Mick Wallace (Wexford, Independent) | Oireachtas source

I move amendment No. 4:

In page 10, to delete lines 16 to 21 and substitute the following:“(a) make a community service order if section 4 of the Act of 1983 has been complied with, or

(b) make an attachment order if it is satisfied that it would not be appropriate to make a community service order in respect of the person.”.

I am disappointed that the Minister for Justice and Equality, Deputy Alan Shatter, is not here. It is the first time in my experience that he has not turned up for such a debate. He must be under terrible pressure. I do not doubt for one second that he is a very hard-working Minister, but I find it strange that he is not here. I have tabled 12 amendments, six of which have been deemed to be in conflict with the principle of the Bill, which I find odd. The others have been grouped together. I will give most of my thoughts in one fell swoop.

In terms of the average number of prisoners per head of population, Ireland fares quite well internationally, but we seem to be reaching a plateau. According to the world prison population list, we have climbed down from a high of 100 prisoners per 100,000 of population in May 2011 to 88 in September last year. This is still a higher rate than for Germany, the Netherlands, Sweden, Norway, Denmark and Finland but only one eighth of the number of prisoners per head of population in the United States. We are average among European countries but with the caveat that we had the highest percentage imprisonment rate increase of all euro zone countries in the past 12 years.

The number of committals for non-payment of fines is astronomically high. According to the Irish Penal Reform Trust, there were 8,304 committals for non-payment of court ordered fines in 2012, including 242 for failing to pay fines imposed for not having a TV licence. One can imagine the people who were imprisoned for not paying their TV licence fee. At €160 per licence, the cost of the unpaid licence fees for the 242 people concerned comes to just over €38,000, less than half the money John Waters and the Iona Institute received recently. Also, 85% of fine defaulters are back in custody within four years.

It is clear from statements issued by the Minister that his objective while in government is to bring down these numbers, if possible, especially the number who receive sentences of three months or less. In May last year the Minister stated his concern with the high levels of turnover in the prison system when he said:

It is disappointing to note Ireland’s committal rate (imprisonment of offenders) in 2011 was 380 per 100,000 people compared to a European average of 233. Our release rate was 376 per 100,000 – more than double the average of 165. These figures alone show that we are out of kilter with Europe and other parts of the world in this regard. They confirm that too many individuals are being sentenced to very short terms of imprisonment instead of alternative mechanisms being utilised.

The Minister also stated his support for increased implementation of community service orders. On the payment of fines, he suggested the top priority was to drastically reduce the number of persons committed to prison for non-payment, highlighting community service as one of the preferable alternatives to a prison sentence. He said:

It is disappointing to note that 2,569 community service orders were made in 2012 compared to 2,738 orders in 2011. I want to ensure that greater use of community service orders is made. Under the Criminal Justice (Community Service) (Amendment) Act in 2011, judges are required to consider the appropriateness of a community service order in circumstances where an alternative sentence of imprisonment of up to 12 months would be considered. I am concerned that too many people are still being sent to prison unnecessarily at a time when the Probation Service does not have the capacity to take on more offenders.

The Minister also said:

I am strongly of the view that we need to keep the numbers of people committed to prison for the non-payment of fines to the absolute minimum. We have already legislated to require judges to take a person’s financial circumstances into account when setting a fine. Work is now well under way on further major reforms to the fine payment and recovery system in Ireland. The Fines (Amendment) Bill, which I expect to publish this term, will, when enacted, make it easier for people to pay a fine and where they fail to do so, there will be sufficient options available to the courts in the form of, for example, attachment of earnings, community service or recovery orders to all but eliminate the need to commit anyone to prison for the non-payment of fines.

While I agree with the Minister in his viewpoint on this matter and welcome the general aims of the proposed Bill, my contention with the particulars of the Bill and the general purpose of my proposed amendments surround two issues. First, the Bill appears to prioritise some measures over others. If this is the case, there should be a reshuffling to place community service as the top priority option as an alternative to prison sentencing for the non-payment of fines. The order seems to be as follows: recovery orders; attachment orders; community service; and prison. Second, not only would I like to see community service as the principal alternative, I would also like to remove the option of recovery orders entirely in order that the order of actions in terms of preference would read as follows: community service; attachment orders; and prison.

The justification for these changes to the Bill rests on two arguments. First, community service has many benefits, including for the community, the offender, the prison system and the Exchequer. Second, recovery orders are counter-productive, especially owing to the potential violence that has been known to occur in their implementation and the fact that those on the receiving end will almost certainly be among the most vulnerable in society. There are numerous studies of the comparative advantages and disadvantages of the use of community service as an alternative to imprisonment and the overall consensus seems to be that from a quantitative point of view, community service can, without doubt, be regarded as one of the most successful late modern punishments. Introduced in the 1970s, it became widely established throughout Europe by the 1990s. Of particular note is the fact that in nearly all countries where it was adopted it expanded dramatically as an alternative to a prison sentence. It is widely seen as a more humane alternative to prison and a more effective means to achieve the dual goals of rehabilitation and reparation. Whether rehabilitation is interpreted as a change in the offender’s attitudes and views or as the achievement of reduced reoffending, there is evidence to support the claim that in both cases community service has a positive effect.

The work of Professor Gill McIvor of the Scottish Centre for Crime and Justice Research, in particular, attests to this claim. Community service orders should be encouraged as they have numerous productive offshoots, such as the regeneration of shared public spaces in a time of drastic public spending cutbacks, thereby facilitating work that would otherwise not get done. They provide an opportunity for people to learn new skills, enable reparation for crimes to the community, facilitate the integration of the offender in the community, and function as a cost-effective penal alternative to imprisonment.

An additional consideration is the terrible reality of prison overcrowding, with some facilities taking up to 40% more than recommended capacity at any one time. For instance, according to the Inspector of Prisons and Places of Detention, on 8 March 2011 Mountjoy Prison held 710 prisoners in a facility that should have had no more than 517. According to the Irish Penal Reform Trust, more than 70% of prisoners are unemployed on committal and a similar percentage self-report as not having any particular trade or occupation. Gillian Smith of Trinity College Dublin recently commented on the numbers of disadvantaged people who find themselves going through the prison system. In an online article on the IPRT's website she stated:

The poor and disadvantaged are greatly over-represented in our prisons. Paul O'Mahony's oft-cited 1997 study of prisoners in Mountjoy revealed that four out of five had left school before the age of 15, one in three grew up in a household where no parent was in employment, and 37% had lost a parent by the time they were 15 years old. Prisoners in Ireland are 25 times more likely to come from and return to areas of serious deprivation, and the majority are unemployed upon committal to prison. Some criminologists maintain that prison is in itself criminogenic, such are the barriers to reintegration following time in custody.

Indeed, criminal psychiatrist James Gilligan has observed that "the most effective way to turn a non-violent person into a violent one is to send him to prison".

Taking these points into consideration, it is clear that the main impetus behind the proposed Bill is welcome, although overdue. What is not clear is why recovery orders are proposed as the first alternative to imprisonment for non-payment of fines. It is evident that the vast majority of people who are committed to prison each year are there as a result of the failings of the socioeconomic system. It is fair to presume that many of those imprisoned for non-payment of fines are in that position because they could not afford to pay them. Indeed, 60% of people serving sentences of six months or less already suffer poverty and may well be homeless. The sheriffs who will be appointed as receivers by the court under the recovery order system will be breaking and entering these people's homes, if they have one, only to find that after they get their cut of the loot, there is not enough to cover the sum of the original fines. On the whole, those who can afford to pay their fines do pay. What we have is a two-tier justice system wherein the rich are rewarded for their ability to pay and the poor are punished for their inability to do so.

Under the new reliance on recovery orders and gangs of men breaking into houses, the punishment is doubled, people are embarrassed and abused, resentment in the community is reinforced, and nothing is improved in any way, shape or form. The costs of the sheriff alone are unlikely to be collected, not to mention the fines being sought. Too often in recent years I have heard terrible stories of bullying tactics by sheriffs, who sometimes bring a few thugs along with them as reinforcements. In England, in 2009, a bailiff was responsible for a pensioner dying of a heart attack. The bailiff told the pensioner he had to pay the £340 he owed on a speeding ticket or the bailiff and his colleagues would enter the pensioner's house and take his goods. CCTV footage showed how this man collapsed and died in the street after the bailiff drove him to a cash point in the town centre.

In general the media do not publish this kind of story, but the self-publishing vehicle that is YouTube shows us a seedy and grim reality. One video shows a sheriff breaking and entering a home followed by six men who proceed to empty it of its contents. The owner arrives home and, upon his discovery of the break-in, has a heart attack. He is found by paramedics convulsing on the empty sitting room floor. These are surely not isolated incidents. The very nature of the work done by sheriffs makes conflict, violence and the suffering of those on the receiving end par for the course. As so often with the media, however, we only hear about the poor when they get in the way of the powerful.

The Minister has indicted his concern regarding the recidivism rate in Irish prisons. In order to stem its increase, he has stated, we must tackle the social conditions that underlie criminality. Speaking at the Irish Penal Reform Trust annual lecture in 2011, he said, "Sending offenders to prison without tackling the underlying social conditions of their criminality – the lack of skills, education, and employment – while they are in prison only serves to reinforce the cycle of criminality." Does the Minister not agree that taking what little people have from them when they are stuck in that cycle of criminality will only make the situation worse? Does he not agree that this approach will lead such people to view the institutions that govern our lives as not deserving of the respect they demand for themselves, by force if necessary?

When the Minister says that we need to tackle the underlying social conditions of criminality, it denotes an acute awareness of the problems facing our society, the prison and legal system included. I mentioned that Finland, Norway, Sweden, Denmark, Germany and the Netherlands all have lower numbers of prisoners per head of population than Ireland. What all these countries have in common is that they also have lower levels of inequality than Ireland. According to a report by TASC, of the eurozone countries, Ireland ranked first in terms of earning inequality in 2006. A recent European Anti Poverty Network document on wealth distribution calculated that in Ireland, 1% of the population holds 20% of the wealth, 2% controls 30% and the top 5% disposes of 40% of private assets. A recent Oxfam report indicated that inequality in Ireland will soon be four times the OECD average. That is a frightening figure.

In their acclaimed book The Spirit Level,Richard Wilkinson and Kate Pickett show that greater inequality reinforces the most undesirable elements of any penal system and speaks to endemic problems connected to the failings of how a particular society is organised. They write:

Imprisonment rates are not determined by crime rates so much as by differences in official attitudes towards punishment versus rehabilitation and reform. In societies with greater inequality, where the social distances between people are greater, where attitudes of "us and them" are more entrenched and where lack of trust and fear of crime are rife, public and policy makers alike are more willing to imprison people and adopt punitive attitudes towards the "criminal elements" of society. More unequal societies are harsher, tougher places. And as prison is not particularly effective for either deterrence or rehabilitation, then a society must only be willing to maintain a high rate (and high cost) of imprisonment for reasons unrelated to effectiveness. Societies that imprison more people also spend less of their wealth on welfare for their citizens. This is true of US states and also of OECD countries.

The emphasis on the use of recovery orders and attachment orders as proposed in this Bill gives the lie to the idea that the Government is interested in rehabilitation and reform. While the reforms proposed may keep many more people out of prison, the choice of preferred substitutes betrays a genuine lack of understanding and a severity of attitude towards the most vulnerable among us. As such, the proposals fail to do what could be done to tackle the social conditions of criminality. If the Government is serious about reducing prisoner numbers, it must start to tackle inequality at its roots. This will mean more public investment, not less, which sadly has been the order of the day in recent years. The powers that be in Europe have chosen the path of austerity and the Irish Government has been compliant in that. Austerity may have been good for the financial markets and big business - just what the neoliberal doctors ordered – but it has proved a bitter pill for most and for the marginalised in particular, who make up the majority of our prison population. I urge the Minister to consider making greater use of community service. The order of actions in the Bill must assign community service as the preferred option.

See this speech in context