Ending imprisonment for debt is only the first step in reshaping our penal policy

The Law Reform Commission’s Consultation Paper on Personal Debt Management and Debt Enforcement, published recently, provisionally recommended that imprisonment should not be an option for debt recovery. The Commission’s position, based on a thorough assessment of current Irish and international practice, is a sensible and welcome one.

While there are many sound reasons against using imprisonment for debt, our Government recently reaffirmed it as a possible sanction for debtors, albeit one which is now more difficult to impose.

The Enforcement of Court Orders (Amendment) Act 2009 was rushed into law following a High Court case which struck down the constitutionality of the original legislation allowing debtors to be jailed. That case did not say that imprisonment for debt was impermissible in all circumstances. Rather the High Court stated that there needed to be procedural protections in place before a person could be jailed for debt.

Instead of taking the opportunity presented by the judgment to eliminate imprisonment for debt in all cases, the Oireachtas decided to put in place these procedural protections, but retain the ultimate sanction of imprisonment for those who wilfully refuse to pay and there are no goods in the debtors possession which could be taken in fulfilment of the debt.

This change should result in many fewer debtors being sent to prison. Last year 255 people went to prison for non-payment of a debt.

While any reduction in the numbers sent to prison for failure to pay a debt is welcome, it is disappointing that the principle that imprisonment should not be used for failure to fulfil a contractual obligation was not enshrined in legislation. It is all the more disappointing when such a principle is recognised in international human rights documents including the European Convention on Human Rights.

The fact that imprisonment was retained as an option in debt cases is problematic, but it also exemplifies a much broader problem about how we use imprisonment in this country. We need to re-think how and why the ultimate sanction of imprisonment should be imposed. At present, we use imprisonment inappropriately and ineffectively in many cases. Most particularly, we need to look outside the prison for ideas about how to respond to social problems.

The need to engage in such a reassessment is ever more pressing. The Irish prison system is severely overcrowded. The Inspector of Prisons, Judge Michael Reilly, in his most recent report highlighted his concern that overcrowding has reached dangerous levels in Mountjoy and Cork prisons. The Council of Europe’s Committee for the Prevention of Torture has also expressed its disquiet about these matters.

Overcrowding has negative impacts on prisoners, staff and regimes. Overcrowding puts the safety of prisoners at risk. It interferes with the ability to plan for a person’s release into the community, it affects programmes designed to assist offenders to change their behaviour. It also affects the administration of sentences handed down by the courts. Unplanned and unsupervised temporary release militates against both proper sentence planning and undermines the expectation that people should serve the sentence deemed appropriate for their crime, subject to normal remission. This undermines public confidence in sentencing, but also in the ability of the prison system to prevent re-offending on release.

At a time when our prisons are holding many more people than they were ever intended to, we must ask whether we are making the best and most efficient use of our prison system. Apart from debtors, our prisons received 2,520 committals for non-payment of a fine last year. A Bill to eliminate this practice is currently before the Oireachtas and should be enacted without delay.

As well as debtors and fine-defaulters, we send large numbers of people to prison for less than six months: 62% of committals in 2008. 87.5% of committals were for non-violent offences. Road traffic offences accounted for 28% of all committals. 3 month sentences, which can do nothing for either public safety or rehabilitation of offenders, actually increased by 54% last year.

Taken together, the imprisonment of debtors, fine defaulters and the proliferation of short sentences indicate that Irish prison policy has a distinctly ineffective, wasteful and unimaginative nature. Plans to build more prison spaces will only lead to more people who should not be in prison ending up there, draining resources and reducing capacity to deal with those who should. We need to stop viewing prison as a solution to our difficulties and towards seeing its use as an indication that our social and economic policies are failing. Recent research by Professor Ian O’Donnell and others in University College Dublin has shown that the vast majority of prisoners return to communities marked by severe socio-economic disadvantage.

Our prison population is characterised by high levels of drug addiction, mental illness, homelessness and educational underperformance.

The Law Reform Commission’s recommendation, if implemented, is a practical means of reducing our prison population through ending the practice of imprisonment for debt. However, more consequential would be the recognition inherent in such action of the principle that prison is an ineffective and inappropriate way to deal with many social problems.

It is easy to build more prisons and send more people to jail; recasting social and economic policy and dealing with the underlying reasons behind much offending require much more political courage and imagination. But with overcrowded prisons and limited resources, an alternative approach is urgently required.

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Ending imprisonment for debt is only the first step in reshaping our penal policy

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