Options when sentencing (session III – 24th April)

1.       Introduction

a.       My background

I am honoured to speak to you today on a topic that is close to my heart. I am since August last year the President of the largest of Norway’s six Courts of Appeal. Our court has approximately 70 judges, and we handle both civil and criminal cases. Prior to my current position, I was the Director General of the Norwegian Correctional Service for nine-and-a-half-year. One of the major challenges of the corrections in this period was the mismatch between prison capacity and people convicted to a prison sentence: We had a prison queue, a waiting list.

We got rid of the waiting list last year! We now have an overcapacity, and we close prisons down. (On a personal note: It seems like these queues hold a certain attraction to me (!), so as soon as the prison queue was history, I moved to a court where there also is a waiting list…! We are currently working on this issue and will, I hope, contribute to a better balance in a not too distant future…)

This issue of mismatch between prison capacity and convicted people can be solved in different ways. Many countries’ answer is an overcrowding in their prisons. In Norway, we accepted a waiting list because we did not want to compromise with the prison quality. Neither of the two is a good solution in the long run! Sometimes an increased prison capacity is the answer – because of an increase or change in the population or because the legislator criminalizes more acts. Other times we can look for other options than prison when sentencing. And that is the topic of this session.

b.      Definitions, three main points (will have to address pre-trial here, since that topic is already covered earlier in the program)

I will in the following concentrate on the sentencing process. Nevertheless, I have to say that in Norway, one third of people in prison any given day will be pre-trial detainees. We are heavily criticised for our use of pre-trail detention and definitely need to look into that issue.

When addressing the topic of sentencing options, I will focus on three main points:

·         The legal framework

·         The interaction between the courts and the correctional service

·         The lay judge element

I will be brief, pointing out questions for discussion, leaving time for a dialogue following my presentation.

2.       The legal framework

When we judges decide a sentence, the starting point naturally is the legislation. The legal framework will thus establish which options we have. Over the last years, the legislator in many countries, also mine, has equipped us judges with a broader “sentencing menu”.

We have, for one, community sentence. In Norway this option can be used instead of up to one year of prison. The convicted person must be willing to undergo this sanction, and there will be a close follow up from the correctional service. The convicted person will do time by giving hours of work contributing to the common good or by following a strict schedule of activities.

Other options are tailor-made to address the poor conditions many convicted persons live under: We know that a majority of the convicts suffer from severe addiction and health problems. And many of them are frequent “users” of the court and prison systems, as they tend to reoffend a lot. The sanction Program for driving under the influence of a substance aims at increasing the consciousness of the negative effects of driving under the influence of alcohol, drugs or medication. It is a sanction that can replace a prison sentence of up to x months. The program has a duration of 10 months and is administered by the correctional service.

Drug Court addresses severe drug problems. This was a pilot project in the two biggest cities in Norway since 2006 and was made nation-wide in 2016. Instead of a prison sentence, there will be an individual and close follow up both by the correctional service and the court. Technically, Drug Court is a conditional prison sentence.

Speaking of options when sentencing, to make prison sentences conditional is sometimes a choice for the court. The court can set a wide range of conditions, tailor-made for the convicted person’s situation. The conditions can inter alia relate to health and addiction treatment and work or other activity.

Electronic monitoring is widely used in many European countries, also in Norway. In Norway, this is not an option for the court, but is decided by the correctional service. One fourth of all people admitted to prison will never see a prison gate, and instead serve their sentence in their home. Electronic monitoring represents a strict regime and includes a close follow up from the correctional service – and is one of the reasons of fewer people in Norwegian prisons.

So far so good – or not? Yes, there has been an extension of the sentencing and correctional menu, especially the last couple of decades, giving us more sanctions to choose from. The room of choice exists, however, only for the minor offences. Parallel to the development of more options for this group of offences, we have experienced a trend where the lawmakers have taken on a very detailed mode of legislating. I do not know if this is a European trend, but there has been in Norway a development towards a very detailed “catalogue” of penalties corresponding almost all criminal acts and circumstances. This significantly narrows the courts’ margin of judgment. The Court of Appeal will in the concrete case often only have the choice between “sticking to the book” or risking to have the verdict repealed by the Supreme Court.

This change is of course an intentional choice of the lawmaker, and it has some good reasons, also. It implies, however, a shift of the balance between the legislating, executive and judging powers. Alongside other developments in Europe concerning the independence of the courts, it is important to be aware of such trends. The independence of the courts is a big issue I hope we can discuss some other time!

3.       The interaction with the correctional service

My second point relates to the dialogue with the correctional service, in order to increase the use of other sanctions than prison where appropriate.

My experience is that judges – and maybe also the prosecutors ? – in general know too little about how the correctional service perform their work in order to reduce reoffending. To know a bit more about the various sanctions will increase the courts’ trust in these options and their engagement to apply them.

Information leads to trust leads to engagement.

Here goes the challenge to both the prosecutors and the correctional service. The correctional service must strive to be even more open and transparent – telling the rest of us how they perform their work, especially when new sanctions are launched. Which options give the lowest reoffending rate?

The prosecutors must look into each individual case and assess which reaction is most suitable within the menu available. It is often a bit “too late” when the case is presented before the court. This been said, I have experienced sitting in court with prosecutors who have changed their minds during the proceedings and asked for another reaction than prison.

A challenge also goes to the judges – we need to be active in our role and ask for more information when needed.

Information leads to trust leads to engagement.

4.       The lay judge element

My third and final point relates to a procedural change we have had in Norway recently, which probably also bear some relevance to your countries.

Last year we finished a more than 100-year-tradition of juries in the most severe criminal cases. The lay judge element is however still dominant. Under the new procedure, all criminal appeal cases concerning the question of guilt, and all the most serious ones concerning sentencing, are now decided by a court consisting of two professional judges and five lay judges.

The reason why I mention this, is that our experience with the new model so far is that the lay judges have a lot of questions concerning the choice of sanctions. The point of an open and transparent correctional service is thus even more important than before.

We also experience that some lay judges want to decide in detail how the sanction should be executed. That calls for a bit of a “warning”: It is important to respect our different roles in the criminal chain. In the same way that the legislator should trust the court in finding the optimal sanction in the concrete case, the court should trust the correctional service in executing the sentence in the most optimal way.

5.       Conclusions and questions

To sum up:

·         The lawmakers have broadened the scope of sanctions applicable, but at the same time narrowed our margin of judgment.

·         We need to know more about the execution of sentences. Information leads to trust leads to engagement.

·         The lay judge element calls for even more information and trust

·         I would finally like to add that in our important and eager conversation about finding alternatives to prison, let us not forget that prison is and will be a necessary reaction in some cases. It is therefore paramount that the work done inside the prisons is performed in a way that reduces recidivism. That quality is in the front seat!

Thank you!