Mick Clifford: At a time of severe prison overcrowding, why is more use not made of community service orders?
Kyle Hayes is paying his debt to society in a constructive manner.
Last April, he was ordered by Limerick Circuit Criminal Court to do 120 hours of community service in lieu of a three-month prison sentence.
That in turn was handed down after he broke the conditions of a suspended prison sentence having being found guilty of engaging in violent disorder outside a nightclub in Limerick in 2019.
On one level, he has been fortunate. Prison was a very real possibility following his initial conviction. The subsequent conviction for dangerous driving, while serving the suspended sentence, could easily have resulted in the prison sentence being activated.
He is also fortunate in that community service orders are very rare in the Circuit Court.
That's not to say that the system wouldn't benefit from more such orders in that court.
But right now, they tend to be used nearly exclusively by the district court.
He would, however, appear to be the ideal candidate for a sanction that was designed to lessen the frequency of sending people to prison.
As a high-profile hurler, he has skills that could be well utilised in the community.
Kyle Hayes, as a high-profile hurler, has skills that could be well utilised in the community. Picture: Brendan Gleeson
He does not have any impeding characteristics, such as an addiction, the kind of issue that often deems an offender to be unsuitable for community service.
But what exactly will he be doing to pay his debt to society? How are community service orders monitored, and what happens if an individual does not complete an order?
And crucially, at a time of severe prison overcrowding, why is more use not made of community service orders?
They are definitely an enlightened element of the criminal justice system. The concept was introduced in a 1983 Criminal Justice act.
'A community service order shall require the offender to perform, in accordance with this Act, unpaid work for such number of hours as are specified in the order and are not less than 40 and not more than 240.'
The order is designed to apply in lieu of prison sentences of up to 12 months.
In general, the work has to be completed within a year but certain leeway might be given by the probation service, which oversees the orders, in special circumstances.
The service could involve anything from assisting with community organsations, or with clean ups, or providing service in training or coaching young people.
Questions sent to the Probation Service requesting information on specifics of the work concerned did not receive a reply.
The only other law covering community service orders is the Fines (Payment and Recovery) Act 2014 which makes provision for a judge to issue an order as an alternative to sending a person to prison.
The order is dependent on a report to assess whether the offender is suitable for it.
Up to a quarter of those assessed are rejected as unsuitable.
In the vast majority of these cases, that means they must instead serve a prison sentence.
Another criteria which must be met in theory is that there is sufficient work required within the community through which the order can be worked out.
A major question arises as to whether community service orders could be used more frequently.
This is amplified at a time when prison overcrowding is a constant and growing problem.
For instance, in 2023, 78% of all committals to the Irish prison system were for sentences of 12 months or less.
This represents 6,191 individuals out of a total of 7,938 committals.
In 2023, the annual cost of keeping a prisoner was over €85,000.
Apart from that, there is an obvious loss of social and personal capital in locking up people when an alternative is available.
Research from abroad suggests the offender is less likely to reoffend if he or she avoids prison.
A person who is working can continue to do so, further enhancing the likelihood of staying away from crime.
There is an obvious loss of social and personal capital in locking up people when an alternative is available.
At a time when the main thrust of penal policy in government is to build more prisons, it appears highly questionable that there continues to be a failure to properly utilise the alternatives.
In fact, the trend appears to be going in the opposite direction.
In 2011, there were a total of 2,738 community service orders.
This level was maintained up to 2019 when there was 2,791.
Then it fell off a cliff with 1,161 the following year which was, to a large extent, attributable to the pandemic and lockdowns.
However, since then the take up for the orders has been sluggish with just 1,288 in 2022.
In 2023, this rose to 1,644, which, the probation service reported, accounted for 'in lieu of 778 years in prison' and benefited communities nationwide to the tune of over €2m of unpaid work.
A review of the policy and use for community service orders was conducted by the Probation Service in 2022.
It presented some useful suggestions for an increase in the use of the orders.
Following on from that, the minister for justice appointed two academics, Niamh Maguire and Nicola Carr, to research the whole area. Their findings were published last November.
They interviewed a whole range of judges on attitudes and practices. One recurring theme was that judges have an understanding that they must 'consider' such a sanction, but not regard it as a preferred option.
One district court judge told them that as far as they were aware 'we have to consider giving a community service order as opposed to a prison sentence. We have to. And all we have to do is consider it. We actually don't have to impose a community service order, that's my understanding.'
There are also major problems with resourcing. Many judges around the country simply do not have the option of imposing a community service order as there is no probation officer available to conduct an assessment of suitability.
And sometimes where there is somebody available, the time before a report can be compiled is so long as to make the order untenable.
The balance of resources within the system is heavily weighted towards imprisonment.
The Irish Prison Service has a budget that is more than 10 times that of the probation service.
Expanding use of community service orders would require a rebalancing of that budget and inevitably would be met with the usual resistance from a State agency.
The report compiled by the academics was entitled Community Or Custody? A Review of Evidence and Sentencers' Perspectives on Community Service orders and Short-Term Prison Sentences.
It recommended that resources need to be applied so that community service orders are "suitable for the broad range of individuals who come before the courts for sentencing but specifically for categories that are currently not considered suitable including persons with substance misuse issues, mental health difficulties and physical disabilities".
Currently, candidates for a community service order are often deemed unsuitable because of such issues.
Changing that would at the very least ensure more who are assessed would end up serving the order with all the benefits that attach for both the individual and society.
They researched systems abroad.
In Finland, for instance, any prison sentence of eight months or less is automatically commuted to a community service-type sanction.
The academics also concluded that consideration for community service orders needs to be given to people who come before the court frequently, particularly where crime is directly linked to addiction, mental illness and poverty.
Again, repeat offenders are currently often deemed unsuitable for consideration for a community service order.
Apart from tackling crime in a progressive manner, and one that successive governments claim to want, increasing the use of community service orders makes perfect financial sense.
The resources required to process and oversee a community service order would be far less than the €85,000 it costs to detain a prisoner for a year.
Research into sentencing conducted by the Judicial Council arrived at similar conclusions.
Many judges around the country simply do not have the option of imposing a community service order as there is no probation officer available to conduct an assessment of suitability. File picture: iStock
In particular, the research pointed to delays in assessment reports because of a lack of probation staff.
'Such delays are likely to have a bearing on the use of such sanctions by courts where time taken for assessment are extended due to Probation Service resourcing issues and managing demands for services.'
On foot of the report by the two academics, the Department of Justice has moved to make some changes.
This month the minister, Jim O'Callaghan, got approval from Cabinet to draft amendments to the law.
These include a provision 'to oblige the courts to consider a community service order in lieu of a prison sentence for up to 24 months duration', where the current threshold is 12 months.
There will also be provision to increase from 240 to 480 the maximum community service hours that a judge may order.
And there will be an amendment to allow for 'a broader cohort of appropriately trained and designated probation service staff to oversee the administration of community service orders".
However, there will not be a change to oblige judges to give priority to a community service order being applied instead of a prison sentence, reverting only to the latter when circumstances demand.
Neither is there any commitment to increase the resources applicable to administering community service orders, without which any change in the law will have only a limited impact.
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