Toolkit on Diversion and Alternatives to Detention

Definitions

 
 

Alternatives to Detention

• Definition
• Key points
• Ground rules / legal safeguards

Definition:
‘Alternatives to detention’ refers to measures that may be imposed on children who are being formally processed through the criminal justice system, at both pre-trial and sentencing stages, that do not involve deprivation of liberty.[1] ‘Alternatives to detention’ are also referred to as ‘alternatives to deprivation of liberty’ and ‘non-custodial measures’. In this toolkit these three terms mean the same thing and are interchangeable. Alternatives can be applied from the time of apprehension until final disposition for children who have not been diverted away from judicial proceedings. The terms ‘alternatives to imprisonment’ (as opposed to ‘alternatives to detention / deprivation of liberty’) and ‘non-custodial sentencing’ (as opposed to ‘non-custodial measures’) apply specifically at the sentencing / final disposition stage.
[‘Deprivation of liberty’ means "any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority."[2] This includes any form of residential placement including police lock-ups, remand homes, borstal institutions, reform schools, education and re-education centres, training centres and schools, treatment centres and high-security institutions, whether they are facilities specifically for children or for adults (although detention with adults is contrary to international legal standards).]
 
Key points:
1. In the criminal justice system children are detained in the following circumstances:
     o On arrest – usually in police stations: this may be done legally (e.g. pending location of a parent, guardian or other responsible adult to take charge of the child)[3] or illegally (e.g. police round-ups of children living on the streets in countries where 'vagrancy' is not a crime, and detention of children beyond the legal time limit). [It is an important safeguard that, according to the legislation of most states, all arrested persons, unless diverted from judicial proceedings, must be brought before a court within a specified period of time, usually 24-48 hours].
     o Pre-trial – usually in remand centres (pre-trial detention centres): this is based on some form of judicial decision and assumes that: i) diversion has not been possible; and ii) that there is some reason why the child cannot be released into the community awaiting trial (e.g. on bail or dependent on other conditions). In reality, pre-trial detention of children is grossly over-used in many countries and children can spend months to years in detention awaiting trial. [For principles regarding pre-trial detention see e.g. CRC Article 37(b); General Comment 10, paras. 28, 80, 81, 83 & 84; Beijing Rules 10.2, 13.1, 13.2 & commentary; JDLs Rule 17; Tokyo Rules 6.1 & 6.2].
     o Post-sentence – usually in prisons, borstals, juvenile detention or (re)education centres etc.: this is a time-limited sentence imposed on offenders found guilty at trial.
     o As a result of ‘re-educational’, ‘welfare’ or ‘protection’ measures – usually in (re)education centres or other juvenile detention centres, but sometimes also in remand (pre-trial detention) centres: this applies in countries where:
               i) outdated legislation criminalises behaviour such as being ‘beyond parental control’ or being 'incorrigible'; 
               ii) children who have committed offences but who are under the age of criminal responsibility - or who are over the age of criminal responsibility but whom the courts have absolved of criminal responsibility (e.g. due to learning disabilities) - are detained in 'educational' facilities;
               iii) children in conflict with the law are 'diverted' to 'rehabilitation' or 're-education' centres (contrary to international standards which exclude deprivation of liberty as a diversion measure);[4] 
              iv) victims / survivors of crime are detained ‘for their own protection’;
              v) children in genuine need of safe shelter are detained with children in conflict with the law due to a lack of social welfare and protection services and facilities.
              Detention in these cases may be for indefinite periods, for longer periods of time than if they had been sentenced by a criminal court, and based on the decision of an administrative body without there having been a judicial decision or review.
 
2.  For the purposes of this toolkit, ‘alternatives to detention’ apply only to children in conflict with the law. They do not apply to children who may have been detained as victims/survivors, as being in need of care and protection, or who have been absolved of criminal responsibility. Detention of these groups of children needs to be addressed through broader child protection measures.

 3.  Furthermore, for the purposes of this toolkit, 'alternatives to detention' do not apply to children in conflict with the law who have been ‘diverted’ away from formal processes. (Children who have been ‘diverted’ are already being kept out of detention because, according to the ‘ground rules’, diversion options are not allowed to include deprivation of liberty).

 4.  In contrast to diversion measures, ‘alternatives to detention’ can be imposed by police, prosecutors or court without the consent of the child. Furthermore, 'alternatives' at the sentencing / disposition stage still result in a criminal record. [If a child is found guilty in a formal court process but no conviction is recorded, or if the case is recorded as 'not being proven', this is not considered to be an 'alternative to detention' as the child is usually absolved of punishment altogether in such cases].
 
5. Alternatives to detention should be available [5]
     o At the arrest and pre-trial stage: to provide an alternative means of supervising the child pending his/her trial rather than placement in police station cells and pre-trial detention centres or remand homes [this assumes that the child has not been subject to diversion measures and that s/he is therefore still subject to judicial proceedings];
     o At the sentencing / disposition stage: to provide community-based options for the supervision and rehabilitation of children rather than sending them to any form of detention centre. 
 
6. Alternatives to detention commonly include:
     o At arrest and pre-trial stage: release of the child to the care of a parent, guardian, extended family member or other 'responsible adult' (in some countries this includes designated NGOs and community organisations), with or without certain conditions such as: bail; the need to report regularly to a police station pending summons to the trial; compliance with a curfew; agreement not to contact the victim/survivor.[6]
     o At sentencing / disposition stage: measures such as a judicial caution, probation, community supervision, community service or attendance at a treatment programme. Fines are also often used as an alternative but these should not be encouraged as they discriminate against poor children and are not considered to have rehabilitative value.
 
7. Alternative sentences may be of varying duration and intensity and there must be clear guidelines in place to determine this. See Ground Rule 4 below.
 
8. Using deprivation of liberty as anything other than a last resort and for the shortest appropriate period of time is in itself a violation of CRC Article 37b. States are obliged under the CRC to develop alternatives to deprivation of liberty. Detention of children represents a particular risk in terms of rights violations including, but not limited to, torture and ill-treatment, limited contact with family and limited access to education and health facilities. Any measures which limit the use of detention (such as prevention, diversion and alternatives to detention) are therefore high priorities within the context of overall reform of justice for children in conflict with the law. Beijing Rule 17.1(c) defines 'last resort' as when the child has been adjudicated of "a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response." 'No other appropriate response' means that all other options have been assessed and found unsuitable for the present case and that placement with 24 hour supervision and control is therefore in the best interests of that child. Where deprivation of liberty is unavoidable, it should be the least restrictive in relation to the circumstances (i.e. relatively few children would require detention in maximum security facilities). 
 
9. Alternative measures must be available in law and in practice. Experience shows that if alternatives have been provided for in legislation but not in practice, a culture of perceived impunity can be created which can provoke political backlash and public ‘vigilante justice’ against children which is often violent. For example, if judges are obliged by law to release children found guilty of offences into the community for 'alternative measures' (which do not exist in practice - and the children therefore effectively receive no sanction at all), members of the public may take it upon themselves to ‘punish’ children in conflict with the law directly. Furthermore, in response to this public dissatisfaction, there may be political pressure to revoke legislation which promotes alternatives to detention or to promote legislation which increases the use of detention.[7] 
 
10. As with diversion, ‘alternatives to detention’ per se are not necessarily child rights-based or restorative justice options. Alternatives to detention must be child rights-based and may be grounded, where appropriate, in principles of restorative justice.[8] Alternatives to detention must therefore take into account the following ground rules / legal safeguards. 
 
Ground rules / legal safeguards:
1. With alternatives to pre-trial detention, the measure chosen must achieve the desired effect with the minimum interference with the liberty of the suspect or accused person, whose innocence must be presumed at this stage.[9]

2. Even if alternatives to detention have already been applied to children at the arrest and/or pre-trial stages, the child is still eligible for diversion away from judicial proceedings right up to immediately before the final disposition hearing. In general, where possible and appropriate, diversion is preferred over alternatives as it spares the child the potential negative effects of formal court processes and the stigma of having a criminal record. If diversion is not possible or appropriate then alternatives to detention are the next priority.

3. Corporal punishment, public humiliation and any other measures contrary to the CRC cannot form part of alternatives to detention.

4. The content, conditions and the period of time that a child is required to attend alternative programmes should take into account his / her age, maturity, religious and cultural background, with a view to preventing further offending, as well as the nature of the offence and any other needs and circumstances: "The selection of a non-custodial measure shall be based on an assessment of established criteria in respect of both the nature and gravity of the offence and the personality, background of the offender, the purposes of sentencing and the rights of victims."[10]

5. While the sentences imposed on children should aim to promote recovery and reintegration, the proportionality principle also requires that the measures used should not be more intrusive than the offence warrants, and should not result in punishment more serious than would have been imposed on an adult. In other words, reintegration cannot be used as a justification for imposing measures on the child that are not warranted by the nature of the crime. For example, even though the objective is ostensibly to educate a child, he or she cannot be sentenced to supervision in the community for a period of time in excess of what the offence warrants, or what an adult would have received for a similar offence.[11] 
 
Footnotes:
1. It should be noted that in some countries such as South Africa, 'house arrest' can be used as an alternative to pre-trial detention in institutional facilities. However, this would still be defined as 'deprivation of liberty' and therefore not an 'alternative to detention' as understood in the context of this toolkit.
2. UN Rules on the Treatment of Juveniles Deprived of their Liberty (JDLs) Art. 11.
3. It is noted that in some cases police can be reluctant to release children to the care of extended family members if parents or guardians cannot be located, or to NGOs which have been designated as ‘fit’ for such purpose. This can lead to unnecessary periods spent in detention. Also, in some cases, if the child’s parents or guardians cannot be located at the time of arrest, the child is kept in detention until their next court appearance, even if the parents / guardians are located subsequently.
4. As highlighted in the ground rules for diversion, deprivation of liberty in any form - i.e. where the child is not free to leave - (including in 'rehabilitation centres' or 'special schools') cannot form part of a diversion programme. Some diversion programmes incorporate a residential component (e.g. treatment for substance abuse or 'wilderness' programmes). In such cases, the child has given their informed consent to participate in this aspect of the programme and is free to leave. In such cases, leaving the programme would constitute a failure to complete the terms of the diversion measure and may result in reverting to judicial proceedings, but this is the choice of the child. These 'residential' components of diversion programmes should not be confused with the placement of children in facilities where they are not free to leave (which is prohibited as a diversion measure).
5. Adapted from UNICEF EAPRO, DRAFT Legal System Building Tool – Justice for Children (internal document, not for circulation), p29.
6. Monetary bail is often imposed as a condition for releasing a child into the community pending trial, even when there is no reason to suspect that the child is a flight risk. This results in the unnecessary detention of children in street situations and children whose families are unable to put up money for bail.
7. For example, in Nicaragua in 2002: judges complained about the lack of alternatives available in practice and the fact that they often had to release children with no sanctions; incidents of violence against children were witnessed by local NGOs (e.g. the slashing of a child's foot with a machete by a market stall owner in response to theft); and a research report warned of the political backlash caused by the failure to implement provisions of the 1998 Children and Adolescents Code in practice (including alternatives to detention): "Popular perceptions of impunity for youths committing crimes have given rise to sporadic parliamentary proposals, such as that made in 2002, arguing for the suspension of the Code, and a widening in the scope of crimes for which children may be detained." [Street Children and Juvenile Justice in Nicaragua, Casa Alianza and Consortium for Street Children, Spring 2004, p.22].
8. Alternatives can have both restorative and welfare elements. It is important that the intervention is tailored to the individual needs and circumstances of the child. A restorative approach is not always possible or appropriate in every case. [See the toolkit section on restorative justice for more details].
9. UNODC, Handbook of Basic Principles and Promising Practices on Alternatives to Imprisonment, 2007, pp.19-20.
10. Tokyo Rule 3.2.  For example, a sanction such as a suspended sentence of doing community service at a police station washing cars does little to assist the child to manage the risks in his/her environment better.
11. UNICEF EAPRO, DRAFT Legal System Building Tool – Justice for Children (internal document, not for circulation), p.40.

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