• Note need for evidence-based development of criminal justice system

BY Ruwan Laknath Jayakody The future development and modification of the criminal justice system should be evidence-based and pay emphasis to types of post-conviction, non-imprisonment-based correction methods which include the suspension of the sentences of imprisonment, the supervision of island reconvicted criminals (IRCs), probation, and intermediate sanctions. This observation was made in an editorial on “Correction methods available for convicts in Sri Lanka compared with American methods of correction”, which was authored by Prof. M.  Vidanapathirana (attached to the Sri Jayewardenepura University’s Medical Sciences Faculty’s Forensic Medicine Department) and R.R. Ruwanpura (attached to the Karapitiya Teaching Hospital’s Judicial Medical Officer’s Office) and published in the Medico-Legal Journal of Sri Lanka 6 (2) in December 2018. According to G. Newman’s “The punishment response”, punishment is pain or other unpleasant consequence to the offender who broke the rule, and results from an offense against a rule and is administered by others who represent the legal authority. For Vidanapathirana and Ruwanpura, the beneficial aspects of punishment include deterrence, incapacitation, and rehabilitation or reform. In the Sri Lankan criminal justice system, the laws are enforced by the Police, the suspects are prosecuted by the Attorney General, the punishments are imposed by the Judiciary, and the punishments are enforced by the correction agencies. With regard to post-conviction correction methods, Vidanapathirana and Ruwanpura pointed out the need to ascertain how such methods have contributed to the rehabilitation of convicts as well as the reduction of crimes and recidivism. Hence, Vidanapathirana and Ruwanpura conducted a descriptive cross-sectional study based on the latest secondary data on post-convictions in Sri Lanka in 2016, as published by the Statistics Division of the Department of Prisons in 2017, and other relevant secondary data published by the Police, the Probation and Child Care Services Department (DPCCS, which functions as a subject under the Child Development and Women’s Affairs Cabinet Ministerial or State Ministerial portfolio), the Judiciary, and the Community-Based Corrections Department (CBCD). There are five methods of post-conviction corrections available, four of which are non-imprisonment-based correction methods: Suspension of the sentences of imprisonment, supervision of IRCs, probation, and intermediate sanctions. Suspension of the sentences of imprisonment As per Section 303 of the Code of Criminal Procedure (CCP) Act No. 15 of 1979, the suspension of the sentence/s of imprisonment is granted only for first-time offenders, also known as first-timers or offenders who have no previous imprisonment, and imposed on offenders whose sentences do not exceed two years. The period of suspension should be more than five years and the fingerprints are taken. If any violation occurs, as per Section 303 of the CCP Act, the punishment will be reactivated.  Supervision of IRCs The supervision of IRCs is done by the Police. IRCs are registered as IRCs by the Police following three or more significant offences being committed and convictions being received for such. Such offenders are graded into three groups, namely Grades A, B, and C. They are periodically supervised by the Police. If IRC Grade A, they are monitored by the Police on a weekly basis. If IRC Grade B, they are monitored by the Police every month. If IRC Grade C, they are monitored by the Police every three months. They can change their place of sleep permanently, only after obtaining permission from the Police, and they have to register with the Police under whose jurisdiction the new place of residence comes under. In the US, sex offenders are similarly registered and supervised. Probation There are two types of probation, “probation orders” and “probation hostels with certified schools”, the latter for minor offenders between the ages of 12 and 16 years, with such certified schools being located in Hikkaduwa, Makola, Jaffna, Keppetipola, Ranmuthugala, and Madatugama with 466 being granted and admitted to such certified schools in 2016, as per the Probation of Offenders Act No. 20 of 1958 and the DPCCS. According to the DPCCS, a probation order means the rehabilitation of an offender without subjecting them to institutionalisation, a fine, or other punishments. In the case of minor offences, the punishment is suspended and probation orders are given for one to three years. Here, fingerprints are not taken. If, however, there is any violation, the court punishment will be reactivated. The individual in question has to follow certain court-ordered rules such as meeting with their Probation Officer (PO) within 24 hours of the probation order and on one or more occasions per month; avoiding certain persons and places, and not being able to change the place of employment or sleep without the approval of the PO; and having to obey the directions of the PO, such as refraining from using illegal drugs or excessive alcohol. Minor offenders (12 to 16 years) are kept separately in probation and are sent to probation hostels with certified schools. Sri Lanka became a signatory to the United Nations Convention on the Rights of the Child (UNCRC) in 1991 and ratified it in 1992, and in 1999, the DPCCS created a new post called the Child Rights Promotion Officer (CRPO) and such CRPOs are attached to the district and divisional secretariats. Intermediate sanctions Methods of intermediate sanctions involve “community-based correction orders” to do community work or an “order to pay fines, compensation, or restitution”. According to the CBCD, in 2016, such intermediate sanctions were granted to 14,086 convicts. Here, the whole idea behind it, Vidanapathirana and Ruwanpura explained, was to find something in between probation and prison where, while probation usually involves just telling the offender to go handle their problems, intermediate sanctions represent an attempt to tailor the punishment to the offender. Sometimes the convicts are asked to pay the “fines” to the government, while, as per Section 17(4) of the CCP Act No. 15 of 1979, some convicts are asked to pay “compensation” to the victim, and “restitution”, as per Section 306(4) of the CCP Act No. 15 of 1979, involves the payment of money for restoring the stolen property. However, in Sri Lanka, the majority of post-convicted prisoners, as per statistics of the Prisons Department in 2017, were “fine defaulters”. A community-based correction order, under the Community Based Corrections Act No. 46 of 1999, is granted when the term of imprisonment exceeds two years. For example, when such a convict is unable to pay a fine, compensation, or restitution, a community-based correction order is given, prior to which a “pre-sentence report” is sought from the Commissioner of Corrections, and then the consent of the offender is obtained and the conditions of the community-based correction order are provided in a prescribed form. The convict has to perform unpaid community service at a named place – for example, cleaning a park, repairing a house, or picking up litter – as per Section 18 of the Community Based Corrections Act No. 46 of 1999. If a community-based correction order is offered, the offender has to report to the community correction centre of the particular judicial area. For a week, the offender has to do a minimum of unpaid work for 10 to 24 hours. The duration of the service should not be ordered for more than one year by magistrate’s courts and not more than three years by high courts, as per Section 5 of the Community Based Corrections Act No. 46 of 1999.  In the US, other methods of intermediate sanctions include “intensive supervised probation”, which allows for more monitoring and supervision; “boot camps”, which involve military-like training, “shock incarceration”, which is a split sentence to remand or send to prison for a short time (usually 30 days) and then release the inmate to the community under probation, where the inmate however does not know of such in advance; “halfway houses”, which are a middle point between prison and full release to the community; and “home confinement”, which is a cost-effective method that involves the use of house arrest, often combined with electronic ankle bracelets that track the offender’s movements (as noted in E.J. Latessa’s “Overview of correctional programmes in the USA”). Imprisonment Imprisonment-based corrections methods include closed prisons; remand prisons, which include open prison camps (sent to such based on the convict’s behaviour within the prison – located in Pallekele) and work camps (sent to such based on the convict’s behaviour within the prison – located in Meethirigala, Homagama, Weeravila, Anuradhapura, Kadurugasara, and Hangilipola); death sentence (based on the offence committed); life imprisonment (based on the offence committed); training schools for youthful offenders (TSYO) between the ages of 16 and 22 years; rehabilitation (almost all prisoners are given some kind of rehabilitation, including by Rehabilitation Officers [ROs] who were formerly of the Prison Welfare Officer rank); and methods of release which involves three schemes – work release, home leave, and license (parole). Moreover, “final discharge” is available on bail, after the payment of fines, on presidential pardon or after serving the sentence. Imprisoned prisoners are categorised into three groups: First-time offenders, reconvicts with two convictions, and recidivists with more than two convictions. As Vidanapathirana and Ruwanpura put it, the ultimate objective of imprisonment is to rehabilitate and reform the convicted offenders and to reintegrate them to society. Remand prisons are meant for pre-conviction detentions, awaiting trial or bail. However, in Sri Lanka, additionally, post-convicted prisoners are also located in remand prisons for short terms. Vidanapathirana and Ruwanpura, therefore, noted that pre-convicted offenders should be kept separate from post-convicted offenders, according to their type of crime committed, such as violent, sexual assault, property, organised, and drug-related. Yet, such separation is not strictly done in Sri Lankan remand prisons. In Sri Lanka, by 2016, there were 19 remand prisons and 11,582 (48%) of the post-convicted prisoners were in remand prisons as of 2017, according to the Statistical Division of the Prisons Department.  In closed prisons (such as Welikada and Mahara), there is a perimeter wall and the prisoners are held under maximum security conditions. Their inmates should also be kept separate according to their crime committed. Among the closed prisoners, there are four sub-categories of corrections, namely, prisoners who have been sentenced for less than five years, sent based on their behaviour within the prison, those sent to a large open prison camp, and those sent to medium-sized work camps. With regard to the open prison camp (such as in Pallekele), prisoners with good conduct, who have served one-fourth of their sentence and with at least two years more to serve, are selected. As Vidanapathirana and Ruwanpura elaborated, the objective here is to rehabilitate and facilitate the re-integration into society with the main guiding principle being trust. Here, families are encouraged to meet the inmates often and such visits are not supervised by prison officers. Prisoners can build relationships with those in the free community and it is also encouraged by the Prisons Department for them to participate in community-based projects on an entirely voluntary basis. Work camps are open institutions with no boundary walls. First-time offenders with a less than two-year sentence are transferred to these work camps. It is, Vidanapathirana and Ruwanpura noted, promoted due to the presence of a large number of first-time offenders with short prison terms, who should be kept away from hardcore offenders. These prisons have minimum security conditions and the objective, as stated in G. Kuruppu’s “Current issues in correctional treatment and effective countermeasures”, is rehabilitation. Based on the severity of the offence committed, some serve life imprisonment and some serve the death sentence. Some prisoners who received the death sentence are under appeal, awaiting the final decision for the commutation of the execution by hanging. There is also a training school for youthful offenders in Watareka for offenders between the ages of 16 and 22 years. All post-convicted prisoners are provided with different levels of rehabilitation which include vocational training, farming, and religious activities. Every convicted prisoner sentenced to rigorous imprisonment is required to work for eight hours a day and therefore, carpentry, tailoring, laundry, motor mechanism, printing, bread making and baking, weaving, knitting, masonry, soap making, mat making, brush making, polishing, and the manufacture of coir goods are taught, and they also engage in agriculture and animal husbandry. According to the Prisons Department, the value of the industrial and agricultural output in 2016 was Rs. 153,709,118, with bakery products giving 46% of the income. Prisoners have to attend education, recreation, and religious activities. Under the work release scheme, prisoners are allowed to get themselves employed in the open community, unescorted, during the day, but have to return to a work release centre or a prison for the night. In the home leave scheme, long-term prisoners are permitted to visit their homes unescorted, for a maximum period of seven days at a time, once in six months. The purpose of this, according to the Prisons Department, is to facilitate the re-integration into society and family, upon his/her return. Under the license scheme (parole), certain categories of prisoners are conditionally released from prison prematurely, under the supervision of prison rehabilitation officers. The prisoners who have been sentenced to four years or more and who have completed half of their sentence, prisoners who have served six years of their sentence and prisoners who have served five years of their sentence with one year in an open prison camp become eligible for parole. A social report with a plan of his/her rehabilitation in the community is prepared by the rehabilitation officers and submitted to the License Board.  As per the Community Based Corrections Act No. 46 of 1999, prisoners who violate their conditions of release have their license revoked. Parole, as emphasised on by Vidanapathirana and Ruwanpura, has three purposes: Firstly, to assist the parolee to adjust to the normal life and help re-integrate to the community where with the help of the rehabilitation officer, a parolee may obtain help with problems concerning employment, residence, finances, or other personal problems; secondly, it prevents the parolee from committing new crimes; and thirdly, it prevents the needless imprisonment of those who are not likely to commit further crimes. According to the US Parole Commission’s Rules and Procedures Manual of the Justice Department, parole is granted upon the satisfaction of a few conditions, such as the inmate having substantially observed the rules of the institution, the release would not depreciate the seriousness of the offence or promote disrespect for the law, and the release would not jeopardise public welfare. In the US, the grant or denial of parole is at the discretion of the Parole Board, and if an inmate is thus released, they are placed under the supervision of a parole officer for a certain time, after being released. Finally, when post-convicted prisoners are discharged, they are registered and notification will be done. J.A. Bell noted that the efficiency of correctional methods as an alternative to imprisonment needs to be evaluated, adding that the random group design, matched group design, prediction analysis, and prediction research have been suggested as research models for this purpose. Furthermore, Vidanapathirana and Ruwanpura pointed out that since the majority of the post-convicted prisoners in Sri Lanka are young, married, male adults (between the ages of 23 and 39 years), convicted for drug-related offences and have studied up to less than grade eight, and do not have the capacity to pay fines, compensation, or restitution, imposing large fines may further increase the number of prisoners and result in further burden being imposed upon the government.