partly on cases they had collected, that there existed serious human rights violations in Soviet psychiatric facilities. Their examples focused on political and religious dissidents.

In an attempt to dispel some of the international concern over this issue and to strengthen socialist legality, the Soviets ratified a new law in 1988: the Statute on Conditions and Procedures for the Provision of Psychiatric Assistance. This legislation called for the Ministry of Internal Affairs and the Ministry of Public Health to determine appropriate medical care and assigned to public health agencies the responsibility for establishing procedures for retaining a person in a mental institution. It also assured that a person in need of psychiatric assistance would be guaranteed a legal defense with assistance of counsel and that the procuracy would be responsible for supervising the issuance of such an order. In addition, a person deemed in need of psychiatric assistance could appeal the decision to either a higher public health agency or directly to a court. A final feature of the new legislation was a criminal penalty for medical personnel who assigned a person known to be healthy to a mental institution. They could receive a sentence of either deprivation of freedom or of corrective labor for up to two years; they could also be deprived of the right to hold certain positions or engage in certain activities for one to three years. The Russian Federation has essentially turned its psychiatric hospitals over to the Ministry of Public Health.

Regimens

Our knowledge of the regimen in Soviet correctional facilities is based largely on information obtained from émigrés who at one time were incarcerated in these institutions. Many were political prisoners, and it was assumed that they were subjected to harsher treatment than most inmates. Nevertheless, they frequently found themselves serving their time alongside regular or nonpolitical prisoners (Anonymous, 1986; Feldbrugge, 1986).

Amnesty International’s report, “Prisoners of Conscience,” offered a useful synthesis of the conditions that existed in Soviet correctional institutions. The information presented in the report came as no surprise to students of Soviet government and society. Books and articles had already appeared that graphically illustrated the conditions in Soviet correctional institutions. The most notable were the literary works of Aleksandr Solzhenitsyn. Nevertheless, Amnesty International’s report served as a useful updated synthesis on the conditions.

Among the concerns raised in the report were the manner in which prisoners were generally maintained and the methods adopted to assure the achievement of the goal of reeducation. Apparently, these were two significant factors that distinguished the regimens in Soviet prisons as well as the various correctional labor colonies. In terms of general maintenance, Amnesty International alleged that the quality and quantity of food distributed to Soviet inmates was a serious concern. They also contended that food was often rotten and the daily consumption of calories was below the level required for active people, according to the World Health Organization. Soviet inmates were very active because of the hard labor that was an integral part of the regimen. Moreover, it had been reported that

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food parcels sent from family and friends rarely reached the inmates. In addition, the quantities of food decreased with the severity of the institutional regimen. This was of particular concern to Amnesty International, considering that the harsher regimens imposed a more strenuous form of labor that required more calories in the diet, rather than less.

The other major concern about general maintenance was the quality of medical care. Inmates on a low-calorie diet lost weight, which was often a contributing cause to their reduced work output. This in turn resulted in smaller portions of food being distributed as a form of punishment, which could cause malnutrition and serious medical problems for inmates. Amnesty International alleged that a common complaint among prisoners was poor medical care. This included inadequate medical facilities and equipment, as well as inexperienced doctors and unqualified medical assistants (the latter were sometimes drawn from the ranks of the inmate population).

Article 7 of the Principles of Correctional Labor Legislation identified four principal means by which the reeducation of inmates was achieved. They included “the regimen under which sentence is served, socially useful labor, political education, and general and vocational education.” Amnesty International, among others, offered some comments and criticisms on these methods. They were generally concerned about the compulsory nature of prisoners’ participation in the rehabilitation program and the lack of correctional personnel who were truly qualified to evaluate the inmate’s progress toward reeducation. Most correctional personnel were guards who had been recruited and trained by the Ministry of Internal Affairs. It had been suggested that many of the guards were unsuccessful police candidates who were seconded into this alternative career path. This had implications for their approach and commitment to their job as well as their methods of treating inmates.

According to the Soviet Constitution, all people had a duty to work. This tenet, which was an integral part of the Marxist–Leninist collective philosophy, was extended to the laws and rules regulating correctional facilities. Inmates were paid for their work based on its quality and quantity but were required to reimburse the institution for their food and clothing. The most significant concerns expressed by critics of the Soviet’s work requirements were the inadequate diet provided for inmates who must perform strenuous physical labor and the lack of safety precautions provided for inmates who were often assigned dangerous work.

Political education also was considered a principal means of reeducation. Apparently, the Soviets did not make serious attempts at the reeducation of political prisoners. It has been suggested that this was largely the result of inadequate instructors for the political education classes. It was not uncommon for a young, uneducated guard to conduct such sessions. This could lead to some rather awkward situations if the class was attended by highly educated dissidents who possessed a superior understanding of Marxism–Leninism.

Finally, general and vocational education programs were suspect. Corrective labor regulations mandated that inmates who had not attained a grade school education be given access to one, and a high school program should be offered whenever feasible. There was no information available as to the success of these programs. Vocational education was considered a failure, however, because inmates generally left correctional institutions without gaining appreciable employment skills.

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On the surface, Soviet correctional facilities had many of the same goals as Western penal institutions. Rehabilitation, work, and education were integral components of the correctional regimen—at least in theory. However, critics of this system were bothered by the methods employed to achieve these goals. Without regard for moral principles, it was relatively easy to conclude that the Soviet system was at least more cost-efficient than the systems found in the West. Indicators suggested, however, that the system was not more effective than those adopted in the West; recidivism, a principal index of effectiveness, was apparently quite high in the Soviet Union.

The concerns expressed about the regimens in Soviet correctional facilities were similar to those expressed in the West. They had been expounded upon by Soviet émigrés, Soviet writers in Russia, and Soviet scholars in the West. These concerns were already familiar to students of American corrections. Many of the Soviet correctional facilities were old. The correctional personnel were often undertrained and frequently they were people who had been rejected from service in the regular police forces. As a result, their commitment to and motivation for their profession was questionable. Although inmates were expected to perform useful labor while incarcerated, few actually acquired a marketable skill that could benefit them upon release.

Confinement in an institution often led to serious problems for inmates and staff. Isolation could completely destroy the inmate’s previous ties with society. In more recent years, this had been exacerbated by the passage of more liberal divorce laws. Inmates also became frustrated by the hopelessness of their situation. This could lead either to violence within the institution or to dangerous passivity (which aided the guards while the person was incarcerated but had negative consequences for the individual upon release). Moreover, the Soviets’ acknowledgment of high rates of recidivism had implications for the rehabili - tative programs devised for inmates.

Finally, inmates experienced additional frustrations upon release. These included the dissolution of marriages and the deprivation of residence permits where their families were located. Although local Soviet committees were expected to assist the offender in finding employment, it was not uncommon for them to be less than enthusiastic about placing former inmates in jobs within their districts. These kinds of frustrations often led former inmates to return to criminal activity, eventually increasing the recidivism rate further.

On the eve of the collapse of the Soviet Union, officials of the Ministry of Internal Affairs acknowledged that the conditions in some prisons were becoming more violent. Of particular concern was the increase in the number of assaults on prison guards. Ministry officials attributed this situation to three factors: (1) more violent forms of criminal behavior had escalated throughout the country; (2) a greater proportion of the prison population consisted of violent criminals; and (3) the greater proportion of violent inmates was also attributed to a decrease in the number of white-collar criminals sentenced to these institutions. This last factor was the result of a change in policy introduced as part of a reform effort to humanize the correctional system.

The principal concern expressed about Soviet prisons was the need to humanize the conditions under which inmates must live. The leadership of the Russian Federation indicated a desire to improve the system. During strikes and riots, inmates demanded that

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the conditions be brought up to international standards. While the Russian leadership is probably sincere in its desire to change several correctional policies, there is a basic fact of life in Russia that will either prevent or retard the implementation of strategies to correct some of the more serious problems: the fact that the entire country is in the throes of transforming its former centralized planned economic system to a market economy. Because so many law-abiding citizens are having a difficult time feeding and clothing themselves and their families during this period of transition, it is highly unlikely that funding will be provided to assist with the reformation of the prison system.

As a result, it is assumed that inmates will continue to be crowded into very old facilities. Many of these institutions are well over 100 years old and have not been modernized to even early twentieth-century standards. The staff will also remain undertrained. In fact, there have been instances over the past few years in which there was no money to pay the staff. In these circumstances, it follows that there is also no money to pay the inmates who are working in labor colonies.

The diet of the inmates remains poor. In the past, this was part of the planned prison policy, by which an inmate’s normal intake of food was reduced as a disciplinary measure. Today, the poor diet is attributed to the fact there is limited funding to purchase food for the prison system. This translates into meager food rations for the inmates. In recent years, prison officials have enhanced the ability of inmates to receive food packages from outside the system. They have also increased the number of visits an inmate can receive. Conjugal visits, limited to family members, have long been permitted in Russian prisons.

It has been pointed out that the health of people entering prison is often in a deteriorated state. Prison only accelerates this problem, which has led to a high incidence of tuberculosis (Mikhlin and King, in Matthews and Francis, 1996). The concern over this problem has been heightened by the fact that a multiresistant form of tuberculosis has been identified among inmates. Amnesty International, among others, has been reporting on this problem for several years. In its 2001 annual report (which covers the year 2000), Amnesty Inter - national reported that 100,000 inmates suffer from tuberculosis and approximately 10,000 die each year. It has also been suggested that about 30,000 inmates have the multiresistant form of the disease (Christie, 2000). The alarming rate at which tuberculosis has con - taminated the prison population is a serious concern. What is even more alarming are the predictions that it will spread rapidly throughout the general population as inmates with the disease are released from prison and infect others. In addition to these problems, the Russians have finally come to terms with the fact that illegal drug abuse and HIV/AIDS has become a serious concern in the general population and in particular with its prison population (see Butler, King, and Piacentini, in Pridemore, 2005).

Unlike some correctional systems in the world, Soviet—and now Russian—inmates work at real jobs in correctional labor colonies. They are paid wages similar to those outside the prison. In recent years, some industries even permitted paid annual leaves. However, the change in the economic system has created havoc in some of the Russian correctional labor colonies. In a centralized planned economy, the raw materials needed to produce goods in the prison industries were provided by the state. The goods produced in the labor colonies were then sold and distributed by the state. Under this system, the prison industries were

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not confronted with competition. Presently, some labor colonies are finding it impossible to compete in a market economy. Because they are no longer being subsidized by the state, many industries are idle. This situation has further enhanced the tensions associated within the Russian correctional system.

One study has indicated that some prison colonies have increased their efforts to barter with the local community. Bartering helps maintain the social welfare needs of both the prisoners and the staff of the facility. Moreover, it benefits the local community by often assisting local farmers or a light industrial venture. Of course, one concern is that successful bartering arrangements could lead to an economically self-sufficient prison that might in turn lead to the exploitation of the prison population (Piacentini, 2004).

It should be pointed out that several policies have been introduced in recent years in an attempt to humanize the correctional system. For example, inmates are no longer required to have their heads shaved; they can wear athletic clothing and running shoes; they can use their own bedding from home; they are permitted to wear watches; and restrictions have been lifted on purchases from prison stores, that is, assuming the store is able to stock items (which has been difficult).

It should also be noted that Russian prisons are housing more dangerous inmates than in the past. Most of the political prisoners of old have been released. Many white-collar criminals and petty criminals are diverted to other forms of sanction. It has been suggested by some accounts that more than 40 percent of the prison population consists of people convicted of murder, rape, or robbery. In addition, almost 45 percent are considered very dangerous, and many of these are mentally disturbed. The living conditions are already in a serious state of disrepair. If the living conditions remain the same or deteriorate further because of a lack of funding, the threat of violence and riot will inevitably escalate.

It is important to offer a further note on the living conditions of the various facilities. While the conditions listed here are common throughout the correctional system, the remand prisons, which hold people who are awaiting trial, are in a considerable state of neglect. It is important to remember that of the people incarcerated in correctional facilities, hundreds of thousands are being held in remand prisons. These are some of the older facilities within the correctional system. Various groups, among them Amnesty Inter - national, have commented on the overcrowded conditions. Rooms that were designed for 20 people now hold five times that number. The cells are pest-infested and lack adequate lighting and ventilation. Because of the severe overcrowding, there is a lack of beds and bedding. As such, people sleep in shifts. Food is inadequate and medical care infrequent. In addition to tuberculosis, a number of inmates suffer from various kinds of skin disease. Through grants of amnesty, the government has released some people from these appalling conditions. For the most part, these people had been sentenced or were awaiting trial for minor offenses. Unfortunately, because of the crime problem, the overcrowded space of the beneficiary of an amnesty is quickly filled by a new arrival awaiting trial.

Finally, with the establishment of the Russian Federation with its new Constitution and the creation of a Constitutional Court, inmates in the prison system have become em - boldened to a degree to complain about their plight. In 2010, the Moscow Center for Prison Reform indicated that inmates sentenced to a life sentence had several concerns. These

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included the lack of access to stationery, stamps, and envelopes; the inability to review laws, various legal decisions, and legal rulings, including those of the European Court; and the inability to obtain copies of documents on their cases. On this last point, inmates are entitled to receive such copies free of charge. It has been suggested that the courts are apparently not able to handle the volume of such requests (Moscow Center for Prison Reform, 2010).

The most recent inquiry into the state of Russian correctional facilities suggests that the problems cited above continue. Once again, the central reason for many of the institutional problems is a lack of resources caused by an inadequate budget. Although there has been a decline in the number of people incarcerated, overcrowding, access to drinking water, inadequate nutrition, medical shortages, sanitary and hygiene problems, and poor ventilation have been cited in condemnation by the European Court of Human Rights.

It is important to remember also that many of these facilities are located in Siberia and near the Arctic Circle, far from the inmates’ families, which makes visitations infrequent, if at all, and enhances the inmates’ sense of isolation and abandonment. Moreover, the cells are collective cells. Single cells are reserved only for high-security inmates or those placed in solitary confinement. As such, the overcrowding in the collective cells facili- tates the abuse, violence, corruption, and extortion within the correctional system (ACTA- France, 2013).

Parole

Inmates who were considered model prisoners were eligible for parole after they had served at least one-half of their sentence. In the past, this type of release was not available to certain types of offenders, but in 1977, parole opportunities were expanded. While the number of offenses that were deemed outside the parole scheme was reduced, new candidates were required to serve up to three-fourths of their sentence.

The 1977 legislation also created another type of conditional release that differed from the regular parole regulations. Under this scheme inmates could be released early, provided that they secured employment in the community as a method of furthering their socialization process. Requests for parole or conditional release usually were made by the administrators of the correctional facility. The actual granting of such a release was made by the court.

At the beginning of 1988, another change was introduced in the form of an experiment at 52 correctional labor colonies. A scheme was devised in which model inmates who produced beyond the norm of their work assignment would have days subtracted from their sentence. For example, three days would count as four, two as three, and in exceptional cases, one as two. Under this scheme the model inmates still had to serve at least one-third of their sentence, but they could then either be released or serve the rest of their sentence under an easier regimen. Authorities maintained that this was a practical illustration of perestroika being adopted in the correctional system.

One might expect that a society priding itself on its collective work ethic would endeavor to find employment for inmates eligible for release. However, experts have indi - cated that the local executive committees responsible for work placement were fre quently

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slow and at times unresponsive to the needs of parolees. Thus, the Soviet parole scheme suffered from the same impediment found in the West, that is, the public’s unwillingness to assist in the reintegration of the ex-offender.

Parole remains an option in the Russian Federation. The opportunities for parole have been expanded for first-time offenders, older inmates, inmates with disabilities, and inmates who had served in the defense of the country. According to the 1996 Criminal Code, a court determines if the original period of incarceration can be reduced and not have an adverse impact on an inmate’s efforts at reform. A person deprived of his or her freedom must serve a minimum of six months of his or her sentence. Other than that stipulation, Article 79 states that a convicted person must serve “(a) not less than half of the term of punishment assigned for a crime of minor or average gravity; (b) not less than two-thirds of the term of punishment assigned for a grave crime; (c) not less than three-quarters of the term of punishment assigned for an especially grave crime.” If granted, the court can place some standard restrictions on the individual. These include not changing one’s residence or place of employment or study without informing the authorities; avoiding certain places; when appropriate, undergoing treatment for such conditions as alcoholism or substance abuse; and providing material support for one’s family.

Noninstitutional Sanctions

For those offenders not sentenced to a term of deprivation of freedom, there are several noninstitutional sanctions available. In some cases, a person serving time in prison or in a correctional labor colony may also receive a noninstitutional sanction. Usually, the offender meets the obligations of the noninstitutional sentence upon release from a correctional facility.

The 1996 Criminal Code introduced a new noninstitutional sanction called obligatory tasks. A more familiar term to describe this sanction is community service. A convicted person performs work during his or her free time through an agency of local government. The amount of time that a person must complete is between 60 and 240 hours. Offenders are not permitted to perform more than four hours of community service per day.

Correctional tasks make up another sanction that is served at the offender’s regular place of employment. The sanction can be imposed for a term of two months to two years. The court further orders that part of the wages of the offender be deducted and paid to the state. The amount can range from 5 to 20 percent of the person’s gross pay. In addition, the time served while working under this sanction is not included when determining the person’s eligibility for vacation time, benefits, salary raises, and job seniority. An offender who displays exemplary work habits may gain some of these benefits back if the local organization petitions the court to do so.

Confiscation of property entails the transfer of all or part of the offender’s property to the state. Only items that are not deemed necessities for the offender and his or her dependents are included in this sentence. This sanction is limited to crimes against the state and certain kinds of mercenary crimes identified in the special part of the Criminal Code.

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Limitation of freedom involves sentencing a person to a halfway house. There is a degree of confinement, but the person is not isolated from society. It is a sanction designed for the first-time offender. If the person was convicted of an intentional crime, the terms of the sentence would be between one and three years. If the person was convicted of a crime through negligence, the terms of the sentence would be between one and five years.

Fines are designated for specific offenses under the special part of the Criminal Code. In imposing this penalty, the court considers both the gravity of the offense and the offender’s ability to pay. Deprivation of the right to occupy certain offices or to engage in certain activities may be imposed for a period of one to five years. This form of sanctioning implies that the offender’s environment is a factor that has encouraged or enabled the person to commit a specific type of crime.

If a person is convicted of a particularly serious crime, the court can also consider the personal history of the individual and deprive them of special, military, or honorary titles; class rank; or a State award that they had previously earned. With regard to the military, the Criminal Code provides two sanctions that specifically address military service. A limitation in military service authorizes a deduction of 20 percent in military maintenance of convicted service personnel. This deduction is paid to the state for a period of between three months and two years. In addition, the person cannot be promoted in office or rank during this time period. Another military sanction is confinement in a disciplinary military unit for a period of between three months and two years.

JUVENILE JUSTICE In the past, the Soviets placed a good deal of blame for their crime problems on bourgeois influences. Both before and after the 1917 Revolution, they argued that there were whole generations tainted by capitalism and that these people passed on those beliefs, motives, and drives to their children. Hence, crime existed because the remnants of capitalism were too pronounced to be eradicated in such a short period of time. Moreover, a number of historical events—largely beyond the control of the authorities—further enhanced the prospects for the commission of delinquent acts. Famines in the early 1920s, late 1920s, and early 1930s caused a large number of people, including orphans, to move to urban centers. The large number of orphans was largely the result of World War I, the civil war in Russia, and the Great Depression. World War II not only increased the orphan population but also was a factor in the post-war baby boom, which occurred in most countries and has been identified as a variable in the rise of juvenile crime in the early 1960s.

Despite the fact that most Russians had never lived in a capitalist society, the Soviets did not totally abandon their claim that their problems of crime could be attributed to capitalistic influences. For several years, they alleged that the West had waged a form of psychological war on their young people by exposing them to Western decadence. Foreign news and entertainment broadcasts and the availability of Western literature and material goods on the extensive Soviet black market were identified as the principal sources of this type of attack. Although the Soviets continued to blame capitalist influences for their level of crime, they gradually admitted that there were factors indigenous to the Soviet regime

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level within the hierarchy. Because such cases are handled through the administrative regulation process, the offender does not have any right of appeal through the regular courts.

CORRECTIONS In the previous section, brief mention was made of the important role that two schools of thought—the Confucians and the Legalists—played in the evolution of law in China. The philosophical position of both schools also influenced Chinese attitudes about the purpose of sanctions and the development of a penal system. The Confucians espoused a belief that humankind was essentially good or capable of becoming good. Thus, humans are malleable and have the capacity to reform their own behavior. The Legalists were of the opinion that harsh laws were necessary in order to deter people from committing wrong, which was likely because humans basically act out of self-interest. For those who transgressed the law, punishment was an appropriate consequence. Throughout the long history of the country, the notions of rehabilitation and punishment played dominant roles in Chinese penology.

From ancient times through most of the imperial age, the “five punishments” were employed as the principal legal sanctions. The first and second punishments were a beating with light bamboo and a beating with heavy bamboo. A beating was administered on the buttocks. The seriousness of the offense determined the number of blows, which were administered in units of 10. The third punishment was penal servitude, which called for the convicted person to be removed from the community and transported to another province where he or she would perform hard labor for a fixed period of time. The range of time was generally one to five years. This sanction also included several blows with heavy bamboo. The fourth sanction was exile for life. The length of the distance that the person was exiled from his or her family and community determined the severity of the sanction. Like people sentenced to a period of penal servitude, those in exile were required to work. It should be noted that there was also a punishment known as military exile. It was initially used to punish soldiers found guilty of crime. They would be sent to a distant military base for a lifetime of military service. Eventually, this form of exile was imposed on civilians as well. The fifth punishment was death, which was administered either by strangulation or decapitation.

It should be pointed out that while prisons existed in China during ancient times, they were not used for imposing punishment in the strict legal sense. Instead, prisons were utilized for holding people who were either being detained before trial or were awaiting the final execution of their sentence. Although a fine could be imposed, and often was, it did not constitute a punishment in its own right. Rather it was considered a substitute punishment. Fines were frequently employed for certain types of offenders, including women, people over 70 years of age, children under 15 years of age, government officials, and a select group of other people. Fines were often used for certain kinds of offenses, in particular accidental injury or death (Bodde and Morris, 1967).

With the demise of the imperial era, contemporary ideas about prisons were introduced in the early twentieth century. When the Chinese Communists introduced a socialist ideology and practices to the country, the influence of the Soviet Union became evident.

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Nevertheless, the link with the past was not broken. Whereas criminal justice agents of previous eras punished transgressors of the ancient legal order established by the Legalists, agents of the modern justice system punished transgressors of the new legal order that was being created by the Chinese Communist Party.

At the heart of socialist ideology is the goal to transform the very structure of society into a socialist democracy. Within that context, elements of the Confucian philosophy remained evident and in some cases complemented the socialist agenda. For the Confucians, individuals had an obligation to their family and community; they were expected to assist in maintaining social harmony for the good of the cosmic order. With the advent of the People’s Republic of China, people were expected to assist in the creation of the dictatorship of the proletariat. Those who declined to support the socialist agenda or attempted to wreak havoc on the social fabric were labeled either deviant or counterrevolutionary.

Sentencing Philosophy

Since ancient times, Chinese penology emphasized rehabilitation and punishment as rationales for sanctioning offenders. These two objectives continue to dominate the approach to sentencing under the government of the People’s Republic of China. To understand this policy in action, it is important to appreciate how deviance is perceived and addressed. The primary goal of the Chinese Communist Party is to maintain the present social order and the Party’s place as the principal source of power. Any attempt—be it political, social, or economic—to alter the status quo is considered a form of social deviance unless it has been authorized by the Party. This position is clearly stated in Article 2 of the Criminal Law.

The aim of the Criminal Law of the People’s Republic of China is to use criminal punishments to fight against all criminal acts in order to safeguard security of the State, to defend the State power of the people’s democratic dictatorship and the socialist system, to protect property owned by the State, and property collectively owned by the working people and property privately owned by citizens, to protect citizens’ rights of the person and their democratic and other rights, to maintain public and economic order, and to ensure the smooth progress of socialist construction.

Deviant behavior has often been attributed to limited educational opportunities or to an inadequate appreciation of the dangers to the socialist agenda that are posed by non - conformist behavior. As such, a sentence that includes a period of incarceration auto - matically requires that the offender work, if the person is able. Traditionally, forced labor has been viewed from the Chinese perspective as helping the socialist society with some of its production goals. It is also based on the belief that deviant behavior can be curbed if the offender accepts education and reform through labor. In this context, deviant behavior is distinguished from counterrevolutionary behavior (or endangering state security, the term that recently replaced it). The latter form of behavior is usually associated with political crimes against the socialist system. One generally cannot characterize these offenders as having been deprived of educational opportunities.

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In the section of the Criminal Law devoted to sentencing, the issue of leniency is rather prominent. The section begins with Article 61 stating: “a punishment shall be meted out on the basis of the facts, nature and circumstances of the crime, the degree of harm done to society and the relevant provisions of this Law.” Article 63, however, authorizes two approaches in which the offender could receive a milder sentence.

In cases where the circumstances of a crime call for a mitigated punishment under the provisions of this Law, the criminal shall be sentenced to a punishment less than the prescribed punishment.

In cases where circumstances of a crime do not warrant a mitigated punishment under the provisions of this Law, however, in light of the special circumstances of the case, and upon verification and approval of the Supreme People’s Court, the criminal may still be sentenced to a punishment less than the prescribed punishment.

These passages were designed to encourage the offender to embrace the rehabilitative regimen that the court imposes at sentencing. Moreover, the development of labor reform institutions and the creation of policies of reeducation through labor were intended not only to punish but also to reform individuals who were at odds with the socialist agenda.

The Chinese have established two categories of sanctions: principal punishments and supplementary punishments. Principal punishments include public surveillance, criminal detention, fixed-term imprisonment, life imprisonment, and the death penalty. Public surveillance will be discussed in the subsection devoted to noninstitutional sanctions. Criminal detention is a period of incarceration for not less than one month but no more than six months. Criminal detention centers are similar to jails in that they are found at the local level and are administered by local public security agencies. A fixed-term imprison - ment is for a period between six months and 15 years. Fixed-term and life imprisonment are served in correctional facilities that are administered by the Ministry of Justice. Finally, the death penalty can be ordered in two ways. One calls for the immediate execution of the judgment; the other permits a two-year suspension of the sentence. The death penalty will be a topic of discussion in the subsection titled “Critical Issues.”

Supplementary punishments consist of fines, the deprivation of political rights, and the confiscation of property. These sanctions can be imposed independently of the principal punishments. Moreover, an offender could receive a civil compensation order from the court. Article 99 of the Criminal Procedural Law indicates: “A victim who suffers from property losses due to the defendant’s criminal offenses shall be entitled to bring an incidental civil action during the criminal proceedings.”

Article 101 further states: “A people’s court, in hearing an incidental case, may conduct mediation or make a ruling or judgment according to property losses.” It should be noted that the mediation process has long been a feature for resolving disputes in China. It was particularly useful during those periods when the formal justice system was not functioning. Today, there are 811,000 mediation organizations in China. In 2011, they resolved more than 8.9 million conflicts (Anonymous, 2012).

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Organization and Administration of the Correctional System

Ministry of Justice

A Bureau of Prisons was established in 1949 and placed under the administrative control of the Ministry of Justice. In 1951, however, this responsibility shifted to the Ministry of Public Security. The Ministry of Justice renewed its authority over the correctional system in 1983. The ministry is assisted in this endeavor by other government departments, such as civil affairs, education, labor, and public security. The minister of justice is a member of the State Council. The actual construction of a correctional facility is the responsibility of local government at the provincial and municipal level and is based on need.

According to the International Center for Prison Studies, China’s prison population was 1,701,344 by the middle of 2013, based on information provided by the Ministry of Justice. Of these, 5.9 percent were female. It was further reported that around 250,000 people were classified as pretrial or remand prisoners held in detention centers.

Procuratorate

Previous sections have pointed out the important role that the procuratorate plays in the administration of criminal justice in China. The authority of the procuratorate does not end with the prosecution of offenders. According to the Organic Law of the People’s Procuratorate of the People’s Republic of China, the procuratorate exercises “supervision over the execution of judgments and orders in criminal cases and over the activities of prisons, detention houses and organs in charge of reform through labor, to determine whether such execution and activities conform to the law.” In the event that the procuratorate identifies an error in the execution of a judgment, it notifies the appropriate agency so the problem can be corrected. If a correctional facility is in violation of a law, it is the responsibility of the procuratorate to inform the facility of the matter and oversee its efforts to comply with the rules and regulations.

Types of Institutions

There are four kinds of correctional facilities for adult offenders, but only two of them are the responsibility of the Ministry of Justice (see Figure 6.4). Prisons are used to hold the more dangerous inmates, which include people with a suspended death sentence, a life term, or a fixed term of more than 10 years. These inmates are not considered suitable for work outside a closed facility. Offenders who have been found guilty of endangering state security (the political prisoners) may also be sent to prison. The number of people housed at each prison varies depending on the size of the complex and where the facility is located in the country (Seymour and Anderson, 1999).

The other type of correctional facility that is the responsibility of the Ministry of Justice is the reform-through-labor institution. These institutions are designed for inmates who are not considered a risk outside the facility and who have been sentenced to at least one year of imprisonment. Political prisoners may also be a part of the population of this kind of institution. Between 3,000 and 5,000 inmates are housed at this type of facility.

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Criminal detention centers are the administrative responsibility of local public security agencies. These facilities are similar to jails. They house people who are awaiting the sentence of a court or who have been imprisoned for less than two years. Reeducation- through-labor camps make up the fourth kind of correctional facility for adults. They are administered jointly at the local level by a commission represented by the department of civil affairs, the department of labor, and the public security agency. The role of these institutions in the Chinese justice system will be explained in the subsection on administrative penalties.

Regimen

Correctional facilities are organized for the most part along the lines of the military. Inmates are assigned to a squadron that consists of 10 people. The squadron works, sleeps, eats, and studies together. This approach is based in part on the view that inmates will monitor and control one another. Inmates are permitted short visits once a month from relatives; they also can send letters. Relatives may bring or send food and other items, but this is controlled by the authorities at the facility.

The principal piece of legislation that governs the correctional system is the Act of the People’s Republic of China for Reform Through Labor (1954). The purpose of the correctional system is explained in Article 1: “This Act is adopted specially in order to punish all counterrevolutionary and other criminal offenders and to compel them to reform themselves through labor and become new persons.” Thus, the two rationales of punishment and rehabilitation are placed in the context of work.

The nature of work performed by inmates is largely dependent on the location of the correctional facility. Agriculture and industry, along with the construction of railways, roads, and irrigation projects, have been utilized since the inception of the system. As was mentioned earlier, this system of forced labor is supposed to help society achieve various production goals, while reducing the cost to the country as a whole. It has been suggested that the economic output of the various prison industries does not make a significant contribution to the gross domestic product (Seymour and Anderson, 1999).

Local Commissions of Reeducation Reform

Reeducation-Through-Labor Camps

Local Public Security Agencies Criminal Detention Centers

Prisons

Reform-Through-Labor Institutions

Ministry of Justice Bureau of Justice

FIGURE 6.4 | Organization of Chinese Correctional Facilities

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According to one source, certain general work principles apply to inmates sentenced to incarceration. They include: (1) that all inmates are expected to work, (2) that all inmates must meet or surpass production quotas, (3) that all inmates must obey orders, and (4) that those who fail to maintain or develop a proper work habit will be punished (Wu, 1992). Today, inmates work at least an eight-hour day and possibly longer, depending on the nature of the work or season of the year.

The country’s move to a market economy had an adverse impact on the nature of work in prisons. The goods produced in prisons were long considered shoddy, and it was increasingly difficult to find markets for such products. The inmates’ skills were often low- level or nonexistent, and the machinery was generally antiquated, which contributed to poor product quality. In addition, the government is no longer providing the raw materials for production. Thus, prisons must purchase the materials on the open market. Prison farms have lost the limited profitability that they once possessed. In addition, the number of jobs is smaller than the number of inmates seeking work. In the past, prisons were often able to assist inmates in securing employment upon release. This is increasingly difficult to accomplish as both the new private sector and the traditional public sector seek more skilled workers (see Dutton and Zhaugrun, in Bakken, 2005).

In the past, the three daily meals were often designed just to keep inmates alive. The diet was poor and reference was made to the similarities between it and that found in the gulag of the former Soviet Union. Breakfast was essentially corn gruel and a piece of salted carrot. Lunch and dinner consisted of cabbage soup, which sometimes included a meager portion of pork fat or vegetables cooked in water. The soup or vegetables would be accompanied by either corn bread or a small portion of steamed rice (Xiguang and McFadden, 1997; Zongren, 1995). It has been suggested that today the food is similar to that available at regular farms and factories. The difference is that the ration is decreased if the inmate fails to maintain an adequate production level (Wu, 1992). Moreover, important sources of protein, such as meat and eggs, are still not included in the regular diet of inmates. Such products are permitted in packages sent from relatives, however.

The daily schedule also calls for a specific period of time for study in the evening. Prisoners are expected to participate in the political education program at the facility. From the 1950s to the mid-1970s, this often consisted of studying the writings of Mao Zedong. Such activities are associated with rehabilitation. In order to become rehabilitated, the inmate must proceed through a three-step process that consists of acknowledging one’s guilt for the offense committed; criticizing one’s behavior as being antisocialistic, which is a form of repentance; and submitting to authority by obeying the rules and regulations of the correctional facility (Wu, 1992). Each correctional facility has at least one correctional officer who is trained to serve as a political instructor for the camp. It is the political instructor who usually determines if and when an inmate would be permitted an early release from the facility. The decision is generally based on the inmate’s participation in the political education program and general work habits.

Under Deng Xiaoping’s leadership, and because of the importance placed on economic development, vocational training was introduced in many correctional facilities as a method of not only providing labor but also of enhancing the offender’s efforts at becoming a

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productive member of society upon release. Unfortunately, many of the work skills acquired while incarcerated are not in demand outside the facility. Elementary- and high-school- level programs have also been introduced through the Ministry of Education, and some inmates have participated in correspondence courses with universities (Zhou, 1991).

Parole

Inmates have an opportunity to qualify for parole. Those serving a fixed term are generally eligible for release after serving one-half of the sentence. Those incarcerated for life are eligible after completing at least 10 years of the sentence. According to Article 81 of the Criminal Law, “No parole shall be granted to recidivists or criminals who are sentenced to more than 10 years of imprisonment or life imprisonment for crimes of violence such as homicide, explosion, robbery, rape and kidnap.”

Eligibility for parole is based on an inmate’s expression of repentance and the authorities’ view that he or she is not a danger to society. The period of parole for a person serving a fixed term would equal the time not served in a correctional facility, while the period of parole for an inmate serving a life sentence is 10 years. Certain conditions can be placed on an inmate released on parole. They include observing laws and regulations, sub mitting to supervision, reporting on one’s activities, observing the rules regarding contact with specific individuals, and obtaining permission to leave the immediate juris - diction or to change one’s residence. Failure to abide by these provisions can lead to a revocation of the parole. Inmates on parole are supervised by the local public security agency.

Noninstitutional Sanctions

Public surveillance is the Chinese version of probation; it is imposed on those offenders who do not require a period of incarceration. The terms of the sanction are similar to those imposed on inmates released on parole. The offender also reports to the local public security agency periodically. If an offender is employed, his or her work unit would be informed of the sanction and thereby expected to assist in monitoring the offender’s activities. This sanction may be imposed from a period of three months up to two years.

A suspended sentence can be awarded to a defendant sentenced to a criminal detention or to a fixed sentence that does not exceed three years. This is contingent on the person demonstrating a sufficient degree of repentance and is not considered a risk. If the suspension is for a criminal detention, the term of the suspension is between two months and one year. If the suspension is for a fixed sentence, the term is from one to five years. Either the local public security agency or the offender’s work unit would monitor the person’s behavior while the suspension is in effect.

A fine is another noninstitutional sanction. Article 52 of the Criminal Law states that “The amount of any fine imposed shall be determined according to the circumstances of the crime.” Fines can be paid in installments but must be paid within a specific time limit. Depending on the circumstances, the law permits a reduction or cancellation of a fine.

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Depriving a person of their political rights refers to several rights. According to Article 54 of the Criminal Law, they include:

1. the right to vote and to stand for election; 2. the rights of freedom of speech, of the press, of assembly, of association, of

procession and of demonstration; 3. the right to hold a position in a State organ; and 4. the right to hold a leading position in any State-owned company, enterprise,

institution or people’s organization.

Any person who is convicted of endangering national security or who is found guilty of seriously undermining public order offenses receives this sanction as a supplementary punishment. The period of time in which this sanction is enforced usually ranges from one to five years. If a person is sentenced to life imprisonment, he or she would be deprived of these political rights for life. In the event this sanction is imposed as a supplementary punishment to public surveillance, the time frame in which an offender could be deprived of his or her political rights would correspond to the period of public surveillance. Finally, confiscating an offender’s property is limited to personal property. Courts generally honor the requests of creditors before executing this sanction.

Administrative Penalties

It was mentioned in the section on police that public order offenses are handled exclusively by the police. They are part of the informal justice system because these offenses are not part of the official crimes reported to the police and thus do not become part of the official criminal statistics, although data is collected on the volume of such offenses. The informal system allows the police to detain, arrest, and try and impose sanctions on people, and avoids the formal criminal procedural process of a prosecution and trial. This clearly illustrates the public security agencies’ wide-ranging powers to enforce laws and maintain public order. As noted, this authority was given legal force initially in 1957 with two pieces of legislation.

The Act for Security Administration Punishment authorized public security agencies to impose fines and detain people without the benefit of a trial. This legislation is presently referred to as Regulations of the People’s Republic of China on Administrative Penalties for Public Security.

The kinds of activities that are subject to these regulations include disturbing public order, carrying a dangerous weapon, violating safety regulations, minor assaults, break- ing and entering, theft, violating traffic regulations, prostitution, gambling, drug violations, and the production and distribution of pornography. When imposing a sanction on a person who has violated some aspect of the regulations, three types of penalties are available to public security agencies. They include: (1) a warning, (2) a fine of up to 2,000 yuan, or (3) detention for up to 15 days. The objective of the sanction is to combine educa - tion with punishment, which has been a central feature of the Chinese correctional system for some time.

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The regulations also call for the confiscation of items used in the commission of these activities. If the actions of an offender cause an injury, the offender is expected to compensate the victim or pay for any medical expenses. According to Article 8 of the regulations, “if the offender is not an able person or is a person of limited ability, unable to compensate for the loss or bear the medical expenses, his guardian shall make the compensation or bear the medical expenses according to law.” Public security agencies are authorized to reduce the penalties if the person is between the ages of 14 and 18. Young people under 14 years of age are exempt from punishment but can be issued a reprimand. Moreover, the young person’s guardian is expected to impose restrictions on the offender’s daily activities.

The other piece of legislation enacted in 1957 was the Decision of the State Council Relating to Problems of Reeducation Through Labor. It was amended in 1979 with Supplementary Regulation on Reeducation Through Labor. The 1957 Decision had two purposes; it was “a measure of a coercive nature for carrying out the education and reform of persons receiving. It is also a method of arranging for their getting employment.” The education and reform are carried out at labor camps. Like the previous legislation, the process of determining who needs education and reform is carried out without the benefit of a trial. In addition, like the correctional system, the establishment of labor camps is not the responsibility of the central government. Local government at the provincial or municipal level determines whether there is a need for such a facility.

According to the 1957 Decision, reeducation through labor was designed “to reform into self-supporting new persons those persons with the capacity to labor who loaf, who violate the law and discipline, or who do not engage in proper employment, and in order further to preserve public order and to benefit socialist construction.” The legislation identified the categories of people for which it was intended. They included people not engaged in honest pursuits; hooligans; people who had committed larceny, fraud, or other acts for which they had not been held criminally liable; violators of public security rules; counterrevolutionaries and antisocialist reactionaries who commit minor offenses and were not held criminally liable, who had been excluded from an agency, organizations, enterprises, or schools, or who were having difficulty making a living; employees of the government or people’s organizations who were able but refused to work; people who jeopardized public order; people who refused to accept the work assigned to them or the arrangement made for their employment; and people who behaved disruptively, obstructed officials, and refused to correct their behavior.

Under this legislation, public security agencies were authorized to send people to labor camps for a period of one to three years, with the option of adding an additional year if necessary. As mentioned earlier, local government determined the need to establish a labor camp. The management of a camp was the responsibility of a local commission represented by the departments of civil affairs and labor, along with the public security agency.

The labor camps utilized the same military style of administration as was found in the correctional system. People were organized into squadrons of 10 individuals, and they worked, slept, and ate together. The conditions of the labor camps were also similar to those found in correctional facilities. While at the labor camp, people received a wage that was

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based on the work performed. Some money was either deducted to assist in the support of the person’s dependents or set aside as a savings account for use upon release from the camp.

When discussing the Anti-Drug Law of the People’s Republic of China (2008) in the section on police, it was mentioned that the police were given extensive legal authority to control the cultivation and distribution of drugs, to require people that refuse to cooperate to submit to drug tests, and to impose compulsory isolation for rehabilitation. All of this was permitted without going through the formal adjudication process. The wide-ranging powers granted the police to enforce this law are based, in part, on the administrative regulations and these administrative penalties.

Recently, data was collected that indicates the considerable differences in the volume of offenses handled as public security cases that are exclusively the responsibility of the police versus the criminal cases filed by the police along with the number of first-instance criminal cases received by the courts. In 2000, 4,437,417 public security cases were accepted by the police; 3,637,307 criminal cases were filed with the police; and 560,432 first-instance criminal cases were received by the courts. In 2005, those figures were respectively: 7,377,600; 4,648,401; and 684,897. In 2008, the last year citing these figures, they rose to 9,411,956; 4,884,960; and 767,842, respectively (McConville and Choongh, 2011). Thus, a considerable number of alleged offenses are handled without regard for the protections associated with the criminal procedure rules.

Furthermore, reeducation through labor has long been viewed as an effective and efficient method of reducing threats to public order. For several years now, arguments against this method of controlling some crimes or forms of deviant behavior have been questioned. Some critics argue that it violates article 37 of the Constitution that speaks of “the freedom of persons” and hampers efforts to embrace more fully the idea of rule by law. Such arguments illustrate a shift in public opinion over the past two decades regarding the importance of law and expectations for the police to function within legal rules. Criticism has also been directed at the fact that reeducation through labor has long emphasized labor with little meaningful regard for education.

In 2013, it was announced that the reeducation-through-labor facilities would cease to exist. Immediately, speculation developed regarding what would take their place, because most skeptics are of the opinion that the police will continue to utilize various means to maintain social order. A good deal of attention has focused on three probabilities. First, they will rename the facilities “compulsory drug treatment centers,” as many of the residents are already there for compulsory drug treatment. Second, some will be referred to as “custody and education centers,” which usually focus on sex workers and their clients. Finally, there are custody and rehabilitation centers designed for juvenile delinquents, so some could focus on those issues. The police could utilize criminal detention as yet another alternative for some people. This last strategy has already been explained earlier as a tool of the police. Whatever the eventual changes, there will be a need for oversight on the part of the procuratorate, media, and public opinion, for the police will seek ways to ensure the maintenance of social order and stability (Dui Hua, 2013; Dui Hua 2014).

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Critical Issues

Human Rights

China has often been criticized for its record on human rights (Davis, 1995). The violation of those rights has frequently taken place within the context of the criminal justice system. A brief comment is presented here on the issues of rights in general and human rights in particular as they relate to criminal justice in China.

Throughout much of the contemporary Western world, rights and justice tend to focus on the individual’s interest. Procedural rules are designed to assure that an individual’s rights are protected and that an individual who is caught up in the criminal process will be guaranteed treatment associated with fundamental fairness and justice. It does not always work out that way, but that was the intent in the design of the process.

The Chinese offer a different approach to this issue, because they begin with a distinct set of assumptions. They acknowledge that individuals have rights, and this position has been given legal standing in various laws from the Constitution of the People’s Republic of China to other legislation (e.g., the Criminal Procedure Law of the People’s Republic of China). Despite this position, the Chinese tend to prioritize the public interest over that of an individual’s interest. The roots of this attitude are found in the country’s history, and those traditions have simply been modernized with the adoption of a socialist system.

As a result, when a crime is committed in China, the perpetrator is viewed first and foremost as having infringed on the collective human rights of all citizens and the individual rights of the victim. These rights take precedence over the perpetrator’s claim to certain rights. Because the perpetrator is either directly or indirectly violating the collective rights of the people, his or her actions are considered a threat to the socialist system and socialist state. It is the responsibility of public security agencies to prevent and punish those who threaten or violate these collective rights. As has been suggested, punishment is accompanied by a regimen designed to educate and rehabilitate the perpetrator. Education orients the perpetrator to an understanding of and appreciation for the regulations and laws of the socialist system. Rehabilitation strongly encourages the perpetrator to acknowledge the error of infringing on the collective rights of the citizenry and the individual rights of the victim.

Over the course of the past decade, the Chinese have become more sensitive to the criticisms leveled against them regarding human rights. They have acknowledged the need to establish guidelines and criteria for enforcing law in order to assure citizens that agents of the justice system are not incorrectly interpreting regulations or laws. The revisions of the Criminal Procedure Law in 1996 and again in 2012 are an illustration of this change. Despite these efforts, one should not expect a radical change in this matter in light of the fact that the Chinese view the issue from a different set of assumptions.

It should be noted, however, that in 2009, the government announced the National Human Rights Action Plan (2009–2020), which identified a series of goals divided under five categories: guarantee of economic, social, and cultural rights; guarantee of civil and political rights; guarantee of the rights and interests of ethnic minorities, women, children, elderly people, and the disabled; education in human rights; and performing international

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human rights duties and conducting exchanges and cooperation in the field of international human rights. In the introduction to the Plan the government stated:

China is a developing country with a population of 1.3 billion, low per-capita share of resources, underdeveloped productivity and unbalanced economic and cultural development. Having just entered the stage of building a moderately prosperous society in an all-round way and accelerating socialist modernization, China is faced with the arduous tasks of reform, development and stabilization. Due to the influences and limitations of nature, history, culture, economic and social development level, and other factors, China still confronts many challenges and has a long road ahead in its efforts to improve its human rights situation.

Within the Plan, the right to a fair trial and the rights of detainees specifically targeted the justice system. In reference to a fair trial, the Plan maintains: “The state, in accordance with the law, guarantees the rights of litigants, especially those charged with criminal offences, to an impartial trial.” Critics of China’s human rights record, both within and outside the country, would take issue with this statement. One of the Plan’s objectives to ensure the right to a fair trial does acknowledge the need to improve the legal aid system. On the matter of detainee rights, the Plan pledges to “improve the legislation concerning prison management and take effective measures to ensure detainees’ rights and humanitarian treatment.” Obviously, it is too soon even for the government to report on these efforts, let alone the various human rights groups that monitor the situation.

Nevertheless, while acknowledging the amendments to the Criminal Procedure Law of 2012 and the announced closure of reeducation-through-labor facilities, Human Rights Watch remains concerned about several issues. They singled out, in particular, the targeting of rights activists and their families with harassment, arbitrary detention, baseless imprisonment, and the denial of adequate medical treatment. They also cited ethnic discrimination; religious repression; and insufficient attention to the rights of women, migrants, and people with disabilities, which have all been long-standing concerns. Another issue is the use of the death penalty; China is alleged to lead the world in its use. Finally, criticism is raised over the restrictions placed on the press and more recently the Internet (Human Rights Watch, 2014; Human Rights Watch, 2015).

Death Penalty

China is one of the few major countries in the world that has retained the death penalty. This is the basis for some of the criticism leveled by various human rights groups. Like the United States, there does not appear to be an effective movement to have the sentence abolished. While a countrywide public opinion poll has not been conducted in China on the subject, it is presumed that most people favor the death penalty, especially for violent criminals. This is based on the fact that most Chinese have a strong aversion to chaos, because so many have experienced a good deal of it personally and would prefer a government that assures law and order.

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According to the Criminal Law, the death penalty can be imposed only on “criminals who have committed extremely serious crimes.” There have been 68 offenses that called for the death penalty. Of these, seven were associated with national security, 14 with endangering the public, 15 as undermining the socialist market economy, five with infringing on the rights of a person, two for crimes against personal property, eight with disturbing the social order, two with endangering the national defense, two with graft or bribery, and 13 crimes associated with military service. Specific crimes include: homicide, arson, explosion, inflicting serious injury or death on people or causing heavy losses of public or private property, sabotage, hijacking an aircraft, some rape cases, some cases of trafficking in human beings, some kidnapping cases, armed robbery, some cases of embezzlement, some drug trafficking, and some cases of impairing the national defense.

In 2011, the Criminal Law was amended. Thirteen offenses were removed from those eligible for the death sentence. Most of the crimes removed dealt with cases of smuggling and fraud, that is, they were nonviolent economic crimes. It should be noted that at the time of this amendment there was a good deal of opposition to this change, not only from the public but also from members of the Party (Trevaskes, 2012).

In order for the death penalty to be carried out, the offender must have reached the age of 18 at the time of the crime. As pointed out earlier, the death penalty can be imposed in one of two ways. The court can order the immediate execution of the judgment or permit a two-year suspension of the execution. It is estimated that about one-half of the sentences are ordered with the two-year suspension (Scobell, 1990).

If a person is sentenced to death with a two-year suspension, his or her punishment will be commuted to a life sentence as long as the person does not commit an intentional crime during the period of suspension of the sentence. A panel of three judges from the higher people’s court reviews the record and formally approves the change in the sentence. If the person shows signs of repentance and is an excellent worker, the life sentence could be reduced to a 15- to 20-year term. If it is proven that the person committed an intentional crime during the period of suspension, then the death sentence is carried out. The higher people’s court, however, must submit the matter to the Supreme People’s Court for approval.

When a judgment calls for the immediate execution of the death penalty, it must first be approved by the Supreme People’s Court. In the course of reviewing a case, members of the Court do not entertain oral or written arguments from defense counsel. However, article 240 indicates that while “reviewing a case involving capital punishment sentence, the Supreme People’s Court shall interrogate the defendant, and consult with the defense lawyer if so requested by the defense lawyer.” Once an order has been granted, the execution occurs within seven days, with a member of the procuratorate supervising the execution.

According to Article 252 of the Criminal Procedure Law, the sentence “shall be executed by such means as shooting or injection.” While it is common for people con- demned to death to be paraded through the streets on the back of a truck with a sign around them indicating their name, crime, and sentence, the actual execution is not supposed to be held in public. Nevertheless, it has been reported fairly widely that there have been public executions and that they have even appeared on television. Once the sentence has been carried out, the family of the prisoner is notified by the people’s court that issued the judgment.

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Part of the reason for the public executions over the course of the past three decades is related to the strike-hard campaigns that were briefly mentioned at the beginning of this chapter. Strike-hard campaigns were coordinated efforts by the government and agents of the criminal justice system to focus a good deal of attention and resources for a specific period of time on a particular crime problem. There have been three major strike-hard campaigns: 1983 to 1987, 1996 to 1997, and 2001 to 2003. The campaigns were directed at such groups as drug dealers, pornographers, and organized crime. All campaigns were noted for the objective of quickly and severely punishing criminals. As mentioned earlier, Xi Jinping’s anti-corruption campaign is the latest in this long line of strike-hard campaigns.

The strike-hard campaigns were introduced at a time when China was attempting to transform its economic system to a market economy. Crime was viewed as a threat to this goal, for in order for a market economy to establish itself there was a need for a greater degree of social stability. At the time, agents of public security were only beginning to develop a strategy to enhance a degree of professionalism throughout the ranks. As such, the strike-hard campaigns offered an effective and efficient strategy to address some of the country’s immediate concerns with crime. In some instances such campaigns had a significant impact on the extent to which capital punishment was employed.

When placed in the context of the strike-hard campaigns, the public executions illustrated not only the power of the state but also the public’s opposition to crime in general and specific offenses in particular. It is interesting to note that in 1987 the strike-hard campaign focused on theft and smuggling of antiquities, prostitution, and trafficking in women and children. By 2000, prostitution and trafficking were still a concern, but added to the list for specific attention were counterfeit currency, counterfeit trademarks, tax evasion, and “Mafia-style” crime (Trevaskes, 2007).

Death penalty statistics are not readily available through the government. Nevertheless, it has been estimated that during the 1980s, at least 10,000 people and possibly as many as 30,000 were executed. The vast majority of these people were categorized as violent criminals who had committed nonpolitical crimes. Many were under 30 years of age (Scobell, 1990). Over the course of the past two decades, it was estimated that at least 90 percent of the executions in the world occurred in China (Johnson and Zimring, 2009). As such, it is unlikely that China will abolish its use. It has proven to be a valuable instrument in the Communist Party’s arsenal for too long. One scholar has concluded: “The death penalty serves as a vital tool in the party-state’s approach to not only regulating, stabilizing, and protecting society but also protecting the party’s own place at the national helm” (Trevaskes, 2012).

JUVENILE JUSTICE Mao Zedong likened deviant behavior to an illness. He maintained that society’s response to this social disease should be to seek a cure by emphasizing a rehabilitative approach rather than a strict punitive method. The Chinese have tended to associate the causes of deviance with a general lack of education and an inadequate understanding of the socialist system. Therefore, patterns of bad behavior are a result of degrees of ignorance on the part of individual delinquents. In order to curb deviance, the principal objective has been to

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